Revision for Foundations of Law and the Mauritian Legal System - OUbs022121

Past Exam Papers: NOV/DEC- 2014,2015,2016,2017,2018,2019,2020

MAY/JUNE- 2018,2020,2021
1. Discuss the criminal and civil jurisdiction of District Court.

Section 114 Courts Act 1945

Criminal jurisdiction of District Courts (1) Subject to subsection (2), every District Court before whom
any person is charged with having committed an offence, not being one of the offences mentioned
in section 116, shall have power and jurisdiction to hear, try and determine the charge and all
questions of fact and law arising in the case and to convict the person, and on conviction, to award
against him any penalties not exceeding the maximum penalties applicable to the offence of which
the person is convicted. (2)

A District Court shall not award against any person, imprisonment with or without hard labour for
more than 2 years, and a fine exceeding 10,000 rupees. Section 116 Courts Act 1945 Matters
excluded from summary jurisdiction A District Magistrate shall have no jurisdiction to convict, but
shall proceed to hold a preliminary inquiry and, if necessary, to commit for trial in accordance with
the law relating to preliminary inquiries and commitment for trial if an accused is charged with any
of the following offences – (a) offences under sections 50 to 79, 82, 83, 86, 88 to 91, 100 (1), 101,
102, 104, 122 to 131, 215 to 223, 228 (3) and (4), 234, 235, 236 (1) and (2), 239 (1), 249 (1) and (4),
251, 257, 259, 276 to 281 (where the offence is committed before the Supreme Court), 283, 284,
291, 346 and 347 of the Criminal Code; (b) attempts at or complicity in offences excepted from the
jurisdiction of the Magistrate; (c) offences which, under any other enactment, are punishable by
death or penal servitude for life, or are excluded from the jurisdiction of the Magistrate. Offences of
serious gravity are not within its jurisdiction, for example sections 50 to 79 Criminal Code which
relate generally to offences against the State, offences against the person of a serious nature
(murder, manslaughter, assault causing death without intention to kill, involuntary homicide,
wounds and blows) and certain other matters listed in section 116 (a).

Note also that attempt at or complicity, among the offences mentioned at section116 is also
expected from the jurisdiction of the District Courts. Other offences not included in the list fall within
the jurisdiction of the District Courts. The sentencing power of the District Court is according to
section114 Courts Act, limited to:- (i) a maximum of 2 years imprisonment with/without hard labour
(ii) a fine not exceeding Rs 10 000 For offences excluded from the jurisdiction of the District Court, a
District Magistrate has however the power to hold a Preliminary Enquiry, as a result of which, the
District Magistrate may commit or not commit for trial, but which is not binding on the DPP who
may decide to prosecute or not to prosecute ultimately.

Jurisdiction of the District Court in Civil cases concerns actions not exceeding Rs 50,000. There are
some exceptions, however, in the following cases where the District Magistrate has jurisdiction
irrespective of the amount involved:-

(i) Actions under the Landlord and Tenants Act concerning the recovery of rent
(ii) Actions against the Government of Mauritius for recovery of sewerage works
(iii) Possessory actions whatever the value of the property – article 23 Code de Procédure
Civile.
(iv) Recovery of State debts and municipality debts.
2. Distinguish between the jurisdiction of District Court and Intermediate Court .

Establishment of District Court: Section 93 (1) of the Courts Act, 1945 provides for a court in every
district to be known as a District Court and to have both civil and criminal jurisdiction. Section 93(2)
and (3) provide that the Chief Justice may, by regulations, declare that a District Court shall sit in 2 or
more divisions and may, by order, direct that a District Court shall have jurisdiction in respect of any
part of another district.

The Intermediate Court has both civil and criminal jurisdiction. Under section 113 of the Courts Act,
the Intermediate Court has jurisdiction to inflict the penalties and forfeitures specified in the law
applicable to the offence charged but may not pass a sentence of penal servitude for more than 08
years or of imprisonment for more than 5 years except in the case of a persistent offender, as
defined in section 113 (3), where the court may if it considers expedient for the protection of the
public, increase the sentence to 12 years penal servitude.

THE INTERMEDIATE COURT

The Intermediate Court is established under the Courts Act and has an island-wide civil and criminal
jurisdiction which includes Rodrigues. The Intermediate Court’s jurisdiction is divided into two parts
namely (i) the Civil Jurisdiction and (ii) the Criminal Jurisdiction

CIVIL JURISDICTION

The Intermediate Court has jurisdiction in all civil cases where the claim or dispute, whether in
balance of account or otherwise, does not exceed MUR 2,000,000. The Bench of the Intermediate
Court is constituted by one or more Magistrates, as may be decided by the President.
CRIMINAL JURISDICTION

The Intermediate Court has jurisdiction to hear and determine serious criminal offences referred to
it by the Director of Public Prosecutions or any other offence that can be tried by the Intermediate
Court under any other enactment. It has power to inflict penal servitude on convicted offenders for a
period not exceeding fifteen years and imprisonment for a period not exceeding ten years. However,
for persistent offenders, the Intermediate Court may increase the sentence to twenty years’ penal
servitude. The Intermediate Court is also empowered to inflict a higher sentence for offences under
the Dangerous Drugs Act and certain specific offences, for example, rape and money laundering
offences.

DISTRICT COURT

There are ten District Courts on the Island of Mauritius and one in Rodrigues. District Courts have
jurisdiction to try and determine both civil and criminal cases as provided for by law. Each District
Court is presided by a District Magistrate and any such number of District Magistrates as may be
decided by the Chief Justice.

CIVIL JURISDICTION

The District Court has jurisdiction in all civil cases where the claim or matter in dispute does not
exceed MUR 250,000. Conversely, District Magistrates have exclusive jurisdiction in landlord and
tenant disputes, irrespective of the amount of the claim for non-payment of rent.

CRIMINAL JURISDICTION

District Courts have power and jurisdiction to hear and determine criminal cases punishable by a
term of imprisonment not exceeding five years and a fine not exceeding MUR 100,000.

