Record No. 691/14

THE SUPREME COURT OF MAURITIUS (Before the Judge in Chambers)

In the matter of: Roman Catholic Diocese of Port Louis

Applicant

1. La Sentinelle Ltd, Publisher of L’Express Dimanche newspaper

2. Raj Meetarbhan, Editor in Chief of L’Express Dimanche newspaper

3. William Rasoanairivo, Caricaturist of L’Express Dimanche newspaper

Respondents

And in the matter of:-

EX-PARTE

Roman Catholic Diocese of Port Louis

Applicant

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It is common ground that on 20/04/14, which was the day on which Christians celebrated Easter, a caricature authored by respondent No. 3 was published at page 3 of the weekly L’Express Dimanche. The caricature purported to represent Mr P. Jugnauth, leader of the political party MSM, crucified and saying “pour tickets et un fauteuil…” and Mr P. Berenger, Leader of the MMM, walking away with a bag containing 30 tickets for an election. It is also admitted at paragraph 5a of the affidavit sworn on behalf of the respondents that the caricature was an analogy to the crucifixion of Jesus Christ to describe a political manoeuvre. Following the publication of the caricature, the applicant, who claims to be the duly registered governing body for the catholic religion in Mauritius entered the present application on 24/04/14 to seek a mandatory injunction providing for the following remedies:

 

 

 

 

As is the usual practice, the applicant sought in the first place an interim order, which I declined to give and ordered instead that a summons to show cause be issued on the respondents. At the hearing of the matter, applicant’s counsel dropped prayer (ii) and the two other prayers only were pressed. 

 

In the contention of the applicant, as can be gathered from paragraph6 of the affidavit filed on its behalf, “the said caricature constitutes an outrage against public and religious morality (“la morale publique et religieuse”) and the elements constituting the alleged outrage are described as under:

 

 

 

 

 

 

It is also the contention of the applicant that the publication of the impugned caricature has prompted members of the public to make declarations to the Police and that it is urgent and necessary for the injunctive order prayed for to issue (i) in order to protect against irreparable prejudice which cannot be compensated by damages; (ii) the wrongful act complained of is extremely serious, (iii) and the balance of convenience is in its favour.

 

The allegations and complaints of the applicant, particularly, the allegation that the caricature causes an outrage against public and religious morality, are denied in the affidavit of the respondents in terms which are set out under paragraphs 5a to 5h, which are reproduced hereunder:

 

 

 

 

 

 

 

 

 

I have considered the merits of the application in the light of the affidavits of the parties and the arguments of counsel on both sides at the hearing of the matter. I note from the averments of the parties and the arguments of counsel that the application involves various issues of both fact and law, the main ones and on which the application stands or falls being (i) whether the facts that need to be decided in the first place can be so decided on the basis of affidavit evidence and (ii) whether in the particular circumstances of the application a mandatory injunction can at all be issued.

 

I propose to deal first with the issue of fact. In that respect, it is to be recalled that it is undisputed that the impugned caricature, authored by respondent No. 1 and bearing analogy with the crucifixion of Jesus Christ, was published in the edition of the weekly L’Express Dimanche on 20/04/14 to depict a political manoeuvre resorted to by Mr P. Berenger, Leader of the MMM, to the detriment of Mr P. Jugnauth, Leader of the MSM, leading to the collapse of the intended alliance between their parties, commonly known then as the “Remake”.I have, therefore, no difficulty in finding these facts proved.

 

The above-mentioned facts having been proved, the next issue to be thrashed out in relation to the facts is whether, as contended by the applicant, the caricature constitutes an outrage against public and religious morality (“la morale publique et religieuse”) in the sense of a (i) perversion of the essence of Christianism by replacing Jesus Christ with another individual on the Cross; (ii) an outrageous association of Jesus Christ with a political figure; (iii) making a mockery of an/or deriding the crucifixion of Jesus Christ, a central element of the Holy Scriptures; (iv) associating a cheap political manoeuvre to the most sacred aspect of Christian theology; (v) and by its publication on Easter Sunday.

 

Now, although the religious dimension of the crucifixion as contended by the applicant is not expressly contested, the respondents claim no offense to Christianity in the caricature, and this, for three reasons. Firstly, there was no intention on the part of the author to be disrespectful towards Christian faith or symbolism. Secondly, the caricature does not constitute any sort of mockery of and/or deriding of the crucifixion of Jesus Christ in that it merely depicted a political manoeuvre. Thirdly, crucifixion was an established form of execution in the Roman Empire long before Jesus Christ’s birth and in view of the dictionary meaning of the verb “crucifier” (to crucify) in the French dictionary Larousse.

 

Therefore, there is in this application conflicting evidence on the crux of the matter which is the question whether or not the impugned caricature is a cause of public and religious outrage in the sense contended by the applicant. At this juncture, it is also appropriate to observe that, in view of the defence raised by the respondents and the facts averred in support thereof, the outrage complained of is also a matter of appreciation involving considerations which cannot be only those related to the religious significance and symbolism of the Crucifixion of Jesus Christ to the religious believers concerned and whomit is alleged have been offended in their beliefs. As a matter of fact,the whole context in which the caricature was made and published and, more importantly, thelegal rights of the parties in terms of the freedom of religion and respect of religious beliefson the one hand and the freedom of opinion on the other hand as guaranteed and protected under the Constitution and other laws are matters to be considered.Of note, it also arises out of the submissions of learned counsel on both sides that the remedies sought lie in the enforcement of the rights of the applicant as guaranteed and protected under s12 of the Constitution and s216 of the Criminal Code providing respectively for the guarantee of freedom of religion and the offence of outrage to public and religious morality. The enforcement of these provisions does not lie in recourse to the Judge in Chambers exercising equitable jurisdiction but to specific competent courts empowered to grant and impose specific remedies and sanctions.

