Mauritius

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General Overview of Mauritius

Mauritius is an island state in the Indian Ocean, located 868 kilometres East of Madagascar and 172 kilometres East-Northeast of Reunion. The country consists of the main island of Mauritius as well as Rodrigues Island, which is located 560 kilometres East of Mauritius’ coast. The more distant islands of Agaléga and Saint-Brandon are also part of the country’s national territory. The total area of ​​Mauritius spans 2,040 km². The capital and largest city is Port-Louis. Mauritius was a former Dutch (1638-1710) and French (1715-1810) colony, before becoming a British colonial possession in 1810 which remained under British rule until 1968, the year of its independence. The British colony of Mauritius once included the present-day territories of Mauritius, Rodrigues, Agaléga, Saint-Brandon, the Chagos archipelago and the Seychelles. The Mauritian territories were gradually reduced with the creation of a specific colony of the Seychelles in 1903 and the excision of the Chagos archipelago in 1965.[1]

The population of Mauritius is multiethnic, multiconfessional, multicultural and multilingual. The three official languages ​​of Mauritius are English, Creole and French. However, many Mauritians also speak Tamil, Hindi, Urdu, Chinese, and other languages due to the diverse origins of the Mauritian population. Mauritius is highly rated in terms of democracy and economic and political freedoms. Mauritius' Human Development Index is the highest in Africa. Similar to the other Mascarene Islands, Mauritius is known for its flora and fauna, with several species endemic to the country. The island is particularly famous for the dodo, a flightless bird, which along with other endemic species, became extinct soon after the arrival of the first colonists in the 17th century.[2]

Historians believe that the first visitors to Mauritius were Phoenician navigators commissioned by the Egyptian pharaoh Necho II, around the year 600 BC. Arab sailors visited Mauritius regularly from the fifth century and gave it the name of Dina Arobi. It was not until the beginning of the 16th century that Portuguese navigators began to regularly visit the region. The Portuguese first settled there in 1507 and established a visiting base.[3] The island appears on the earliest Portuguese maps, with the Portuguese name of Ilha do Cirne, “Island of the Swan,” possibly due to the presence of the dodo, which was found in large numbers around this time. Another Portuguese sailor, Pedro de Mascarenhas, gave the name Mascareignes to the archipelago of islands now known as Mauritius, Rodrigues and Reunion. The island remained uninhabited until the establishment of a colony in 1638 by the United Provinces, the Dutch naming it in honour of Maurice de Nassau, Prince of Orange. It was abandoned for lack of passage of traders in 1710 and five years later, the island became a French colony and was renamed Isle de France. Due to its strategic position, the island was nicknamed "the star and the key" of the Indian Ocean, which became and remains the island’s motto.

Mauritius’ Political and Legal System

Political Panorama of Mauritius

Between Mauritius’ independence in 1968, and 1992, when the Statute of Republic was adopted, the Queen of Great Britain served as Head of State. The Constitution, granted by a decree of the British government of England in March of 1968, is based on two fundamental precepts: the rule of law and the doctrine of the separation of powers.[4] Article 1 provides that the Republic of Mauritius is a "sovereign democratic state".[5]

The Mauritian Constitution established a parliamentary republic on March 12, 1992, with the separation of powers between the legislature, the judiciary and the executive.[6] It includes a list of fundamental rights inspired directly by the stipulations of the European Convention on Human Rights, which had been implemented in Mauritius since 1956 by virtue of an order of the British Minister for the Colonies. The Mauritian Constitution immediately establishes– like those of other Commonwealth countries developed by British jurists– the principle of its superiority over any other norm and sets up a system allowing the legal sanction of this supremacy.

As Mauritius is a parliamentary republic, the country’s presidents only possess the power of representation. In order to be eligible to run for president, one must be a Mauritian citizen residing in Mauritius for at least five years and be over the age of forty years old. The President is elected by the assembly on the proposal of the prime minister, adopted by the majority of its members. He or she remains in office for a period of five years and is eligible for re-election. Executive power is held by the Prime Minister and a cabinet minister. In June 2015, the assembly unanimously appointed Ameenah Gurib-Fakim, making her the first woman to preside over Mauritius. As of December 2019, the current President of Mauritius is Prithvirajsing Roopun.

