Dear Mr Bhadain,
Your explanations about the compulsory biometric ID Card are just not good enough for what people in contemporary society expect in terms of democracy.
People elected you on the basis, not, admittedly, of a coherent program, but at least on the basis of an electoral campaign plus the 13 Measures cobbled together 8 weeks before the general elections in order to muster votes. One of these measures was: “La Data Bank où les empreintes digitales et photos biométriques de la nouvelle carte d’identité nationale sont stockées sera détruite.” (Program of Lalyans Lepep, 2014.) Note the wording: you promise to destroy not just the biometric data in that databank, but the data bank, lock, stock and barrel. Aneerood Jugnauth said the card was neither “une nécessité, ni une priorité” (L’Express, 13 October, 2014). We couldn’t agree more.
Then, the minute you are elected, you all start to procrastinate. Any excuse goes. First you’ll “wait for the Court to hand down a judgment”, which is not what you said during the electoral campaign. So, if the judgment had been negative, you would have said, “Oh, dear! The Judiciary trumps the electorate?” You support some archaic rule by the judiciary? Or what? “Kritarchy”, as it is called? Anyway, you do nothing for five months.
In any case, Mr Bhadain, the Judges in their (maybe erratic) wisdom, were more respectful of democracy than you are. They say in their judgment that, “As a result of general elections which took place after judgment had been reserved […] a new government with new Ministers took over.” To them elections are important. Not only that. They go on to say, “As the new Minister of Information and Communication Technology was himself a plaintiff [Pravind Jugnauth, whose lawyer was none other than you, yourself] … the case was fixed for mention in view of ascertaining whether the stand of the defendant No 2 [Minister of ICT, at that time Pravind Jugnauth, now as it happens, you, yourself] was still the same”. So, Pravind Jugnauth, your colleague in the Government and your client in the case, could just have been advised by you to simply stand up and honestly and democratically say, “No, my stand as Minister is not the same as that of my predecessor in Ramgoolam’s Government, Minister Pillay. The Minister’s stand has quite obviously changed. The people have elected me in order for me to change my stand.”
But, no. You and Pravind Jugnauth prefer to prevaricate instead.
What the full bench then goes on to say gives an idea, by the way, of the incoherence of the Lepep Government from the word go: “Although the statements of Counsel for the defendants [Jugnauth’s lawyers, as Minister] were rather evasive, the stand of the defendant No. 2 has remained the same” [our bold]. So, you, as Ministers, just hid behind the Judiciary out of either political cowardice or, to give you benefit of the doubt, pure, unadulterated political incoherence.
Now that you are the new Technology, Communications and Innovation Minister, after Pravind Jugnauth’s having to resign as Minister, the incoherence continues. Five months pass until the judgment. Then three months pass, in which you continue to take citizens’ fingerprints, continue to take their biometric photographs, continue to store all this in the Central Data-base. Kumsi ryin ete. And this despite a Court Order which reads (and this is not mere obiter dictum but a Permanent Court Order with no delay inscribed): “we grant a permanent writ of injunction prohibiting the defendants [you] from storing, or causing to be stored, as the case may be, any fingerprints or biometric information data obtained on the basis of the provisions in the National Identity Card Act and the Data Protection Act.”
All your obsequious statements about waiting for a judgment out of respect for the Judiciary are pure hypocrisy, Mr Bhadain. You give yourself away by just flaunting the judgement? And having recourse to the fig leaf of a “consent form”. Citizens have had, for three long months, to sign a form that says, in effect: I hereby consent to the State doing something against me which is illegal, unconstitutional and in disrespect of a Permanent Supreme Court Injunction. How is that for respect for the Kritarchy you extoll the virtues of?
And this taking of fingerprints by coercion continues also in the face of another change in society. There are now new legal judgments, outlawing the compulsory taking of fingerprints by bosses for presence at work. Before the cases against the bosses of Clavis and Alteo, it was assumed that it was perfectly legal to force people to give fingerprints. Now, fortunately it has been declared illegal to make fingerprinting compulsory for attendance reasons.
