Nouvelle carte d’identité : Le Dr Madhewoo intente un procès à l’État pour réclamer l’arrêt des procédures …voici sa plainte



IN THE SUPREME COURT OF MAURITIUS
In the matter of:
Maharajah Madhewoo, of Technical Lane Allee Brillant
PLAINTIFF
versus
1. The State of Mauritius, known as the Republic of Mauritius, service to be effected on the Hon. Attorney General, of R Seeneeevassen Building, Pope Hennessy Street, Port Louis

2. The Minister of Information and Communication Technology service to be effected on the Permanent Secretary, Level 9 – Air Mauritius Building, John Kennedy Street, Port Louis

DEFENDANTS

PLAINT WITH SUMMONS
1. Plaintiff is a citizen of the Republic of Mauritius.

2. Plaintiff avers that he has been apprised that The National Identity Card (Miscellaneous Provisions) Bill (No.XVII of 2013) was read the third time and passed on 9th July 2013.

3. Plaintiff avers that the implementation of the new biometric identity card project has been widely publicized, was due to start as from 1st October 2013 and that all adult citizens of the Republic of Mauritius (with few exceptions) will imminently be under legal obligation to apply for a new Identity Card to replace the former one.

4. Plaintiff avers that in order to obtain the new Identity Card, one should first register at any one of the ten Identity Card Conversion Centre across Mauritius and then, one should return in two weeks to collect the new card.

5. Plaintiff avers that the proposed new ID card will contain the following features:

Printed Data on Front of Card
No. Element Name Description
1 Photo Grayscale
2 ID Number Fixed 14 characters
3 Surname 2 lines
4 First Name 2 lines
5 Surname at Birth 2 lines
6 Gender “M”, “F”
7 Date of Birth DD MMM YYYY
8 Signature Signature will be printed on the card

Printed Data on Back of Card
No. Element Name
1 Barcode
2 Card Control Number
3 ID Number
4 Date of Issue
5 Name (optional)
In case there is not enough space to print the name in two lines in the front side of the card, the respective name will be printed on the back side of the card

Encoded Data in the Chip
Civil Data : ID number, surname, first name, surname at birth, gender, date of birth
Photo
Encoded finger – 4 minutiae templates will be stored (2 Thumb and 2 Index Fingerprints by default)
Residential address
Digital Certificate
A special “SC” logo on the card will offer Senior Citizens easy access to relevant benefits such as the bus pass.
If you are unable to sign your name, “No Signature” will be stated on the card.

6. Plaintiff avers that in order to get the new Identity Card he will be compelled to provide biometric information, in particular his finger-prints to agents and/ or employees of the Defendants.

7. Plaintiff avers the unilateral decision of the Defendants of imposing a legal obligation upon him to submit his finger-prints and this, without the consent of Plaintiff and further the collection, processing and / or retention of Plaintiff’s personal biometric information including his finger-prints constitute a serious interference by Defendants and/or their agents and/or their employees with Plaintiff’s basic fundamental constitutional rights amongst the right to liberty and the right to protection of private life. Plaintiff further avers that the infringement of his rights will inevitably result into serious tremendous prejudice caused to him.

8. Plaintiff is advised that the new law on the biometric identity card, which is contained in numerous ambiguous enactments infringes the rule of law as it lacks clarity and precision. Furthermore the relevant regulation is made with retrospective effect. Plaintiff considers that numerous provisions of the National Identity Card 2013 are contrary to democratic norms and principles. And that such provisions cannot by any extent, be considered as ‘reasonably justifiable in a democratic society’.

9. Plaintiff also avers that the legal obligation imposed on him to provide to Defendants, their employees and/or their agents, his personal biometric data including finger prints also constitutes an inhuman and degrading treatment, the moreso when Plaintiff is not suspected of any criminal charge nor is he the subject of any criminal investigation as to-date under the law.

10. Plaintiff avers that it has been announced that persons above 60 years of age will have to show their new ID card whilst travelling by bus. Plaintiff avers that he will turn 60 next year and that same will affect his right to freedom of movement in that on each occasion that he will travel by bus, he will be compelled to show such card to the bus conductor and this without any guarantee that his personal data will not be read/ accessed/ downloaded or misused.

11. Plaintiff further avers that he will be compelled to apply for a new biometric identity card forthwith if he ever loses his present Identity Card and will be compelled to pay a sum of Rs 350 for the first time he loses it and for subsequent losses, Rs 700 and Rs 1000 respectively.

