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Published: Fri, 02 Feb 2018
Mauritius Has A Hybrid Legal System
Mauritius is rather unique in having a dual set of laws. There is the “code Napoleon”, a legacy of the French occupation of the island together with statue laws passed by the legislation Assembly. British took possession of the island in 1810. When the French surrendered to the British, they obtained from their victors that their property and customs and laws would be respected. It was more easier to keep the “code Napoleon” than to overhaul the legal system. So our aim today is to show how the Mauritian legal system is an hybrid system.
The republic of Mauritius has been subject to a number of colonization attempts, namely by the arabe, the Portuguese and the Dutch in the year 1598 and the French cause to colonise Mauritius in the 1715 and of course they introduced their law to Mauritius for e.g (i) Loi & Reglements (legislation) (ii) 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, Statute (Legislation), local custom.
Sources of Mauritian law as a hybrid legal system
The basic substantive content of part of Mauritian law is thus derived from the French codes: the Civil Code which has been amended over the years to adapt the local context, the Penal Code which has been reenacted as the Criminal Code and the Code of Commerce has been included to a lesser extent. While on the other hand, the law of procedure and evidence are from the English Law, provisions of the Code de Procedure Civile are still in force. This is an inevitable result of the adoption of a court structure and the remedies which they provide in the tradition of the common law. The Mauritian constitution follows the “Westminster model”. Mauritian legal system has borrowed law relating to trade and commerce. Shipping, finance, banking, company law, negotiable and bankruptcy instrument. The legislation and statutory interpretation has been largely inspired by English Law and Jurisprudence. The Mauritian law has emerged from a mixture of both English and French Law and thus has its own authentic Identity.
There exists a hierarchy at legislative norms.
4.1 The Constitution
Constitution is also known as supreme law – as mention in section 2 of the constitution. There it mentions about any law which is inconsistent with the constitution shall to the extent of the inconsistency be void. As mention in section 47, the parliament may, with the support of a qualified majority, amend the provisions of the constitution.
Note the lack of efficacy of section 47(3) of the Constitution.
Any person who feels aggrieved that a provision of the Constitution has been infringed can apply to the Supreme Court to obtain redress. Thus in Police v. Fra (1975) MR 157 and in Vellevindron v. R (1973) MR 245 the Supreme Court struck down legislation which infringed the presumption of innocence of the accused guaranteed by section 10 of the Constitution. In UDM v. Governor General (1990) MR 118, the provision of the Legislative Assembly Elections Rules which provided for a deposit of Rs10,000 to stand as candidate was declared void as it sought to introduce a property qualification, when none was provided for by the Constitution. The Supreme Court has also invalidated legislation contravening the principle of separation of powers, which is an underlying feature of our Constitution: Mahboob v. Government of Mauritius (1982) MR 135; Noorbally v. Queen (1986) MR 204.
4.2 Primary Legislation/Secondary Legislation
Section 45(1) of the Constitution vests law-making power with Parliament; it may pass laws for the peace, order and good government of Mauritius. Acts of Parliament must, of course, be in conformity with the Constitution.
Acts passed by Parliament are referred to as Primary Legislation. By contrast, subsidiary legislation refers to those Rules or Regulations enacted by ministers, local councils or public authorities to whom law-making power has been delegated. Section 118 of the Constitution empowers the Commissions and tribunals established under the Constitution to make regulations for their proper functioning. Similarly Parliament can delegate its law-making power.
The subsidiary legislation must be in conformity with the enabling Act (where this power has been conferred by an ordinary Act of Parliament) and the Constitution.
4.3 The legislative Process
The Legislative process comprises of various stages.
4.3.1 The preliminary stage
4.3.2 Procedures in Parliament
(i) First Reading
(ii) Second Reading
(iii) Committee stage
(iv) Third Reading
(vi) Assent of President
(vii) Publication in the Government Gaze
The preliminary stage
Normally the public bills are prepared or written by the ministries, it is a law that is created to reflect the idea of the ministers. In September 2000, the new government voted, for a while the board of investment bill. Most of the time, other bill are ‘amendment bill’ that is used often prompted by the senior civil servant who directly or indirectly, through junior staff.
Procedures in Parliament
220.127.116.11 First reading
Mauritius has an unicameral system of parliament that means it has only one house of parliament. Whereas, in United Kingdom it is a bi-cameral system of parliament. For e.g: there are the House of Lords and the House of Commons.
The first reading is known when the bill is being introduced for the first time.
18.104.22.168 Second Reading
There is a formal motion for the second reading, following that motion, a debate will follow. For the second reading, the speaker, after consultation with the chief whip of the political parties. The speakers debate on the general principle and amendments that is the speech should not be irrelevant.
