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It is therefore not denied that the sources of our law in Mauritius are therefore a good
mixture of French law (coutumes, usages, les lois) and English law (statutes in the form of The
Criminal Procedure Act, The Companies Act, The Banking Act, The Labour Act..)
A public Act which relates to matters affecting the general public, a private Act which relate to the
powers and interests of particular individuals or institutions and delegated or enabling legislation.
Equity
The first rule that equity established was that ‘equity follows the law’, that is that where there was a
clear rule of law, then the law must be applied. Where there was no clear rule, then equity could
intervene to enable a just result and consequently developed a new and parallel set of rules. This
development occurred predominantly in matters relating to trusts, wills, land and the wardship of
children… Equitable remedies appear to be capable of limitless expansion and adaptation to modern
needs, as shown in the matter of Mareva injunctions and Anton Pillar orders…
Today, therefore, equitable remedies are applied equally in matters of property and trusts and tort and
contract, the sort of issues that the Chancery and Queen’s Bench Divisions of the High Court handle.
Two examples of equitable remedies are promissory estoppels which is a rule of contract law and
equitable execution which is a rule of law that may be applied in bankruptcy hearings.
The application of equitable remedies is at the discretion of the court. They will be used if the court
thinks it fair, reasonable and just to do so, having replied to al the circumstances of the case. Equity
means in a wider sense simply justice, fairness, reasonableness. If something is inequitable, it is unfair
and unjust.
‘‘A trust is an equitable obligation, binding a person (called a trustee) to deal with property over which
he h has control (which is called the trust property) for the benefit of persons (who are called the
beneficiaries or cestuis que trust) of whom he may himself be one, and any one of whom may enforce
the obligation’’.
The doctrine of judicial precedent
‘‘Their Lordships regard the use of precedent as an indispensable foundation upon which to decide
what is the law and its application to individual cases. It provides at least some degrees of certainty
upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly
development of legal rules. Their Lordships nevertheless recognize that too rigid adherence to
precedent may lead to injustice in a particular case and also unduly restrict the proper development of
the law.
They propose, therefore, to modify their present practice and, while treating former decisions of this
House as normally binding, to depart from a previous decision when it appears right to do so. In this
connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts,
settlements of property and fiscal arrangements have been entered into and also the especial need for
certainty as to the criminal law. This announcement is not intended to affect the use of precedent
elsewhere than in this House’’.
Precedent cases
Sir Rupert Cross’s definition of precedent and common or case-law is as follows. Case-law consists of
the rules and principles stated and acted upon by judges in giving decisions. In a system based on case-
law, a judge in a subsequent case must have regard to these matters; they are not, as in some other legal
system, merely material which he may take into consideration in coming to his decision.
R v Governor of Brockhill Prison, ex parte Evans 1997 1 All ER 439 Queen’s Bench Division.
The applicant had been sentenced to four concurrent terms of imprisonment for various offences, the
longest term of imprisonment being two years but the governor of the prison took the view that no
discount should be made for the time spent in custody for the other offences. The applicant sought
judicial review of the governor’s decision. The Court held that judicial review would be granted to
quash the governor’s decision because, upon a correct interpretation of the relevant statute law, the
period by which the sentences is to be reduced in such a case is the total period that the defendant spent
in custody before sentence.
R v Governor of Brockhill Prison, ex parte Evans 1997 1 All ER 439 Queen’s Bench Division.
(Contd….)
Bingham LCJ explained that: ‘It has been urged upon us, and we unreservedly accept, that we should
not depart from previous decisions of this court unless we are satisfied that they are wrong. Our
reluctance must be the greater when, as in this case, the authorities have quite rightly founded their
practice on these decisions. We are, however, of the clear opinion that the construction previously pt
upon the legislative provisions we have reviewed was wrong. We are moreover of opinion that that
construction is capable of producing, and has in some of the decided cases produced, injustice.
‘Negligence’ is a rather all embracing term; it could certainly mean, for example, that a court had
arrived at a wrong decision in an earlier case because insufficient evidence had been brought before it.
The Master of Rolls, Lord Denning, argued that those exceptions had been built upon so much by the
Court of appeal in the post-war period that the rule was hardly any longer a fixed one and that in any
case as the House of Lords had in 1966 announced that it was free to depart from its previous decisions,
so now should the Court of Appeal. But some of Lord Denning’s colleagues argued that the Court of
Appeal was bound by its own precedents and that it was up to the House of Lords alone to overrule the
Court.
