The Mauritian Legal System and Research

Professor (Dr.Dr.) Rajendra Parsad Gunputh is the Chair of International Comparative Law and the Dean of Faculty of Law and Management at the University of Mauritius, Mauritius.

1. Introduction

With its colonial French and English law—imposed during the nation’s two successive colonisations—and its right to appeal to their Law Lords of the Judicial Committee of the Privy Council in London, England, coupled with a written Constitution that borrows from the UK Westminster model and other foreign legislations (Singapore, Hong Kong, New Zealand), the Mauritian legal system reveals to be an important yet relatively unknown system. The Supreme Court of Mauritius is the highest jurisdiction in the small Republic of Mauritius with its 1.3 million inhabitants, its 2,040 square kilometer area, and its wide Exclusive Economic Zone (EEZ) capable of attracting foreign investors to invest in a pacific country. The Mauritian legislator is very active in passing new and relevant legislations very regularly to be in line with its socio-economic development provided the rights of all individuals are respected in a country with a plethora of courts, rules of law, legislations, and regulations with competent judges and magistrates with various protagonists to maintain peace and order for good governance of the small island state.

This short article aims to improve accessibility and shed light on the relatively unknown Mauritian legal system, its sources of law including its English- and French- doctrine, various branches of the law and its interpretation, and court jurisdiction and procedure. The author will share relevant legislations, cases, and materials so that the concerned reader, foreigner or not, may closely follow the Mauritian legal system in a clear and precise manner.

Mauritius inherited a mixed system from its colonial times with various sources of law, including England and France, in addition to legislation and regulations passed by the Mauritian Parliament and various Supreme Court rulings. The Mauritian civil law was inspired by the French Code Napoléon, as a colonial law, during the French occupation (1715-1810) and maintained—along with the Code de Commerce and the French Code Pénal—by the British Empire (1810-1968) when Article 8 of the Capitulation Act 1810 stipulated that the inhabitants of the island, then known as Isle de France, would maintain their religions and customs.[1] Today, termed as the Code Civil Mauricien (CCM), French civil law (marriage and divorce, contracts and torts, successions or property law) is maintained on the island, though the Mauritian legislature has not followed reforms on the French Civil Code in France.

Procedure in all Mauritian civil and criminal courts is still English-inspired: the Civil Status Act 1981, Protection from Domestic Violence Act 1997 or the Divorce and Judicial Separation Act 1982, Bail Act 1999, Criminal Procedure Act 1853, or the Courts Act 1945. After the naval war between England and France, the British took the island from the hands of the French and ruled the colony from 1810–1968, imposing English legislations (Merchant Shipping Act 1986, the Bills of Exchange Act 1914) until the island gained its independence on 12 March 1968. The Mauritian legislature and Supreme Court judgements still reflect English legislation, binding precedents, and doctrine, as well as the French Cour de cassation and doctrine, especially in civil matters. This mixed system also integrated foreign legislation. For example, the New Zealand Act 1995 has been implemented in the Mauritian Company Act of 2001, the Mauritian Prevention of Corruption Act 2002 drew inspiration from Singapore legislation, and the Hong Kong Prevention of Terrorism Act 2002 was adopted in the Mauritian law as well, making the Mauritian legal system complex.

2. The Importance of Law in Mauritius and Its Legal System

Law means order, but it has plenty of additional and overlapping roles to play, in the form of various norms, in all sections of the socio-economic development of Mauritius and to all its individuals without discrimination, especially in a country with various religions and castes, languages and communities living together without animosity. Independent since 1968, the Mauritian government remains very open to, inter alia, business, finance, and trade, with the development of its exclusive economic zone (EEZ) and other emerging sectors such as tourism, technology, fintech and digital transformation, and offshore activities (Offshore business Activities (Companies) Regulations 1995).