PROTECTION ORDERS

By virtue of the Protection from Domestic Violence Act, Court Officers are entrusted with the duty of
receiving and processing applications for an Order from an aggrieved spouse and from persons living
under the same roof, who may be victims of domestic violence.

District Magistrates are empowered to hear and determine such applications and to issue Protection
Orders where the Court is satisfied that there is a serious risk of harm to the applicants. District
Magistrates are also empowered to receive and determine applications for the issue of Occupation
Orders and Tenancy Orders. Such orders confer upon the victims of domestic violence the exclusive
right to the use and occupation of the conjugal common house.

SMALL CLAIMS PROCEDURE

District Courts can adjudicate on minor claims that do not exceed MUR 100,000 in a summary and
expeditious manner. Such claims are lodged by the litigants themselves after filling in a prescribed
form which is served on the adverse parties. Both parties are convened before the Magistrate in
Chambers to resolve the dispute. In the event that there is no agreement between the parties, the
matter is set down for trial. It is to be noted that such cases are disposed of by conflict resolution
rather than through a trial process.

JUVENILE COURT
District Magistrates also exercise jurisdiction as Magistrates of the Juvenile Court. The Juvenile Court
tries young persons suspected of having committed criminal offences. The Juvenile Court also deals
with children who are beyond parental control and/or who need care and protection.

COURT OF RODRIGUES

The Court of Rodrigues is administered by a full-time Magistrate and a visiting Judge of the Supreme
Court

OTHER SMALLER ISLANDS FORMING PART OF THE REPUBLIC OF MAURITIUS

A visiting Magistrate also visits other smaller islands forming part of the Republic of Mauritius
whenever required.

3. Explain the jurisdiction of the District Court, Intermediate Court and Supreme Court.

District Court

Section 93 of the Courts Act established a court in every district known as a District Court and it
is a court of record having limited jurisdiction in civil and criminal matters. It may sit in several
divisions as directed by the Chief Justice.
 
Each District Court is presided by a Magistrate known as a District Magistrate (Section 94 of the
Courts Act).
 
No person is eligible for appointment to the office of Magistrate unless he is a barrister admitted
to practise and has at least 2 years standing at the bar (Section 119 of the Courts Act). A
Magistrate is appointed by the Judicial and Legal Service Commission.
 
Civil Jurisdiction
 
A District Court has jurisdiction in all cases where the sum or matter in dispute does not exceed
the prescribed amount (Rs 50,000) (Section 104 of the Courts Act).
 
Criminal Jurisdiction
 
A District Court has criminal jurisdiction to try all offences except those mentioned in section 116
of the Courts Act. It shall not award against any person imprisonment with or without hard labour
for more than 2 years and a fine not exceeding Rs 2000 (Section 114 of the Courts Act).
 
Appeal
 
An appeal against any final judgment of a District Court lies to the Supreme Court. A notice of
appeal must be given within 21 days from the date of judgment [Sections 36 and 37 of the
District and Intermediate Court (Civil Jurisdiction) Act; Sections. 92 to100 of the District and
Intermediate Court (Criminal Jurisdiction) Act.

Intermediate court 
 
The Intermediate Court was established by Section 80 of the Courts Act. It is a court of record
which has civil and criminal jurisdiction in all districts in such cases and matters and to such
extent as provided by the Courts Act.
 
It consists of a President and such number of Magistrates as may be established under the Civil
Establishment Act. At present, there are 12 magistrates.
 
No person shall be eligible for appointment to the office of Magistrate unless he is a barrister
admitted to practise and has at least 2 years standing at the bar (Section 119 of the Courts Act).
 
A Magistrate is appointed by the Judicial and Legal Service Commission (Section 86 of the
Constitution).
 
A hearing before Intermediate Court takes place –
 
(a) before 2 Magistrates, or (b) before one Magistrate, with the consent of the parties, in such
category of cases as the Chief Justice may, by directions in writing to the Court, authorise
(Section 85 of the Courts Act).
In the event of a difference of opinion between 2 Magistrates, the trial shall be started anew
before 3 Magistrates (Section 85(3) of the Courts Act).
 
Right of Audience
 
In any proceeding before the Intermediate Court, any party to the proceedings with leave of the
Court and a person authorised under the Law Practitioners Act 1984 may address the court.
 
Civil Jurisdiction
 
The Intermediate Court has jurisdiction in all civil cases where the sum or matter in dispute does
not exceed the prescribed amount (Rs 500,000). (Section 104 of the Courts Act).
 
Criminal Jurisdiction
 
The Intermediate Court has criminal jurisdiction in all districts in matters which the Director of
Public Prosecution may refer to it as provided by Section 112 of Courts Act. It can award against
any person penal servitude for a period not exceeding 8 years or imprisonment not exceeding 5
years. (Section 113 of the Courts Act).
 
Appeal
 
An appeal against any final judgment of the Intermediate Court lies to the Supreme Court. A
notice of appeal must be given within 21 days from the date of judgment. [Sections 36 and 37 of
the District and Intermediate Court (Civil Jurisdiction) Act; sections 92 to 100 of the District and
Intermediate Court (Criminal Jurisdiction) Act].

Supreme Court
 
Composition
 
The Supreme Court is composed of the Chief Justice, the Senior Puisne Judge and such number
of Puisne Judges as may be prescribed by Parliament. Presently, there are 17 Puisne Judges.
(Section. 76(2) of the Constitution).
 
Appointment
 
The Chief Justice is appointed by the President acting after consultation with the Prime Minister,
the Senior Puisne Judge by the President acting in accordance with the advice of Chief Justice
and the Puisne Judges by the President acting in accordance with the advice of the Judicial and
Legal service Commission. (Section. 77 of the Constitution).
 
Qualification
 
No person shall be qualified for appointment as a Judge of the Supreme Court unless he is, and
has been for at least 5 years, a barrister entitled to practise before the Supreme Court. (Section
77(4) of the Constitution).
 
Tenure of office
 
A judge of the Supreme Court holds office until retirement at the age of 62. A judge may be
removed from office for inability to perform the functions of his office or for misbehaviour. He
shall be removed from office by the President where the question of removal has been referred
to the Judicial Committee which has advised accordingly (Section 78 of the Constitution).
 
