It was really sad reading the article entitled ?Know thy Law? by Miss Deepa Bhookhun. According to your journalist, the government, and more particularly the present minister of Justice, is doing a great job to give access to law to a greater range of citizens. You were in fact praising those who are responsible for the most outrageous infringement to the citizen?s fundamental right to have access to law. In our legal system, judgments delivered by our Courts (i.e. ?case-law?), are a source of law in the same manner as statutes voted by Parliament are a source of law.

In 1997, the then majority in the National Assembly amended the Copyright Act to make a ?judgment of a Court or Tribunal? a work protected by copyright. Prior to that amendment, the Act provided that a ?judgment of a Court of Law and Tribunal? was NOT protected by copyright and was therefore in the public domain. During the debates on the proposed amendment, the then Attorney General, Mr Peeroo, stated that this amendment to the Copyright Act had been requested by the then Chief Justice, Mr. A.G. Pillay.

As a result of the 1997 amendment to the Copyright Act, there is no difference between a judgment of the Supreme Court and the last CD of Britney Spears. If I want to reproduce the last songs of Britney Spears, I would have to ask the permission to the owner of the economic rights in the songs. The latter might ask for a prohibitive financial counterpart or flatly refuse to give anybody the permission to reproduce Britney Spears? ?artistic work?. In Banana Mauritius, the State can do exactly the same thing with the judgments of any Court of Law or tribunal.

Shortly after this amendment was passed by Parliament, the State obtained against V-Street International Ltd an injunction prohibiting that company from publishing the judgments of the Supreme Court on CD-ROM. It is funny to note that at the time the State obtained that injunction the State Law Office had already bought 10 of the said CD ROMs from V-Street International Ltd.

In a main case lodged before the Supreme Court the State has also sued V-Street International Ltd for having published judgments of the Supreme Court in breach of the Copyright Act. In all democratic states there is this well-known principle that ?ignorance of the law is not an excuse?. By giving power to the State to deny access to judicial decisions (case-law) the Copyright Act violates section 2(1) of the Constitution.

In this context the judgment of Wilson & Lafleur Inc. c. Société Québécoise d?Information Juridique in the Quebec Court of Appeal provides interesting reading:- ?Dans un Etat de droit, où chacun est soumis aux lois et où chaque individu est régi par elles, par des règlements et, faut-il le reconnaître, par le droit prétorien [case law], il est essentiel que les citoyens soient en mesure d?échanger et de critiquer librement l?ensemble de ces règles. Si l?établissement d?une véritable démocratie commande que les citoyens doivent pouvoir s?exprimer et critiquer librement les institutions qui les régissent, participant de ce fait à leur évolution, il nous apparaît évident que ces échanges et ces critiques doivent également viser les fruits de ces institutions. Pour nos fins, cela fait évidemment référence aux décisions judiciaires.Or, la critique, sans avoir accès à l?objet discuté, demeure illusoire. D?où l?importance de rendre accessibles au public, et donc à tous les médias, les procédures et décisions judiciaires (?)?

Prior to hearing the case on its merits, V-Street International has raised a point of law as to the unconstitutionality of the Copyright Act on which the State expressly relies in its claim. We were eager to obtain the ruling of the Supreme Court of Mauritius as to whether it was constitutional to grant to the State a copyright on judgments i.e. a proprietary right empowering the State to disallow reproduction of judgments. However, in a ruling delivered on 21st March 2008 his Lordship Mr Justice Domah decided that ?the real issue between the parties is not the constitutionality of section 2(1) of the Copyright Act?.

Regarding our government and the present minister of Justice doing a great job it is certainly worth mentioning that V-street International Ltd has published updated versions of the Mauritian Legislation and Subsidiary Legislation on CD-ROMs every year since 1997. Is it ignorance or irony to entrust to LexisNexis Butterworths Limited, a foreign company, a job which a local company has been doing successfully since a decade?

I hope that the above will help your readers have a more accurate picture of the issue of access to law in our Republic.

Justus WALTHER

Our reply : Case law in Mauritius is not a source of law in the same manner as statutes voted by Parliament are a source of law because there is no such thing as Common Law in Mauritius as opposed to Québec as cited by Justus Walther. Having said this, he is right ? the fact that a judgment of a court or tribunal is a work protected by copyright ? is an aberration. Mr Walther will be happy to know that the matter is presently the subject of discussions between the Attorney General?s Office and the Supreme Court, which is why it wasn?t mentioned in the article ?know thy laws?. As for the fact that V-Street was not granted the contract to publish the laws of Mauritius, it is surely something that Mr Walther should bring up with the Attorney General.