However, with a view to regulate business, trade, finance, and order for the good governance of Mauritius, it was crucial for the government to pass relevant legislations and regulations, in addition to various sources of law (infra) that exist, to reflect peace and security worldwide in a country where there is a strong separation of powers between the judicial, executive, and legislative powers though they cohabit together to maintain check and balances and there is no usurpation of powers (Mahboob v. Government of Mauritius).[2] Otherwise, it would lead to disorder in Mauritius, an African nation that became independent from the British empire without bloodshed.

With its independence, Mauritius enacted the 1968 Constitution as the supreme law of the land (section 2 Constitution 1968). It provides relevant and imperative provisions for the powers of the executive, legislative, judiciary, an ombudsperson, a Commissioner of Police, a DPP, a Prime Minister, a Leader of Opposition such members of Parliament, and free and fair election based on the Westminster model; important institutions were set such up such as, inter alia, the Public Service Commission (PSC) with the recent public bodies Appeal Tribunal (PBAT, infra).

Within the boundaries of its legislative power, the Mauritian Parliament started to pass law for the good governance of Mauritius in emerging sectors that would help the small island to develop, including the following:

• Education
  • Education Act 1957
  • University of Mauritius Act 1971
  • The Mauritius Institute of Education Act 1973
  • Industrial and Vocational Training Act 1988 (Mauritius Institute of Training and Development Act)
  • University of Technology of Mauritius Act 2000
  • Open University Act 2005
• Intellectual property rights
  • Trademarks Act 1868
  • Business Trade Names (Prohibition) Act 1988
  • Copyright Act 1997
  • Protection against Unfair Trade Practices (Intellectual Property Act 2002)
  • Patents, Industrial and Trademarks Act 2002
• Small enterprises
  • Small Enterprises and Handicraft Development Authority Act 2005
• Protection of workers
  • General
    • Employment Relations Act 2008
    • Worker’s Rights Act 2019
  • Compensation
    • National Wage Consultative Council Act 2016
    • National Minimum Wage (Amendment) Regulations 2021
  • Safety and injury
    • Workmen’s Compensation Act 1931
    • Private Health Institution Act 1989
    • Occupational Safety and Health Act 2005
  • COVID-19
    • COVID-19 (Miscellaneous Provisions) Act 2020
    • Quarantine Act 2020
• Tourism
  • Mauritius Tourist Promotion Authority Act 1996
  • Hotel and Catering Training School Act 1980
• Film industry
  • Mauritius Film Development Corporation Act 1986
• Technology and communication
  • Information and Communication (Miscellaneous) Act 1998
  • Information and Communication Technologies Act 2001
• Investment
  • Board of Investment Act 2000
  • Investment Promotion Act 2000
  • Investment Promotion Act (Integrated Resort Scheme) 2002
• Environment
  • Wastewater Authority Act 1991
  • Environmental Protection Act 2002
  • Maritime Zones Act 2005
  • Plants Act 2006
• Public and private sector cooperation
  • Public and Private Partnership Act 2004
• Protection against terror, fraud, and corruption
  • Prevention of Corruption Act 2002
  • Prevention of Terrorism Act 2002
• Protection of non-citizens
  • Non-Citizen Employment Restriction Act 1970
  • The Non-Citizens Property Restriction Act 1975
• Human resources
  • Human Resource Development Act 2003

On the small island of Mauritius, there are relevant courts (infra) which have relevant jurisdiction in matters of, inter alia, business, trade, fraud, dismissal, corruption, possession of dangerous drugs and trafficking of drugs (Dangerous Drugs Act 2000). The Supreme Court has jurisdiction in all civil and criminal proceedings (section 76 (1) Constitution 1968).[3] The Supreme Court may impose penalties, fines, and imprisonment on any offender who contravenes the law in Mauritius (Penal Code Act 1838) coupled with support and aid from various protagonists (infra, 15.0) who are involved directly and indirectly in maintaining peace, good governance, order, and security to all the individuals living in Mauritius explaining to what extent it reflects its excellent performance in trade and doing business on the African continent.

