1. Historical background The Mauritian legal system is a unique hybrid system with French Substantive law (for Offences) English Law (Procedure Evidence Language) English judges with English law background will be interpreting our laws which invariably include French laws. Thus, in 1837 it was decided that lawyers were to be trained in England. In 1841 all laws in Mauritius were originally published in English and the Court was to make reference to the English version only. The hybrid nature of our legal system was highlighted in the report of the Committee on the Review of legal Studies in Mauritius (1983) by Rajsoomer Lallah J. Such a decision was supported by the Supreme Court in R V Shummoogum 1977 MR 1 and Legoffe v Severy 1981 MR 89 2. Sources of Mauritian Law (a)Legislation The Constitution Primary Legislation Secondary Legislation (b)Judicial Precedents (c )Customs (d) Books of Authority/Legal Doctrine The Constitution A 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. In most countries the written constitution is the ultimate source of legal authority all actions of government and the law-making body (the legislature) must conform to the constitution. In order to uphold and interpret the constitution there will be a Supreme Court. As the constitution is the ultimate authority, any action which contravenes the rules of the constitution will be both unconstitutional and unlawful. Written constitutions also contain procedural rules for the amendment of the constitution. Constitutions, whether written or unwritten, will share common features. They will identify the principal institutions of the state, that is, the executive, the legislative and the judiciary. In relation to each of these, the constitution will specify their functions and powers. In addition the constitution will identify the rights and freedoms of citizens so as both to protect citizens and to restrict the power of the state. There are different types of Constitution 1. Written and unwritten constitutions Constitutions may be written or unwritten, and unlike the majority of states, the British constitution is largely unwritten and uncodified. Allied to their written or unwritten character, constitutions may also be classified as rigid or flexible. A rigid constitution is one in which amendment is very difficult, requiring special procedures to be employed before any changes can be made. By contrast, the British constitution is essentially flexible. Parliament - the supreme law-making body - within the United Kingdom may theoretically alter the constitution at will. Mauritius has a written constitution. 2. Republican and monarchical Constitutions may be classified according to whether they are republican or monarchical. In republics, such as the USA, there will normally be a Head of State (usually designated a President) who is directly elected by the people. In Britain by contrast, the monarchy remains, with the Queen as Head of State and holding widespread formal powers (under the royal prerogative). In practice these powers are conventionally exercised by the elected government of the day which is headed by the Prime Minister 3. Unitary and federal Constitutions may also be unitary or federal. Under a written constitution, the constitution will define which powers are exercisable by the central federal government, and which powers are exercisable by the constituent parts usually known as states of the federation. In a federal state power is diffused rather than concentrated in any one body. The constitution has overriding force and any conflicts between the federal government and state governments will be determined according to the constitution. For centuries, Britain has been a unitary state, with one Parliament having ultimate law- making power over all the constituent nations England, Northern Ireland, Scotland and Wales. 4. Supreme and subordinate A further classification explains whether a particular constitution is supreme or subordinate. A supreme constitution is not subject to any external superior force. A subordinate constitution is one where as with former British colonies the constitution is drafted and introduced in a country by an external sovereign power, and theoretically may be amended or repealed by that external power. Importance of the Constitution Any organisation /company/club needs a constitutional document to operate. This can be in the form of Memorandum Articles of Association, Statutes. In the absence of which there may be chaos and confusion making it impossible for any positive action to be taken. The constitution will designate a sovereign body, bestow powers and set limits on same, facilitate a sharing of powers among the various organs of the State and confer rights on the citizens. A constitution is made with the assumption that a given state exists and has legal identity of its own. S1 of the Constitution of Mauritius Mauritius shall be a sovereign democratic State which shall be known as the Republic of Mauritius. The Organs of the State The main organs of the state are the Legislature the Executive and the Judiciary Some main Provisions of the Constitution of Mauritius Chapter II - Protection of fundamental rights and freedoms of theindividual sections 3 to 19 Chapter III Citizenship sections 20 to 27 Chapter IV The President and the Vice President of the Republic of Mauritius sections 28 to 30B Chapter V Parliament sections 31 to 57 Chapter VI The Executive sections 58 to 75 Role and powers of the Executive Chapter VIA The Rodrigues Regional Assembly sections 75A to 75E Chapter VII The Judicature sections 76 to 84 Chapter VIII Service Commissions and the Public Service sections 85 to 95 Chapter IX The Ombudsman sections 58 to 75 Supremacy of Constitutional law Section 2.