Bataille légale autour de la nouvelle carte identité…voir l’integralité du jugement…



La Plateforme No to New ID Card ne baisse pas les bras…bien au contraire elle intensifiera son combat ! Le recours au Privy Council n’est pas à écart après que la cour suprême ait rejeté leur demande d’injonction. Le porte parole de la plateforme, le Dr Rajah Mahadeo, accompagné de ses hommes de loi, Mes Sanjeev Teeluckdharry et Erickson Mooneeapillay, animera un point de presse à midi 30 aujourd’hui pour annoncer la marche à suivre…

Voici la décision du juge David Chan Kan Chong prononcé hier (14.10.13)

MADHEWOO M v THE STATE OF MAURITIUS

SCJ 401In Chambers
SN 1550/2013
IN THE SUPREME COURT OF MAURITIUS

In the matter of: Maharajah MadhewooApplicant

v.The State of MauritiusRespondent

In the presence of: The Permanent Secretary of the Ministry of InformationandCommunication TechnologyCo-Respondent

JUDGMENT
This is an application for an injunction restraining and prohibiting the respondent by itself and through its servants, préposés, agents or otherwise to cause the issue and/or implementation of a new biometric identity card as from 1 October 2013pending the determination of the main action for constitutional redress which the applicant has very recently lodged before the Supreme Court. It is common ground that the respondent has, through Acts of Parliament and regulations, introduced and started implementing since 1 October 2013a scheme for a new identity card for citizens of Mauritius (“the new ID Scheme”), which obligates any person who applies for the new identity card to provide biometric information about himself, including his fingerprints. At the outset, it is worth reminding that in applications of the present type, the Judge in Chambers is called upon to decide whether provisional measures are warranted in order to safeguard the rights of a party pending the determination of a main case and not to make a final determination of the rights of the parties.

It is certainly not within the jurisdiction of the Judge in Chambers to decide the constitutionality of Acts of Parliament and subsidiary legislation. Rule 4(a) of the Supreme Court (Judge in Chambers) Rules 2002 provides that an applicant must disclose all relevant facts in his initial affidavit evidence in support of his application. In the present application, ex facie the applicant’s initial affidavit dated 30September 2013, his case is based on the following grounds:(i) the obligation to provide biometric information in order to obtain a new identity card is an infringement of his constitutional right to privacy; and(ii) the said obligation will affect his fundamental right to freedom of movement. With regard to ground (i), the applicant avers that his private confidential data will be shared with third parties and that he will stand helpless if ever there is any misuse or distortion of his data by officers and institutions of the respondent.

Learned Counsel for the applicant has submitted that the right to privacy is guaranteed by sections 3 and 9 of the Constitution and article 22 of the Code Civil Mauricien. His contention is that sections 3 and 9 should be read purposively together and are the equivalent of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the European Convention”). Learned Counsel relies on the decision of the European Court of Human Rights in the case of Marper v The United Kingdom delivered on December 2008 to the effect that the continued retention of fingerprints and DNA samples of individuals after criminal proceedings against them have been dismissed or discontinued constitutes a violation of article 8 of the European Convention.

With regard to ground (ii), the applicant avers that he will turn 60 next year and this will affect his freedom of movement as “people of 60 years of age will have to show their
new ID card whilst travelling”. Learned Counsel did not offer any submissions with regard to this ground. As far as the respondent is concerned, with regard to ground (i), it denies that there is any infringement of any constitutional right to privacy and avers that there are adequate safeguards in the law, namely under the Data Protection Act, for the collection and processing of biometric information which will not be shared with any third party or authority unless a Court so orders or the disclosure is required under any enactment. The respondent further avers that it is acting within the parameters of an adequate legal framework which has been put in place for the implementation of the new ID Scheme. There are physical security measures as well as technical security mechanisms to safeguard and secure the biometric data provided by a person who applies for a new identity card.