The Republic of Mauritius has signed and ratified most of international agreements, as well as the UN General Assembly Resolutions, and is active in African regional blocks (SADC, or COMESA). The nation also attracts a large number of foreigners to work in its industries, and growing number of international students. The law is responsive to this trend:

• Business Facilitation Act 2006 and Business Facilitation Miscellaneous Provisions Act 2006 both governing business in Mauritius, including sea hub, education, ability to host British universities and allow them to settle in Mauritius to reduce cost for students who cannot afford to travel abroad for further studies especially now during COVID-19 pandemic
• Tourism Act 2004 addresses finance, trade, tourism
• Industrial Expansion Act 1993 (now repealed) addressing double taxation avoidance agreements (DTAA) to avoid double taxation,
• Financial Services Commission Act and other legislation to address international fraud and money laundering (Anti-Money Laundering Miscellaneous Provisions Act 2003)
• Offshore Business Activities (Companies) Regulations 1995: frontiers and borders to settle offshores companies in Mauritius creating job opportunities for computer science graduates

It is within the spirit of the Mauritian government and its policies to provide for a safe investment environment (Investment Promotion Amended Act 2006 and the Board of Investment Act 2000), to boost its financial and technological sector to enhance foreign direct investment (FDI), the introduction by the Mauritian government with the Integrated Resort Scheme (IRS) to attract non-citizens who can acquire immoveable properties worth $5,000,000. Therefore, the Mauritian legislature has passed relevant and important legislations and regulations to enhance the socio-economic development of Mauritius attracting trillion of dollars from foreign investors in terms of small and medium enterprises (Small Enterprises and Handicraft Development Authority Act 2005), tourism and even to explore new fields and areas such as Islamic Banking (Banking Act 2004, Bank of Mauritius Act 2004) provided there are ample and important legislations for a more resilient Mauritius to achieve development and peace, and prosperity (Prevention of Terrorism Act 2002).

All legislation passed in Mauritius ensures that Mauritius is a safe place to live and do business including for example:

• Companies Act 2001, Capital Gain Tax (Morcellement) Act 1978
• Finance and Intelligence and Anti Money Laundering Act, Prevention of Corruption Act 2002) to deal with fraud
• Criminal offences such as embezzlement are addressed in section 333 of Penal Code
• Swindling or breach of contract in section 330 Penal Code

Mauritian laws coupled with the existing Codes of French origin (such as the French Penal Code) ensure that offenders are brought before the relevant court, tried, have the ability to appeal, and sentenced. Judgments are rendered within a reasonable time as a matter of fairness to the accused. Accused may obtain legal assistance from the Mauritian Legal Aid, so that any individual is guaranteed a fair trial within a reasonable time. When applicable, deportations are addressed in the Extradition Act and Deportation Act of Mauritius.

Courts range from inferior to superior courts covering all fields, methods deployed by the Police Force (Police Act 1974), several types of injunctions inspired by English law to put the matter in status pending the decision of the Supreme Court. Interim, perpetual, prohibitory or interlocutory injunctions are heard before a Judge in Chambers to expedite matters. Civil process, criminal process, or judicial review are available to ensure that no one is tried without a valid reason, unless it involves grave breaches of law (Dangerous Drugs Act 2000). The death penalty has been abolished in Mauritius with the Abolition of Death Penalty Act 1995.

Mauritius is multicultural and diverse country composed of Hindus, Christians, Chinese, Muslims, Tamils, Creoles, and people of French and English origin. These foreign sources (Encyclopédie Dalloz and Répertoire Dalloz on Civil Law, Professor E. Garçon on Criminal Law, or Professor Garraud on Penal Law) are omnipresent in the Mauritian judgments. Mauritian judgments are reported and compiled in the Supreme Court Judgments (SCJ), and the Mauritius Reports (MR), and all of them are available on the Supreme Court’s website as a source of reference together with legislations and subsidiary legislations which are compiled chronologically and alphabetically and published in Edition Venchard (2.0).

