Metro Express tragedy: Advocating for Public Interest Litigation

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Equating ‘modernity’ with development is a big mistake. Particularly when the modernity project is bereft of humanism and empathy. Sadly, swathes of Mauritian citizenry were caught by seductive promises and false hope of change by demagogues. The demagoguery persists – with those currently holding the reins of power telling us that the Metro Express symbolizes a modern nation and will bring development to the nation. Such a discourse reflects a very poor understanding of ‘development’.

As the Nobel economist Amartya Sen has noted, development is about freedoms – freedom from illiteracy, from malnutrition, from disease, from homelessness, from unsafe and risky environments. Without such freedoms, there can be no development. Inextricably linked to such freedom is the question of rights – the right to food, the right to shelter, the right to education, the right to health, the right to work, for it is only when these rights are upheld, that human dignity and development exist.

Needless to say that the right to information also plays a big role in delivering development. The opaque governance that ordinary citizens are subjected to is very worrying. The disclosing of the metro feasibility study looks as if it will never happen.

It is shocking to hear members of the government systematically accusing those who are denouncing the inhumanity, the economic un-viability, environmental unsustainability of the metro project as unpatriotic. They are being described as those who “met baton dan larou”. As a matter of fact, no one who is really concerned with the development of the nation, who affirms the truth, who is a firm believer and promoter of participatory democracy, transparency and accountability will choose to “met baton dan larou”. Sustainable development demands environmental protection and ecological integrity, economic viability and social human development (UNESCO, 2016).

All we want is proper consultations, effective planning, negotiations, guarantee of sustainability; in short, “national interest” should be defined in a meaningful, inclusive and humane manner. No one is against development but we want it within a framework of a JUST and COHERENT System.

Cardinal Maurice Piat’s homily on the occasion of the Pere Laval Pilgrimage speaks to the above most aptly. We cannot thank him enough for this reminder.

“No one who is concerned with the development of the nation, who is a promoter of democracy and transparency, will choose to ‘met baton dan larou’.”

National interest cannot be built on self-interest, arrogance and opacity. What is happening in Barkly and La Butte are only the tip of the iceberg. The cauldron of discontent is simmering. I have no doubt that those who had to run away from the localities in question sous forte escorte policière now realise that the saying “we are government - we decide” does not always work.

When people are angry, disgruntled and disillusioned, they can and do decide! Reading the President of the Collectif Agalega, Laval Soopramanien’s interview, one can sense the frustration of the Agalean too – there is trouble in the air. Without justice, transparency and accountability, there can be neither development nor peace! If we are sincere about modernization and development, we cannot allow our laws to remain static. Our laws should evolve – new norms and new values should be central to such evolution. Any society that calls itself modern and argues that it is caring for its people cannot possibly destroy the habitat of a human being, let families sleep in distressing conditions, destroy livelihoods of people. The right to decent shelter, to decent jobs and safe environment are fundamental human rights.

How can we reconcile an old legislation such as the Land Acquisition Act with the Rights debate? How can such a piece of legislation fit into the Rights architecture of development so that the weaker, the vulnerable and the oppressed get a voice? Are our courts ready for some judicial activism in interpreting “national interest”? Eviction and bulldozing of houses as well as loss of jobs often lead to mutually reinforcing disadvantages, giving rise to new complex forms of poverty and social inequality.

Civil society and the opposition should perhaps push for Public Interest Litigation (PIL). The latter is a tool often used by the courts, particularly in India, to protect and ensure justice for the voiceless and downtrodden.

Narendra Modi must be very familiar with article 39 A of India’s Constitution, from which many eminent Indian jurists draw to engage in diverse forms of judicial activism to render Indian society more progressive and just. Given Modi’s acknowledgment of the ‘samban’ of our two people, he cannot possibly turn a deaf ear to the callings of the people of our Republic, inclusive of Agalega.

It is perhaps more important for our courts to learn from Indian courts than our two parliaments learning from each other. I am sure that some of us can recall the “mutual learning of India and Mauritius’s legislatures”, referred to by the current Speaker of the Assembly.

Commenting on public litigation, the eminent Indian Justice Bhagwati notes in P.U.D.R v India that: “…public interest litigation is a strategic arm of the legal aid movement which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity. It is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversarial character…public litigation is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed…’

Other well-known jurists such as Upendra Baxi, use the term ‘social action litigation’(SAL). In an interesting paper entitled Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, he shows how using such a tool can actually empower the poor and the marginalized. The ‘lawlessness’ and tyranny of governments can then be more easily interrogated.

I do not wish to suggest that PIL or SAL, as Baxi prefers to call it, are without challenges and obstacles. But as we move towards our 50th Independence anniversary, there is an urgent need not to allow our democratic gains and citizens’ rights to slide back. Developing critical thought and debate on the pertinence of such instruments for our society has become most urgent.

It is comforting to note that some people, for instance, former President of the Republic Kailash Purryag, in a recent interview, is also inclined towards such a debate. Let us hope that many others join in this debate!

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