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Sources Of Law In Republic Of Mauritius
The Republic of Mauritius is a parliamentary democracy modeled on the British system. The separation of powers among the three branches of the Government namely the Legislative, the Executive and the Judiciary is embedded in the Constitution. The President is the Head of the State, while the Prime Minister has full executive power and is the Head of the Government. The National Assembly is made up of seventy members, out of which sixty two are elected every five years during parliamentary elections whereas the remaining eight are chosen according to the Best Loser System.
The French ruled over the Island from 1715 to 1810, and the British from 1810 to 1968. 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.
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 Civin and Criminal laws, Business Laws, Company Laws, evidence and court procedure laws are inspired y British legislation.
Moreover, although Mauritius has been a Republic since 1992, the country is still a member of the Commonwealth. The Privy council in London is the Supreme Court of Appeal
Sources of law
The legal sources vary from country to country. Though there are different meanings for the term “sources of law", its definition is as follows:
“Sources of law which a judge of a court can rely to identify the rules of law to decide a case"
In this sense, the legal sources in Mauritius are:
Legislation means stating the law. There is no doubt that legislation is the most important source of law in Mauritius. The Legislation in Mauritian context takes three forms:
Supreme Legislation (The Constitution)
(i) Supreme Legislation – The Constitution
The Constitution can be defined as a comprehensive document attempting to regroup all the legal provisions which will govern the relationship among the various organs of the state, distributing the powers among the various organizations whilst hampering such powers. It also regulates the relationship amongst them and the individuals and lays down the fundamental rights of the citizens. In Mauritius, just like in France and USA, the Constitution is considered to be the supreme legislation as it is clearly stated in section 2 of the Mauritian Constitution:
“This constitution 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"
A constitution is important since it is made with the assumption that a given state exists and has a legal identity of its own. Thus, section 1 of the Mauritius Constitution state that: “Mauritius shall be a sovereign democratic state which shall be known as the Republic of Mauritius" asserts the identity, existence and type of state that Mauritius shall be.
The different concerns of the constitution also shows how constitutional provisions are strengthened and given special protection, In contrast, ordinary provisions of the law, that is, ordinary legislation ( e.g. the Education Act or the Police Act) require a simple majority and can also be replaced by a simple majority.
(ii) Primary legislation
Primary legislation is the most important source of law in Mauritius just like in other modern democracies. It is in fact the sovereign organ, the parliament, which is responsible for processing legislation. The parliament enjoys a quasi-monopoly, though it is not as supreme as it is in the United Kingdom. Section 45 (1) of the Mauritian Constitution stipulates; “subject to this constitution, parliament may make laws for the peace, order and good government of Mauritius" and section 46(1) add; “The power of parliament to make laws shall be exercisable by bills passed by the Authority and assented by the President.
The Mauritian parliament has inherited much from the Westminster model. After the assent of the president, all laws passed by parliament are called “Acts of Parliament". Whereas at their initial stage, that is before the assent of the president, the Act is known as Bill of Parliament (BOP).
There are basically three types of bill of parliament that are summarized as follows:
Public Bill - caters for the interest of the public at large. It is intended to alter the general law or to deal with public revenue or the administration of justice. Public bills are normally introduced by a member of the Government.
Private Bill - Caters for private interests or sectorial interests. It is normally introduced by members of parliament.
Private Member’s Bill – It is normally introduced by members of parliament, that is, members of the opposition or Backbenchers.
(iii) Delegated Legislation
As stipulated by section 45 of the Mauritian Constitution, parliament enjoys almost a monopoly over the legislating process. However, a number of legislations, known as 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 (for e.g. Municipal Market Regulation.)
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.
2. Case law
Case law is the body of available writings explaining the verdicts in a case. Case law 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. Case law is a major source of law in Mauritius and in many cases it creates binding precedent; which is law that must be followed in subsequent similar cases.
Case law 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 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.
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.
The legal system of Mauritius presents all the characteristics of a mixed legal system. It must be stressed that the legal system of Mauritius is neither civilian nor common law, although possessing characteristics of both. By a kind of osmosis, the system has combined elements of its inherited traditions and in their fusion produced a third stream of law, the Mauritian Law. Our law, which was French in the beginning has, with the coming of English law, blended into an authentic Mauritian law. In effect, the traditions which inform the legal system have metamorphosed and evolved to produce a distinct juridical personality.