Sources of Law

Question 1

Sources of Law Introduction

Answer 1

There are many different sources of law in any society. Sources of law are the origins from which particular positive laws derive their authority and coercive force.
Such are constitutions, treaties, statutes, usages and customs. In another sense, they are the authoritative or reliable works, records, documents, edicts, etc., to which we turn to for an understanding of what constitutes the law. For example, with reference to Roman Law, are the compilations of Justinian.

Question 2

The Constitution

Answer 2

In any country with a written constitution, the latter takes precedence over any other source of law.
For example, if the Constitution provides for the freedom of speech for all citizens, but the social tradition is for women not to speak in public, a court will protect the right of any woman to speak in public if she chooses to do so. Therefore, the constitution takes priority over tradition. Section 2 of the Mauritian constitution provides that the constitution is supreme law; any law which is inconsistent with the Constitution shall to the extent of the inconsistency be void. Any person who feels aggrieved that a provision of the Constitution has been infringed can apply to the Supreme Court to obtain redress. Article 1 of the Constitution asserts the existence of Mauritius and proclaims the kind of state that the country is: “Mauritius shall be a sovereign democratic state, which shall be known as the Republic of Mauritius.” Chapter 2 provides for the fundamental rights and freedoms of the individual in Mauritius. If any one feels aggrieved that his/her constitutional rights have been breached, the person can apply to the Supreme court for redress.
Refer to cases Mahadewoo v State 2015 SCJ 177; Ah Sue v The State of Mauritius 2015
SCJ 110 and Darmalingum v The State 2000 MR 210.

Question 3

Relevant cases

Answer 3

Case- Mahadewoo v State
Contention- The implementation of the new biometric card as per the National Identity Card Act 2013 is in
breach of ss. 1, 2, 3, 4, 5, 7, 9, 15, 16, 45 of the spirit of the Constitution… and therefore null and void.
Held- The provisions in the NIC Act and the Data Protection Act for the storage and retention of fingerprints… are unconstitutional.

Another case- Darmalingum v State
Contention- The respondent had breached s. 10 of the constitution regarding reasonable time for a fair hearing.
Held- The Privy Council quashed the appellant’s conviction on the ground that the delay in the trial was a flagrant breach of s. 10 of the constitution because the appellant had “the shadow of the proceedings hanging over him for about 15 years.”

Question 4

Provisions of the Constitution

Answer 4

Provisions of the Constitution:
Chapter 1: The State and The Constitution
Chapter 2: Protection of fundamental Rights and Freedoms of the individual
Chapter 3: Citizenship
Chapter 4: The President and Vice President
Chapter 5: Parliament
Chapter 6: The Executive
Chapter 7: The Judicature
First Schedule: Best Loser System, etc.

Question 5

PRIMARY LEGISLATION

Answer 5

Under Art. 45 of the constitution, Parliament is granted the power to make laws for the peace, order and good government of Mauritius. Some examples of laws, also known as acts of parliament are: the Financial Services Act 2007,the Good Governance and Report Integrity Act 2015, and the Dangerous Drugs Act 2000. Acts passed by Parliament are known as Primary Legislation. Before Acts are passed , they exist in the form of Bills of Parliament and have to go through the legislative process to become law.

Question 6

SECONDARY LEGISLATION

Answer 6

Secondary legislation are the rules and regulations that are enacted by Ministers, Local Councils or Public Authorities to whom Parliament has delegated law making powers. For example, s. 118 of the constitution allows Commissions and Tribunals to make regulations for their good functioning. It has to be noted that any law made by Parliament should be in conformity with the Constitution, if not, that law shall to the extent of its inconsistency, be void (Art. 2 Constitution). For example 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 s. 10 of 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.

Question 7

Delegated Legislation

Answer 7

A number of legislation, known as Enabling Acts or Parent Acts, allow subsidiary organizations, municipalities or parastatal bodies to pass delegated legislation, which are known as regulations, orders, rules or by laws. For example, the Local Government Act enables 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, one of which is the University of Mauritius Act.
There is an express and implicit delegation of power to various subsidiary organizations. S.122 of the Constitution enables Parliament to exercise some form of control over delegated legislation. The President of the Republic is also empowered to make regulations during a state of emergency by virtue of s. 18 of the Constitution and also by virtue of s. 3 of the Emergency
Powers Act. Thus the President may make such regulations as appear to him to be necessary for maintaining and securing peace, order and good government in Mauritius.

