CASE
LAW: Rights in Marriage – Mauritius women v Mauritius
HUMAN
RIGHTS COMMITTEE
Mauritian women v. Mauritius
Communication No. 35/1978
9 April 1981
VIEWS
Submitted by: Shirin Aumeeruddy-Cziffra and 19 other Mauritian
women on 2 May 1978
Alleged victims: The author and other Mauritian women
State party: Mauritius
Date of adoption of views: 9 April 1981 (twelfth session)
Views
under article 5 (4) of the Optional Protocol*
1.1 The authors of
this communication (initial letter dated 2 May 1978 and a further
letter dated 19 March 1980) are 20 Mauritian women, who have
requested that their identity should not be disclosed to the
State party.[1] They claim that the enactment of the Immigration
(Amendment) Act, 1977, and the Deportation (Amendment) Act,
1977, by Mauritius constitutes discrimination based on sex against
Mauritian women, violation of the right to found a family and
home, and removal of the protection of the courts of law, in
breach of articles 2, 3, 4, 17, 23, 25 and 26 of the International
Covenant on Civil and Political Rights. The authors claim to
be victims of the alleged violations. They submit that all domestic
remedies have been exhausted.
1.2 The authors state
that prior to the enactment of the laws in question, alien men
and women married to Mauritian nationals enjoyed the same residence
status, that is to say, by virtue of their marriage, foreign
spouses of both sexes had the right, protected by law, to reside
in the country with their Mauritian husbands or wives. The authors
contend that, under the new laws, alien husbands of Mauritian
women lost their residence status in Mauritius and must now
apply for a “residence permit” which may be refused
or removed at any time by the Minister of Interior. The new
laws, however, do not affect the status of alien women married
to Mauritian husbands who retain their legal right to residence
in the country. The authors further contend that under the new
laws alien husbands of Mauritian women may be deported under
a ministerial order which is not subject to judicial review.
2. On 27 October
1978, the Human Rights Committee decided to transmit the communication
to the State party, under rule 91 of the provisional rules of
procedure, requesting information and observations relevant
to the question of admissibility.
3. The State party,
in its reply of 17 January 1979, informed the Committee that
it had no objection to formulate against the admissibility of
the communication.
4. On 24 April 1979,
the Human Rights Committee,
(a) Concluding that
the communication, as presented by the authors, should be declared
admissible;
(b) Considering,
however, that it might review this decision in the light of
all the information which would be before it when it considered
the communication on the merits;
Therefore decided:
(a) That the communication
was admissible;
(b) That in accordance
with article 4 (2) of the Optional Protocol, the State party
be requested to submit to the Committee, within six months of
the date of the transmittal to it of this decision, written
explanations or statements on the substance of the matter under
consideration;
(c) That the State
party be requested, in this connection, to transmit copies of
any relevant legislation and any relevant judicial decisions.
5.1 In its submission
dated 17 December 1979, the State party explains the laws of
Mauritius on the acquisition of citizenship and, in particular
on the naturalization of aliens. The State party further elaborates
on the deportation laws, including a historical synopsis of
these laws. It is admitted that it was the effect of the Immigration
(Amendment) Act, 1977 and of the Deportation (Amendment) Act,
1977 to limit the right of free access to Mauritius and immunity
from deportation to the wives of Mauritian citizens only, whereas
this right had previously been enjoyed by all spouses of citizens
of Mauritius irrespective of their sex. Both Acts were passed
following certain events in connection with which some foreigners
(spouses of Mauritian women) were suspected of subversive activities.
The State party claims, however, that the authors of the communication
do not allege that any particular individual has in fact been
the victim of any specific act in breach of the provisions of
the Covenant. The State party claims that the communication
is aimed at obtaining a declaration by the Human Rights Committee
that the Deportation Act and the Immigration Act, as amended,
are capable of being administered in a discriminatory manner
in violation of articles 2, 3, 4, 17, 23, 25 and 26 of the Covenant.
