Professional Documents
Culture Documents
History of Law
History of Law
History of Law
HISTORY OF LAW
We shall see that Mauritian law is a mixture of both French and English
Law. In fact, the law relating to practice and procedure is English whilst the
substantive part is French.
constitution follows the Westminster model and owes much to British and
commonwealth experience.
Though Mauritian law is both of French and English inspiration, yet by a kind of
osmosis the system has combined elements of its inherited traditions and in their
fusion produced a distinct corpus of Mauritian law.
The British preserved the French tribunals, except for the pourvoi to he
Cour de Cassation which was transferred to His Majesty the King in
Council
The Cour dAppel became the Supreme Court but soon reverted back to the
Court of Appeal.
The Land Court (Tribunal Terrier), by Ordinance No. 13 of 1832 was abolished.
An Executive Council dealt with these land disputes and later these were vested
in ordinary tribunals.
But in Sewnarain v Queen 1986 MR 149, this does not seem to have been
always the case as it appears that the British judges sent to the then colony in
the early years found it difficult to familiarize with such a foreign form of process.
On 15 February 1832, a Penal Code was adopted but it did not meet the
approval of the Secretary to the Colonies.
By Ordinance No. 6 of 1838, a new Penal Code drafted in French and English
was enacted, largely inspired from the French 1810 Penal Code.
While during the early years of British rule, there was a willingness to be guided
by French law, this was no longer the case afterwards. They wanted to anglicize
the procedure.
By an order in Council 23 February 1836, the Judges of the Court of Appeal were
vested with the power to adopt Rules of Court for the proper administration of
justice.
The Rules of Court repealed various provisions of the Code de Procdure Civile
and had as consequence the introduction of English rules of civil procedure.
The Chamber of Attorneys was abolished and the restriction on the number of
practicing barristers and attorneys removed.
5
During the first thirty years of British colonial rule, all Acts, Bills, Notices were
written in both French and English. But by Order in Council 25 February 1841,
all laws should be published in English only.
But another order dated 25 January 1962, authorized the Mauritian legislature to
legislate in French language. With regard to amendment to Codes which were
drafted in French or in English and French.
The Order in Council (25 Jan. 1962) further provide that the courts, in the
administration and interpretation of codes drafted in English and French, would
pay regard to the French version thereof.
An order dated 13 September 1845 provided that as from 15 July 1847, all
proceedings before the Superior Courts should be conducted in English
language only.
The Supreme Court replaced the Cour dAppel and the Tribunal de
Premire Instance was abolished. It was vested with all the powers, authority
and jurisdiction that were possessed by the Queens Bench of UK (see DPP v
Mootoocarpen 1988 MR 195 and Section 18C of the Courts Act).
The SC would henceforth be a Court of Equity which would exercise its equitable
jurisdiction in all cases where no legal remedy was provided by written law (S 16
of Courts Act). The SC was vested with original jurisdiction in civil and criminal
matters (Assize), with appellate jurisdiction over decision of the Judge in
Chambers, of the Bankruptcy division and Admiralty division.
In 1955, a Court of Criminal Appeal was created to hear appeals from persons
convicted before the Supreme Court. A court of Civil Appeal was created in
1963, to hear appeal from the Supreme Court (Judge sitting alone).
S 132 of Ordinance No. 9 of 1850 made detailed provision for the exercise of
criminal jurisdiction in District Courts.
With respect to the legal profession, in 1957 the Mauritius Bar Association was
set up. The code of ethics of UK for Barristers was to be followed in Mauritius.
The DPPs office was established by S88 of the 1964 Mauritius (Constitution)
Order in Council.
Articles 1780 and 1781 of the Code were made to co exist with labour legislation.
9
10
At first, in R v LEtendry 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.
However, in Pierrot v De Baize 1880 MR 158, our SC observed that they would
decline to follow French Courts when our Ordinance is different from French Law.
Similarly in Mangroo v Dahal 1937 MR 43, our SC refused to follow larrt
Jandheur of France.
Moreover, Mauritian law has consolidated both French and English law.
The Code de
Law of Evidence, trusts (Trusts Act 1989), Company Law, Criminal Procedure are
of English inspiration. The offence of conspiracy is English. The law of
contempt is purely English.
II.
Napolon.
The provisions relating to louage des choses of French inspiration are
made to apply to a lease governed by the Landlord and Tenant (Control)
III.
The concept of suret fixe and suret flottante guaranteed by art 2202-12
to 2203-7 of ccm is typical of Mauritius.
12
V.
The past Religious marriages; (see Nayeck v Nayeck 1987 SCJ 167) law
relating to lgitimation par adoption is typical of Mauritius. See Art 370 of
ccm (see case of Luckeenarain Boolauck 1990 MR 349 where an
adulterous child can be legitimated by his adoption by the mothers
spouse if his filiation is established with regard to the mother alone.
VI.
VII.
13
So we can see from the above, that Mauritius has developed a distinct
corpus of Mauritian Law but has also consolidated both French and UK
law.
14