History of Mauritius Legal System Flashcards
Introduction
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.
Historical Backgrounds
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 colonize 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.
French and British Contribution to Mauritian Law
-French and British law – two parent systems which have erected the Mauritian Legal System.
-Mauritius has a hybrid legal system – fusion of French and British legal traditions.
-Principles originate from both the French Code Napoleon and the British Common Law.
-The substantive part of the law of Mauritius is essentially inspired from French laws which are the French Codes such as the French Civil Code, the Penal Code and the Code de Commerce.
-The procedural aspect of the law comes primarily from the British laws such as the law of evidence, the criminal procedure Act and so on.
-Public Law relating to trade, shipping, finance and a Westminster type of Government, a Constitution, a Civil
Service and a British type of education system has also been inherited by Mauritius from England.
-“Le Droit Mauricien est un droit mixte par excellence”.
-However, Mauritian Law has developed into a significant body of law with independent philosophy, doctrine and jurisprudence.
French Colonial Period
Reign of the French colonists – from 1715 – 1810
Population were segregated between Whites, the Slaves and the Coloured. Segregated also in terms of the laws they had to abide to. Whites were governed by the ‘Coutumes de Paris’ and the ‘Ordonnances de Colbert’ which were the governing laws before promulgation of the Code Napoleon. The 3rd group consisting of slaves was governed by the Code Noir which is inspired by Roman law and which classifies slaves as movable property which can either be seized or sold. The Colored also known as the enfranchised slaves/ “les affranchis” were concerned, they were treated like the whites to some extent while there were
also some provisions of the Code Noir which was unfortunately applicable to them. A Colonial Assembly was instituted and adopted the 1789 French “Declaration des droits de l’homme et du citoyen”.
Conseil Provisoire, Notariat, Conseil Provincial, Conseil Superieur, Royal Court. Some years after French Revolution, the Conseil Superieur was conferred the appellation of Cour d’Appel.
British Colonial Period
In 1810, Mauritius came under the dominance of its second colonial master – the British.
Treaty of Capitulation – British guaranteed that they would respect the language, the customs,
the laws and the traditions of its inhabitants. In 1832, a Penal Code was adopted. Inspired by the French Penal Code of 1810, a new Penal Code was enacted in 1838 which was drafted in English and French. By virtue of an Order in Council in 1836, the judges of the Court of Appeal were vested with the power to embody the Rules of Court with the intention of appropriate administration of justice. Consequently, these Rules abolished diverse provisions of the Code de Procedure Civile and instead introduced English Rules of Civil Procedure. An Order in Council of 1841 erased the mark of the French completely by providing for that all future laws were to be published only in English. In 1850, an array of fundamental changes was brought about in the Mauritian Judicial System. For instance, Ordinance No.2 of 1850 put up the Supreme Court and arranged for the establishment of District Courts. Accordingly, the Supreme Court came in the place of the Cour D’Appel and the Tribunal de Premiere Instance was abolished. The Supreme Court was conferred all the powers, authority and jurisdiction which were endowed in the then Court of Queen’s Bench of England, and the Judges of the Supreme court were to adhere to the same decorum of the Court as the Judges of the
Queen’s Bench. In 1855, a Court of Criminal Appeal was initiated to hear appeals from individuals
convicted before the Supreme Court and it comprised of 3 judges. By the same token, a Court of Civil Appeal was also set up to hear appeals from civil decisions. In 1852, the Code d’Instruction Criminelle was repealed and a Criminal Procedure Ordinance was enacted to cater for the prosecution of criminal offences and the conduct of criminal trials.
Adoption of a Public Law of English Inspiration
Mauritius has inherited public law and administrative set up from the British. Government modelled on Westminster. Supreme Court vested with the same powers as the Court of Queen’s Bench – jurisdiction to review decisions of public authorities and to issue prerogative orders or writs. Laws concerning trade, shipping, banking and finance were substituted by relevant laws of the UK. The style of legislative drafting in Mauritius us essentially English. Statutory interpretation is much inspired by English law and
jurisprudence.