The assembly also elects a Vice-President on the same terms as the President. He performs the functions assigned to him by the President. He is also the one who assumes the role of chairman in the event of a vacancy. The National Assembly, which holds legislative power, is made up of sixty-six elected deputies and four appointed by the electoral commission, for four years. The official language of the assembly is English, but any member may address the chair in French.

Judicial Organisation of Mauritius

Mauritius’ judicial power is exercised by courts, the highest of which is the Supreme Court, which acts both as a court of first instance and as a court of appeal. The Supreme Court of Mauritius has unlimited jurisdiction to hear and decide all matters pertaining to civil or criminal law under all laws except disciplinary laws.[7]

The French Civil Code of 1804 (also known as the Napoleonic Code) was promulgated in its time in Mauritius, and remained in effect in the country even after annexation by Great Britain in 1810. It has been amended by various English laws. Today, the Mauritian legal system is a mixture of civil law and common law. The Mauritius Penal Code came into effect in 1838 based on the model of the French Penal Code and is divided into four books. The first book deals with penalties, the second with liability (“Persons punishable, excusable or responsible”), the third with offences and finally the fourth with fines.

The court system is quite close to that known in Anglo-Saxon systems. It is based on a unitary axis where the distinction between private law and public law does not lead to a difference in jurisdiction. In addition, all ordinary courts have jurisdiction in both civil and criminal matters. The judicial system here is made up of common law and emergency jurisdictions.[8]

Common-Law Courts

Common law courts consist of the Supreme Court, the Intermediate Court and the District Courts.

The Supreme Court

The Supreme Court sits at the top of the judicial hierarchy. It acts as a Court of Appeal which hears appeals from its first instance and lower courts. It also functions as the Constitutional Court.[9] It is chaired by the Chief Justice and divided into specialized chambers for civil matters, with a special division dealing only with family matters, commercial matters and criminal matters. The Supreme Court has jurisdiction to review all civil or criminal proceedings before any lower court and may issue such injunctions as it sees fit in order to ensure that justice is duly served by such courts.

In regards to decisions related to criminal and civil matters in the Supreme Court, there is a possibility of appeal to the Privy Council of the Queen of England. The Privy Council is a court of appeal which freely determines its jurisdiction. In practice, it follows the rules of jurisdiction which have been in place for many decades (even prior to the country's independence in 1968) by its case law, particularly in criminal matters. In civil and constitutional matters, the Council intervenes directly without the screen of a Mauritius Court of Appeal when the Supreme Court rules as a first and last resort.

The Intermediate Court

The Intermediate Court, headquartered in Port-Louis, is competent for civil disputes which exceed the rate of jurisdiction provided for the district courts. It also has criminal jurisdiction for offences that are not tried by the primary courts.

District Courts

The other courts are the District Courts, which have jurisdiction over certain civil trials and certain offences.

The Exceptional Courts

• The Assize Court is presided by a judge of the Supreme Court and is responsible for judging the most serious offences. • The Industrial Court settles disputes between employees and employers. • The Profiteering Court judges traders who have committed fines.

Legal Aid in Mauritius

The Republic of Mauritius grants legal assistance to any party eligible to receive it under the conditions established by the Legal Assistance Act. In this sense, legal aid can be granted to applicants in civil or criminal cases provided that: [i] the monthly income of the applicant is less than 10,000 rupees and his assets are worth less than 500,000 rupees; and [ii] that the request for legal aid is "well-founded".[10] The procedure for obtaining legal aid entails [i] submitting a request to the relevant court stating the reason for its action, the reason for its appeal, or the nature of the extrajudicial case for which the request is made; and [ii] a declaration of honour that his financial circumstances meet the above criteria.

Sources of Mauritian Defense Law

In Mauritius, the law is based on different sources, including the constitution and legislation, written laws, judicial precedents (case law), English Common Law and, to a lesser extent, international conventions.