Furthermore, learned Counsel for the respondent has submitted as follows: section 9 of the Constitution does not provide for a general right to privacy but a right restricted to the “protection for privacy of home and other property” as suggested by its heading and the wording of subsection (1). Had the framers of our Constitution intended to provide us with a constitutionally entrenched general right to privacy, they would have expressly done so as has been done in other Westminster model Commonwealth jurisdictions. Moreover the fact that the framers of our Constitutiondeparted from thewording of article 8 of the European Convention is suggestive of the fact that section 9was never meant to confer a general right to privacy. With regard to ground (ii), the respondent avers that the freedom of movement of senior citizens will in no way be impeded since there will be a need to carry the new identity card not for travelling but only for travelling on a bus for free, and there is no fundamental right to travel on a bus for free.

I have duly considered the whole evidence on record and the submissions of learned Counsel. I may dispose of a first issue. It is clear that the granting of an interimin junction is not warranted in the present case. As held in Gujadhur vGujadhur Ltd[1970 MR 25], an interim injunction may be issued where there is extreme urgency and there is a need to avert an imminent disaster. This is not the case here at this stage.

Section 10A of the National Identity Card Act provides that the applicant has until 15 September 2014, i.e. almost a year, to apply for his new identity card and provide his fingerprints. Contrary to his contention, his constitutional rights are, therefore, not at imminent risk of being infringed. I shall now turn to consider whether I should issue an interlocutory injunction in favour of the applicant against the respondent pending the determination of the main case. In Malleck Ltd v Mauritius Commercial Bank [1992 SCJ 108], the appellate Court laid down the basic principles relating to the granting of an interlocutory injunction, particularly as enunciated in American Cynamid Co. v. Ethicon Ltd.[1975 A.C. 396], as follows:(1) the applicant who seeks an interlocutory injunction must establish that he has a good arguable claim to the right he seeks to protect;(2) the Court must not attempt to decide the claim on the affidavits; it is enough if the applicant shows that there is a serious question to be tried;(3) if the applicant satisfies those tests, the grant or refusal of an injunction is a matter for the exercise of the Court’s discretion on a balance of convenience;(4) there are a number of factors that may be taken into account at that stage of the decision: these are, amongst others, the public interest where the acts of a public body are in question, whether damages would be a sufficient or appropriate remedy, whether the wrong alleged will cause irreparable prejudice or whether more harm will be done by granting or refusing an injunction;

and(5) if the extent of the uncompensable disadvantage to each party would not differ widely, it may not be improper to take into account in tipping the balance the relative strength of each party’s case as revealed by the affidavit evidence adduced on the hearing of the application. However, the above principles may be applied with variations in a number of special categories of cases. In Soornack v Le Mauricien Ltd [2013 SCJ58], it was held that “it is well established that in applications for injunctions in cases of libel (defamation in written form) the threshold test is n ot merely to show ‘a serious question to be tried’ but in fact to show that there is an actual probability of success in the main case”.

What is the threshold test to be applied in the present case? Learned Counsel for the respondent has argued that the threshold test is the one laid down in Societe des Chasseurs De L’ile Maurice v The Commissioner of Police [2008 SCJ 100] and it is not merely “a serious question to be tried” test. In that case, the applicant was contesting the constitutionality of parts of the Firearms Act 2006 and had applied for injunctive relief before the Judge in Chambers. The learned Judge held as follows:

“Therefore, short of obvious, flagrant violation of a constitutionally protected right, I am of the view that the present forum is not the right one. These are matters to be considered before the competent Court where all issues can be fully canvassed and the parties’ respective contentions tested contradictorily, rather than on affidavit evidence. I am unable to say that the matters disclosed in the affidavits before me show such urgency on account of any clear or blatant violation of any constitutionally entrenched rights as to warrant the intervention of the Judge in Chambers by way of an interlocutory injunction prohibiting the operation of the law pending the determination of the main case entered
by the applicants.”