Jurisdiction
 
The Supreme Court has unlimited jurisdiction to hear and determine any civil or criminal
proceedings under any law other than a disciplinary law and such jurisdiction and powers as may
be conferred upon it by the Constitution or any other law. (Section 76(1) of the Constitution). It is
a superior court of record (Section 15 of the Courts Act). It is the principal court of original civil
and criminal jurisdictions. It exercises general powers of supervision over all District,
Intermediate and Industrial Courts and other special courts (Sections 34 and 38 of the Courts Act
and section 82 of the Constitution).
 
The Supreme Court is also a Court of Equity vested with powers, 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 any enactment. (section 16 of the Courts Act).
 
Section 83 of the Constitution provides that the Supreme Court has original jurisdiction in the
interpretation of the Constitution.And where a question as to the interpretation of the Constitution
arises in any Court established for Mauritius (other than the Court of Appeal, the Supreme Court,
or a Court Martial) and the Court is of the opinion that the question involved a substantial
question of law, the Court shall refer the matter to the Supreme Court. (Section 84 of the
Constitution).
 
Disciplinary Powers
 
The Supreme Court has power and jurisdiction to hear and determine any complaint of a
disciplinary nature in respect of the professional conduct of a law practitioner or a ministerial
officer including a land surveyor.

4. Describe the circumstances provided under our law where a Magistrate can be

challenged.

Under the 1968 Constitution of Mauritius, the defendant is entitled to a fair trial by an impartial
court so that the Magistrate does not fall under the 1st or 2nd category listed above, he may
otherwise be challenged under the Constitution.

As a rule, a Magistrate cannot be challenged except in 2 cases: (i) where he is related to one of the
parties to the suit by blood or marriage to the degree of first cousin inclusively. (ii) when he has a
personal interest in the matter of the Court before him either pecuniary or morally. The principle
being that a person cannot be judged and party at the same time-“nemo judex in causa sua”.
 5. Distinguish between an ‘Appeal’ and a ‘Judicial Review’. How does Judicial Review
differ from an appeal?
Judicial review is a judicial control of administrative decisions in matters of public law whereas in
matters of private law the remedy could be either an injunction or claiming damages by way of
plaint with summons. When hearing an appeal the Supreme Court is concerned with the merits
of the lower courts, in law and in facts, whereas on review, the Supreme Court is only interested
with procedural impropriety and the legality of the decision making process and not the decision
itself. In an appeal, the Supreme Court will have to decide whether the inferior court’s decisions
were wrong or right whereas on a review, the Court will have to find whether the decision
making process was lawful. Finally, the right to hear an appeal is created by statutes whereas for
a review, the Supreme Court has inherent jurisdiction (some powers before the intervention of
the legislator). The delay for appeal is 21 days whereas the delay for a judicial review is of 3
months from the date of the administrative decision. Finally, appeal is of a right whereas in
judicial review cases, the leave of the Supreme Court must be obtained first before the case is
heard on the merits. The judge has discretionary power to grant judicial review or not
6. “Judicial Review and Appeals are two ways of available to an aggrieved party to
challenge the decision of an institution.” Discuss this statement.
7. Briefly explain the different remedies that are available under ‘Judicial Review’.

Remedies in judicial review cases are discretionary, even if a public authority has been
found to have acted unlawfully, the court may refuse to issue a remedy if this is in
the public interest. This broader public interest might be a consideration that leads to
public finances. This can be contrasted with private law cases where a claimant
is entitled  to relief. Notwithstanding this, it is not common for courts to refuse a
remedy in public law litigation. There are three possible remedies, which are available
in judicial review proceedings: quashing orders, mandatory orders and prohibiting
orders.

Quashing Orders
Quashing orders are the most commonly sought after remedy, their effect is to
quash or reject as invalid, unlawful administrative decisions. If the court finds a
decision has been made in an unacceptable way, the decision can be quashed and
the decision maker can be required to reconsider their decision in an acceptable
way.  The courts might also rule that a decision itself is unlawful, in that it was
unreasonable, disproportionate, or incompatible with the claimant's substantive
legitimate expectations, or a decision that the maker had no jurisdiction to make. In
such circumstances, a quashing order can compel the making of a particular decision.
Mandatory and Prohibiting Orders
Prohibiting orders are anticipatory in effect; they are issued to prevent unlawful
action from being taken. In R v Liverpool Corporation, ex p Liverpool Taxi Fleet
Operators' Association  [1972] 2 QB 299 an LA decided to issue some new taxi licences
in breach of an assurance that there would be a cap on licences. Existing licence
holders opposed the proposed course of action, due to threat to their business.  The
court issues a prohibiting order.

Mandatory orders compel public authorities to take legally required acts. Mandatory
orders are also relevant in relation to discretionary powers such as a duty to act fairly.
In Padfield v Minister of Agriculture, Fisheries and Food  [1968] AC 997, a mandatory
order was issues to require a decision maker to exercise discretion in line with
implied duties.

Injunctions
An injunction is equivalent to a prohibiting order in that it prevents a body from
taking unlawful conduct. It can be distinguished from prohibiting order; injunctions
can also be granted in ordinary proceedings. Injunctions can also be interim
measures, for which the courts apply a three-stage test:

1. Has the claimant shown prima facie  that there is a 'serious issue to be tried'?
2. Would damages be an adequate remedy, if the act were carried out?
3. The court applies a balance of convenience  test by considering the implications for
both parties.

After a period of considerable uncertainty, it was established in Re M [1994] 1 AC 377

that that injunctions could be granted against Ministers acting in their official
capacity, leading to contempt of court for failure to comply, which is a criminal
offence. Since the Minister is acting in their official capacity they cannot be
imprisoned or fined personally, which has been considered to be a dangerous
concession. There will be political ramifications of such an act however.