5.2 The State party
admits that the two statutes in question do not guarantee similar
rights of access to residence in Mauritius to all foreigners
who have married Mauritian nationals, and it is stated that
the “discrimination”, if there is any, is based
on the sex of the spouse. The State party further admits that
foreign husbands of Mauritian citizens no longer have the right
to free access to Mauritius and immunity from deportation therefrom,
whereas prior to 12 April 1977, this group of persons had the
right to be considered, de facto, as residents of Mauritius.
They now must apply to the Minister of the Interior for a residence
permit and in case of refusal of the permit they have no possibility
to seek redress before a court of law.
5.3 The State party,
however, considers that this situation does not amount to a
violation of the provisions of the Covenant which—in the
State party’s view—does not guarantee a general
right to enter, to reside in and not to be expelled from a particular
country or a certain part of it and that the exclusion or restriction
upon entry or residence of some individuals and not others cannot
constitute discrimination in respect of a right or freedom guaranteed
by the Covenant. The State party concludes that if the right
“to enter, reside in and not to be expelled from”
Mauritius is not one guaranteed by-the Covenant, the authors
cannot claim that there has been any violation of articles 2
(1), 2 (2), 3, 4 or 26 of the Covenant on the grounds that admission
to Mauritius may be denied to the authors' husbands or prospective
husbands or that these husbands or prospective husbands may
be expelled from Mauritius, and that such exclusion of their
husbands or prospective husbands may be an interference in their
private and family life.
5.4 As far as the
allegation of a violation of article 25 of the Covenant is concerned,
the State party argues that if a citizen of Mauritius chooses
to go and live abroad with her husband because the latter is
not entitled to stay in Mauritius, she cannot be heard to say
that she is thus denied the right to take part in the conduct
of public affairs and to have access on general terms of equality
to public service in her country. The State party claims that
nothing in the law prevents the woman, as such, from exercising
the rights guaranteed by article 25, although she may not be
in a position to exercise the said rights as a consequence of
her marriage and of her decision to live with her husband abroad.
The State party mentions, as an example of a woman who has married
a foreign husband and who is still playing a prominent role
in the conduct of public affairs in Mauritius, the case of Mrs.
Aumeeruddy-Cziffra, one of the leading figures of the Mouvement
Militant Mauricien opposition party.
5.5 The State party
further argues that nothing in the laws of Mauritius denies
any citizen the right to marry whomever he may choose and to
found a family. Any violation of articles 17 and 23 is denied
by the State party which argues that this allegation is based
on the assumption that “husband and wife are given the
right to reside together in their own countries and that this
right of residence should be secure”. The State party
reiterates that the right to stay in Mauritius is not one of
the rights guaranteed by the provisions of the Covenant, but
it admits that the exclusion of a person from a country where
close members of his family are living can amount to an infringement
of the person’s right under article 17 of the Covenant,
i.e. that no one should be subjected to arbitrary and unlawful
interference with his family. The State party argues, however,
that each case must be decided on its own merits.
5.6 The State party
recalls that the Mauritian Constitution guarantees to every
person the right to leave the country, and that the foreign
husband of a Mauritian citizen may apply for a residence permit
or even naturalization.
5.7 The State party
is of the opinion that if the exclusion of a non-citizen is
lawful (the right to stay in a country not being one of the
rights guaranteed by the provisions of the Covenant), then such
an exclusion (based on grounds of security or public interest)
cannot be said to be an arbitrary or unlawful interference with
the family life of its nationals in breach of article 17 of
the Covenant.
6.1 In their additional
information and observations dated 19 March 1980, the authors
argue that the two Acts in question (Immigration (Amendment)
Act, 1977 and Deportation (Amendment) Act, 1977) are discriminatory
in themselves in that the equal rights of women are no longer
guaranteed. The authors emphasize that they are not so much
concerned with the unequal status of the spouses of Mauritian
citizens—to which the State party seems to refer—but
they allege that Mauritian women who marry foreigners are themselves
discriminated against on the basis of sex, and they add that
the application of the laws in question may amount to discrimination
based on other factors such as race or political opinions. The
authors further state that they do not claim “immunity
from deportation” for foreign husbands of Mauritian women
but they object that the Deportation (Amendment) Act, 1977 gives
the Minister of the Interior an absolute discretion in the matter.