1. Article 2 of the Mauritian Constitution provides that the Constitution is the supreme law of the land. Accordingly, any law contrary to the Constitution must– to the extent of its unconstitutionality– be void.[11] The Mauritian penal code, due to the coexistence of both French law and the later introduced Common Law, provides that in the event of a conflict between the two sources of law, French law takes precedence over English law.[12]

2. There are also written laws, drawn up in either English or French. In the field of civil and private law, laws are drafted in French (Civil Code, Commercial Code and Code of Civil Procedure). The Criminal Code (the Criminal Code Act of 1838) is drafted in both French and English. There are many special laws written in English (for example, the Employment Relations Act of 2008, the Employment Rights Act of 2008, the Notaries Act of 2008, the Sale of Immovable Property Act of 1864, etc.). Currently, the written laws are Acts of Parliament (referred to as statutory law or primary legislation) and regulations (secondary legislation).[13]

3. The Precedents Judiciaries (Case Law) are a formal source of Mauritian law by virtue of section 2 of Ordinance No. 2 of 1850, which established the Supreme Court of Mauritius, giving it the same powers, authorities, and jurisdictions as are owned and operated by the Court of Queen's Bench in England. In addition, Section 4 of this Ordinance provides that the Supreme Court and its judges will proceed in the same way as the Court of Queen's Bench and its judges.

4. English Common Law is a direct source of Mauritian law in certain cases such as contempt of court, judicial review, and evidence. In addition, according to section 16 of the Courts Act of 1945, the Supreme Court of Mauritius is a Court of Equity, which has been entrusted with the power to apply justice in all cases where legal remedies are not provided in the law.

5. International Conventions are also a source of law in Mauritius, although not directly applicable after their ratification. They must be incorporated into national law by means of an Act of Parliament incorporating part or all of the given convention.[14]

Trial and Rights of the Accused in Mauritius

Article 5, Paragraph 2 of the Mauritian constitution recommends that anyone arrested or detained should be informed, as soon as reasonably possible and in a language that he or she understands, of the reasons for his or her arrest or detention.[15] Additionally, the accused must be informed of their rights at the time of their arrest. An inability to do so will result in the cancellation of a trial or procedural irregularities. Police investigations are required to be conducted within the legal framework of the law, so confessions, testimony and any other evidence obtained under duress are inadmissible if the court is informed of the procedural violation.

The principal rights of the accused are as followed: one has the right to make a phone call, the right to see a doctor if necessary, and above all, the right to a lawyer. If the accused cannot afford legal assistance, the Mauritian courts will appoint them with a lawyer.

Mauritian law provides for outright annulment of proceedings in the event of a violation of the rights of the accused and, in certain cases, compensation proceedings may be initiated. The prosecutor or Director of Public Prosecutions as is the case in Mauritius is responsible for ensuring that all means of the investigation have been implemented for the manifestation of the truth.

With regard to the jurisdiction of the different courts, in civil law cases, any proceeding before the Supreme Court, except those governed by other sections of the Courts Act, will be conducted before a single judge.[16] However, the Chief Judge may, either proprio motu or at the written and reasoned request of a party to the trial, decide that the case will be heard by two or more judges, depending on the interests at stake or the importance or complexity of the legal or factual issues involved.[17] In criminal cases, when the law requires that the case be referred to the full court, three or five judges will hear the case.[18] It is important to note that only one hearing can be held to decide, at the same time, on questions of civil law and criminal law.[19] Appeals to the Supreme Court will be heard by at least two judges, unless another form of written law explicitly states otherwise.[20]

The Supreme Court (Mediation) Rules of 2010 made mediation possible in court proceedings before the Supreme Court. According to Section 2 (1) of the regulations, this text “shall apply to actions, questions and cases of civil law which have been submitted and are still pending before the Supreme Court, as the Chief Justice may deem it appropriate to order the mediation before a judge of the Supreme Court ”. In addition, paragraph two provides that: “Without prejudicing the generality of paragraph 1, each party to a civil lawsuit which has been started or is still pending before the Supreme Court may request the Chief Justice to order mediation.” The regulations provide for the function of a Mediation Judge who has been given the power to act as a mediator.

The right of appeal is governed by Sections 92 and 93 of the District and Intermediate Court Act. A person who is not satisfied with a judgment rendered by a magistrate or a judge can challenge it through an appeal. A person who has their appeal dismissed by the Mauritius Court of Appeal always has the last resort of the Judicial Committee of the Privy Council, also known as the court of final instance. The Judicial Committee of the Privy Council is the court of appeal to 27 jurisdictions around the world, including 14 sovereign countries. Mauritius has maintained the jurisdiction of Her Majesty the Queen of England although it acquired Republic status in 1992. Appeals to the Privy Council are governed by Article 81 of the Constitution. Appeals to the Judicial Committee are usually heard by a bench composed of five judges. The request to appeal to the Privy Council is subject to Supreme Court leave, known in legal terms as Special Leave. The Constitution of Mauritius states that one has the right to appeal if they are not satisfied with the judgment rendered by a magistrate or a judge. Appeals are given in cases of legal error, juror misconduct and/or ineffective assistance of counsel.[21]

