SOURCES OF LAW IN MAURITIUS

Law refers to rules and regulations which regulates people’s behaviour within a society. These
rules and regulations have to be accompanied by sanctions. It is crucial for the betterment of a
society to maintain peace, order, stability, security and discipline. Without law, people would
be living in a chaotic manner with no respect for each other. “Sources of law which a judge of a
court can rely to identify the rules of law to decide a case". In Mauritius, we refer to two broad
categories of sources of law which are from Material sources and Formal sources.

MATERIAL SOURCES OF LAW

Because of its history, Mauritius has inherited its law from its two successive colonial
administrators, France and England. We had been colonised by the French and then by the
British, from whom our law has been inspired. These two successive colonisations have shaped
the legal system of Mauritius in its early days and the influences they have left on our laws and
on the administration of justice in the Island continue to be felt to this date. The French period
gave us the Code Napoleon and the two subsidiary texts, the Code de Procédure Civile and the
Code de Commerce. These texts still partly governs same aspects of our civil law today namely
Contractual Law, Law of “Sociétés", Civil Rights, Property Law and civil procedure. This explains
why the Republic of Mauritius has inherited both English and French law which is reflected in
various legislations (Dangerous Drugs Act 2000) and codes (Code Civil, Code de Commerce and
the Code Pénal

However, the British colonization period has had a much greater impact on our legal system
with considerable influence of Anglo-saxon traditions on the organization of our judiciary and
parliamentary system and on our legislation. For instance, the core of our Civil and Criminal
laws, Business Laws, Company Laws, evidence and court procedure laws are inspired y British
legislation. However, our law is neither purely civilian nor purely common law. By taking the
characteristics of both French and British law, we have got a hybrid legal system which has
been adapted to the Mauritian context (Mauritian law).
Hence, we have a hybrid legal system.

FORMAL SOURCES OF LAW

Under the formal sources of law, we have a hierarchy of law, which are The Constitution,
Legislations, Case Law, Custom and Doctrine.

The Constitution

The Constitution may be defined as a composition of a written set of rules associated to rights
of individuals and powers of the legislative, executive and judiciary. Without a Constitution a
State may run into anarchy and by consequence may be ruined democratically. Individuals
must be free and enjoy freedom although there are laws and strict rules and regulations. This
explains sometimes the coercive power of the State. It is from these rules that courts derive
their authority and wisdom. The Constitution of the Republic of Mauritius is a perfect
machine capable of implementing both criminal law and criminal procedure. There are some
important fundamental principles, which are laid out so as to ensure that the liberty and
freedom of citizens and individuals of this country are respected. Section 1 of the
Constitution enacts that: “Mauritius shall be a sovereign democratic State which shall be
known as the Republic of Mauritius”. Section 2 of the Constitution enacts that:

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Open University of Mauritius - Foundations of Law and the Mauritian Legal System
“This Constitution is the supreme law of Mauritius and if any other law is inconsistent with
this Constitution, that other law shall, to the extent of the inconsistency, be void”.

Legislations
Under Section 45 of the Constitution, the Parliament has the power to make law for the peace,
order or good government of Mauritius. However such laws or legislation must obviously be in
conformity with the constitution. There are two types of legislation:

(i) Primary legislation:

These refer to Acts of Parliament passed by the parliament. For example, The Employment
Rights Act or Environment Protection Act or Public Health Act.

Subsidiary legislation:

These are also known as Delegated legislations. These are laws which are made by Ministers or
authorities or tribunals when the Parlimant has delegated its law making power to them.

Examples of subsidiary legislations: Regulation on noise pollution or Regulation on non-

smoking.
Legislation consists of the laying down of rules by a body which has law-making authority.
Before it becomes law, an Act of Parliament is known as a bill which may be either private,
public or private member’s bill. According to Section 45 of the Constitution “subject to the
Constitution, Parliament may make laws for the peace, order and good government of
Mauritius”. In a democratic country, Parliament makes laws and the judiciary interpret them
otherwise there would be no separation of powers if, for example, the judiciary interprets law it
would consequently usurpate the function of Parliament. And Section 46 (1) of the Constitution
enacts: “The power of Parliament to make laws shall be exercisable by bills passed by the
Assembly and assented by the President”.
There is a need for legislation whenever there is a need to protect people or to act as a
deterrent. For example, in order to protect non-smokers, Government has passed regulations
through The Public Health Act restricting smoking in public places. Another example would be
the passing of the Asset Recovery Act 2011 where the assets of criminals convicted for drug
offences are seized and confiscated. It acts as a deterrent since before the passing of this
legislation, drug traffickers went to jail and then when come back enjoy their ill=gotten wealth.
A number of legislation, known as Enabling Acts or Parent Acts, allow subsidiary organizations,
municipalities or parastatal bodies to pass delegated legislations, which are known as
“Regulations, Orders, Rules or Buyer laws".