8. Grounds for judicial review

1. Ultra vires. The court or the public body has acted either without jurisdiction or has exceeded
its jurisdiction (ultra vires). In Jandoosingh v. District Magistrate of Curepipe 1993 SCJ 324 the
sentence passed by the District Magistrate was set aside since it exceeded that which was
provided by law.
2. Natural justice. The court or public body failed to comply with the rules of natural justice
(adequate warning of a hearing and details of the charges which have been retained against an
individual in order for that party to prepare his/her case properlySloan v. G. M Council 1970 1
WLR 1130) that is the applicant has not been able to enjoy a fair hearing (audi alteram partem)
 or has not been able to prepare his case properly (Sloan v. G.M Council 1970 1 WLR 1130). In the
leading case of Ridge v Baldwin 1964 AC 40 it was held that:
Remedies for an application for judicial review are available under section 31 of the UK Supreme
Court Act 1981. Most of these remedies are available under our law. This section provides: ‘‘1.
An application to the High Court for one or more of the following forms of relief, namely- (a) an
order of mandamus, prohibition or certiorari; (b) a declaration or injunction under subsection
(2); or (c) an injunction under section 30 restraining a person not entitled to do so from acting in
an office to which that section applies, shall be made in accordance with rules of court by a
procedure to be known as an application for judicial review 2. A declaration may be made or an
injunction granted under this subsection in any case where an application for judicial review,
seeking hat relief, has been made and the High Court considers that, having regard to (a) the
nature of the matters in respect of which relief may be granted by orders of mandamus,
prohibition or certiorari; (b) the nature of the persons and bodies against whom relief may be
granted by such orders; and (c) all the circumstances of the case, it would be just and convenient
for the declaration to be made or for the injunction to be granted, as the case may be.’’
9. Describe the process of Judicial Review?

Only the Supreme Court of Mauritius, in its original and supervisory jurisdiction, has jurisdiction to
entertain an application for judicial review. Application for judicial review, by way of motion and
affidavit, is made to the Supreme Court in two stages: the first stage and the second stage. The
respondent must be a public authority, and the rights in issue must be a public right. The Co-
respondent is the aggrieved person if judgment is given in favour of applicant. The first stage is the
leave stage based on the merits of the application which is an ex parte application (Seeboo v The
Town Clerk 1994 SCJ 217) where it was held that since application is an ex parte application, failure
to all necessary parties into cause can be excused) before asingle judge of the Supreme Court. It
allows the judge to eliminate frivolous, vexatious and/or hopeless applications. In R v Inland
Revenue commissioners ex parte National Federation of Self-employed and Small Businesses 1982
AC 617 Lord Scarman explained that at that stage ‘‘it prevents abuse by busybodies, cranks and
other mischief-makers…’’.In R v IRC ex parte National Federation of Self-Employed 1982 AC 617 it
was held that: ‘‘leave must be obtained to prevent the time of the Court being wasted by busy
bodies with misguided or trivial complaints of administrative error; and to remove the uncertainty in
which public officers and authorities might be left as to whether they could safely proceed with
administrative action while proceedings for judicial review of it were actually pending though
misconceived’’ If there are sufficient grounds for review and that there is a case fit for further
consideration (Lutchumun v MSTC 1990 SCJ 138) then the Supreme Court may grant leave (to
applicant against respondent in the presence of the co-respondent) provided action has been
entered within a maximum period of 3 months after action arises otherwise the Supreme Court
would consider that application for judicial review is time-barred. If leave has been granted by the
Supreme Court then within 14 days leave has been granted the applicant must make a second
motion to the Supreme Court by way of motion and affidavit and lodge the motion with the court.
However, despite leave has been granted at the first stage an application for judicial review may be
set aside by the Supreme Court in its final decision.

10. “Mauritius has a mixed legal system”. Discuss.

Case law- Hasam v Deedarally 1989 MR 278/SCJ 409

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.
Britain 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 easier to keep the “code Napoleon” than to overhaul the legal system. So our aim today is to
show how the Mauritian legal system is an hybrid 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 colonise 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.

Sources of Mauritian law as a hybrid legal system

The basic substantive content of part of Mauritian law is thus derived from the French codes: the
Civil Code which has been amended over the years to adapt the local context, the Penal Code which
has been reenacted as the Criminal Code and the Code of Commerce has been included to a lesser
extent. While on the other hand, the law of procedure and evidence are from the English Law,
provisions of the Code de Procedure Civile are still in force. This is an inevitable result of the
adoption of a court structure and the remedies which they provide in the tradition of the common
law. The Mauritian constitution follows the “Westminster model”. Mauritian legal system has
borrowed law relating to trade and commerce. Shipping, finance, banking, company law, negotiable
and bankruptcy instrument. The legislation and statutory interpretation has been largely inspired by
English Law and Jurisprudence. The Mauritian law has emerged from a mixture of both English and
French Law and thus has its own authentic Identity.

LEGISLATION

There exists a hierarchy at legislative norms.

4.1 The Constitution

Constitution is also known as supreme law – as mention in section 2 of the constitution. There it
mentions about any law which is inconsistent with the constitution shall to the extent of the
inconsistency be void. As mention in section 47, the parliament may, with the support of a qualified
majority, amend the provisions of the constitution.

Note the lack of efficacy of section 47(3) of the Constitution.

Any person who feels aggrieved that a provision of the Constitution has been infringed can apply to
the Supreme Court to obtain redress. Thus 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 section 10 of the Constitution. In UDM v. Governor General
(1990) MR 118, the provision of the Legislative Assembly Elections Rules which provided for a
deposit of Rs10,000 to stand as candidate was declared void as it sought to introduce a property
qualification, when none was provided for by 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; Noorbally v.
Queen (1986) MR 204.

4.2 Primary Legislation/Secondary Legislation

Section 45(1) of the Constitution vests law-making power with Parliament; it may pass laws for the
peace, order and good government of Mauritius. Acts of Parliament must, of course, be in
conformity with the Constitution.

Acts passed by Parliament are referred to as Primary Legislation. By contrast, subsidiary legislation
refers to those Rules or 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.

The subsidiary legislation must be in conformity with the enabling Act (where this power has been
conferred by an ordinary Act of Parliament) and the Constitution.