In Mauritius, just like in the UK, law has no retrospective effect (section 10(4) Constitution, 1968) for
criminal offences (however, in France criminal law has a retrospective effect and as an illustration
reference can be made to cases where people were convicted for the deportation of jews to Germany
during World War II).
Doctrine
In England, the ‘doctrine’ is not considered as a source of law in the strict sense as it has never been
passed by Parliament. It concerns academic research and articles, the opinions of scholars, jurists,
barristers, judges, professors, just to name a few. Just like in France, Mauritius has its own ‘doctrine’.
In France, the judges will cite Pr Garçon, Pr Garraud, and Pr Ripert; in Mauritius, 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.
Natural law
Locke, Wolff et Montesquieu have contributed to natural law. They found that:
1. Natural law existed before society did;
2. It is superior to the law of religion or the law of the State;
3. Law and justice may change according to context of time and place;
4. The true purpose of political association is the assurance of people’s liberty;
5. This liberty can only be ensured if there is a Separation of Powers (legislative, executive and
judiciary) and there are the necessary checks and balances between institutions; and
6. Finally, law should be clear and certain.
According to Grotius: “the laws of nature would exist even if it were conceded’’ and “That there is no
God, or that the affairs of men are of no concern to him”. For Hobbs: “there was one instinct which
ruled life on earth: the law of preservation of life which inevitably forced a ‘social contract’ between
men and men such that they submit themselves to a ‘just sovereign’’ who thereby becomes the sole
judge of what is good for his subjects”. Wolff, the German philosopher, wrote that:
“There are human rights which are universally applicable, without discrimination of race, colour or
creed, freedom flows from obedience to natural law.”
Summary
The Constitution of Mauritius 1968, legislations (Acts of Parliaments, statutes, regulations), precedents
cases, doctrine, customs and usages are the main sources of law in Mauritius. In addition, there are
other sources such as precedents (from the House of Lords, Judicial Committee of the Privy Council,
the French Cour de cassation) and various doctrine (Pr. Camerlynck, Pr. E.Garçon, Pr. R. Garron, Pr.
Ph. Simler), because they are authority in their field, are constantly borrowed from French law and
English law and this inspiration and implementation allow our domestic Courts to enlighten their
decisions. The hiérarchie des normes is therefore in the form of a pyramid with the supreme law of the
land on top with relatively lesser important sources down as summarized below.
Chapter 3 - Constitutional Law and Fundamental Rights
‘‘A fundamental violations of human rights always lead to people feeling less and less human’’-
Aung San Suu Kyi.
Introduction
Mauritius, unlike some other countries, has a written Constitution, which provides for the fundamental
rights of the citizen. A country may obtain a written Constitution as a result of independence, civil war
or from a federation of existing units or cantons. The UK, Israel and New Zealand have no written
Constitution. The Constitution of Mauritius is the supreme law of the country such that ‘‘the terms of
the Constitution are in the nature of absolute commands’’ (per Justice Rault in Babet v R). In Attorney-
General of Trinidad and Tobago & Anor v Whiteman 1991 LRC, p.551 Lord Keith of Kinkel of the
Privy Council stated that:
“The language of a Constitution falls to be construed, not in a narrow and legalistic way, but broadly
and purposively, so as to give effect to its spirit, and this is particularly true of those provisions which
are concerned with the protection of human rights.”
How should the Constitution be construed and what are its limits are to be found in the leading case of
D.Matadeen and Anor v. M.G.C.Pointu and Ors PC Appeal No.14 of 1997 where their Lordships held
that:
“The Board said in its opinion that ‘a Constitution concerned to protect the fundamental rights and
freedoms of the individuals should not be narrowly construed in a matter which produces anomalies
and inexplicable inconsistencies’’.
Their Lordships would not wish in any way to detract from this statement of principle but it cannot
mean that either section 3 or the later sections can be construed as creating rights which they do not
contain.” It is expected to be at the summit of the hierarchy of norms. Lord Diplock in the famous case
of Thornhill v Attorney General of Trinidad and Tobago 1961 A.C. 61, 71 declared that:
“The rights and freedoms declared to have existed in constitutions and continue to exist are not
described with the particularity that would be appropriate to an ordinary Act of Parliament nor are they
expressed in words that bear precise meanings as terms of legal art. They are statements of principles of
great breadth and generality, expressed in the kind of language more commonly associated with
political manifestos or international conventions…”
There is no proper definition of the word ‘‘Constitution’’. Broadly, it 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. This is the theory of John Locke which inspired Montesquieu when he wrote ‘‘L’esprit des
lois’’. The function of the legislation is to make or amend law, the executive power will administer and
regulate these laws properly through the ministerial cabinet to ensure the best policy and the judiciary
will be invited to interpret statutes in order to avoid injustice and for justice to flavourish. Although
there is a separation of powers the judiciary, the legislative and the executive must be dependent of
each other but no far. Without a Constitution a State may run into anarchy and by consequence may be
ruined democratically.