 

In the circumstances, it arises out of the facts and circumstances of the application that there exist both serious conflicts of evidence and pertinent questions of law that have to be considered and resolved. In my view, these conflicts of evidence and questions of law cannot be reasonably and properly resolved on the basis of the mere assertions of the affidavits of the parties. In that respect, it is appropriate to observe that the determination of the issues involved requires more than mere assertions in as much as there is indeed a need for sufficiently detailed, cogent and tested evidence on the indignation caused and elaborate and authoritative arguments on the principles to be applied in deciding whether or not in the particular circumstances of the case there has been any infringement or proper exercise of the guaranteed rights of the parties.

 

During the course of his submissions, learned counsel for the applicant referred to a number of decisions of the European Court of Human Rights on complaints of breach of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, namely, articles 9 and 10 guaranteeing the freedom of religion and the freedom of expression, respectively. These complaints relate to judgments of domestic courts in criminal proceedings, amongst which proceedings for disparaging religious doctrines and blasphemy in relation to the Christian religion. Although these decisions provide interesting and useful guidelines in determining what would amount to outrage to religion and the permissible limits in a democratic society to the exercice of the freedom of expression without infringement of the freedom of religion, they cannot be of much help to the applicant’s case, which it is to be recalled is an application for an injunctive order based on affidavit evidence. As a matter of fact, they are decisions determining complaints against judgments of domestic courts obtained following full fledge trials and on appeal as well as elaborate arguments in law and not affidavit evidence merely asserting facts and complaints of offending religious feelings.

 

Now, it is well settled that it is not for the Judge in Chambers in dealing with an application for an injunctive order to resolve conflicts of evidence on affidavits as to facts and decide on serious questions of law. This principle, derived from the leading case of American Cyanamid Co v. Ethica Ltd (1975) AC 396 and expressed in those terms: ‘it is no part of the Court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavits as to facts or which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature consideration,” has been reiterated and applied in numerous cases in Mauritius (see Bathfield v Angateeah [2008 SCJ 117], Soormack v Le Mauricien Ltd & Ors [2013 SCJ 58] and Nunkoo v Nunkoo [2014 SCJ 408].

 

The Judge in Chambers has, therefore, a limited role in acting on affidavits and cannot in the circumstances act and determine the respective rights of the parties where the affidavits exchanged raise disputed and serious issues of fact and law. And this principle assumes all its importance in cases, where like the present one, the injunctive remedy sought, implies determining in a definite manner the rights of the parties.

 

In application of the principles set out above and asthe present application involves conflicts of evidence and questions of law that cannot be reasonably and properly resolved on the basis of the mere assertions of the affidavits of the parties, it is difficult for me as Judge in Chambers exercising jurisdiction based on equity to determine the present matter.

 

As indicated earlier the other issue to be considered is whether in the particular circumstances of the application a mandatory injunction can at all be issued. It is well-settled that a mandatory injunction would not bereadily granted at interlocutory stage because of its drastic effect. This is so being given the fact that it requires in the circumstances an“unusually strong and clear” or “a high degree of assurance”of the applicant succeeding to establish his right at a trial eventually, and this, to avoid any risk of injustice to the respondent in the event that it turns out at the trial that the granting of the injunction was wrong.

 

In the case of Beerjeeraz v United Basalt Products [1990 MR 159] the Court had this to say in that respect:

 

 

 

The same principles governing mandatory injunctions are set out in the earlier case of Films Rover International ltd v Cannon Film Sales Ltd [1987] 1 W.L.R quoted and applied in Awotur Rissea Kumar v The National Transport Authority & Ors [2008 SCJ 287]. They are stated as under:

 

 

 

 

 

 

In the present case, therefore, in its attempt to enforce its rights by way of a mandatory injunction, it was incumbent on the applicant to show the required degree of certainty that it would succeed at a trial. As it has been shown earlier that this application which is based solely on affidavit evidence revealing conflicts of evidence and serious questions of law which a Judge in Chambers cannot determine in view of its limited powers to act on affidavit evidence, it cannot be said that there exists the required degree of certainty as to the rights the applicant is seeking to enforce to warrant the issue of a mandatory injunction.

 

There is another reason for which it is difficult for a mandatory injunction to issue, which lies in the fact that the injunction is not being sought as a provisional measure to safeguard the rights of the application pending final determination of such rights definitely by a competent court. It is to be observed in that respect that there is nothing in the affidavits of the applicant indicating that it intends eventually to have its rights enforced by a competent court.Furthermore, as rightly pointed out by learned counsel for the respondents, although the remedy consists in mere written apologies to those religious believers who could have suffered indignation, it can hardly be disputed that such a remedy is in the form of a sanction to be granted after a finding that the respondents have been guilty of the outrage complained of a fact which they deny. There is thus in the present application a call for determining definitely the rights of the parties, which as pointed out earlier cannot be done in view of the conflicts both on the facts and in law disclosed in the affidavits.

 

For the above reasons, I hold that the present application cannot succeed. I accordingly set it aside with costs.

 

I certify as to Counsel.