4.3 The legislative Process

The Legislative process comprises of various stages. Namely:

4.3.1 The preliminary stage

4.3.2 Procedures in Parliament

(i) First Reading

(ii) Second Reading

(iii) Committee stage

(iv) Third Reading

(v) Voting

(vi) Assent of President

(vii) Publication in the Government Gaze

The preliminary stage

Normally the public bills are prepared or written by the ministries, it is a law that is created to reflect
the idea of the ministers. In September 2000, the new government voted, for a while the board of
investment bill. Most of the time, other bill are ‘amendment bill’ that is used often prompted by the
senior civil servant who directly or indirectly, through junior staff.

Procedures in Parliament

4.3.2.1 First reading

Mauritius has an unicameral system of parliament that means it has only one house of parliament.
Whereas, in United Kingdom it is a bi-cameral system of parliament. For e.g: there are the House of
Lords and the House of Commons.

The first reading is known when the bill is being introduced for the first time.

4.3.2.2 Second Reading

There is a formal motion for the second reading, following that motion, a debate will follow. For the
second reading, the speaker, after consultation with the chief whip of the political parties. The
speakers debate on the general principle and amendments that is the speech should not be
irrelevant.

4.3.2.3 Committee Stage

After the debate, the bill stands is sent committed to a ‘committee’ of the whole assembly. The
amendments which ultimately may be either accepted or rejected, may be suggested.

4.3.2.4 Third Reading

The third reading is the fact when it has already passed by the committee or a select committee. The
first meeting may also be postponed.

4.3.2.5 Voting

By the virtue of section 53 of the constitution, the bill, just as other ordinary motions, should be
voted by a majority of members of the parliament present.

4.3.2.6 Assent of the President

After the final vote during the third reading the bill is sent to the president of the Republic for his
assent. When the president assents to the bill, the bill becomes a law, but is not yet operational

4.3.2.7 The Publication in the Government Gazette

As mentioned in section 46(4) of the constitution, the law will become operational when it has been
published in the Government Gazette.

4.4 Delegated Legislation

A number of legislation, known as Enabling Acts or Parent Acts, allow subsidiary organizations,
municipalities or parastatal bodies to pass delegated legislations, which are known as “Regulations,
Orders, Rules or Buyer laws”.

For example – the local Government Act by virtue of sections 140 and 141 of the minister unables
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, e.g, University of Mauritius Act.

So, there is an express as well as implicit delegation of power to various subsidiary organizations.
Section 122 of the constitution enables Parliament to exercise some form of control over delegated
legislation.

In addition, the President of the Republic is also empowered to make regulations during a state of
emergency by virtue of section 18 of the Constitution and also by virtue of section 3 of the
Emergency Powers Act. Therefore, the President may make such regulations as appear to him to be
necessary for maintaining and securing peace, order and good government in Mauritius or any part
thereof.

Judicial Precedents (case law)

Case law, also known as judge-made law, is the 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. Of course, it is not the whole of the decision which
contributes a precedent, but only the ratio decidendi of a case.

5.1 Precedent as a Source of Law in Mauritius

In the light of Article 5 of the Code Napoléon to the effect that “ il est défendu aux juges de
prononcer par voie de disposition générale et réglementaire sur les causes qui leur sont soumises”,
one would be prompted to infer that judicial decisions cannot be a source of law in Mauritius, as is
the position in France. This provision prohibits judges from adhering to a system of judicial
precedent.

Yet, the Supreme Court asserted in DPP v. Mootoocarpen (1988) MR 195 at 196 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 statue but would have to include case-law.

That Case-law (that is decisions of superior courts in Mauritius, viz. the Supreme Court and the
Judicial Committee of the Privy Council) constitutes a source of law therefore calls for an
explanation.

This is the situation because section 2 of the Ordinance No. 2 of 1850, which established the
Supreme Court, vested it with the same powers, authority, and jurisdiction that are possessed and
exercised by Her Majesty’s Court of Queen’s Bench in England. Moreover, section 4 of that
Ordinance, was to the effect that the Supreme Court and the judges thereof shall sit, and proceed to
and conduct, and carry on, business in the same manner as the Court of Queen’s Bench and the
judges thereof. At the Court of Queen’s Bench, as in other English Courts, there was adherence to a
system of judicial precedent and stare decisis whereby decisions of higher courts were binding on
lower courts and on themselves. These provisions of the 1850 Ordinance superseded the provisions
of Article 5 of the Code Napoléon in so far as the latter purported to prohibit judicial precedent.

Adherence to judicial precedent was eased as from 1861 with the regular publication of the
Mauritius Reports (MR), which is a collection of the main decisions of the Supreme Court (S.C.J.:
Supreme Court Judgments are published weekly). The initiative initially was a private one, that of a
local attorney: Me Adrien Piston. From 1940 onwards, the Mauritius Reports have been an official
publication and the editing entrusted to the Chief Justice.

What is the relative importance of Case-law? Few areas are entirely governed by case-law
(contempt, judicial review, a number of evidential and procedural rules). Even in those areas
regulated by statue, judicial decisions do contribute to the law-making process by indicating which
statutory provisions are applicable to a given situation and by indicating how a provision is to be
interpreted (it clarifies, when various interpretations are possible, which one is athe appropriate
one).

5.2 The Common Law in Mauritius

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.

5.3 Judicial Decisions from other Jurisdictions

Expect 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.

In the year 1861, the Judges of the Supreme Court stated that “in this, as in every other case, where
questions are raised on the Civil Code, we are in the habit of resorting to the decisions of the Courts
which gave it birth”.[Carbonel, Bourdin Fils & Co. v. Letellier & ors. (1861) MR 51]

5.4 Customs as a source of Law

Two requirements must be fulfill, for a custom which is recognized as a sources 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. But note that by legislation usages are incorporated
into contracts. Thus Articles 1135 and 1159 of the Code Napoléon provide:

Act. 1135 C.Nap.: “ Les obligations obligent non seulement a ce qui y est exprimé, mais encore a
toutes les suites que l’équité, l’usaage ou la loi donnent a l’obligation d’après sa nature”.

Act.1159 C. Nap.: “Ce qui est ambigu s’interprète par ce qui est d’usage dans le pays où le contrat est
passé.”

