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Every lawyer needs to know where to find the Law, in relation to a particular issue, when he needs it. Hence, it is vital for the lawyer operating in a specific legal system to know what the sources of law are in that system.

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Material Sources of Law Formal

Historical Legislation Case-Law Custom

Legislation

A body of binding rules of Law

Constitution

Primary Legislation

Subsidiary Legislation

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THE CONSTITUTION

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Supreme Law of the Land Section 2 of the 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.

The Supreme Court is the guardian of the Constitution It is empowered to strike down any enactment that is unconstitutional e.g. Mahboob v Govt of Mauritius (1982) MR 135

The Constitution organises the institutional life of the state by creating the most important institutions of the State, together with the framework for their effective co-existence. It embodies the concept of Separation of Powers by setting out the functions of the 3 organs of the State. It enshrines a Bill of Rights to safeguard basic human rights of the individual in its Chapter II

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The supremacy of the Constitution however is not absolute. It may be amended with the support of a qualified majority. Section 47 of the Constitution permits the National Assembly to alter the Constitution.

(1) Subject to this section, Parliament may alter this Constitution. (2) A Bill for an Act of Parliament to alter any of the following provisions of this Constitution (a) this section; (b) sections 28 to 31, 37 to 46, 56 to 58 other than 57(2), 64, 65, 71, 72 and 108; (c) Chapters II, VII, VIII and IX; (d) the First Schedule, and (e) Chapter XI, to the extent that it relates to any of the provisions specified in paragraphs (a) to (d), shall not be passed by the Assembly unless it is supported at the final voting in the Assembly by the votes of not less than three quarters of all the members of the Assembly.

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(3) A Bill for an Act of Parliament to alter the provisions of section 1 or 57(2) shall not be passed by the Assembly unless (a) the proposed Bill has before its introduction in the Assembly been submitted, by referendum, to the electorate of Mauritius and has been approved by the votes of not less than three quarters of the electorate; (b) it is supported at the final voting in the Assembly by the votes of all the members of the Assembly. (4) A Bill for an Act of Parliament to alter any provision of this Constitution (but which does not alter any of the provisions of this Constitution as specified in subsection (2)) shall not be passed by the Assembly unless it is supported at the final voting in the Assembly by the votes of not less than two-thirds of all the members of the Assembly.

The Test of Section 47

The Test of Section 1

Cases of :

Police v Khoyratty (2004) MR 137 State v Khoyratty PCA No 59 of 2004

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(1) (3A)

No person shall be deprived of his personal liberty save as may be authorised by law - (a) Notwithstanding subsection (3), where a person is arrested or detained for an offence related to terrorism or a drug offence, he shall not, in relation to such offences related to terrorism, or drug offences, as may be prescribed by an Act of Parliament, be admitted to bail until the final determination of the proceedings brought against him, where (i) (ii) he has already been convicted of an offence related to terrorism or a drug offence; or he is arrested or detained for an offence related to terrorism or a drug offence during the period that he has been released on bail after he has been charged with having committed an offence related to terrorism or a drug offence.

Section 1 - The State :

Mauritius shall be a sovereign democratic State which shall be known as the Republic of Mauritius.

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After a careful review the Supreme Court (Y K J Yeung Sik Yuen SPJ and P Lam Shang Leen J) came to the following conclusions: In the particular context of our Constitution, more specially in the light of our notion of democracy as is contained in section 1, we are of the opinion that section 5(3A), although it is compliant with section 47(2), [having admittedly been voted with three-quarters majority] is in breach of section 1 since the imperative prohibition imposed on the judiciary to refuse bail in the circumstances outlined therein amounts to interference by the legislature into functions which are intrinsically within the domain of the judiciary. In Dlamini v The State [2000] 2 LRC 239, at para 74, the Constitutional Court very aptly observed:

what is of importance is that the grant or refusal of bail is under judicial control, and judicial officers have the ultimate decision as to whether or not, in the circumstances of a particular case, bail should be granted.

The Privy Council observed: From the provisions of the propositions can be deduced.

Constitution

the

following

First, Mauritius is a democratic state constitutionally based on the rule of law. Secondly, subject to its specific provisions, the Constitution entrenches the principle of the separation of powers between the legislature, the executive, and the judiciary. Under the Constitution one branch of State may not trespass upon the province of any other. Thirdly, the Constitution gave to each arm of the State such powers as were deemed to be necessary in order to discharge the functions of a legislature, an executive and a judiciary.

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The power to make Laws of Parliament is derived by Section 45(1) of the Constitution which provides:

Subject to this Constitution, Parliament may make laws for the peace, order and good government of Mauritius.

Delegation of Law-making power by Parliament to other bodies like Ministers, Local Councils or Government Departments. Also known as Delegated Legislation Useful for daily practical or technical situations Power not to be used ultra vires

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The doctrine of judicial precedents is to the effect that the decision of a superior Court is binding on inferior Courts and sometimes on the very Court that delivered the judgment. Like cases should be decided alike However, higher Courts have the power to overrule their own judgments and that of lower Courts

Only the Ratio Decidendi of a case that would constitute the precedent

Orbiter Dicta En passant

Vide Chapter on Case Law Technique

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Customs

Material Element

Intellectual Element

Customs Secundum Legem

Customs Praeter Legem

Customs Contra Legem

Other Sources of Law

Persuasive Value only

Doctrine

Foreign Judgments

General Principles of Law

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