They argue that, according to article 13 of the Covenant, the
alien who is lawfully in the country has the right not to be
arbitrarily expelled and that, therefore, a new law should not
deprive him of his right of hearing.
6.2 As has been stated,
the authors maintain that they are not concerned primarily with
the rights of non-citizens (foreign husbands) but of Mauritian
citizens (wives). They allege:
(a) That female citizens
do not have an unrestricted right to married life in their country
if they marry a foreigner, whereas male citizens have an unrestricted
right to do so;
(b) That the law,
being retroactive, had the effect of withdrawing from the female
citizens the opportunity to take part in public life and restricted,
in particular, the right of one of the authors in this respect;
(c) That the “choice”
to join the foreign spouse abroad is only imposed on Mauritian
women and that only they are under an obligation to “choose”
between exercising their political rights guaranteed under article
25 of the Covenant, or to live with their foreign husbands abroad.
(d) That the female
citizen concerned may not be able to leave Mauritius and join
her husband in his country of origin for innumerable reasons
(health, long-term contracts of work, political mandate, incapacity
to stay in the husband's country of origin because of racial
problems, as, for example, in South Africa);
(e) That by rendering
the right of residence of foreign husbands insecure, the State
party is tampering with the female citizens' right to freely
marry whom they choose and to found a family.
The authors do not
contest that a foreign husband may apply for a residence permit,
as the State party has pointed out in its submission; but they
maintain that foreign husbands should be granted the rights
to residence and naturalization. The authors allege that in
many cases foreign husbands have applied in vain for both and
they claim that such a decision amounts to an arbitrary and
unlawful interference by the State party with the family life
of its female citizens in breach of article 17 of the Covenant,
as the decision is placed in the hands of the Minister of the
Interior and not of a court of law, and as no appeal against
this decision is possible.
6.3 The authors enclose
as an annex to their submission a statement by one of the co-authors,
Mrs. Shirin Aumeeruddy-Cziffra, to whose case the State party
had referred (see para. 5.4 above). She states inter alia that
on 21 April 1977, in accordance with the new laws, her foreign
husband applied for a residence permit and later for naturalization.
She alleges that during 1977 her husband was twice granted a
one-month visa and that an application for a temporary work
permit was refused. She states that when returning to Mauritius,
after a oneweek stay abroad, her husband was allowed to enter
the country on 24 October 1978 without question and that he
has been staying there since without a residence or work permit.
She remarks that her husband is slowly and gradually giving
up all hope of ever being naturalized or obtaining a residence
permit. The author, an elected member of the legislative assembly,
points out that this situation is a cause of frustration for
herself and she alleges that the insecurity has been deliberately
created by the Government to force her to abandon politics in
view of the forthcoming elections in December 1981. She stresses
that she does not want to leave Mauritius, but that she intends,
after the expiry of her present mandate, to be again a candidate
for her party.
7.1 The Human Rights
Committee bases its view on the following facts, which are not
in dispute:
7.2 Up to 1977, spouses
(husbands and wives) of Mauritian citizens had the right of
free access to Mauritius and enjoyed immunity from deportation.
They had the right to be considered defacto as residents of
Mauritius. The coming into force of the Immigration (Amendment)
Act, 1977, and of the Deportation (Amendment) Act, 1977, limited
these rights to the wives of Mauritius citizens only. Foreign
husbands must apply to the Minister of the Interior for a residence
permit and in case of refusal of the permit they have no possibility
to seek redress before a court of law.
7.3 Seventeen of
the co-authors are unmarried. Three of the co-authors were married
to foreign husbands when, owing to the coming into force of
the Immigration (Amendment) Act, 1977, their husbands lost the
residence status in Mauritius which they had enjoyed before.