Trial, Rights and Special Measures for Accused Juveniles

Pursuant to Section 66 of the recently enacted Children's Bill (2020), a specialised court known as the Children’s Court is established for accused juveniles, comprising a protection division, a civil division, and a criminal division. As stipulated by the Chief Justice, this Court is to be presided over by a judge rather than a magistrate. The establishment of the Children's Court aims to address the lack of specialised judicial mechanisms for children’s rights. Previously, cases involving children, both civil and criminal, were heard by district courts, the intermediate court or the Supreme Court depending on the nature of the matter. However, these courts were not specialised in hearing children's rights-related matters, nor were they trained in dealing with children’s rights-related cases.[22]

The protection division of the Court has exclusive jurisdiction to try any cases concerning children in need of care and protection. For this division, the Chief Justice has jurisdiction to designate one or more magistrates of the intermediate court to exercise jurisdiction.

The civil division of the Court has exclusive jurisdiction to try any cases under the Mauritian Civil Code for adoption, or concerning the sale of a minor’s rights, the appointment of a guardian or a sub-guardian to a minor, the search for maternity and paternity of a minor, and any other civil action according to the Chief Justice.

Finally, the criminal division of the Court has exclusive jurisdiction to try (i) prescribed offences committed on a child in the case of a child victim, (ii) cases of child witnesses, (iii) criminal offences committed by a child in the case of juvenile offences.

The Bill explicitly highlights that court proceedings before the Children's Court must be in a child-friendly environment by prescribing how any court proceedings involving children are to be conducted. Firstly, proceedings should be conducted in a language in which the child is familiar with, and language should be adapted in keeping with the child's age and level of maturity. Secondly, proper arrangements must be made in the courtroom to hear the evidence of a child and for the child to be accompanied by a parent or legal guardian. The court must also ensure that no person treats a child in a manner that is disrespectful of the child's dignity during the proceedings, taking into account factors such as the child's personal situation and immediate and special needs, age, gender, level of maturity and any disabilities, and must further ensure that the child is treated in a caring and sensitive matter throughout the proceedings by taking into account their personal situation and immediate and special needs. Moreover, a provision is in place which prohibits a court from requiring a child to give evidence against his or her will without the knowledge of his or her parents or legal guardian.[23]

  1. https://fr.wikipedia.org/wiki/Maurice_%28pays%29
  2. Ibid.
  3. https://d-nb.info/974297240/34
  4. Glover, V. (2001)
  5. Article I of the Constitution of Mauritius 1968, http://mjp.univ-perp.fr/constit/mu1968.htm
  6. https://legiglobe.rf2d.org/maurice/2016/06/28/
  7. Section 76 (1) of the Constitution of Mauritius 1968
  8. http://legiglobe.rf2d.org/maurice/2016/06/28/
  9. Section 83 of the Constitution of Mauritius 1968
  10. The Legal Aid (Amendment) Act 2012, https://www.gov.im/media/1351172/legal-aid-amendment-act-2012.pdf
  11. Article 2 of the Constitution of Mauritius 1968, https://mjp.univ-perp.fr/constit/mu1968.htm
  12. Glover, V. (2001). La constitutionnalisation du droit et de la justice à l’Ile Maurice. Les cahiers de droit, 42 (3), 631-642. Doit10.7202/043664ar.
  13. Georgijevic, S. (Lecturer, Faculty of Law and Management, University of Mauritius, Republic of Mauritius) http://www.legiscompare.fr/web/IMG/pdf/170904_la_chouette_fp_maurice_fr.pdf.
  14. Ibid.
  15. Article II of the Constitution of Mauritius 1968, op.cit.
  16. Courts Act Section 35
  17. Courts Act Section 36
  18. Courts Act Section 39
  19. Courts Act Section 40
  20. Courts Act Section 70
  21. https://www.lemauricien.com/article/proces-en-appel-recours-meconnu/
  22. http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962020000200023
  23. https://laws4me.com/wp-content/uploads/Laws/Mauritius/Juvenile_Offenders.pdf