Customary rules can be classified as being of different types:

Customs Secundum Legem

Customs Praeter Legem

Customs Contra Legem

Customs Secundum Legem: These are customs which the legislator expressly indicate will govern a
given situation.

Customs Praeter Legem: As one French writer puts it, “ce sont les coutumes qui se forment en
l’absence de la loi pour combler un vide juridique”. Customs praeter legem appear essentially in
areas where the laws is in the constant process of development, such as business or commercial law,
and in particular the law of banking.

Customs Contra Legem: It concerns those practices, which would be contrary to a statutory
provision. As a rule,”la loi est dans la hiérarchie plus haut place que la coutume; par suite, une loi
peut abroger une coutume mais une coutume contraire a une loi ne saurait valoir quoi que ce soit”.
It has been decided by the French Court of Cassation “qu’une pratique contraire ne peut remplacer
une loi qu’on a oubliée; les lois ne s’abrogent pas par desuetude”

[Chambres Réunies, 5 Mars 1924, D.P. 1924, I, at p. 81.]

It must, nevertheless, be recognized that there are instances where a custom contra legem would
prevail over a statutory provision. Eg “la solidarité est presume en droit commercial” whilst Article
1202 of the Code Napoléon is to the contrary.

Doctrine

The term Doctrine designates legal scholarship, the body of legal writing or literature. As one French
writer observed “on entend par doctrine l’ensemble des etudes publiées par les jurists, les opinions
qu’ils émettent sur les questions relevant de leur spécialité; la doctrine est la théorie du droit”.

Relative Importance of ‘Doctrine’ in Civil Law and Common Law Systems

In civil law systems, doctrine is an inherent part of the system and is indispensable to a systematic
and analytical understanding of it. It exerts considerable influence on “l’établissement et l’évolution
des règles du droit”. As one writer puts it:

[La doctrine] guide le législateur, la jurisprudence et la pratique et les fait bénéficier de travaux
approfondis de recherché que le praticien n’a pas toujours le temps d’effectuer. L’influence de la
doctrine s’exerce sur le législateur en ce que la critique des lois en vigueur et la preparation de lois
nouvelles facillite l’oeuvre legislative. Le législateur fait volontiers appel a tel jurist repute pour
participer aux travaux des commissions préparatoires d’étude des lois … La doctrine exerce une plus
grande influence sur la jurisprudence. En interprétant le sens et la portée des lois elle aide les
tribunaux a les appliquer. En analysant les decisions rendues par les tribunaux elle permet aux jurists
d’en prendre une conscience plus Claire. Sur un certain nombre de questions la doctrine a favorisé
l’évolution de la jurisprudence”.

Numerous writers are regarded as “autorités” for the Civil Code: Aubry & Rau, Baudry-Lacantinerie,
Planiol & Ripert, Colin & Capitant, Troplong, Marty & Raynaud, Mazeaud, etc. As regards the Code
Pénal, Garçon and Garraud are often quoted as “autorités”.

In the common law systems, commentators have been historically less influential, Blackstone and
Bentham being the exceptions. Nevertheless, today case comments, articles are helpful for an
understanding of the law; there is a growing tendency to have recourse to the expertise of law
academics for law reform.

Conclusion

Starting from our historical background, Mauritius has been subject to a number of colonization
attempts. Amoung all these colonization, Mauritius adopted its laws from two colonization. That is
from France and England. The legal system of Mauritius is governed by both French Code Napoleon
and the British law based on the common law. Thus the present Mauritian law owns about 2/3 of its
origin to English law and 1/3 to French law (with z emergence of doctrine which is French inspired
and Code Napoleon). Therefore we can cope with z agreement that Mauritius enjoys a hybrid legal
system. The procedural law both in criminal and civil litigation is mainly English, whilst the
substantive law is mainly based on the French Napoleonic Code.

11. Distinguish between ‘Internal and External’ aids in statutory interpretation.

To assist judges in interpreting statutes there exist various aids that they may refer to. Aids to
statutory interpretation are divided into internal aids and external aids. These are  sometimes

referred to as intrinsic aids and extrinsic aids to interpretation .

Internal aids means those aids which are available in the statute itself, court can interpret the
statute by employing such aids which are as follows:

1. Title of the statute

There are basically two types of title-
I. Short Title

The short title of the Act is only its name which is given solely for the purpose of
reference and identification.
 Short title is mention under Section 1 of the Acts and ends with the year of passing of the
Act.

Example- Section 1 of CPC says, This Act may be cited as Code of Civil Procedure,
1908.' Section 1 of Indian contract Acts says, This Act may be called as Indian Contract
Act, 1872.

II. Long Title

The long title is mention under certain acts whose purpose is to give a general
description about the object of the act.
However, it is not considered as a conclusive aid to interpretation of statutes as it doesn't
resolve ambiguity

Preamble
Preamble is a tool for internal aid to interpretation as it contains the main objects and
reasons of the Act.
The rule of interpretation of preamble is that when a language of an enactment is clear and
unambiguous, the preamble has no part to play but if more than one interpretation is
possible, a help can be taken from preamble to ascertain the true meaning of the provision.
The preamble is mention on the very first page of the act but modern acts doesn't pass with
preamble which is declining its importance.

Marginal notes
Marginal notes are inserted at the side of the sections in an act which express the effect of
the section but they are not part of statute.
They are also known as Side notes and are inserted by drafters and not legislators.

The rule of interpretation is that in olden times a help is used to be taken from marginal notes
when the clear meaning of the provision is in doubt but as per modern view of the court,
marginal notes doesn't have any role to play because either they are inserted by legislators
nor does they form the part of the statute.
However, for interpreting constitution many times marginal notes are referred because they
are made by constituent assembly.