I agree that the threshold test in the present case is that the applicant must show urgency on account of a clear or blatant violation of a constitutionally entrenched right of his. This is a more stringent test than to merely show that there is a serious question to be tried and is justified by the fact that the applicant is in effect asking the Court to prevent the Executive from implementing laws which have been regularly enacted by Parliament and are presumed to be constitutional.

As a matter of fact, the laws passed in order to provide a legal framework for the introduction and implementation of the new ID Scheme are section 15 of the Finance(Miscellaneous Provisions) (No. 2) Act 2009 (Act No. 20 of 2009), the National Identity Card (Miscellaneous Provisions) Act 2013 (Act No. 18 of 2013), the National Identity Card Regulations 2013 (Government Notice No. 216 of 2013) and the National Identity Card(Particulars in Register) Regulations 2013 (Government Notice No. 237of 2013).The applicant is contending that these laws are in breach of his constitutional rights of privacy and of movement. It is appropriate to set out the relevant extracts of the provisions of the law on which the applicant is grounding his case.

6Sections 3(c) and 9(1) of our Constitution read as follows: “3 Fundamental rights and freedoms of the individual It is hereby recognised and declared that in Mauritius there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms

(a) ….….….(b) ….….….(c) the right of the individual to protection for the privacy of his home and other property and from deprivation of property without compensation, …..”“9 Protection for privacy of home and other property:

(1) 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.”

Article 8 of the European Convention, on the other hand, reads as follows:
“Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.”

Article 22 of the Code Civil Mauricien reads as follows:
“22. Chacun a droit au respect de sa vie privée. Les juridictions compétentes peuvent, sans préjudice de la réparation du dommage subi, prescrire toutes mesures, telles que séquestre, saisie et autres, propres à empêcher ou faire cesser une atteinte à l’intimité de la vie privée. Ces mesures peuvent, s’il y a urgence, être ordonnées par le Juge en Chambre.”

Section 15(1) of our Constitution reads as follows:

“15. Protection of freedom of movement

7(1) No person shall be deprived of his freedom of movement, and for the purposes of this section, that freedom means the right to move freely throughout Mauritius, the right to reside in any part of Mauritius, the right to enter Mauritius, the right to leave Mauritius and immunity from expulsion from Mauritius.” It is the respondent’s contention that our Constitution does not provide for a general right to privacy but a right restricted to the “Protection for privacy of home and other property” as suggested by the heading and the wording of section9 (above) and by the fact that the framers of our Constitution have not expressly provided us with a constitutionally entrenched general right to privacy as they could have done.

On the other hand, it is the applicant’s contention that sections 3 and 9 should be read purposively together and are the equivalent of article 8 of the European Convention. There is no doubt that the wording of article 8 is not the same as that of sections 3 and 9of our Constitution (above), hence the submission of learned Counsel for the respondent that the decision in Marper v The United Kingdom (above) is not relevant in our context as it is predicated on article 8. In this context, it is to be noted that in Matadeen v Pointu[1998 MR 172], the Judicial Committee of the Privy Council observed that Chapter II of our Constitution is evidently based on the European Convention “but there are also significant differences in language and structure and it cannot be assumed that particular sections were necessarily intended to have the same meanings”.

In Union of Campement Sites Owners and Lessees v The Government of Mauritius [1984MR100], it was held that we should be very cautious in importing wholesale into the structure and framework of our Constitution complete articles from foreign Constitutions. In this context, the United Kingdom and the Indian decisions quoted by the applicant in support of his case are of no real help to him and must be viewed in their own political and legal contexts. Ex facie the extract from the Guardian newspaper annexed to the applicant’s affidavit, it was eminently a political decision of the newly elected incoming Conservative-Liberal Democrats government to scrap the national identity card scheme introduced by the outgoing Labour Government. And the “Aadhar cards” in India were issued through an executive order and not pursuant to an Act of Parliament.