So far, this is just the introduction, Mr Bhadain. So far, this is to evaluate your political good will on the ID Card and fingerprinting issues, since your election. We must remember that you are, in effect, in a party, the MSM, which for years agreed with, and colluded with, the Ramgoolam legal framework, as it was being set up over time, like a trap for citizens. You, yourself denounced the MSM and MMM on a Radio Plus program we were both on, and probably caused the MSM to change its line for the better. So far, so good. But now it seems that the MSM, with you now in tow, is back to agreeing with much of the Ramgoolam legal framework, or at least seeing just how much of it you can preserve.
And what is your argumentation?
You do not want to waste money. What a fallacy. First, the money has already been wasted. Second, you intend to continue to waste more money for a further 10 years, on this electronic chip nonsense. You could just use the new Cards, as if they were the same as the old ones that everyone who resisted is still so proud to hold. Now, that would be reasonable. Instead of hiding behind an erroneous point about “not wasting money”. Now, that would save us a lot of money, because when we lose a Card, it will only cost Rs75 or so, instead of some exorbitant price to replace. Now, that would mean the photograph on the card would be used for one-to-one verification against a person’s face. That would be reasonable, Mr Bhadain.
You add that over 900,000 people have taken out the card. As if that were an argument, Mr Bhadain. (The official figures, curiously, rise and fall, and often rise above the number originally estimated as “total”, for which we have not heard any explanation.) You, who, before elections, rightly denounced the duress that was used to press-gang people into taking out cards, now use this argument? The Ramgoolam Government forced people into what was an administrative time-table by brandishing a 5-year prison stint for disobedience. That’s a fact. Bosses added their pressure by inviting the mobile unit on to work-sites, not minimal pressure, since they can sack workers on many pretexts. The mobile unit even went to the Judiciary and to media outlets to entangle possible resisters into the scheme. Pensioners were intimidated by ignorant officers. 18-year-olds and those who had lost their card (over 200 a day) were obliged to get new cards. Most, as they learnt, during the course of debates during the campaign against the ID Cards, of the dangers of surveillance and repression through these compulsory administrative “passes” regret having converted their old cards. Now, you use the fact that so many people were intimidated as a reason for keeping the electronic chip.
So, now, let us look at the nitty-gritty.
The photographs are still one-to-many
First, let us take the biometric photographs. You avoid talking about these. It is illegal now to store them. And it’s unconstitutional. And yet you are continuing to store them. You present another fig leaf of an argument. You will store them, you say, in a JPEG file. How childish. With digital facial recognition, any type of photograph in a central database is digitally retrievable. It is data that can be handled biometrically for one-to-many identification. So, you are flaunting your own electoral promise. And you are flaunting two Supreme Court Judgments. And you think you can hoodwink us all, saying how there will only be able to be one-to-one “verification”, implying it applies not just to the fingerprints but also to photographs?
Is there any reasonable explanation as to why personal photographs are still being stored in the data-base? The only reason we can think of is something terrifying. Who will use these JPEG files and for what?
You now procrastinate, using Mr Teeluckdharry’s case. Incidentally and it is politically mighty relevant, he is your Lalyans Lepep MP colleague. He has not yet even been granted leave to appeal to the Privy Council, and you are already hiding behind the gowns of the judiciary in London, as though we live in a colonial Kritarchy. Really, Mr Bhadain. Your argumentation is so infantile as to be laughable. You say, you cannot, as a Government, even though elected with a three-quarter majority, amend the Constitution, so long as there is a Constitutional Case. It would be disrespectful, you say, of the Judiciary. Disrespectful of the sacrosanct “separation of powers”. This is the same judiciary that you, to rub it in, flaunt. So, are you asking us to believe that, when your newly elected Government wants to make any Constitutional changes it was elected to make, then any loony litigant can put in a case, drag it through the notoriously slow Supreme Court, then should he lose, take it all the way to the Privy Council, and thus hold you, and the entire electorate, to ransom for years on end? And, as the Case is about to be settled, another loon could lodge another new case on a related issue?