3. Sources of Mauritian Law

Some colonial French Codes (Code Civil Mauricien,[4] Code Pénal, and Code de Commerce) still prevail in Mauritius with some amendments. UK Common Law still controls some subjects, such as the law of evidence,[5] tort, and negligence or in health and safety law where an employer must provide a safe place to work to all his employees. The English Law of Evidence with some traces of common law (i.e., insanity) continues to apply; however, the statutory Mauritian law of evidence including Police and Evidence Bill (inspired by the UK PACE Act) is being drafted. The English law of equity and trust apply in Mauritius and is made statutory with the Mauritian Trust Act 2000. The Trusts Act 2001 is inspired by English law and procedure, judicial precedents borrowed from the French Cour de Cassation (Provided the law and the spirit of the law are the same in order for the Mauritian Supreme Court to inspire from foreign precedents), the House of Lords and the Judicial Committee of the Privy Council (JCPC, infra); all incorporated in the Mauritian judgments. Prior to its independence on 12 March 1968, Mauritius decided to retain the Judicial Committee of the Privy Council as a Court of last and final resort in Mauritius as per section 81 of the Constitution 1968.

English and French doctrine (Pr. Garçon, Pr. Garraud, Pr. Ripert, Pr. F. Terré, Pr. Capitant, Pr. Garron,[6] Pr. Camerlynck) also influence the Mauritian law and its courts, coupled with the domestic legislation (Trust Act 2001, Dangerous Drugs Act 2000, Workers’ Rights Act 2019) which is modeled according to the UK legislations and implemented in the Mauritian statutory books, where it is compiled alphabetically, forming the Mauritian Law. Encyclopédie Dalloz is French doctrine and which is very often cited by the judges of the Mauritian Supreme Court. Therefore, la codification formelle (the French systems of codification with codes in most spheres of the French legal system) and la codification réelle (the English systems of codification which are in fact a list of compiled legislations) are two forms of codification in the Mauritian Legal System.

In addition, though not passed by the Mauritian legislature, customs and usages also form part of the Mauritian law as they have a force of law with various principles which, again, are inspired by UK principles (natural justice which rests on two limbs: the audi alteram partem rule and nemo judex in rea sua rule), UK rules on police administration (Judge’s Rules) and practice (UK Order 53). As in the UK, with a view to facilitate lengthy procedures, judges may make rules (Supreme Court rules) to expedite matters promptly in the interest of litigants. In addition to domesticated legislations, the Republic of Mauritius has signed and ratified treaties, conventions, and protocols, and to which it is a State Member (Universal Declaration on Human Rights 1948, Geneva Conventions 1949 or the ILO Conventions). Any international or regional convention may also be domesticated, as an Act of Parliament, once they have been passed, through the different readings and Committee Stage, by Parliament (Geneva Convention Act 1970) by the mechanism of la transposition des normes juridique that is, just like bills, they are sent to the National Assembly where they follow a first, second or even a third reading, with sometime a Committee Stage, voted by parliaments and published in the Government Gazette for them to have a force of law known as Acts of Parliaments or simply as statutes.

Along the same line, the Mauritian Parliament (Noordally v. Attorney General and DPP 1986 MR 204)[7] is also fully empowered to inspire from other foreign legislations and implement them as an Act of Parliament.[8] Therefore, there are various sources of Mauritian law: the written Constitution 1968 as the supreme law of the land (section 2 of the Constitution), in a sovereign and democratic State (section 1 of the Constitution); legislations in the form of Acts of Parliament (or statutes) and Regulations; binding precedents; doctrine and customs; and usages. All legislations and regulations are compiled alphabetically in the Mauritian statutory books after they have been passed by Parliament and published in the Government Gazette. However, in a mixed system, interpretation of the law may lead to confusion and, in Mauritius legislation is also very often amended and repealed. The Interpretation and General Clauses Act 1974 contains enactments on repealed enactments and the law and legislations to be construed before a court of law in Mauritius, especially in its mixed system, inspired by English rules of interpretation, les travaux préparatoires of the National Assembly of Mauritius,[9] and French doctrine on exégèse, developed by Doyen Geny. Mon cameral, the Mauritian Parliament is constituted of the National Assembly as the only one Chamber without any Senate.