Headings
Headings are prefixed to sections or a group or set of sections.
These headings have been treated by courts as preambles to those sections or sets of
sections.
The rule of interpretation is that the heading can't control the plain words of the provision but
if after the plain reading of the section more than one meaning is possible, only then the court
may seek guidance from the headings.
 Illustration
Illustration are appended to a section of a statute with a view to illustrating the law explained
in the provision.
Such illustration manifest the intention of the legislature and can be referred in the case of
ambiguity or repugnancy.
However, the court emphasis through various judgments that it doesn't explain the whole
principle explain in the section through illustration nor does it curtail the ambit of the section.
In the case of repugnancy between section and illustration, section will prevail.
Explanation
The explanations are inserted with the purpose of explaining the meaning of a particular
provision and to remove doubts which might creep up if the explanation had not been
inserted.
The purpose of explanations are to explain the meaning and intention of act, to clarify in case
of obscurity or vagueness and to provide additional support to the object of the act.
However, it doesn't expand or curtail the meaning of the provision but only tries to remove
uncertainty and in the case of conflict between explanation and main section, the duty of the
court is to harmonize the two.
Exception
Exception are generally added to an enactment with the purpose of exempting something
which would otherwise fall within the ambit of the main provision.
In case of repugnancy between exception and main enactment, the latter must be relied
upon. However, in many cases exceptions are relied being the last intention of legislature.

External aids are the aids which are not available inside the statute but outside the statute, the
court may seek help to the external aids in case of repugnancy or inconsistency in the statutory
provision which are as follows:

1. Dictionaries
When a word used in the statute is not defined therein or if defined but the meaning is
unclear only in such situation, the court may refer to the dictionary meaning of the statute
to find out meaning of the word in ordinary sense

Text Books
The court while construing an enactment, may refer to the standard textbooks to clear the
meaning. Although, the courts are not bound to accept such view.
The court time and again referred to mulla, kautiliya, manu, arthshastra.

1. Statement of objects and reasons

The statement of object and reasons are attached to the bill which describe the objects,
purpose and the reason for the bill. It also gives understanding of the background, the
antecedent state of affairs and the object the law seeks to achieve.
 The parliament before passing a bill must take into consideration that what object a bill
serve to achieve.
However, it is not considered as conclusive aid to interpretation because doesn't impart
the true meaning to the statutory provision.
2. Foreign laws and decisions
Judges may refer to foreign laws and decision if the jurisprudence of both the countries is
same, similarity in political system and ideology, when there is no domestic law on point
and if the Indian court believe that decision passed by the foreign court is not arbitrary.
However, the foreign courts or decision have only persuasive value as the courts in India
are not bound by the foreign courts.

Legislative Debates/Speech
It is referred as to debates or speeches which are made in the course of passing a bill in the
parliament by the parliamentarians to put forth their view.
It is not considered as a conclusive aid to interpretation and is therefore, not admissible
because many times speeches are influenced by the political pressure or maybe incorrect to
rely upon.

Committee Reports
Before the framing of the Bill, usually the matter is referred to a committee to consider it in detail
and give its report thereon.
These reports of the commissions and committee have been referred to as evidence of historical
facts or of surrounding circumstances and used for interpreting the Act.
When there is an ambiguity in the meaning of a provision and the act was passed on the
recommendation of a committee report, aid can be taken from that report to interpret the
provision.
Example: the criminal amendment act was based on the recommendation by J.S. Verma Committee
Report such report can be referred in case of any ambiguity in amendment.

What do you understand by the term “Subsidiary Legislation”?

These are also known as Delegated legislations. These are laws which are made by Ministers
orauthorities or tribunals when the Parlimant has delegated its law making power to them.

Examples of subsidiary legislations: Regulation on noise pollution or Regulation on non-smoking.

subsidiary legislation refers to those Rules or 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.

The subsidiary legislation must be in conformity with the enabling Act (where this power has been
conferred by an ordinary Act of Parliament) and the Constitution

Subsidiary legislation or subordinate legislation refers to written law made by ministers,

government agencies or statutory boards. Subsidary legislation is made under the parent
statute. Judge-made law is court judgments which are considered a source of law
Subsidiary legislation” means any proclamation, rule, regulation, order, resolution,
notice, rule of court, bylaw or other instrument made under or by virtue of any
ordinance and having legislative effect.

12. Explain the reasons for “Subsidiary Legislation” and what control can be exercised over

“Subsidiary Legislation”?. What do you understand by ‘delegated legislation’?

Delegated legislations. Source: Paul Denham, Law, A Modern Introduction, 4th Edition, p.53, Hodder
& Stoughton, 2002. Reference has been made earlier to delegated legislation, which is sometimes
referred to as subordinate or secondary legislation. Delegated legislation consists mainly of rules and
regulations made by government ministers under the authority of an Act of Parliament. Delegated
legislation may take different legal forms. One such method may be to make an Order in Council;
other pieces of delegated legislations may take the form of rules and regulations, for instance.
Council here refers to the Privy Council. Virtually all delegated legislations may be generally termed
as ‘statutory instruments’; statutory instruments, like Acts of Parliament, must be printed and
published. Delegated legislations are of two types: rules and rgualtions which are made under an Act
of Parliament or enabling Act. These are the rules or regulations made by a Minister or a local
council or a public authority to whom Parliament has delegated its law-making power.

MINISTERIAL CONTROL 2. PARLIAMENTARY CONTROL 3. JUDICIAL CONTROL

13. « Subject to this Constitution, Parliament may make laws for the peace, order and good
governance of Mauritius » Describe the legislative process in Mauritius.

Legislation consists of the laying down of rules by a body which has law-making authority. Before it
becomes law, an Act of Parliament is known as a bill which may be either private, public or private
member’s bill. According to Section 45 of the Constitution “subject to the Constitution, Parliament
may make laws for the peace, order and good government of Mauritius”. In a democratic country,
Parliament makes laws and the judiciary interpret them otherwise there would be no separation of
powers if, for example, the judiciary interprets law it would consequently usurpate the function of
Parliament.

Subject to the article 45(1) of the Constitution, one of the functions of the Parliament is to makelaws
for the peace, order and good government of Mauritius"

The legislative Process

The Legislative process comprises of various stages. Namely:

4.3.1 The preliminary stage

4.3.2 Procedures in Parliament

(i) First Reading

(ii) Second Reading

(iii) Committee stage

(iv) Third Reading

(v) Voting

(vi) Assent of President

(vii) Publication in the Government Gaze

The preliminary stage

Normally the public bills are prepared or written by the ministries, it is a law that is created to reflect
the idea of the ministers. In September 2000, the new government voted, for a while the board of
investment bill. Most of the time, other bill are ‘amendment bill’ that is used often prompted by the
senior civil servant who directly or indirectly, through junior staff.