22.214.171.124 Committee Stage
After the debate, the bill stands is sent committed to a ‘committee’ of the whole assembly. The amendments which ultimately may be either accepted or rejected, may be suggested.
126.96.36.199 Third Reading
The third reading is the fact when it has already passed by the committee or a select committee. The first meeting may also be postponed.
By the virtue of section 53 of the constitution, the bill, just as other ordinary motions, should be voted by a majority of members of the parliament present.
188.8.131.52 Assent of the President
After the final vote during the third reading the bill is sent to the president of the Republic for his assent. When the president assents to the bill, the bill becomes a law, but is not yet operational
184.108.40.206 The Publication in the Government Gazette
As mentioned in section 46(4) of the constitution, the law will become operational when it has been published in the Government Gazette.
4.4 Delegated Legislation
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.
So, there is an express as well as implicit delegation of power to various subsidiary organizations. Section 122 of the constitution enables Parliament to exercise some form of control over delegated legislation.
In addition, the President of the Republic is also empowered to make regulations during a state of emergency by virtue of section 18 of the Constitution and also by virtue of section 3 of the Emergency Powers Act. Therefore, the President may make such regulations as appear to him to be necessary for maintaining and securing peace, order and good government in Mauritius or any part thereof.
Judicial Precedents(case law)
Case law, also known as judge-made 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.
For the effective operation of the system there must be a clearly defined hierarchy of courts and clear and accurate reports of judicial decisions. Of course, it is not the whole of the decision which contributes a precedent, but only the ratio decidendi of a case.
5.1 Precedent as a Source of Law in Mauritius
In the light of Article 5 of the Code Napoléon to the effect that “ il est défendu aux juges de prononcer par voie de disposition générale et réglementaire sur les causes qui leur sont soumises”, one would be prompted to infer that judicial decisions cannot be a source of law in Mauritius, as is the position in France. This provision prohibits judges from adhering to a system of judicial precedent.
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 statue but would have to include case-law.
That Case-law (that is decisions of superior courts in Mauritius, viz. the Supreme Court and the Judicial Committee of the Privy Council) constitutes a source of law therefore calls for an explanation.
This is the situation because section 2 of the Ordinance No. 2 of 1850, which established the Supreme Court, vested it with the same powers, authority, and jurisdiction that are possessed and exercised by Her Majesty’s Court of Queen’s Bench in England. Moreover, section 4 of that Ordinance, 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. At the Court of Queen’s Bench, as in other English Courts, there was adherence to a system of judicial precedent and stare decisis whereby decisions of higher courts were binding on lower courts and on themselves. These provisions of the 1850 Ordinance superseded the provisions of Article 5 of the Code Napoléon in so far as the latter purported to prohibit judicial precedent.
Adherence to judicial precedent was eased as from 1861 with the regular publication of the Mauritius Reports (MR), which is a collection of the main decisions of the Supreme Court (S.C.J.: Supreme Court Judgments are published weekly). 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.
What is the relative importance of Case-law? Few areas are entirely governed by case-law (contempt, judicial review, a number of evidential and procedural rules). Even in those areas regulated by statue, judicial decisions do contribute to the law-making process by indicating which statutory provisions are applicable to a given situation and by indicating how a provision is to be interpreted (it clarifies, when various interpretations are possible, which one is athe appropriate one).
5.2 The Common Law in Mauritius
The common law was not incorporated in Mauritian law because when the British took possession of Mauritius, the Code Napoléon which constituted the “droit commun” of the inhabitants had already been proclaimed.
However, some of the common laws have been adjusted by the legislation into our law system.
e.g 1: the rules relating to contempt of court.
e.g 2: the rules regarding JR (Judicial Review) of decision of public authorities.
These rules were incorporated by the provision in Ordinance no. 2 of 1850, which rested the Supreme Court with the same powers as the Court of Queen’s Bench in England.
e.g. 3: A third area where the common law has been introduced to our system is the law of evidence: section 62 of the courts Act.
Common law evidential rules thus apply in the absence of statutory provision governing the matter, in the absence of statutory provisions, common law, criminal, procedural rules apply as regards the conduct of Assizes Section 56 of the Courts Act provides that where any question arises as to any procedures, or conduct in any matter, in the trial of jury.
5.3 Judicial Decisions from other Jurisdictions
Expect in those areas where Common law or Equitable rules have been made applicable by Parliament, Mauritian Courts are not bound by decisions of English Courts. Nor are they bound by decisions of French Courts. The practice is, however, that where Mauritian legislation has been borrowed from English or French legislation, a court will refer to decisions interpreting such legislation for guidance.