Their further residence together with their spouses in Mauritius
is based under the statute on a limited, temporary residence
permit to be issued in accordance with section 9 of the Immigration
(Amendment) Act, 1977. This residence permit is subject to specified
conditions which might at any time be varied or cancelled by
a decision of the Minister of the Interior, against which no
remedy is available. In addition, the Deportation (Amendment)
Act, 1977, subjects foreign husbands to a permanent risk of
being deported from Mauritius.
7.4 In the case of
Mrs. Aumeeruddy-Cziffra, one of the three married co-authors,
more than three years have elapsed since her husband applied
to the Mauritian authorities for a residence permit, but so
far no formal decision has been taken. If her husband’s
application were to receive a negative decision, she would be
obliged to choose between either living with her husband abroad
and giving up her political career, or living separated from
her husband in Mauritius and there continuing to participate
in the conduct of public affairs of that country.
8.1 The Committee
has to consider, in the light of these facts, whether any of
the rights set forth in the Covenant on Civil and Political
Rights have been violated with respect to the authors by Mauritius
when enacting and applying the two statutes in question. The
Committee has to decide whether these two statutes, by subjecting
only the foreign husband of a Mauritian woman—but not
the foreign wife of a Mauritian man—to the obligation
to apply for a residence permit in order to enjoy the same rights
as before the enactment of the statutes, and by subjecting only
the foreign husband to the possibility of deportation, violate
any of the rights set forth under the Covenant, and whether
the authors of the communication may claim to be victims of
such a violation.
8.2 Pursuant to article
1 of the Optional Protocol to the International Covenant on
Civil and Political Rights, the Committee only has a mandate
to consider communications concerning individuals who are alleged
to be themselves victims of a violation of any of the rights
set forth in the Covenant.
9.1 The Human Rights
Committee bases its views on the following considerations:
9.2 In the first
place, a distinction has to be made between the different groups
of the authors of the present communication. A person can only
claim to be a victim in the sense of article 1 of the Optional
Protocol if he or she is actually affected. It is a matter of
degree how concretely this requirement should be taken. However,
no individual can in the abstract, by way of an actio popularis,
challenge a law of practice claimed to be contrary to the Covenant.
If the law or practice has not already been concretely applied
to the detriment of that individual, it must in any event be
applicable in such a way that the alleged victim’s risk
of being affected is more than a theoretical possibility.
9.2 (a) In this respect
the Committee notes that in the case of the 17 unmarried co-authors
there is no question of actual interference with, or failure
to ensure equal protection by the law to any family. Furthermore
there is no evidence that any of them is actually facing a personal
risk of being thus affected in the enjoyment of this or any
other rights set forth in the Covenant by the laws complained
against. In particular it cannot be said that their right to
marry under article 23 (2) or the right to equality of spouses
under article 23 (4) are affected by such laws.
9.2 (b) I The Committee
will next examine that part of the communication which relates
to the effect of the laws of 1977 on the family life of the
three married women.
9.2 (b) 2 The Committee
notes that several provisions of the Covenant are applicable
in this respect. For reasons which will appear below, there
is no doubt that they are actually affected by these laws, even
in the absence of any individual measure of implementation (for
instance, by way of a denial of residence, or an order of deportation,
concerning one of the husbands). Their claim to be “victims”
within the meaning of the Optional Protocol has to be examined.
9.2 (b) 2 (i)1 First,
their relationships to their husbands clearly belong to the
area of “family” as used in article 17 (1) of the
Covenant. They are therefore protected against what that article
calls “arbitrary or unlawful interference” in this
area.
9.2 (b) 2 (i) 2 The
Committee takes the view that the common residence of husband
and wife has to be considered as the normal behaviour of a family.
