Foundations of Law and the

Mauritian Legal System

Topics 3&4

© Mr KURTISH TULSI
1
Syllabus to cover
Constitutional Law and fundamental
rights
Definition of Constitutional Law
Constitutional law is defined as the body of law
which underpins the structure of, and regulates
the exercise of power by, the principal institutions
of government, and determines their functions and
their relationship with the citizen.

Marshall defines Constitutional Law as a “part of

national law which governs the system of public
administration and the relationships between the
individual and the state.”
 Scope of Constitutional Law
 Constitutional Law deals with the legal foundations of the
institutional hierarchy through which the state is governed.

 It deals with the composition, powers, procedures and

immunities and relationship between the institutions of the
state.

 Constitutional Law should reflect the value that people attach

to human relations, to individual freedom under the law and to
institutions such as Parliament, political parties, free elections
and a free press.
Importance of Constitutional Law
The nature of the Constitution by which the citizens of a state are
governed deeply affect their lifestyle, in particular their thinking,
ideology, education, health and wealth. Constitutions represent a
delicate balance between conflicting views, aims, objectives and
methods of implementation.

Legal practitioners use certain areas of Constitutional Law on a

regular basis, especially if they deal with criminal law and have
to advise clients on the legality of police actions involving arrest
search and seizure or in relation to challenges against the actions
of Government departments dealing with planning permission,
applications for social security, passports and visas.
 Sources of Constitutional Law
In the absence of a written constitution, there are two
kinds of sources of constitutional law. Firstly, there are
legal sources, such as legislation and common law; and
secondly, non-legal sources, notably convention,
parliamentary rules and customs and the works of
legal scholars.
 Constitution
What is a constitution?

A constitution may be defined as the document

setting out the necessary rules for the
framework and operation of state institutions. In
a wider sense, however, it is the name for all the
laws, customs, conventions and institutions
governing a community.
 Constitution of Mauritius
Section 2 of our constitution:

This Constitution is the supreme law of

Mauritius and if any other law is inconsistent
with this Constitution, that other law shall, to
the extent of the inconsistency, be void.
 Constitution
Sections 3 to 16 of Chapter II of the Constitution
1968 set the fundamental rights of the citizens
of the Republic of Mauritius.
 Constitution
 Citizen of this country must enjoy a fair trial before an independent and
impartial court and the matter in dispute must be tried within a reasonable
delay. He has a right to counsel or a legal representative of his choice and the
accused or suspect has even the right to defend himself before a court of law
unless the Supreme Court decides otherwise because of the nature of the
case itself, the intricacy of the matter in dispute and the seriousness of the
offence. This chapter is therefore important so that any citizen of Mauritius
knows all the basic fundamental rights he may enjoy before a court of law
because it is implied that no person shall be brought before a court of law
without the reasons of his arrest and detention. This explains to what extent
the republic of Mauritius is an independent and democratic State where all
its citizens must enjoy over and above all their rights, fundamentals or not.
 Section 3
Fundamental rights and freedoms of the
individual
It is hereby recognized and declared that in
Mauritius there have existed and shall continue to
exist without discrimination by reason of race,
place of origin, political opinions, color, creed or
sex, but subject to respect for the rights and
freedoms of others and for the public interest,
each and all of the following human rights and
fundamental freedoms –
 Section 3
(a) the right of the individual to life, liberty, security of the person and the
protection of the law;

(b)freedom of conscience, of expression, of assembly and association and

freedom to establish schools; and

(c) the right of the individual to protection for the privacy of his home and other
property and from deprivation of property without compensation, and the
provisions of this chapter shall have effect for the purpose of affording
protection to those rights and freedoms subject to such limitations of that
protection as are contained in those provisions, being limitations designed to
ensure that the enjoyment of those rights and freedoms by any individual
does not prejudice the rights and freedoms of others or the public interest.
 Article 3: Fundamental rights and freedoms of
the individual
Mahbood v/s Government of Mauritius 1982 MR 135:
The Plaintiff sold and immoveable to an alien in circumstances which made the
sale null and void. The Supreme Court held the Plaintiff was the legal owner of
the immoveable. Subsequently Parliament passed an Act which deemed that the
sale was valid and that the alien had a valid title to the immoveable.

The court stated that it was a fundamental disposition of the Constitution that
there should be a separation of powers between legislature, the executive and the
judiciary. Parliament has no more right to pronounce judgments than the
Supreme Court has a right to make laws. The enactment was an usurpation of
judicial power and must be struck down. In spite of the Act, the plaintiff
remained the legal owner of the immoveable.

Rault CJ: The Act amounted to a deprivation of property in breach of Section 8

of the Constitution, and must be struck down.
Article 5: Protection of right to personal liberty

(1) No person shall be deprived of his personal liberty

save as may be authorized by law
(a)in consequence of his unfitness to plead to a
criminal charge or in execution of the sentence or
order of a court, whether in Mauritius or elsewhere,
in respect of a criminal offence of which he has
been convicted;
(b)in execution of the order of a court punishing him
for contempt of that court or of another
court;
Article 5: Protection of right to personal liberty

• In Sheriff v/s The District Magistrate of Port Louis 1989 MR 260, it was
held by the Court that the Police have an undeniable right to arrest and
detain persons suspected of having committed an offence is almost
axiomatic.