In the year 1861, the Judges of the Supreme Court stated that “in this, as in every other case, where questions are raised on the Civil Code, we are in the habit of resorting to the decisions of the Courts which gave it birth”.[Carbonel, Bourdin Fils & Co. v. Letellier & ors. (1861) MR 51]
5.4 Customs as a source of Law
Two requirements must be fulfill, for a custom which is recognized as a sources of Law, for it to be established that there exist a custom:
A material element: there must have been a consistent practice over a period of lime. This is referred to as the Repetitio. In the 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.
An intellectual element: this is referred to as the Opinio Necessitatis. That is it is not sufficient that a practice has existed, it must also be demonstrated that the practice is adhered to because the persons concerned labour under the impression that there is a legal obligation on their part to adopt such a course of action.
Usages as such are devoid of any legal force. But note that by legislation usages are incorporated into contracts. Thus Articles 1135 and 1159 of the Code Napoléon provide:
Act. 1135 C.Nap.: “ Les obligations obligent non seulement a ce qui y est exprimé, mais encore a toutes les suites que l’équité, l’usaage ou la loi donnent a l’obligation d’après sa nature”.
Act.1159 C. Nap.: “Ce qui est ambigu s’interprète par ce qui est d’usage dans le pays où le contrat est passé.”
Customary rules can be classified as being of different types:
Customs Secundum Legem
Customs Praeter Legem
Customs Contra Legem
Customs Secundum Legem: These are customs which the legislator expressly indicate will govern a given situation.
Customs Praeter Legem: As one French writer puts it, “ce sont les coutumes qui se forment en l’absence de la loi pour combler un vide juridique”. Customs praeter legem appear essentially in areas where the laws is in the constant process of development, such as business or commercial law, and in particular the law of banking.
Customs Contra Legem: It concerns those practices, which would be contrary to a statutory provision. As a rule,”la loi est dans la hiérarchie plus haut place que la coutume; par suite, une loi peut abroger une coutume mais une coutume contraire a une loi ne saurait valoir quoi que ce soit”. It has been decided by the French Court of Cassation “qu’une pratique contraire ne peut remplacer une loi qu’on a oubliée; les lois ne s’abrogent pas par desuetude”
[Chambres Réunies, 5 Mars 1924, D.P. 1924, I, at p. 81.]
It must, nevertheless, be recognized that there are instances where a custom contra legem would prevail over a statutory provision. Eg “la solidarité est presume en droit commercial” whilst Article 1202 of the Code Napoléon is to the contrary.
The term Doctrine designates legal scholarship, the body of legal writing or literature. As one French writer observed “on entend par doctrine l’ensemble des etudes publiées par les jurists, les opinions qu’ils émettent sur les questions relevant de leur spécialité; la doctrine est la théorie du droit”.
Relative Importance of ‘Doctrine’ in Civil Law and Common Law Systems
In civil law systems, doctrine is an inherent part of the system and is indispensable to a systematic and analytical understanding of it. It exerts considerable influence on “l’établissement et l’évolution des règles du droit”. As one writer puts it:
[La doctrine] guide le législateur, la jurisprudence et la pratique et les fait bénéficier de travaux approfondis de recherché que le praticien n’a pas toujours le temps d’effectuer. L’influence de la doctrine s’exerce sur le législateur en ce que la critique des lois en vigueur et la preparation de lois nouvelles facillite l’oeuvre legislative. Le législateur fait volontiers appel a tel jurist repute pour participer aux travaux des commissions préparatoires d’étude des lois … La doctrine exerce une plus grande influence sur la jurisprudence. En interprétant le sens et la portée des lois elle aide les tribunaux a les appliquer. En analysant les decisions rendues par les tribunaux elle permet aux jurists d’en prendre une conscience plus Claire. Sur un certain nombre de questions la doctrine a favorisé l’évolution de la jurisprudence”.
Numerous writers are regarded as “autorités” for the Civil Code: Aubry & Rau, Baudry-Lacantinerie, Planiol & Ripert, Colin & Capitant, Troplong, Marty & Raynaud, Mazeaud, etc. As regards the Code Pénal, Garçon and Garraud are often quoted as “autorités”.
In the common law systems, commentators have been historically less influential, Blackstone and Bentham being the exceptions. Nevertheless, today case comments, articles are helpful for an understanding of the law; there is a growing tendency to have recourse to the expertise of law academics for law reform.
Starting from our historical background, Mauritius has been subject to a number of colonization attempts. Amoung all these colonization, Mauritius adopted its laws from two colonization. That is from France and England. The legal system of Mauritius is governed by both French Code Napoleon and the British law based on the common law. Thus the present Mauritian law owns about 2/3 of its origin to English law and 1/3 to French law (with z emergence of doctrine which is French inspired and Code Napoleon). Therefore we can cope with z agreement that Mauritius enjoys a hybrid legal system. The procedural law both in criminal and civil litigation is mainly English, whilst the substantive law is mainly based on the French Napoleonic Code.
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