Question 8

Judicial Precedent or Case Law

Answer 8

Case law, also known as judge-made law. 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. The case of DPP v Mootoocarpen (1998) MR 195 is the authoritative case which asserts the position of case law as a source of law in Mauritius. In that case, the Supreme Court
affirmed 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 statute but would have to include case law.” It is the ratio decidendi of a case which constitutes the binding precedent. A ratio decidendi refers to the legal principle upon which a decision is based. Judicial precedents as a source of law helps in the interpretation of statutes. Judicial
precedents help in the interpretation of laws as well as indicate which provision of the law applies to a particular situation. In some circumstances, courts in Mauritius do make reference to cases of other jurisdictions. Since some of the laws present in Mauritius are inspired from French or English law, a
Mauritian court may have recourse to the decision of a French or English Court which previously interpreted the law. In the case of Queen v L’Etendry (1953) MR 15, the Supreme Court reasserted that when our law is borrowed from French law, we should resort for guidance as to its interpretation to French case law.
The doctrine of judicial precedent is to the effect that like cases must be treated alike. It is only the decisions of the Supreme Court of Mauritius and the Judicial Committee of the Privy Council that amount to a Case Law. Decisions of lower Courts such as the Intermediate Court and the District Courts do not
constitute a source of Law Some areas of the Law are completely governed by Case Law, for example the law of contempt and judicial review. Obiter Dicta is a term referring to a comment, illustration or thoughts made by the judge in the judgment, which is not necessary in reaching the decision. A later court may respect such statements, but it is not bound to follow them; they are only of persuasive authority.

Question 9

Advantages of Judicial Precedent

Answer 9

• Consistency: Fair and predictable.
• Certainty: statements of principle for general application.
• Flexibility: ability to change with changing circumstances.

Question 10

Disadvantages of Judicial Precedent

Answer 10

• Lack of Creativity: Judge’s discretion is limited.

- Can produce unfair result, such that Judges are forced to make illogical distinctions to avoid such result.

Question 11

Customs

Answer 11

Customs refer to the practices or behaviors that can be associated to a particular society. Two requirements must be fulfilled, for a custom which is recognized as a source 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. It should be noted that by legislation, usages are incorporated into contracts. Thus: Art 1135 Code Civil: “Les obligations obligent non seulement à ce qui est exprimé, mais
encore à toutes les suites que l’équité, l’usage ou la loi donnent à l’obligation d’après sa nature.” Art 1159 Code Civil: “Ce qui est ambigu s’interprète par ce qui est d’usage dans la pays où le contrat est passé.”

Question 12

Customs Secundum Legem

Answer 12

These are customs which the legislator expressly indicate will govern a given situation.

Question 13

Customs Praeter Legem

Answer 13

“Ce sont les coutumes qui se forment en l’absence de la loi pour combler un vide juridique.”
They appear in areas where the law is in the constant
process of development, such as business or commercial law, and also the law of banking.

Question 14

Customs Contra Legem

Answer 14

They concern those practices which would be contrary to a statutory provision.

Question 15

Parliamentary Debates

Answer 15

Parliamentary Debates, also known as Hansards can also be a source of law. Hansard is a record of what is discussed in Parliament. It includes votes, written ministerial statements and written answers to parliamentary questions. For example when there is confusion as to how to interpret a section of the law, the Judge can go through the parliamentary debates that occurred when the bill was being discussed and look at the intention of parliament in enacting the dubious section.

Question 16

Writings of Jurists and General Principles of Law

Answer 16

In Carbonel, Bourdin Fils & Co v Letellier & ors (1861) MR 51, the Supreme Court of Mauritius stated the following: “… in this, as in every other case, where questions are raised on the Civil Code, we are in the habit of resorting to the… writings of the eminent lawyers of the country which gave it birth”. For years, it has been a practice in Mauritian Courts to make reference to the writings of scholars and jurists to interprete the law. The writings of jurists (also known as doctrine) can help Judges to interpret the law where the language used to draft the law may be difficult to understand or confusing. Moreover, several general principles of law, for example, l’enrichissement sans
cause, action de in rem verso, corporate personality and various other legal principles have been used and interpreted by Courts in Mauritius.

