In a judgment delivered on 21 March 2023, the Supreme Court of Mauritius considered whether an attorney (solicitor), in his personal name and capacity, had standing to apply for a judicial review of the rules issued by the Chief Justice in relation to court fees. In short, the attorney claimed that the increase in court fees would result in the denial or fettering of access to justice to the average citizen or those of low income who do not generally qualify for legal aid. It was argued on behalf of the Chief Justice, the State and the Attorney-General that the application was in the nature of public interest litigation (“PIL”), which the Court cannot entertain. The Court agreed that the attorney lacked standing. However, the Court did not issue a hard no to PIL.
The Court interestingly opened a parenthesis in the judgment to point out that the caselaw in Mauritius relating to constitutional redress or relief does not recognise representative standing and has consistently rejected PIL as a concept that is “alien to our jurisdiction”. The Court further observed that despite developments in other jurisdictions such as India with regard to PIL or to the increasingly liberal approach to the issue of standing in other jurisdictions, particularly in the evolving field of environmental and climate justice, the Mauritius courts have constantly insisted that a litigant must have a “direct” or relevant personal interest in the matter in order to pursue it. However, the Court’s parenthesis seems to relate to the specific cause of action that is available under section 17 of the Constitution of the Republic of Mauritius (an application for constitutional redress), and rightly so, as section 17 expressly provides that such action is available to a person who alleges contravention of a constitutional right “in relation to him”, and therefore plainly excludes PIL. The fact that the Court considered these decisions in a parenthesis is consistent with its findings relating to the possibility to claim representative standing (which includes public interest standing) in judicial review proceedings, and would further suggest that it does not exclude PIL as a concept outside of the purview of section 17 of the Constitution. At any rate, the Court would not exercise its powers under section 17 where judicial review is an adequate means of redress.
Guided by English authorities, the Court held that there are different bases upon which an applicant may claim standing in judicial review proceedings: an applicant may not always need to demonstrate personal interest (personal standing) and may alternatively claim representative standing, i.e. that they act on behalf of some particular section of society or on behalf of the public interest. However, the Court found that even if it were to apply this “liberalisation” of the test for standing in England, the applicant would not have representative, or public interest, standing, based on the evidence adduced in the case. Regrettably, the Court did not spell out the reasons why it reached that conclusion. It simply held that such position is “clear from [the attorney’s] affidavit” and then referred to the following principles laid down by the English courts as regards public interest standing:
- Groups claiming to be acting in the public interest may be granted standing when some conditions are met: the group must be regarded as reputable and responsible and having sufficient expertise in the relevant area; the issue must be of real importance; there must not be any better placed potential claimant.
- Courts are more cautious when the application is made by an individual claiming to be acting in the public interest and may consider whether he is truly acting in the public interest or has some ulterior motive.
- Not everyone who has a strong and sincere interest in an issue will necessarily have standing.
- In exercising its discretion, the Court could consider if there are or would be “obviously better-placed challengers”.
One reasonably infers from the judgment that the Court considered that those principles sufficed to explain why the attorney does not have standing to enter the application as a matter of public interest or on behalf of other members of the public. However, that is not an obvious position to take. Nor is it an easy one to understand. By comparison, the UK Supreme Court held in Walton v Scottish Ministers that a distinction must be drawn between a mere busybody (who has no legitimate concern to interfere in something) and a person having a reasonable concern in the matter to which the application relates – applying that reasoning, it is not at all obvious why an attorney, who claims that he often represents members of the public who cannot afford to pay legal fees and are not eligible for legal aid, is not to be considered as having a reasonable concern in the Chief Justice’s decision and decision-making process to introduce substantial court fees that allegedly may fetter access to justice.
As such, while we welcome the Court’s apparent acceptance of public interest standing in judicial review proceedings, the Court’s judgment does not altogether assist in understanding the approach that it will take in a given case to determine whether such standing is established. Internationally, there is an increasing recognition of the importance of PIL, especially in the context of advancing Environmental, Social and Governance (ESG) objectives. The Court’s judgment seems to unlock the door for PIL outside of applications for constitutional redress, but unfortunately leaves that door only half open by accepting the concept of public interest standing and but not explaining its non-application to the case before it.
Note: The Court addressed other issues in its judgment, such as whether the Chief Justice’s decision-making process is amenable to judicial review and whether the applicant had an arguable case. This note does not deal with those issues.
Read the original publication at Orison Legal.