• The applicant has been arrested and detained in connection with a drug
offence allegedly committed in 1989 prior to the coming into force of the
amendment to the Dangerous Drugs Act 1986 which provides for tougher
penalties for offenders in contradiction to users. We are fully alive to the
fact that the fight against those involved in the commission of offences
relating to drug trafficking should be relentless, merciless but not an
obsession. Detention should never be used as a disguised punishment
against a suspect whom the police feel they cannot pin down in the absence
of solid evidence.
 Other Articles
Article 7: Protection from inhuman treatment
(1)No person shall be subjected to torture or to inhuman or degrading
punishment or other such treatment.
Article 8: Protection from deprivation of property
(1)No property of any description shall be compulsorily taken possession of, and
no interest in or right over poverty of any description shall be compulsorily
acquired, except where –
Article 11: Protection of Freedom of conscience
Except with his own consent, no person shall be hindered in the enjoyment of
his freedom of conscience, and for the purposes of this section, that freedom
includes freedom of thought and of religion, freedom to change his religion or
belief, and freedom, either alone or in community with others and both in public
and in private, to manifest and propagate his religion or belief in worship,
teaching, practice and observance.
 Other Articles
Article 12: Protection of Freedom of Expression
Article 15: Protection of Freedom of Movement
Article 16: Protection from discrimination
Right to appeal is made a constitutional right (Section 80, 81 of the
Constitution)
Section 72 Constitution Director of Public Prosecutions
(1) There shall be a Director of Public Prosecutions whose office shall be a
public office and who shall be appointed by the Judicial and Legal Service
Commission. (2) No person shall be qualified to hold or act in the office of
Director or Public Prosecutions unless he is qualified for appointment as a
Judge of the Supreme Court.
 Other Articles
• Right to be tried without undue delay
• The right to be informed of arrest and detention
• Rights of a person charged with a criminal offence Section 10 of the
Constitution enacts the necessary provisions of a person charged with a
criminal offence.
• Right to a fair hearing
• Presumption of innocence. The person charged with an offence is innocent
until he is proved guilty (section 10(2)(a) Constitution), that he has the right
to be informed as soon as reasonably practicable, in a language which he
understands
• Interpreter Section 10(2)(f)
A legal representative of his own choice According to section 10(2)(d) of the
Constitution: “Every person who is charged with a criminal offence (d) shall
be permitted to defend himself in person or, at his own expense, by a legal
representative of his choice or, where so prescribed, by a legal representative
provided at the public expense.”
 Other Articles
Inops consolii. He has also the right to defend himself in person
that is without counsel or ‘‘inops consolii’’(sect. 10(2)(d)
Constitution).

Right to silence The defendant or appellant may choose not to

depone. In Mahadeea v The State 264 SCJ 1997 the appellant
was prosecuted on information containing two counts of having
had sexual intercourse with a female under the age of 16. He
pleaded not guilty but chose not to depone.
 Topic 4-Courts
A constitutional court is a high court that deals primarily with
constitutional law. Its main authority is to rule on whether laws that are
challenged are in fact unconstitutional, i.e., whether they conflict with
constitutionally established rights and freedoms.
Role of the Constitutional Court in Democratic Society
•The constitutional court is a central but not the only instrument of
democracy and constitutionalism. There cannot be a constitutional court
without a constitution. Therefore, the role of the constitutional court
should be viewed in a wider perspective embracing the general issues of
democracy, constitution, and constitutionalism.
•The main duty of the Constitutional Court is to ensure the respect of the
rigidity of the Constitution through a differentiated series of attributions.
 The District 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.
Section 93 Courts Act, 1945.
Establishment of District Courts
(1) There shall be a court in every district to be known as a District Court, which
shall be a court of record and which shall have civil and criminal jurisdiction in
such causes and matters and to such extent as are provided in this Part.
•Sections 94-96 Courts Act, 1945 District Magistrates A District Court shall be
presided by a Magistrate to be known as a District Magistrate.
 Jurisdiction of the District Court in
criminal cases
Section 114 Courts Act sets down the offences, which can be
tried by the District Courts and also refers to S116 Courts Act.
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
 Jurisdiction of the District Courts in
civil cases
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.
 The Intermediate Court
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.

Section 112 Courts Act, 1945- Criminal jurisdiction of Intermediate Court

The Intermediate Court shall have jurisdiction to try any of the following criminal
matters which the Director of Public Prosecutions may refer to it – (a) any offence
which a District Magistrate has jurisdiction to try; (b) any offence triable in
Rodrigues or any island under the jurisdiction of the State of Mauritius other than
the Island of Mauritius;
 Section 113 Courts Act, 1945 Penalties

(1) Subject to subsection (2), the Intermediate Court shall have

jurisdiction to inflict the penalties and forfeitures specified in
the law applicable to the offence charged.
(2) (a) Subject to paragraph (b) and any other enactment, the
Court shall not award against any person penal servitude for
more than 8 years or imprisonment for more than 5 years.
(b) In the case of a persistent offender, if the court is satisfied
that, by reason of his previous conduct and of the likelihood
of his committing further offences, it is expedient to protect
the public from him for a substantial period, the court may
increase the sentence to 12 years penal servitude.
 The Supreme Court

Section 76 of the Constitution provides that:

Section 76 Constitution (1) There shall be a Supreme Court for
Mauritius which shall have 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 this Constitution or any other law.
The Court of Criminal Appeal and The Court of Civil Appeal
Section 80 Constitution Courts of Appeal (1) There shall be a
Court of Civil Appeal and a Court of Criminal Appeal for
Mauritius, each of which shall be a division of the Supreme Court.
 
 Judicial Committee of the Privy
Council
Appeals to the JCPV is provided by Section 81 of our constitution
Section 81 (1) (a) of the Constitution provides that an appeal lies as
of right in the following cases:
•Final Decisions, in any civil or criminal proceedings, on questions
as to the interpretation of the Constitution
•Where a matter in dispute on the appeal to the Judicial
Committee is of the value or Rs 10 000 or upwards or where the
appeal involves, directly or indirectly a claim to or a question
respecting property or a right of the value of Rs 10,000 or upwards,
as regards final decisions in any civil proceedings
•Final decisions under Section 17 of the Constitution
Any Question