The fingerprint data
Second, take the biometric fingerprint data. The State was storing biometric information in two places: permanently on its central data-base and permanently on its biometric ID cards. The ID Cards are property of the State, and to emphasize this point, the State has repeatedly announced that it can decide to de-activate the electronic chip in one or more of its ID Cards. Yes, the ID cards we get to carry, just like the Passes in Apartheid South Africa, are Property of the State. You know this, because you always make sure to say “the ID Card is in your possession” and not “The ID Card is yours”. So, you are still guilty of “retention and storage of personal data”, while the Supreme Court has declared that precisely this “under the Data Protection Act is not reasonably justifiable in a democratic society.” And, “the provisions in the National Identity Card Act and the Data Protection Act for the storage and retention of fingerprints and other personal biometric data collected for the purpose of the biometric identity card of a citizen of Mauritius are unconstitutional.” Now, of course, you will hurriedly say that these last quotes are from your colleague, Mr Teeluckdharry’s judgment, not yours. But remember, Mr Bhadain, we are writing this letter to you, not as the lawyer of Mr Jugnauth, but as an elected MP, appointed to be Minister of the Republic.
The State now, since last Monday, still stores personal data on us all in two places: permanently on its ID Cards, and temporarily on its central data base at Ebéne. The Lepep Program, remember, said that the data bank would be destroyed. You, in Lalyans Lepep, drafted the program, Mr Bhadain. That is what it says. “La Data Bank … sera détruit. ” You, in Lalyans Lepep, pretend to have so much respect the Judiciary that the least you can do is respect their minimalist judgments.
Now, while talking about fingerprinting, let’s look at other weird arguments you come up with, Mr Bhadain. You say you are taking 10 fingerprints now. Just as Mr Rao Rama did before you. Why? Because the four best will be chosen to be converted into minutiae and stored on the State’s ID Cards. By whom will they be chosen? At which point? And how will the little machines that will do the verification of the minutiae afterwards know which finger to ask you to use, may we ask? Or will there have to be a stamp of L3 (middle finger of left hand) or R5 (little finger of right hand), like the SC stamp? Or will some Bank Clerk have you putting all 10 fingers in, one-by-one? Lordy! This was never the reason Mr Rao Rama gave. He said all 10 were stored for some super-verification, just in case someone’s fingerprints had changed or got damaged due to the work they do. Both arguments are so disrespectful of proportionality that no-one can quite believe them.
The electronic chip with its RFID
If there is any logic to keeping the electronic chip with its Radio Frequency Identification from a short distance, for the purposes of verification, we must assume that a lot of firms, government departments, para-statals, police stations, post offices, banks, insurance companies, notaries, furniture sellers, (and who knows who else?) will all buy little boxes to use for this verification. Then their clients will put their fingers into the box, and their ID Cards with RFID into the same box, and the box will go “ping”, this is the person, or “pong”, can’t vouch for this one. But how is the poor Data Protection Commissioner going to ensure on an on-going basis that the data taken by the machine when it looks at a finger or thumb is NOT being stored? How can Mrs Madhub certify that it is not being stored? After all, any cheap little box used for recording attendance can store hundreds of fingerprints.
After the judgments in the “fingerprinting for attendance” and the Supreme Court Cases, can this kind of risk reasonably be taken, Mr Bhadain? Or, are we submitting the public to on-going risks, risks that we cannot even predict, what with the on-going developments in technology. We quote from the Supreme Court judgment in Mr Teeluckdharry’s case, the Dr Madhewoo case, “witness Sookun gave expert evidence … [that] the new identity card can be read at a distance with available technological devices.” And “in view of the rapid technological development in the field of information technology, there is a serious risk that in future the private life interests bound up with biometric information may be adversely affected in novel and unpredictable ways.” All this to say that the Data Commissioner will be hard pressed to guarantee the safety of fingerprint data.