Hence, and as the State party has admitted, the exclusion of
a person from a country where close members of his family are
living can amount to an interference within the meaning of article
17. In principle, article 17 (1) applies also when one of the
spouses is an alien. Whether the existence and application of
immigration laws affecting the residence of a family member
is compatible with the Covenant depends on whether such interference
is either “arbitrary or unlawful” as stated in article
17 (1), or conflicts in any other way with the State party's
obligations under the Covenant.
9.2 (b) 2 (i) 3 In
the present cases, not only the future possibility of deportation,
but the existing precarious residence situation of foreign husbands
in Mauritius represents, in the opinion of the Committee, an
interference by the authorities of the State party with the
family life of the Mauritian wives and their husbands. The statutes
in question have rendered it uncertain for the families concerned
whether and for how long it will be possible for them to continue
their family life by residing together in Mauritius. Moreover,
as described above (para. 7.4) in one of the cases, even the
delay for years, and the absence of a positive decision granting
a residence permit, must be seen as a considerable inconvenience,
among other reasons because the granting of a work permit, and
hence the possibility of the husband to contribute to supporting
the family, depends on the residence permit, and because deportation
without judicial review is possible at any time.
9.2 (b) 2 (i) 4 Since,
however, this situation results from the legislation itself,
there can be no question of regarding this interference as “unlawful”
within the meaning of article 17 (1) in the present cases. It
remains to be considered whether it is “arbitrary”
or conflicts in any other way with the Covenant.
9.2 (b) 2 (i) 5 The
protection owed to individuals in this respect is subject to
the principle of equal treatment of the sexes which follows
from several provisions of the Covenant. It is an obligation
of the State parties under article 2 (1) generally to respect
and ensure the rights of the Covenant “without distinction
of any kind, such as ... (inter alia) sex”, and more particularly
under article 3 “to ensure the equal right of men and
women to the enjoyment” of all these rights, as well as
under article 26 to provide “without any discrimination”
for “the equal protection of the law”.
9.2 (b) 2 (i) 6 The
authors who are married to foreign nationals are suffering from
the adverse consequences of the statutes discussed above only
because they are women. The precarious residence status of their
husbands, affecting their family life as described, results
from the 1977 laws which do not apply the same measures of control
to foreign wives. In this connection the Committee has noted
that under section 16 of the Constitution of Mauritius sex is
not one of the grounds on which discrimination is prohibited.
9.2 (b) 2 (i) 7 In
these circumstances, it is not necessary for the Committee to
decide in the present cases how far such or other restrictions
on the residence of foreign spouses might conflict with the
Covenant if applied without discrimination Of any kind.
9.2 (b) 2 (i) 8 The
Committee considers that it is also unnecessary to say whether
the existing discrimination should be called an “arbitrary”
interference with the family within the meaning of article 17.
Whether or not the particular interference could as such be
justified if it were applied without discrimination does not
matter here. Whenever restrictions are placed on a right guaranteed
by the Covenant, this has to be done without discrimination
on the ground of sex. Whether the restriction in itself would
be in breach of that right regarded in isolation, is not decisive
in this respect. It is the enjoyment of the rights which must
be secured without discrimination. Here it is sufficient, therefore,
to note that in the present position an adverse distinction
based on sex is made, affecting the alleged victims in their
enjoyment of one of their rights. No sufficient justification
for this difference has been given. The Committee must then
find that there is a violation of articles 2(1) and 3 of the
Covenant, in conjunction with article 17(1).
9.2 (b) 2 (ii) I
At the same time each of the couples concerned constitutes also
a “family” within the meaning of article 23 (1)
of the Covenant, in one case at least—that of Mrs. Aumeeruddy-Cziffra—also
with a child. They are therefore as such “entitled to
protection by society and the State” as required by that
article, which does not further describe that protection. The
Committee is of the opinion that the legal protection or measures
a society or a State can afford to the family may vary from
country to country and depend on different social, economic,
political and cultural conditions and traditions.