It is also a contract between men and the Nation. 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:
“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”.
Sections 3 to 16 of the Mauritian Constitution provide protection of fundamental rights and freedoms
of the individual both in criminal and civil cases whereas section 17 is a special enactment as it is
closely associated to practice in our courts that is The Supreme Court (Constitutional relief) Rules
2000.
Right to appeal
If a citizen of Mauritius feels that his constitutional rights have been infringed he can find relief as per
the conditions and rules which are found under The Supreme Court (Constitutional Relief) Rule 2000
provided an application is made under section 17(1) or section 83(1) of the Constitution.
Right to appeal is made a constitutional right (Section 80, 81 of the Constitution-refer to table below) in
Mauritius but depending on the circumstances of the case and /or the nature of the offence an accused
person or a suspect may be admitted to bail according to the new Bail Act 1999 or pending his appeal
but though the Republic of Mauritius is a sovereign country and its judiciary system completely
independent and impartial the Judicial Committee of the Privy Council of her Majesty is retained,
however, as a court of appeal.
Interpreter
Section 10 (2) (f) of the Constitution
Provisions to secure protection of law
Every person who is charged with a criminal offence – shall be permitted to have without payment the
assistance of an interpreter if he cannot understand the language used at the trial of the offence
A legal representative of his own choice.
According to section 10(2)(d) of the Constitution:
“Every person who is charged with a criminal offence (d) shall be permitted to defend himself in
person or, at his own expense, by a legal representative of his choice or, where so prescribed, by a legal
representative provided at the public expense.”
Inops consolii.
Section 10 (2) (d) of the Constitution
Provisions to secure protection of law
Every person who is charged with a criminal offence – shall be permitted to defend himself in person
or, at his own expense, by a legal representative of his own choice or, where so prescribed, by a legal
representative provided at the public expense.
Absence of the accused in court.
However if his conduct in court renders the continuance of the proceedings in his presence
impracticable the court may in such circumstances order him to be removed and the trial to proceed in
his absence (section 10(2) Constitution).
Interpretation of time
Section 10 (4)Constitution.
No person shall be held to be guilty of a criminal offence on account of any act or omission that did
not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any
criminal offence that is severer in degree or description than the maximum penalty that might have
been imposed for that offence at the time when it was committed.
Right to silence.
The defendant or appellant may choose not to depone.
According to section 10(7) of the Constitution:
‘‘No person who is tried for a criminal offence shall be compelled to give evidence at the trial”.
In Mahadeea v The State 264 SCJ 1997 the appellant was prosecuted on information containing two
counts of having had sexual intercourse with a female under the age of 16. He pleaded not guilty but
chose not to depone.
Public courts.
Section 10(9) of the Constitution provides that:
“Except with the agreement of all parties, all proceedings of every court and proceedings for the
determination of the existence or extent of any civil right or obligation before any other authority
including the announcement of the decision of the court or other authority shall be held in public”.
Freedom of conscience.
Section 11 of the Constitution provides for freedom of conscience.
In Minerve v Minerve 1987 the Supreme Court seems to extend the scope of section 11 and applies it to
divorce cases. The respondent changed religion and the Court considered that both parties were at fault
and divorce was granted. When freedom of conscience infra was in issue, in Minerve v Minerve 1987, a
Supreme Court’s case it was found that even one’s willingness to change one’s religion is part of his
freedom of conscience (per section 11 of the Constitution) and divorce was granted on this ground.
Freedom of expression.
Freedom of expression is important in a democratic country provided there is no trial by the press.
The leading case is Duval v The Commissioner of Police1974 SCJ 80A where the appellant sought a
remedy under article 12 of the Constitution and redress from section 17 of the Constitution. The
Supreme Court per Justice Garrioch found judgment in his favour. It is obvious that there must be a
freedom of the press and freedom of expression but in no circumstances the administration of justice of
the Supreme Court must be challenged.