Procedures in Parliament

4.3.2.1 First reading

Mauritius has an unicameral system of parliament that means it has only one house of parliament.
Whereas, in United Kingdom it is a bi-cameral system of parliament. For e.g: there are the House of
Lords and the House of Commons.

The first reading is known when the bill is being introduced for the first time.

4.3.2.2 Second Reading

There is a formal motion for the second reading, following that motion, a debate will follow. For the
second reading, the speaker, after consultation with the chief whip of the political parties. The
speakers debate on the general principle and amendments that is the speech should not be
irrelevant.

4.3.2.3 Committee Stage

After the debate, the bill stands is sent committed to a ‘committee’ of the whole assembly. The
amendments which ultimately may be either accepted or rejected, may be suggested.

4.3.2.4 Third Reading

The third reading is the fact when it has already passed by the committee or a select committee. The
first meeting may also be postponed.

4.3.2.5 Voting

By the virtue of section 53 of the constitution, the bill, just as other ordinary motions, should be
voted by a majority of members of the parliament present.

4.3.2.6 Assent of the President

After the final vote during the third reading the bill is sent to the president of the Republic for his
assent. When the president assents to the bill, the bill becomes a law, but is not yet operational

4.3.2.7 The Publication in the Government Gazette

As mentioned in section 46(4) of the constitution, the law will become operational when it has been
published in the Government Gazette.

14. As per the Mauritian Constitution, the parliament should have the Legislative power to
make laws. Conduct a comparative study of the Section 45 and 46 of the Constitution of
Mauritius.

15. How is it important for a body like the Financial Services Commission to have the powers

to make regulations?
16. Discuss the grounds on which a magistrate can be challenged.
No challenge shall be allowed against a Magistrate save on the ground of personal interest in
any cause or matter brought before him or of his being related to one of the parties in the suit
by blood or marriage, either in the direct line or in the collateral line to the degree of first cousin
inclusively.
(2) Any challenge against a Magistrate shall be deposited at the registry of the court where the
Magistrate sits and the Magistrate against whom the challenge is made shall either accept the
challenge or set down in writing the reasons for not abstaining from hearing the cause or matter.
(3) Where a Magistrate does not abstain from hearing a cause or matter upon a challenge made
 against him, the reasons in answer to the challenge as set down in writing under subsection (2)
shall be transmitted to the Registrar for submission to a Judge in Chambers.
(4) The Judge in Chambers shall determine the question of challenge summarily, in the absence
of the parties and, where the challenge is not admitted, may award costs not exceeding 50
rupees against the party having made the challenge.
(5) Where a Magistrate considers that he should abstain from hearing a cause or matter, he shall
give notice of his reason to the Chief Justice who shall adjudicate on it and make an order
accordingly

17. “Anyone can be President of the Republic”. In the light of the above statement, discuss

the criteria for someone to be eligible to be elected as President.

18. The President of Republic of Mauritius is not amenable before any Court of Law. Discuss.

19. With reference to case law, can the decision of the President of Republic be challenged

before the Court ?

20. Give two situations where the President of the Republic can act in her own deliberate
judgment.

21. Discuss the appointment of the President of Republic under the Constitution of
Mauritius.

22. Discuss the procedure for the appointment of the President of the Republic.

23. Discuss the procedure for the removal of the President of the Republic of Mauritius.
24. Explain the privileges and immunities that the President of the Republic of Mauritius.

25. What are the various stages a Bill must go through before it becomes an Act of
Parliament?
26. What are the various types of bills that can be introduced in the National Assembly?
27. In which circumstances can the President of the Republic withhold assent?

28. What are the various stages a Bill must go through before it is adopted by the National
Assembly.
29. Explain whether an Act of Parliament can be challenged and under what circumstances.
30. Describe the different ways in which a person can appeal to the Judicial Committee of

Privy Council.
31. Section 45 of the Constitution provides for the legislative process. In the light of the

above statement, discuss the importance of the Presidential Assent.

32. Constitution of Mauritius

33. Literal rule of interpretation

34. Case law

35. Obiter dictum

36. One of the primary sources of law is case law. Discuss about the conditions for case law

to be recognised as a source of law.

37. Distinguish between private law and public law.

38. Section 1 of the Constitution states that “Mauritius shall be a sovereign democratic
state”. In the light of the above statement, discuss the principles of separation of
powers.
39. What are the different branches of Law?

40. Constitution of Mauritius provides for important safeguards in relation to a person

charged with an offence.
Discuss the extent to which section 10 of the Constitution provides for important
safeguards in relation to a person charged with an offence.
41. The concept of Human Rights is enshrined in Chapter II of our Constitution. Evaluate the
extent to which a citizen of Mauritius enjoys his right to liberty.
42. Explain an accused’s rights under the Constitution.
43. “The Heydon’s case is the starting point of the rules of statutory interpretation.”

Discuss the manner in which rules of statutory interpretation have evolved since then.
44. Discuss the jurisdiction of the various courts in the criminal justice system of Mauritius.

45. Discuss to what extent an individual can exercise this right in Mauritius.
46. “Section 5 of the Constitution states that no person shall be deprived of his personal

liberty save as may be authorised by law in a number of circumstances.” Discuss this

statement.
47. Critically analyse the importance of law in Mauritius.
48. Assess the steps in enacting a law in Mauritius.
49. Section 45 of the Constitution empowers the Parliament to make laws in Mauritius.
Discuss.
50. Discuss the roles of the police as one of the protagonists in a criminal process.
51. Assess the roles of the various protagonists involved in the prosecution of a criminal

case.
52. Explain briefly the following:

 The principle of case laws

 The jurisdiction of the Supreme Court
53. Compare and contrast the following:

 Domestic law and International law

 Civil law and criminal law