For example – the local Government Act by virtue of sections 140 and 141 of the minister
unables municipalities and district councils to pass delegated legislation. Ministers can also
make regulations under various enabling Acts. Thus, the Minister of Education has made a
number of regulations over the years to regulate the educational field, e.g, University of
Mauritius Act.

Case law

Case law are judgments delivered by Courts. They are also known as judicial precedents.

The doctrine of judicial precedents is to the effect that the decision of a superior court is
binding on inferior courts and sometimes on the very court that delivered the judgment.
However, this will apply where the cases deal with similar issues.

“Like cases should be decided alike”.

E.G: The Intermediate Court (an inferior court) has to decide on a case of rape. It can refer to a
previous similar judgment of the Supreme Court (a superior court) to give its judgment. This is
so because the judgment of the SC is binding on the IC.
In most commonwealth countries, the doctrine of binding judicial precedents is one of the most
important, after legislations, and if not one the most popular sources of law. Binding precedent
is the result of cases decided by the Courts in those areas not covered by statute. The
importance of precedents is highlighted in UK The Practice Statement, 1966 which reads as
follows:

Judicial precedent means the process whereby judges follow previously decided cases where
the facts are of sufficient similarity. The doctrine of judicial precedent involves an application of
the principle ofstare decisis ie, to stand by the decided. In practice, this means that inferior
courts are bound to apply the legal principles set down by superior courts in earlier cases. This
provides consistency and predictability in the law.
Customs

In law, custom can be described as the established patterns of behavior that can be objectively
verified with a particular social setting. A claim can be carried out in the defense of “what has
always been done and accepted by law". Custom is a guide for courts in circumstance where
nothing is prescribed by law. Custom is recognised as a general source of law of a particular
kind in Mauritius.

Normally, for a custom to exist, two requirements must be fulfilled namely:

A material element- this is referred to as Repetitio, that is, the practices must have existed for a
considerable length of time

An intellectual element – This is referred to as Opinio Necessitatis that is it is not sufficient that
a practice has existed, it must also be demonstrated that the practice is adhered to. The
practice must be clear and unambiguous in its context.
If only the material element is present, the practice is referred to as a usage. Usages as such are
devoid of any legal force. However by legislation, usages are incorporated into contracts.

Customary rules can be classified as being of different types namely:

Customs Secundum Legem – customs which the legislator expressly indicate will govern a given
situation

Customs Praeter Legem – it appear mainly in areas where the law keeps changing such as
commercial law or law of banking.

Customs Contra Legem – concerns practices which would be contrary to a statutory provision

It is important to point out that despite customs and usages (refer to article 1135 Code civil
mauricien) are sources of law they do not have the force of law.

Code Civil. Usages.1135. Les conventions obligent non seulement à ce qui y est exprimé, mais
encore à toutes les suites que l’équité, l’usage ou la loi donnent à l’obligation d’après sa nature.

However, they play an important role in the society (religion for example). In contrast, courts
refer

However, they play an important role in the society (religion for example)

Doctrine

Doctrine is the writing of eminent jurists. It is to the effect that like cases must be treated alike.
The Mauritian Courts have recourse to the writings of eminent jurists to understand legal
concepts. The writings of eminent Jurists are known as Doctrines. For instance, Doctrine on
French law are writings by Professeur Garson or Professeur Garraud. These writers are
specialists in certain fields and their expertise help courts to decide on certain fields legal
points.
It concerns academic research and articles, the opinions of scholars, jurists, barristers,
judges, professors, just to name a few. Mauritius has its own ‘doctrine’, for example,
judges will cite Venchard or Pr Garron. In Busgeeth v. Busgeeth 1997 SCJ 236, for
example, the Supreme Court of Mauritius referred to an article written by Pr Garron
published in the Mauritius Law Review of 1980.