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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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Sources of

Law

Material Historical

Formal

Legislation

Case-Law

Custom

Legislation

ConstitutionPrimary

Legislation

Subsidiary

Legislation

A body of binding

rules of Law

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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) No person shall be deprived of his personal liberty save as may be authorised by law -…

(3A) (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) he has already been convicted of an offence related to terrorism or a drug offence; or

(ii) 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 PLam Shang Leen J) came to the following conclusions:

“In the particular context of our Constitution, more specially in the lightof our notion of democracy as is contained in section 1, we are of theopinion that section 5(3A), although it is compliant with section 47(2),[having admittedly been voted with three-quarters majority] is in breachof section 1 since the imperative prohibition imposed on the judiciary torefuse bail in the circumstances outlined therein amounts to interferenceby the legislature into functions which are intrinsically within the domainof the judiciary.

In Dlamini v The State [2000] 2 LRC 239, at para 74, the ConstitutionalCourt very aptly observed:

„what is of importance is that the grant or refusal of bail is under judicialcontrol, and judicial officers have the ultimate decision as to whether ornot, in the circumstances of a particular case, bail should be granted.‟

The Privy Council observed:

“From the provisions of the Constitution the followingpropositions can be deduced.

First, Mauritius is a democratic state constitutionally based onthe rule of law.

Secondly, subject to its specific provisions, the Constitutionentrenches the principle of the separation of powers between thelegislature, the executive, and the judiciary. Under theConstitution one branch of State may not trespass upon theprovince of any other.

Thirdly, the Constitution gave to each arm of the State suchpowers as were deemed to be necessary in order to dischargethe 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

“Customs

Secundum

Legem”

“Customs Praeter

Legem”

“Customs Contra

Legem”

Material ElementIntellectual

Element

Other Sources

of Law

Persuasive

Value only

DoctrineForeign

Judgments

General

Principles of

Law