As regards the applicant’s freedom of movement, it is difficult to see how it can be seriously contended that the new ID Scheme will affect this fundamental right of the applicant. At worst, the non possession of the new identity card will prevent the applicant from travelling by bus for free, which cannot be said to be a fundamental right entrenched in the Constitution. It will certainly not prevent the applicant from travelling be it by bus against payment, car or other means of transport.

In any case, as rightly pointed out by learned Counsel for the respondent, there is no urgency in relation to the applicant’s travelling as a senior citizen inasmuch as he will not be 60 until2015 ex facie his own existing identity card. As already stated above, it is not within the jurisdiction of the Judge in Chambers to decide whether a law is constitutional or not. However, in the light of the cogent arguments advanced by learned Counsel for the respondent, it does appear that the applicant will have to surmount a formidable obstacle before the competent Court in order to prove his case as set out in his affidavit and documentary evidence.

Moreover, there is clearly no urgency in the present case as the applicant has until 15 September 2014 to apply for his new identity card and provide his fingerprints and as his existing identity card will remain valid until 15 September 2014 under section 10A of the National Identity Card Act. In these circumstances, I find that the applicant has, on the evidence on record, failed to show urgency on account of a clear or blatant violation of his constitutionally entrenched rights such as to warrant the intervention of the Judge in Chambers. As already pointed out above, a person making an application before the Judge in Chambers must disclose all relevant facts in his initial affidavit evidence in support of his application. However, the applicant has sought to introduce, as it is by the back door, new grounds in his second affidavit dated 3 October 2013.

He now further avers that the new ID Scheme will be in breach of his right to liberty and will constitute an inhuman and degrading treatment. These new grounds have been averred in a haphazard and confused manner without stating with precision which sections of the Constitution have allegedly been breached and without being substantiated, with the applicant indulging in mere conjectures and speculations. The applicant has also invoked article 22 of the Code Civil Mauricien(above).However, this is an ordinary law and the applicant himself has chosen to seek constitutional redress. Moreover, as rightly submitted by learned Counsel for the respondent, a right provided for in an ordinary law can be limited, modified or varied by a later ordinary enactment.

In the light of my finding that the applicant has failed to show urgency on account of a clear or blatant violation of his constitutionally entrenched rights such as to warrant my intervention, there is strictly speaking no need for me to consider where the balance of convenience lies. I shall, nevertheless, proceed to do so and I find that the balance of convenience is in favour of respondent. The new ID Scheme has been widely publicized for months now. The applicant, for his part, has lodged the present application only on the eve of the new ID Scheme being implemented on 1 October of this year.

In Auckbarally v Jankee [1977 MR 265], it was held that “an injunction being an equitable remedy, hewho seeks such a remedy must show that he has acted with due celerity and has not been guilty of laches.” Moreover the respondent is giving effect to the Acts of Parliament implementing the new ID Scheme which are presumed to be constitutional and thebalance of convenience is in favour of maintaining compliance with the law in the absence of compelling evidence of a clear or blatant violation of a constitutionally entrenched right. For the above reasons, I decline to issue the injunction prayed for by the applicant. I, accordingly, set aside the present application with costs.

I certify as to Counsel.
D. Chan Kan Cheong
Judge14 October 2013

For Applicant: Mr. K. Bokhoree, Attorney-at-LawMr. S. Teeluckdharry, together withMr.E. Mooneapillay and Mr. D. Mooneesamy, of Counsel

For Respondent: Ag. Chief State AttorneyMrs A. D. Narain, Parliamentary Counsel,together withMr. S. Namdarkhan, Senior State Counsel

For Co-Respondent: Ag. Chief State AttorneyMr. D. Reetoo, Senior State Counsel togetherwithMs K. Domah, Temporary State Counsel

Posted by on Oct 14 2013. Filed under En Direct, Faits Divers, Featured. 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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