Question 17

Doctrine

Answer 17

As a general rule, there is an agreement that the doctrine is not a formal source of law but rather “a source of inspiration” of the rule of law or a de facto authority. It gives to the law its orientation; it prepares ahead of time many of the legislative and jurisprudence changes through the influence of teaching.

Question 18

Judicial Decisions from Other Jurisdictions

Answer 18

As we have seen, except 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. The Queen v. L’Étendry (1953) MR 15: the normal rule of construction laid down by the
Supreme Court time and again is to the effect that when our law is borrowed from French law we should resort for guidance as to its interpretation to French case law. However in Pierrot v. De Baize (1880) MR 158: the Supreme Court pointed out that they would decline to do so where our Local Ordinance borrowed from the French Law is in many respects different from it.
In Re Pierre (1973) MR 267: it was considered that where provisions of the Code Napoléon borrowed from the French Civil Code are not identical, the Court will examine whether the change of words in our text implies a change of intention. Unless our law differs from its source and that the intent of the Mauritian Legislature was different from that of France, the Courts will be guided by the decisions of French courts
interpreting similar legislative provisions as ours.
Pointu & ors v. Minister of Education and Science & ors. (1995) SCJ 359: the Full Bench of the Supreme Court considered that in interpreting the provisions of our Constitution, more particularly that part of it which embodies fundamental rights, it was legitimate to resort, wherever applicable, to pronouncements on
provisions similar to ours either by national courts or by international institutions. It must be stressed that the Supreme Court has the freedom to evolve its own
decisions when in its opinion justice would be better served by adopting a different solution to that given by Courts from other jurisdictions to the problem before hand. For instance in Mangroo v. Dahal (1937) MR 43: 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 (it thus ruled that Article 1384 of the Code Napoléon does not find its application when
road accidents occur, but rather Articles 1382 or 1383 of the Code).

Question 19

Common Law

Answer 19

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. The term “common law” is used to denote rules derived from decisions of the superior courts in contrast to those derived from statute. The common law can be seen as a collection of general customs nationally applied. In fact it was far more likely that judges arrived at their own conclusions; it was they who made up the law, using their makers in their own right. From early days, however, the courts imposed certain tests in order that a local custom could be recognized by the judges as part of common law. In practice, customs that dated from after 1189 were still often accepted by the courts.
Rules of “equity” mean laws, provisions of law that are just and fair, ethical and is equivalent to natural justice and morality. I In Mauritius in the case of Regina v Shummogum 1977 MR 1, the court considered that
whenever we borrow a piece of legislation from French or English law it ceases to be French law or English law and becomes Mauritian law. As an illustration, the Law of Evidence is based on Common Law (however, it is
important to note that in the case of Bérenger v Goburdhun 1985 MR 209, the court held that the Supreme Court would not apply English rules blindly) despite the fact that, once more, the law of evidence is now made statutorily. The Courts Act, 1945 and The Criminal Procedure Act contain relevant enactments on
the law of evidence. For example, corroboration is required as a matter of law (section 124 of the Road Traffic Act), competence and compellability of witness is also made statutory (section 184 of the Courts Act, 1945) or the character of the accused (section
184(2)(f) of the Courts Act, 1945), which is also made statutory in Mauritius. Common law also includes rule of precedents, customs and ancient legislations.

Question 20

Equity

Answer 20

Common law had a serious defect that it consisted of rigid rules that sometimes worked hardship and there was nothing, which the common law courts themselves, could do to ameliorate such hardship. In England, equity was a branch of law, which, before the Judicature Acts 1873 and 1875 was applied and administered by the Court of Chancery. The expressions ‘equity’ and ‘rules of equity’ were synonymous with rules of justice and conscience.
Accordingly, the principles originally applied by Lord Chancellors to determine disputes were based on rules of natural justice or conscience. These principles became known as equity. Today, it would not be accurate to correlate ‘equity’ with ‘justice’, for rules of equity have become settled in much the same way as the common law’’. 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, etc. As far as equity is concerned in Mauritius, s. 16 of the Courts Act provides that the Supreme Court shall be a Court of Equity vested with power, authority and jurisdiction to administer justice, and to do all acts for the due execution of such equitable jurisdiction, in all cases where no legal remedy is provided by an enactment.