Human rights and the biometric identity card | Dentons

The scheme of the biometric identity card

In accordance with Section 4 (1) of the National Identity Card Act 1985 (Act), any person of Mauritian nationality must, within six months of the age of 18 and on the prescribed form, apply for an identity card.

The 2009 Finance Act (Miscellaneous Provisions) and the 2013 National Identity Card (Miscellaneous Provisions) Act introduced a new biometric identity card system in Mauritius.

This new regime raised a number of concerns among members of the public, and these concerns ultimately led to constitutional challenges in the Supreme Court. The culmination of the dispute was the judgment of Madhewoo v. the state [2015 SCJ 177], later confirmed on appeal to the Privy Council.¹ The plaintiff was successful in only one respect: the plenary session of the Supreme Court ruled that the provisions of the Law relating to the storage and retention of data in a register were unconstitutional. The Applicant’s other arguments were rejected.

In response to the Supreme Court ruling, the authorities issued the 2015 National Identity Card (Civil Identity Register) Regulation and now the relevant data is only stored in the identity card it – even and not in a register.

Following the multiple ultimatums issued by the authorities, most Mauritian citizens now hold the new biometric identity card and the case has been, for the most part, closed at the local level. However, new elements have come to revive the debate on the identity card system currently in force in Mauritius.

On July 21, 2021, the United Nations Human Rights Committee (CRH) concluded that the current identity card system violated the International Covenant on Civil and Political Rights.

The decision of the United Nations Human Rights Committee

The HRC is an independent expert body, created within the framework of the United Nations for the protection of human rights, to monitor the implementation of the International Covenant on Civil and Political Rights, to which Mauritius is a party. It is important to note that the Mauritian courts frequently refer to the opinions expressed in the decisions of the CHR, even if the pact has not been incorporated into our domestic law.²

Mr. Madhewoo seized the CDH on December 15, 2017, to seek redress and challenge the conventional nature of the collection and storage of biometric data on identity cards in Mauritius.

In a decision dated July 21, 2021, the HRC ruled that Mr. Madhewoo was right to file a complaint under the convention. It considered that, in the particular circumstances of the case, the storage and retention of Mr. Madhewoo’s fingerprint data on an identity card would constitute an arbitrary interference with his right to privacy.³

The HRC said the state of Mauritius “has not responded to Mr. Madhewoo’s assertion that the retention of fingerprint data on identity cards exacerbates the security gaps identified by the Supreme Court.”

The HRC further stated that, in the circumstances, it cannot conclude that there are sufficient safeguards against the risk of abuse and arbitrariness resulting from potential access to such data on identity cards. This is a violation of Article 17 of the Convention, which relates to the right to privacy.

More importantly, the HRC explained that the State of Mauritius is under an obligation to provide Mr. Madhewoo with an “effective remedy” for the current violation of the convention. The HRC asked Mauritius to review the reasons for storing and retaining fingerprint data on identity cards. In addition, Mauritius is under an obligation to take measures to avoid similar violations in the future.⁴

The State of Mauritius now has 180 days to report to the HRC on the issues raised in the decision. The State is also requested to publish the opinions expressed by the CHR and to disseminate them widely in the official language of Mauritius.

There is no doubt that the recent HRC decision will have an impact on the identity card system currently in force in Mauritius and, at the very least, contribute to a constructive public debate on the matter. The ruling could also provide lawyers with material to help clients who claim the current regime violates their rights.

The HRC decision is available online at https://tbinternet.ohchr.org/.

1. See Madhewoo v. the state [2016 UKPC 30].
2. See the cases of Ramar c. MCB [2021 SCJ 184], State c. St Pierre [2019 SCJ 340] Where Toolsy v. Pamplemousse district magistrate [2002 SCJ 16].
3. Page 8 of the HRC decision, paragraph 7.6.
4. Page 8 of the HRC decision, paragraph 9.