12. Plaintiff avers that as to-date, neither any procedural safeguard nor any guarantee has been given to him by the Defendants and/ or their agents and/or their employees against hacking, identity theft or any other potential misuse or abuse of his personal data such as finger prints which will be stored on the proposed Biometric Identity Card. In this present era of cyber hacking, email hacking, bank account hacking, Plaintiff avers that he will be, more than ever, vulnerable and exposed to all types of risks and dangers, especially when no such information system and no database is foolproof.

13. Plaintiff avers that in the Identity Card Act 2013 passed by the Defendants, in particular by the legislative organ of Defendant No.1, namely the National Assembly, there is no provision, no clear nor detailed rules concerning the scope, the application of measures, as well as the minimum safeguards concerning the duration, the storage, the usage, the access of third parties, the procedures for preserving the integrity and the confidentiality of data and the procedures for destruction of data, thus creating a potential overwhelming risk of abuse, misuse and arbitrariness of Plaintiff’s personal data.

14. Plaintiff has serious apprehension that on each occasion, on request by any person, he will be legally compelled to show his biometric identity card, either forthwith or within a reasonable time, and that as to-date, he does not know who is authorised to ask for such production and when, and whether on production of same, whether all his personal and sensitive data will each time become readily available/ accessible for download and whether same would be shared or exchanged with third parties without his consent, and up to now neither any agent, nor any employee of the Defendants has ever asked him whether he would consent to such a state of affairs.

15. Plaintiff is advised that the mere storing of sensitive personal data of an individual, even in the context of criminal investigation and prosecution, for example, the continued retention of fingerprints and cellular samples of a suspect after the determination of his criminal case, is not reasonably justifiable in a democratic society and amounts to an unlawful and unconstitutional interference with the citizen’s right to protection of his private life and that same is in flagrant breach of Article 22 of the Civil Code and Sections 3 and 9 of the Constitution which is the equivalent of Article 8 of the European Convention on Human Rights.

16. Plaintiff is advised that whilst delivering judgment on 4th December 2008, the European Court of Human Rights unanimously overturned the reasoning of the House of Lords of UK and held that the blanket and indiscriminate nature of the power of retention of personal biometric data including fingerprints by the authorities for individuals even after their criminal cases have been disposed, constituted an interference with the individuals rights to private and family life and a flagrant violation of Article 8 of the European Convention on Human Rights.

17. Plaintiff avers that in view of the possible future use of private information retained by Defendants, their employees and/or their agents, which may be equally accessed by third parties upon production of such a card, and bearing in mind the rapid technological development in the field of genetics and information technology, there is further potential risk that in the future the private-life interests bound up with biometric information may be adversely affected in novel ways or in a manner which cannot be anticipated with today’s precision and thus same will drastically alter the course of Plaintiff’s existence in this present technological era.

18. Plaintiff avers that the indefinite and blanket indiscriminate power of retention of Plaintiff’s personal biometric information by the agents and/ or the employees of the Defendants cannot in any way be justifiable in a democratic society and further the legislation passed by the Defendants, namely the National Identity Card Act 2013 and the National Identity Card Regulations 2013 fail to strike a fair balance between the competing public and private interests.

19. Plaintiff avers there is risk of stigmatisation, stemming from the fact that persons in his position, who have not been convicted of any offence will be treated in the same way as convicted persons, by the employees and/or the agents of Defendant No 1 including police or prosecution authorities notwithstanding that under the Constitution, Plaintiff is presumed to be innocent until proven guilty. Plaintiff further avers that such perception is heightened by the fact that the personal data of individuals with no criminal record are retained indefinitely in the same way as the personal data of convicted persons.

20. Plaintiff avers that Defendant No 1 has failed to pay heed to the democratic principle that Governments are instituted among individuals deriving their just powers from the consent of the governed, and that such scheme as the implementation of the new biometric identity card and the retention of personal biometric data constitutes a disproportionate interference with Plaintiff’s fundamental right to private life and to protection from inhuman and degrading treatment.

21. Plaintiff avers that the enormous expenditure for the implementation of the new biometric identity card project constitutes a heavy taxing burden on his shoulder as a citizen and tax-payer of the Republic of Mauritius and also a heavy burden on the small economy of Defendant No.1. It is further not reasonably justifiable that in a democratic society the moreso that the implementation of such scheme was never part of the political manifesto of the Government nor has the Government consulted the people of Mauritius by way of referendum before mortgaging the present and the future of the people of Mauritius, including that of Plaintiff and is in violation with the concept of ‘good government’ contained in Section 45 of the Constitution and therefore a misuse of Defendants legislative powers.