9.2 (b) 2 (ii) 2
Again, however, the principle of equal treatment of the sexes
applies by virtue of articles 2 (1), 3 and 26, of which the
latter is also relevant because it refers particularly to the
“equal protection of the law”. Where the Covenant
requires a substantial protection as in article 23, it follows
from those provisions that such protection must be equal, that
is to say not discriminatory, for example on the basis of sex.
9.2 (b) 2 (ii) 3
It follows that also in this line of argument the Covenant must
lead to the result that the protection of a family cannot vary
with the sex of the one or the other spouse. Though it might
be justified for Mauritius to restrict the access of aliens
to their territory and to expel them there from for security
reasons, the Committee is of the view that the legislation which
only subjects foreign spouses of Mauritian women to those restrictions,
but not foreign spouses of Mauritian men, is discriminatory
with respect to Mauritian women and cannot be justified by security
requirements.
9.2 (b) 2 (ii) 4
The Committee therefore finds that there is also a violation
of articles 2(1), 3 and 26 of the Covenant in conjunction with
the right of the three married co-authors under article 23(1).
9.2 (c) 1 It remains
to consider the allegation of a violation of article 25 of the
Covenant, which provides that every citizen shall have the right
and the opportunity without any of the distinctions mentioned
in article 2 (inter alia as to sex) and without unreasonable
restrictions, to take part in the conduct of public affairs,
as further described in this article. The Committee is not called
upon in this case to examine any restrictions on a citizen’s
right under article 25. Rather, the question is whether the
opportunity also referred to there, i.e. a de facto possibility
of exercising this right, is affected contrary to the Covenant.
9.2 (c) 2 The Committee
considers that restrictions established by law in various areas
may prevent citizens in practice from exercising their political
rights, i.e. deprive them of the opportunity to do so, in ways
which might in certain circumstances be contrary to the purpose
of article 25 or to the provisions of the Covenant against discrimination,
for example if such interference with opportunity should infringe
the principle of sexual equality.
9.2 (c) 3 However,
there is no information before the Committee to the effect that
any of this has actually happened in the present cases. As regards
Mrs. Aumeeruddy-Cziffra, who is actively participating in political
life as an elected member of the legislative assembly of Mauritius,
she has neither in fact nor in law been prevented from doing
so. It is true that on the hypothesis that if she were to leave
the country as a result of interference with her family situation,
she might lose this opportunity as well as other benefits which
are in fact connected with residence in the country. The relevant
aspects of such interference with a family situation have already
been considered, however, in connection with article 17 and
related provisions above. The hypothetical side-effects just
suggested do not warrant any finding of a separate violation
of article 25 at the present stage, where no particular element
requiring additional consideration under that article seems
to be present.
10.1 Accordingly,
the Human Rights Committee acting under article 5(4) of the
Optional Protocol to the International Covenant on Civil and
Political Rights, is of the view that the facts, as outlined
in paragraph 7 above, disclose violations of the Covenant, in
particular of articles 2(1), 3 and 26 in relation to articles
17(1) and 23(1) with respect to the three co-authors who are
married to foreign husbands, because the coming into force of
the Immigration (Amendment) Act, 1977, and the Deportation (Amendment)
Act, 1977, resulted in discrimination against them on the ground
of sex.
10.2 The Committee
further is of the view that there has not been any violation
of the Covenant in respect of the other provisions invoked.
10.3 For the reasons
given above, in paragraph 9 (a), the Committee finds that the
17 unmarried coauthors cannot presently claim to be victims
of any breach of their rights under the Covenant.
11. The Committee,
accordingly, is of the view that the State party should adjust
the provisions of the Immigration (Amendment) Act, 1977 and
of the Deportation (Amendment) Act, 1977 in order to implement
its obligations under the Covenant, and should provide immediate
remedies for the victims of the violations found above.
___________
Notes:
* Pursuant to rule 85 of the provisional rules of procedure,
Mr. Rajsoomer Lallah did not participate in the consideration
of this communication or in the adoption of the views of the
Committee under article 5 (4) of the Optional Protocol in this
matter.
[1] Subsequently one of the authors agreed to the disclosure
of her name.