Amendments to the Code Napoleon
Slavery was abolished in 1835 – as a consequence, all
inhabitants of Mauritius were subject to the Code Napoleon. In 1871, the British made its first amendment to the Code. Main aim: ease out the task of the new colonial administration + keep up with challenges of a multi cultural Mauritian society. Code de l’Etat Civil was redrafted in English language. Amendments focused on family law and ‘le droit des personnes’ = recognition of Hindu and Muslim religious marriages + recognition of children born out of these marriages as legitimate.
Emergence of a Distinct Corpus of Mauritian Law
Report of the committee on the Review of Legal studies in Mauritius: ‘In spite of its origins, Mauritian law ceased over the years to be partly English and partly French but has developed into a significant body of law with a philosophy, doctrine and jurisprudence of its own.’ The Committee contended that the judiciary has a prominent role to play in the emergence of the Mauritian Law whereby it developed ‘what may be called a Mauritian approach to jurisprudence, always alive to the judicial thinking in England and France… but not hesitating to adopt solutions more consonant with the Mauritian context.’ Even if judges would time and again turn to English and French case law for
interpretation – they were much alert while doing so. In the case of The Queen v L’Etendry, the Supreme Court affirmed that the normal rule of construction laid down by it, time and again, is to the effect that when our law is borrowed from French law we would resort for guidance as to its interpretation to French case law.
In the case of Pierrot v De Baize (1880) MR 158, it was contended that though the judges are generally inclined to follow the decisions of the courts in France upon the questions of interpretation of the Codes, they would decline to do so where our local ordinance borrowed from the French law is in many aspects different from it. In the case of Mangroo v. Dahal, the Supreme Court refused to follow the decision of the French Court of Cassation in l’arrêt Jand’heur, considering that no Court of Justice is empowered to alter a clear text of law.
Distinct Mauritian Law
There are several concepts which are unique to Mauritius either by combining French or UK law:
The law of defamation: in the case of Forget v La Presse Mauricienne (1958) MR 248, the Supreme Court observed that actions for libel are actions in tort known in French law as délits or quasi délits governed by art. 1382 of the Code Civil.
The provisions relating to louage des choses of French inspiration are made to apply to a leaser governed by the Landlord and Tenant Act of English inspiration.
The rules of proof regarding contracts: in the case of Sewnarain v Queen (1986) MR 149, it was held in a case of embezzlement, that civil rules of proof cannot be applied to criminal case. Similarly, in the case of Jaymangal v R (1968) MR 66, there was no need of a ‘mise en demeure’ in criminal cases. The concept of sûreté fixe et sûreté flottante guaranteed by art. 2202-12 to 2203-7 of the Code Civil is typical of Mauritius.
The Religious marriages law relating to ‘légitimation par adoption’ is typical to Mauritius. Art 370 of the Code Civil + case of Luckeenarain Boolauck (1990) MR 349 = an adulterous child can be legitimated by his adoption by the mother’s spouse if his filiation is established
with regard to the mother alone.
The law relating to Judicial Review though of English inspiration has developed Mauritian flavour. In the case of Vallet v Ramgoolam (1973) MR 29, the Supreme Court considered that it should and will, as far as possible, follow the English principles applicable to matters of JR , but that having regard to its special powers and duties under the Constitution, it may find it
necessary to evolve principles of its own, in certain circumstances, which may not always
accord with those applicable in the UK. In the case of Berenger v Goburdhun (1985) MR 209, the Supreme Court held that it would not blindly follow English rules.
VII. In Mauritius, we have the Public Officers Protection Act applying to government workers.
Evolution of the Mauritian Legal system
Mauritian written constitution – obtained by virtue of the Mauritius Independence Order – 4th March 1968.
The laws in place remained in force but had to comply with the Constitution. Legislative reforms took place – Code de Commerce and Code Napoleon were
substantially amended and enacted in the French language and drafting style. The law of trusts, of English origin, emerged in the Mauritian statute books.
Introduction of Labour Act in 1975.
