Sources of Law in Mauritius

The law and legal system of Mauritius are an unusual hybrid and a remarkable instance of comparative law in action. As a consequence of its history, as an overseas possession of France from 1715 to 1810 and as a British colony from 1814 until it achieved independence within the Commonwealth in 1968, its law and legal system reflect the legal traditions of both its former colonial rulers. In general terms, Mauritian private law is based on the French Code Civil while public law and commercial law are based on English law: an example of what has recently been labelled a “bi-systemic legal system”.

The Constitution, a version of the Westminster export model, was originally monarchical. It was amended in 1991 and Mauritius became a republic within the Commonwealth in 1992.

Mauritius is a sovereign democratic state and is a member of the United Nations, of the Commonwealth and of the “Francophonie”. Historically, Mauritius basically remained an uninhabited island until the 17th century when it was colonised firstly by the Dutch, then by the French and then subsequently by the British. Mauritius was under French rule until 1814 when it became British, but still kept its French laws and customs. Whilst the substantive laws, e.g. the Civil Code, the Criminal Code and the Commercial Code remained French, the English judges presiding in the Mauritian courts preferred English procedure, which was familiar to them.

Thus historically, English law gradually grafted itself on French law to supplement the former. More modern legislation in the fields of company, banking, finance, offshore, taxation, shipping and intellectual property are of English origin. In 1968, Mauritius became independent and Parliament enacts the laws. In specific cases, the power is delegated to ministers to make regulations and the country became a Republic within the British Commonwealth in 1992.

There are basically quite a few sources of law ~ one should definitely be the constitution, second one should be statutes and third the case-laws..

To begin with, the constitution acts rather as guideline, or framework, which stipulates what the government (the executive) is allowed to do and what not, most of the time concerning the rights and freedom of the citizens ofMauritius.

The statutes are enacted by the Parliament (the legislature) ~ they are know as the prime sources of law of Mauritius, or any country for that matter, and they tackle any matters that the government feels it’s right to legislate on. When somebody refers to “laws”, this is what they means most of the time.

Case-laws are judge-made laws made in courts. Their functions: one is to supplement statutes (since it can be brief sometimes), another one is to interprete statutes, a third one is an area of law that the legislature has failed to enact on, and most importantly, to provide precedence (the higher instances of courts) to the outcome of cases that will follow ~ this makes laws more predictable.

Having said that, there are also laws made by delegated bodies (e.g municipal councils etc) and sometimes laws are also derived from Treaties that Mauritius is signatory of.