The information on the electronic chip, and that can be read is personal data of a sensitive nature. One’s address, for example, is a private matter. One’s signature is too. As are one’s fingerprint minutiae. They are on the chip. It is a dangerous intrusion into privacy.
For example, at the last general elections, there were ignorant electoral staff who expected candidates or agents to be walking around with ID Cards for all the “parin” in their possession. Indeed, some candidates could be seen with fistfuls of ID cards at the Nomination Centres. The fact is that money-lenders keep peoples’ ID Cards. The fact is that Banks are always asking Associations to bring the ID Cards of “all signatories” to the Bank.
And meanwhile we, the citizen that is compelled by law to have one of these, and to carry it around with us and produce it on the whim of literally anyone, cannot even read what is on the chip. We do not know what’s on it. Has the address been changed? Has it been de-activated? We have become less powerful than this device that the authorities own and make us carry and produce left, right and centre.
Our demand is that everyone gets the right to de-activate their chip, and the Government de-activates all the chips, from its side too.
Then banks and credit givers, and everyone else will have to rely on an ordinary card, an ordinary signature, and compare our faces with the portrait on the ID Card.
Every time someone changes address – at marriage, after moving house, after separating from a spouse – they have to go to the MNIC and get their chip altered. All the women, in and out of shelters, moving back to their parents and then back to unhappy marriages, will spend days changing their address. This is very high-cost administration, and very intrusive bureaucratic surveillance. Of course, all who turn 60 have to go and get their card changed. Women who get married have to change their cards. Women who get divorced re-change them.
The expert witness, whose evidence in the Madhewoo case has remained unrebutted, showed all the weaknesses inherent in digital data of any kind, including that on the chip, and for any length of time, including temporary storage. This remains a concern. Clearly the destruction of the central data-base is a huge victory, but there are still major concerns. We could say vital concerns.
Legal piracy of our personal data
One of the most worrying things about all the data collected for the ID Cards (biometric or not) and stored centrally, is that the legal framework allows the data out. LALIT has long drawn attention to this.
All the powers of the Data Protection Commissioner, for example, can be taken over by the Commissioner of Police or someone he delegates. So, for the first time in history, Civil Status Data has become linked by a communicating corridor to the repressive forces. This is clearly dangerous.
With the Prime Minister’s signature, all or any data can be handed over to a foreign power. This is also back to colonial days, and very dangerous.
Mr Bhadain, not a man short of words, has not suffered himself to utter a word on this crucial issue. He is still taking all this personal data, when it remains exposed to both hackers – commercial and repressive – as well as to the repressive forces, both in Mauritius and of imperial powers.
And what precisely is our objection to ID Cards, biometric or supposedly not? We object that they are compulsory. It’s as simple as that, Mr Bhadain. They are imposed. They are demanded. They become a means by which the Police get ascendancy on ordinary citizens. “Prodir u kart!” will become a pretext for interfering with our freedoms.
And that is why we refer to the times of slavery and indenture, because since the end of those draconian legal frameworks and until now (and, it so happens, until 31 January 2016) it has never been illegal not to have a “pass” in order to justify one’s existence.
And this brings us to another progress, adding to
1) the judgments making the State’s retention and storage of personal data illegal and unconstitutional,
2) the judgments making compulsory fingerprinting of workers for attendance illegal,
there is now better practice (for verification). The Electoral Commission formally accepted one of many forms of identification in December 2014 for the general elections: a driving license, a passport, an expired ID Card, a bus pass, and so on. Any papers that identify one with a photograph were accepted for the most important of all civil acts, as a citizen: to vote. So, these are all more modern, more enlightened ways of living.
So, why not just scrap the electronic chip altogether? This will cut the State’s losses. And why not change the legal framework so as to make ID cards optional i.e. one of many forms of identification?
Then, you and the rest of the Government will be free to put your minds to the important issue of creating secure employment and diversifying agriculture so as to ensure food security, stable work, and a rather improved balance of payments.
Lindsey Collen, for LALIT, 18 September, 2015
153 Main Road, Grand River North West, Port Louis, Republic of Mauritius.