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Assess the effectiveness of the Sources of law in Mauritius

Law and Management (University of Mauritius)

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Assess the effectiveness of the Sources of law in Mauritius

In Mauritius, the legal system consists of a mixture of both the French and English law. This led to the
authentic Mauritian Law which was brought forward by that combination. Mauritius has to maintain a
competent and independent law system which upholds the rule of law, safeguards the rights and
freedom of individuals and commands domestic and international confidence. Thus, sources of law
simply means the roots from which rules of human conduct came into existence and derived legal
forces. The legal sources vary from country to country. Though there are different meanings for the
term sources of law. It is defined as one which a judge of a court can rely to identify the rules of law
to decide a case.

Material sources of law are historical influences which takes existence of a given rule of law at a
given time and at a given place. The republic of Mauritius has been subject to a number of
colonization attempts, namely by the Arabs, the Portuguese and the Dutch.
Because of its history, Mauritius had originally inherited its laws from its two colonial administrators,
France and England. Mauritius has been in the possession of France from 1715 to 1810 they
introduced their law to Mauritius which are Loi & Reglements (legislation) and coutume. And when
the French retrieve the island to England in the 1810, they had different types of law so they used (i)
Common law, Equity, Legislation, Legislation, local custom. Later to 1814, Mauritius was a British
Colony until independence was achieved in 1968. Therefore the country’s legal system is based on the
French Civil Code and English Common Law and thus has its own authentic Identity.

The legal sources of law in Mauritius are namely Legislation, Case law and Custom. Legislation is the
most important source of Law in Mauritius. The Legislation in Mauritian context takes three forms
namely the Constitution , Primary Legislation and Delegated Legislation The Constitution is a set of
rules, generally written which identify and regulate the major institutions of the state and govern the
relationship between the state and the individual citizen.. According to the section 2 of the Mauritian
constitution, it is the supreme law of Mauritius and if any other law is inconsistent with this
constitution, that the other law shall, to the extent of the inconsistency, be void. High degree of
importance is held since it is made with the assumption that a given state exists and has a legal
identity of its own. The supremacy ensures that all laws passed by the Parliament should be in
conformity with the Constitution. In Noordally v. Attorney General(1986) MR 204, the applicant,
who was suspected of the possession of heroin was not granted bail based on section 46(2) of the
Dangerous Drugs Act 1986. The latter appeal based on the violation of section 3 and 5 of the
constitution, which provides for the fundamental rights and freedoms of the individual. Section 5
stipulates that his detention does not hold unless there is element of suspicion, and also, he must be

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tried with a time frame otherwise set free.Therefore, Section46(2) of the Dangerous Drugs Act 1986 is
void.

Relating to other modern democracies, primary legislation is considered as an important source of law
in Mauritius. The parliament is responsible for processing legislation. According to Section 45 (1) of
the Mauritian Constitution states that parliament may make laws for the peace, order and good
governance of Mauritius. The power of parliament to make laws shall be exercisable by bills passed
by the Authority and asserted by the President. A bill is introduced into Parliament and after it has
undergone the different stages in Parliament it then become an Act of Parliament after it has been
assented by the President of Republic and after publication in the Gazette. There are basically three
types of bill of parliament which are namely Public Bill, Private Bill and Private Member’s Bill. As
stipulated by section 45 of the Mauritian Constitution, parliament enjoys almost a monopoly over the
legislating process. However, a number of legislations like Enabling Acts or Parent Acts, allow
subsidiary organizations (Municipalities or parastatal bodies) to pass delegated legislations. For
instance, the Local Government Act enables Municipalities and District Councils to pass delegated
legislations (Municipal Market Regulation). These form part of Secondary Legislation. Secondary
Legislation must be in conformity with the enabling Act and the Constitution. Ministers too can make
regulations under various enabling acts. Thus the Minister of Environment has made a number of
regulations over the years to regulate the environment; for e.g. Environment Protection Act or
Business Facilitation Act. As such, there is an express as well as implicit delegation of power to
various subsidiary organizations. However, section 122 of the Constitution enables Parliament to
exercise some form of control over delegated legislation.

Case law is the system under which the decision of a superior court is binding for the future on a court
inferior to itself and sometimes binding on the court which gave the decision. There must be a clearly
defined hierarchy of courts and a clear and accurate reports of judicial decisions. It is often created by
judges in their rulings, when they write their decisions and give the reasoning behind them, as well as
citing precedents on other cases and statutes that had a bearing o their decision. Case law interprets
statutes, constitutional provisions, regulations and other case law. It is often referred to as common
law. Generally speaking, common law is a type of legal system where legislation is continually
evolving. Courts refine and create law on a case by case basis. When resolving a legal dispute, a
common law court looks to precedents set by other courts. What this means is that when a court is
resolving a dispute, it must look to see it a similar dispute was resolved in the past. If one has, then the
present day court is obligated to following the same reasoning used in the prior case. This principle is
called stare decisis. On the other hand, if the dispute is totally unique, the court may resolve the matter
itself using general guidelines. This new decisions then becomes the precedent to which all future
cases are bound. Over the years, the precedents created by past decisions fuse into a complicated set

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of rules that apply to a wide array of cases. This collection of rules is known as common law. The
principle of stare decisis as described above is the foundation of all common law systems. It can thus
be said that common law abstracts rules from specific cases, that is, it is based upon tradition and laws
are codified using code rulings. Yet the Supreme Court asserted in DPP v. Mootoocarpen(1988) MR
195 at 196 that it is quite clear that if a treatise were to be written on Mauritian Law, the sources of
our law would not be limited to statute but would have to include case-law. Section 4 of Ordinance
No.2 of 1850, was to the effect that the Supreme Court and the judges thereof shall sit, and proceed to
and conduct, and carry on, business in the same manner as the Court of Queen’s Bench and the judges
thereof. Adherence to judicial precedent was eased as from 1861 with the regular publication of the
Mauritius Reports, which is a collection of the main decisions of the Supreme Court. The initiative
initially was a private one, that of a local attorney: Me Adrien Piston. From 1940 onwards, the
Mauritius Reports have been an official publication and the editing entrusted to the Chief Justice.

In law, Custom is a guide for courts in circumstance where nothing is prescribed by law. For a custom
to exist, two requirements must be fulfilled namely a material element and an intellectual element. A
material element which is referred to as Repetitio, that is, the practices must have existed for a
considerable length of time. Hence, it matters of trade, it has been considered that a period of 18
months is too short to establish such a practice. In Pipon Adam & Co v. Chapuy (1879) MR 104 , it
was pointed out that for a usage to be binding it must be known to the parties and of uniform and long
continuance. The Supreme Court considered that the shortest practice that has been sustained as
constituting a usage of trade is three years. A practice proved to be only of eighteen months standing
was regarded as insufficient to establish a usage of trade. On the other hand, the intellectual element 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 sticks to it. The practice must be clear and explicit 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.

In light of the above observation, it can be concluded that the legal system of Mauritius presents all
the characteristics of a mixed legal system. In term of effectiveness, one can find that each source has
a specific degree of effectiveness corresponding to the circumstance it is being applied. Be it material
or formal, the source applies with regards to the case it will be implemented.

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