- Constitution is supreme law 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 This supremacy ensures that all laws enacted by Parliament should be in conformity with the Constitution. In Mahboob v Government of Mauritius1982MR 135, the plaintiff sold land to a foreigner in contravention of Non-Citizens (Property Restrictions) Act, according to which one could not sell land to a foreigner without the consent of the Prime Minister. The Supreme Court held that the sale was void and allowed the plaintiff to repossess the land. Parliament later passed an Act giving effect to the sale. Held It is fundamental disposition of the Constitution that there should be separation of powers between the various organs of the state. Parliament has no right to pronounce judgments than the Supreme Court has the right to make laws. The enactment was an usurpation of judicial powers and the law was held to be invalid. Also, in Noordally v Attorney General 1986 MR 204 where, inter alia, Section 3 of the Constitution, which provides for the fundamental rights and freedoms of the individual, was in question. The applicant was arrested after he was suspected of being in possession of heroin. He was denied bail on the basis of S 46 (2) of the Dangerous Drugs Act 1986 and sought a declaration that this provision was in violation of sections 3 and 5 of the Constitution. It was held that S 5 indicates that the suspect remaining at large is the rule, his detention on the ground of suspicion is the exception and he must be tried within a reasonable time or be released. It is not in accordance with the letter and spirit of the constitution to legislate so as to allow the executive to overstep the Judiciary s role in ensuring the citizen the protection afforded by law. Within the framework of the Constitution, Parliament s right to legislate remains unfettered and a law, which passes the test of constitutionality cannot be questioned. The Courts power to control the Executive in accordance with its constitutional role also remains unfettered. Therefore, S 46 (2) of the Dangerous Drugs Act 1986 is void. Primary Legislation In a democratic State, Primary Legislation is the most important source of law For example Mauritius It is the responsibility of parliament to enact legislations which are subject to the limits imposed by the Constitution. 45. Power to make laws (1)Subject to this Constitution, Parliament may make laws for the peace, order and good government of Mauritius. 46. Mode of exercise of legislative power (1)The power of Parliament to make laws shall be exercisable by Bills passed by the Assembly and assented to 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 the Republic and after publication in the Gazette. Secondary Legislation Secondary legislation refers to those Rules and 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. Section 118. Performance of functions of Commissions and tribunals (1) Any Commission established by this Constitution may by regulations make provision for regulating and facilitating the performance by the Commission of its functions under this Constitution. (2) Any decision of any such Commission shall require the concurrence of a majority of all the members and, subject to this subsection, the Commission may act, notwithstanding the absence of any member Provided that where in any particular case a vote of all the members is taken to decide the question and the votes cast are equally divided, the chairman shall have and shall exercise a casting vote. (3) Subject to this section, any such Commission may regulate its own procedure. (4) In the exercise of its functions under this Constitution, no such Commission shall be subject to the direction or control of any other person or authority. (5) In addition to the functions conferred upon it by or under this Constitution, any such Commission shall have such powers and other functions as may be prescribed. (6) The validity of the transaction of business of any such Commission shall not be affected by the fact that some person who was not entitled to do so took part in the proceedings. (7) Subsections (1), (2), (3) and (4) shall apply in relation to a tribunal established for the purposes of sections 5(4), 15(4), 18(3), 78(4), 92(4), or 93(4) as they apply in relation to a Commission established by this Constitution, and any such tribunal shall have the same powers as the Supreme Court in respect of the attendance and examination of witnesses (including the administration of oaths and the examination of witnesses abroad) and in respect of the production of documents. The secondary legislation must be in conformity with the enabling Act (where this power has been conferred by an ordinary Act of Parliament) and the Constitution. Judicial Precedents The Doctrine of judicial Precedent is to the effect that like cases must be treated alike. Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity. Customs Custom is also recognized as a source of law. Two requirements must be fulfilled for it to be established that a custom exists a material element an intellectual element If only the first element is present, the practice is referred to as a usage. A material Element There must have been a consistent practice over a period of time. In 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 held 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 3 years. A practice proved to be of only 18 months was regarded as insufficient to establish a usage of trade. An intellectual element That 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. Case law Techniques The Doctrine of judicial Precedent is to the effect that like cases must be treated alike. Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity. Judicial precedent constitutes the cornerstone in English law. It is adhered to in Mauritius since the 1850s with the establishment of the Supreme Court, which was vested with the same powers as the Court of Queens Bench (today the High Court) The doctrine of judicial precedent involves an application of the principle of stare 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. RATIO DECIDENDI AND OBITER DICTUM The decision or judgment of a judge may fall into two parts the ratio decidendi (reason for the decision) and obiter dictum (something said by the way). RATIO DECIDENDI - The ratio decidendi of a case is the principle of law on which a decision is based. According to Sir Rupert Cross The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him. When a judge delivers judgment in a case he outlines the facts which he finds have been proved on the evidence. Then he applies the law to those facts and arrives at a decision, for which he gives the reason (ratio decidendi). OBITER DICTUM - The judge may go on to speculate about what his decision would or might have been if the facts of the case had been different. This is an obiter dictum. The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not binding in later cases because it was not strictly relevant to the matter in issue in the original case. However, an obiter dictum may be of persuasive (as opposed to binding) authority in later cases. A difficulty arises in that, although the judge will give reasons for his decision, he will not always say what the ratio decidendi is, and it is then up to a later judge to elicit the ratio of the case. There may, however, be disagreement over what the ratio is and there may be more than one ratio The Mauritian Legal System One feature that could be taken as the cornerstone of Mauritian legal procedure it is adversarial (or accusatorial) nature of the proceedings as contrasted with the inquisitorial nature of civil law systems. At the apex of this adversarial system lies the traditional picture of the English court an arena wherein a contest is waged between parties in which one emerges the winner. In the inquisitorial procedure the court takes charge of the case even to the extent of framing the legal and factual issues to be disputed. In the adversarial system the parties dictate, within the constraints of traditional forms and packages such as writs, forms of action and pleadings the form, content and pace of proceedings. The pre-trial proceedings are arranged such that by the time of the trial each side should have gained as much information as possible both to support their own case and to exploit any weaknesses in the oppositions arguments. The agent of the court (i.e. the judge) should stand back and wait for the case to proceed to trial. During the trial the judge in civil cases and the judge and jury in criminal cases should allow him/herself to be guided, at least initially, as to the relevance of questions of fact and law by the parties advocates. The judge should take a procedural back seat and intervene only to ensure that fair play is operating or where the public interest is at stake. The proceedings are dominated by the advocates for the parties with, as in the case of criminal cases, the prosecution trying to build a strong case against the defendant and the defence, in turn, endeavouring to demolish the prosecutions case. Throughout this procedure witnesses are examined and cross-examined using a variety of tactics available to the skilled advocate. Some use subtle means to cause witnesses to react in a certain way, others use bullying tactics to obtain the same result from nervous participants. The success of a case, therefore, often rests upon the ability of an advocate to manipulate proceedings and not just the weight of evidence. As the eminent English commentator, Jacob (The Fabric of English Civil Justice (1987), p. 16) stated with respect to civil cases, the adversarial system introduces an element of sportsmanship or gamesmanship into the conduct of civil proceedings, and it develops the propensity on the part of lawyers to indulge in procedural manoeuvres. The system rests upon a number of assumptions specifically that both parties are represented the lawyers representing each party are efficient and equally matched the lawyers will promote their clients interests. Lawyers do not owe a general duty to ensure that justice is done or to enable the court to find the truth. Their only obligation to the court is not to mislead the court on questions of law or fact. But the adversarial system often produces unexpected and, according to some observers, unjust results due to the manner in which evidence can be presented. The outcome, therefore, hinges upon the events of the trial itself as much as the gathering of evidence beforehand, since the courts only judge what is presented before them and, especially when juries are present, the way it is presented. Proceedings in the English courts do not take the form of investigations into the matters brought before them, unlike the inquisitorial system which basically entails an examining judge conducting his or her own investigation, often in conjunction with organisations such as the police, before any trial takes place. The inquisitorial procedure appears more obviously oriented as a search for the truth, taking into account all aspects of the matter, and consequently a substantial number of cases do not reach the trial stage. 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