“What guarantee do we have that all the data provided for the purpose of obtaining official documents are in safe hands?”

Qs & As – Biometric Identity Card & Safe City Cameras

* ‘Let us be blunt and pretend that we do not know what happened to the Sate City recordings that were placed in areas relevant to the investigation in the alleged murder of Mr Kristen’

By LEX

Lex clarifies below the divergent appreciation of the Supreme Court and the UNCHR legal committee on the appeal lodged by Maharajah Madhewoo regarding the protection of individual rights as against the reasonably justified larger need of protecting society. Guarantees must be provided by the State of Mauritius concerning potential abuse of data collected about individuals, ruled the UNHCR, and has given six months to authorities to inform of actions to meet that end.

* The UN Human Rights Committee’s views on the case entered by Maharajah Madhewoo, who challenged the constitutionality of the implementation of the new biometric identity card as per the 2013 Act, claiming, inter alia, a breach of article 9 of the Mauritius Constitution on the protection of privacy, go contrary to what the Supreme Court had concluded in its judgement of 29 May 2015. What’s the basis on which the UNHRC reached its conclusion?

The constitution of Mauritius does not protect the right to privacy. This right is provided for in article 22 of the Civil Code. Section 9(1) of the constitution provides that “except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.”

What the National Identity Act 1985 Act allowed was the taking of fingerprints and the Supreme Court found this to be a breach of section (9) (1) of the constitution.

However, the Supreme Court went further and ruled that the rights protected by section (9) (1) of the constitution can be derogated from, in the interest of public order; for the purpose of protecting the rights and freedoms of other persons. The derogations must be reasonably justifiable in a democratic society as envisaged by section 9(2) of the constitution.

* Could it be said that the Supreme Court erred in law, or are the UNHRC’s views based on what obtains in other jurisdictions, mostly Western, and completely cut off from the country-specific Mauritian context?

No. The Supreme Court did not err in law. It just considered the taking of fingerprints a reasonable derogation from the rights enjoyed by an individual.

* How did the UNHCR reach the conclusion it did?

Unlike our section 9 of the constitution, article 17 of the International Covenant on Civil and Political Rights protects the right to privacy. The UNHCR had therefore much more leeway and latitude to discuss the notion of privacy and come to the conclusions that more guarantees must be provided by the state for the protection of data.

 * It is not only for the purposes of biometric cards that data are collected, but also for other purposes. How would these data be protected?

Under the Data Protection Act, personal data must be protected and can only be released under strict conditions as provided for in the Act and subject to the privacy rights of people. The main purpose of the Data Protection Act is to protect the privacy of the citizens. What guarantees do we have that our data are not being bandied about for political reasons?

* Mr Madhewoo argued that ‘certain provisions enable the Minister to expand the requirements of the Act without further provision’… and that ‘the State party (the Govt of Mauritius) has been planning to enlarge the ambit of the scheme without further legislative scrutiny despite the importance of considering risks to privacy’. How can the Executive be given a blanket authorisation to expand the provisions of the law without going to Parliament?

Well, we have seen how during the current period of the pandemic, laws affecting individuals are being enacted through ministerial orders and regulations without going to parliament. So it should be no surprise that the current executive feels it can arrogate to itself powers to amend any law or to bring in new laws under the guise of regulations. The current executive can do so until and unless a courageous court of law puts a halt to this practice.

 * We also learn from the opinion expressed by the UNHRC that “the State party (Govt of Mauritius) has not responded to the author’s claim that retention of fingerprint data on identity cards exacerbates the security lacunae identified by the Supreme Court”. That would mean that the system can still be breached despite the Supreme Court’s judgement in 2015?

The government will have to tread carefully and not go against the ruling of the UNHCR. The UNHCR ruled that the government had not provided sufficient guarantees on measures that are or would be in place to protect the data asked for the biometric card and how any risk of abuse on the use of the data can be avoided.

* On the other hand, if data protection policy places an emphasis on the rights of the individual to his right to privacy for example, there is however the larger public interest that has to be taken into account, isn’t it?

In any democratic society, it is always a difficult and delicate exercise to balance the rights of an individual against the rights of society at large. This is why all the sections in the constitution and all articles in human rights conventions include derogations from the rights in the public interest provided the derogations are reasonably justifiable in a democratic society.

Apart from the right to life and the right not to be tortured or subjected to inhuman or degrading treatment, rights are not absolute. What is reasonably justifiable in democratic society depends on a number of factors. The main question that is often asked is whether the derogations satisfy the test of proportionality in the sense of whether they are proportionate to the evil that needs to be dealt with in the larger public interest.

* Calls for digital Covid passports, biometric ID cards, data-sharing track-and-trace systems and automated facial recognition are facilitating the policing not only of people crossing borders but also, increasingly, of the populations living within them. The layman might ask: ‘What’s wrong with that if it allows the authorities to better take care of the health and safety of the citizens of the country?’ What’s your take on that?

Precisely. All the measures in regard to driving licences, identity cards. passports, for example, require data to be provided. So long as no abuse is made of such data, there should nothing objectionable to providing and collecting them. But what guarantee do we have that all the data provided for the purpose of obtaining official documents are in safe hands?

* The public interest has unfortunately not been served by our own multi-billion Safe City project, however, what with the disappearance of vital video recordings of the movements of the murdered political activist Soopramanien Kistnen…

Let us be blunt and pretend that we do not know what happened to the Sate City recordings that were placed in areas relevant to the investigation in the alleged murder of Mr Kristen.

The police started on the premise that it was a suicide until it ultimately proved that the late activist was murdered. Do you sincerely think that the cameras would have recorded the presence of the killer or killers?

* The UNHRC has concluded its views by stating that ‘the State Party is obligated to provide sufficient guarantees against the risk of arbitrariness and abuse of the author’s fingerprint data as may arise from the issuance of an identity card to him, and to review the grounds for storing and retaining fingerprint data on identity cards…’ It also wants to be informed, within 180 days, ‘about the measures taken to give effect to the Committee’s Views’. Is the Government bound to comply?

A government that has signed an international convention should be bound by it. What the UNHCR has asked is that the State of Mauritius provides sufficient information on the measures that would be taken to protect the data collected for the purposes of the biometric card and whether there would be any risk of abuse being made on the exploitation of these data.


* Published in print edition on 10 August 2021

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