22. Plaintiff further avers that the new biometric identity card scheme is strictly against the national public interest of the people of Mauritius, as individually and collectively the people of Mauritius including him, will remain heavily burdened and indebted. Besides, citizen of the Republic of Mauritius including Plaintiff, will likely be subject to constant inhuman and degrading scrutiny by agents and/ or employees of the Defendants as the information gathered about the public by agents and/ or employees of Defendants, will multiply exponentially to become the intrusive surveillance of Big Brother.

23. Plaintiff avers that he is apprised that in the United Kingdom notwithstanding that a similar £4.5 Bn Identity Card Scheme had been adopted by Parliament and that 15,000 such identity cards had already been issued, the Home Secretary Theresa May had on 27th May 2010 spelled out the dismantling of the national identity card scheme, to be scrapped within 100 days and also announced bill abolishing ID cards and national register to be introduced to Parliament.

24. Plaintiff avers that he is apprised that recently the Supreme Court of India took similar view that Aadhaar cards are not mandatory even though various state governments had insisted on making it compulsory for a range of formalities, including marriage registration, disbursal of salaries and provident fund among other public services. The Court, while trashing the Centre’s claim of Rs 50,000 crore expenses on the UIDAI project, said that Aadhaar card is not necessary for important services. The application was filed by a retired judge of the Karnataka High Court alleging that such a scheme was is in breach of Fundamental Rights under Articles 14 (right to equality) and 21 (right to life and liberty) of the Indian Constitution. The Government of India alleged that the scheme was voluntary but it was held that same was not true.

25. Plaintiff avers that in other countries amongst in France and in Israel, it was held that the obligation to provide biometric data including finger prints constituted an infringement of the individual’s constitutional rights to liberty, privacy and to protection from inhuman and degrading treatment.

26. Plaintiff further avers that the National Identity Card Act 2013 is a colourable device designed to infringe Plaintiff’s basic fundamental constitutional rights and that Defendants are arbitrarily using their powers to impose a legal obligation upon Plaintiff so as to obtain his personal biometric details by using criminal law to sanction any such failure by Plaintiff to provide his personal biometric data thereby putting Plaintiff’s freedom at risk. Defendants have further failed and neglected to take into account that the potential overwhelming risk of sharing Plaintiff’s information with third parties, will inevitably further breach Plaintiff’s privacy rights.

27. Plaintiff therefore prays from the Honourable Court for a judgment declaring that (i) the implementation of the new biometric identity card as per the National identity Card Act 2013 by the agents and/ or the employees of the Defendants, is in breach of Sections 1, 2, 3, 4, 5, 7, 9, 15, 16, 45 of the spirit of Constitution coupled with Article 22 of the Civil Code and therefore null and void (2) the blanket power of collection and the indefinite storage of personal biometric data including the finger prints on the biometric identity card of citizens including Plaintiff by the agents and/ or the employees of the Defendants are in breach of Sections 1, 2, 3, 4, 5, 7, 9, 15, 16, 45 of the spirit of Constitution coupled with Article 22 of the Civil Code and therefore unconstitutional and null and void.

NOW TAKE NOTICE THAT YOU, the above-named Defendants, are hereby summoned to be and appear on the floor of the Supreme Court of Mauritius on ……… day of ……………, 2013 at 9.30 am of the clock in the forenoon to answer the Plaintiff in the above matter.

WARNING YOU THAT failure by you to appear or to be represented on the aforesaid day, hour and place, may result in the above Court delivering judgment against you in favour of the Plaintiffs in terms of the present plaint.

Issued by the Plaintiff above-named and style with election of domicile in the office of the undersigned Attorney-at-law.

Under all legal reservations
Dated at Port Louis, this 11th day of October, 2013

Kaviraj BOKHOREE
Of 6th Floor – Sterling House, Lislet Geoffroy Street, Port Louis
Plaintiff’s Attorney
Instructing Sanjeev Teeluckdharry and Erickson Mooneapillay of Counsel

To:
1. THE STATE OF MAURITIUS, service to be effected on the Honourable Attorney General, of R Seeneevassen Building, Pope Hennessy Street, Port Louis

2. The Minister of Information and Communication Technology, service to be effected on the Permanent Secretary, on Level 9, Air Mauritius Building, John Kennedy Street, Port Louis.

Posted by on Oct 12 2013. Filed under En Direct, Uncategorized. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

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