The Constitution of 1968 is the supreme law of the land in a country with its own Rules of Law (la règle du droit). Religion in Mauritius is not the law of the State (laic State).

The Mauritian Constitution 1968, Chapter II, Sections 3 through 18

• Sec.3: Fundamental Rights and Freedoms of the Individual
• Sec. 4: Protection of Right to Life
• Sec. 5: Protection of Right to Personal Liberty
• Sec. 6: Protection from Slavery and Forced Labour
• Sec. 7: Protection from Inhuman Treatment
• Sec.8: Protection from Deprivation of Property
• Sec. 9: Protection for Privacy of Home and Other Property
• Sec. 10: Provisions to Secure Protection of law
• Sec. 11: Protection of Freedom of Conscience
• Sec. 12: Protection of Freedom of Expression
• Sec. 13: Protection of Freedom of Assembly and Association
• Sec. 14: Protection of Freedom to Establish Schools
• Sec. 15: Protection of Freedom of Movement
• Sec. 16: Protection from Discrimination
• Sec. 17: Enforcement of Protective Provisions
• Sec. 18: Derogations from Fundamental Rights and Freedoms under Emergency Powers

4. The Mauritian Constitution of 1968

As explained, the Constitution is the supreme law of the land in Mauritius, and its provisions shall be construed in very broad terms. In the local case of Société United Docks v. Government of Mauritius 1985 AC 585, the Supreme Court was following the rationale reached by their Law Lords of the Judicial Committee (infra), in particular Lord Keith, in the case of Attorney General of Trinidad and Tobago v. Whiteman 1991 2 AC 240. In the case of Attorney General of Trinidad and Tobago v. Whiteman, 1991 2 AC 240, Lord Keith stated that: “the language of a Constitution falls to be construed not in the narrow and legalistic way, but broadly and purposively so as to give effect to its spirit and this is particularly true of those provisions which are concerned with the protection of human rights.”

The written Constitution 1968 of Mauritius consists of 11 chapters:

• State and the Constitution (Chapter I, Sections 1 and 2): Mauritian Constitution of 1968 is the supreme law of the land
• Protection of fundamental rights and freedom of the individual (Chapter II, Sections 3-19): provides for the fundamental rights and freedoms of the individual (inspired by Universal Declaration on Human Rights 1948), including:
  • protection against unlawful arrest and detention (section 3)
  • protection of the right to life (section 4)
  • protection of the right to personal liberty (section 5 and reaffirmed in Noordally v. Attorney General and DPP 1986 MR 204)[10]
  • protection from slavery and forced labour (section 6)
  • protection from inhuman treatment (section 7, Virahsawmy v. Commissioner of Police 1972 MR 255)[11]
  • protection from deprivation of property (section 8)
  • protection for privacy of home and other property (section 9)
  • provisions to secure protection of law (section 10)
  • protection of freedom of conscience (section 11, Veeramootoo v. Veeramootoo 1919 MR 39)[12]
  • protection of freedom of expression (section 12, Duval v. Commissioner of Police 1974 MR 130,[13] Cie de Beau Vallon Ltd v. Nilkomol 1979 MR 254)[14]
  • protection of freedom of assembly and association (section 13, Duval v. Commissioner of Police 1974 MR 130) [15]
  • protection of freedom of freedom to establish schools (section 14)
  • protection of freedom of movement (section 15, Coorbanally v. The Queen 1981 MR 369)[16]
  • protection from discrimination (section 16, Lagesse v. DPP 1990 MR 194,[17] Jaulim v. DPP MR 1976)[18]
  • enforcement of protective provisions (section 17)
  • payment or retiring allowances to Members (section 17A)
  • derogations from fundamentals rights and freedoms under emergency powers (18)
  • interpretation and savings (section 19)
• Citizenship (Chapter III, Sections 20-27) deals with citizenship and persons who became Mauritian citizens on 12 March 1968. Mauritians who are married to foreign nationals living in Mauritius also become Mauritian nationals. Foreigners who come to Mauritius are entitled to work and be employed according to the Non-Citizens (Employment Restriction) Act 1970, provided they have a working permit. They may also acquire immoveable properties in Mauritius according to the Non-Citizens (Property Restriction) Act 1970. Mauritians born and living abroad are also entitled to dual nationality, but any foreigner may be expelled by the Home Office according to national policy.
• The President and the Vice-President of the Republic (Chapter IV, Sections 28-30B) establishes the President and the Vice-President of the Republic of Mauritius. Under section 28(2)(a)(i) and (ii), both the President and the Vice-President are elected by the National Assembly on a motion made by the Prime Minister, provided it is supported by the votes of a majority of all members of the National Assembly, for a period of five years and shall be eligible for re-election. They may be removed from office in case of violation of the Constitution or any serious act of misconduct, inability to perform functions whether arising from infirmity of mind and body, or other reasons under section 30 of the Constitution. Under section 30A of the Constitution, they enjoy privileges and immunities with respect to their offices.
• Parliament (Chapter V, Sections 31-57) provides for a Parliament in Mauritius which consists only of a National Assembly with powers to make laws (section 45). Bills are presented before parliaments and they are voted after successive readings, approved and assented by the President of the Republic of Mauritius, and published in the Government Gazette as Acts of Parliaments or statutes. The Republic of Mauritius is divided into 20 constituencies. There are multinational parties for the general election and only the first three candidates are eligible as members of the Parliament, following the British rule of First Passed the Post (FPTP). However, to ensure diversity, some parliamentary seats are reserved for minorities so that all communities are represented in the National Assembly. There are currently no measures for gender equality. The Parliament debates issues such are: castes, communities, religion, and gender equality, coalition between political parties with a view to win the general election every five years unless the government in place does not enjoy any majority, and more.
• The Executive (Chapter VI, Sections 58-75) provides for the executive with a Cabinet comprised of the Prime Minister and the Deputy Prime Minister, Ministers, Junior Ministers, an Attorney-General who is not elected by the people, a Commissioner of Police, a Leader of Opposition, a Secretary to the Cabinet, or a Director of Public Prosecutions with constitutional powers.
• The Rodrigues Regional Assembly (Chapter VIA, Sections 75A-75E)
• The Judicature (Chapter VII, Sections 76-84) provides for the judiciary. There is a Supreme Court with unlimited jurisdiction in any civil and criminal proceedings with a chief Justice, one Senior Puisne Judge and several Puisne Judges. The Supreme Court has two divisions—the Court of Civil Appeals and the Court of Criminal Appeals, which are regulated by the Court of Civil Appeal Act 1963 and the Criminal Appeal Act 1955 as amended, respectively. The Judicial Committee of the English Privy Council has been retained as a court of last and final resort, although Mauritius became a sovereign country, in situations where Law Lords find final decisions of the Supreme Court bad law.
• Service Commissions and the Public Service (Chapter VIII, Sections 85-95) provides for the service commission and the public service. Like in England, there is a Public Service Commission (PSC) which recruits public officers and imposes penalties on these officers in case of misconduct. The PSC is empowered to do so under the Public Service Commission Act 1955 and the Public Service Commission Regulations, with a right of appeal to the Public Bodies Appeal Tribunal, a tribunal recently set up by the Mauritian legislature with the Public Bodies Appeal Act and the constitution amendment to hear appeals from aggrieved public officers (section 90(1)(a)) and eventually to apply for leave for judicial review before the Supreme Court in its inherent and original jurisdiction.
• The Ombudsman (Chapter IX, Sections 96-102)
• Finance (Chapter X, Sections 103-110)
• Miscellaneous (Chapter XI, Sections 111-122)

5. Branches of Law

The Mauritian Mixed System resembles a tree with various branches of law, but they may be divided into three main branches: civil and commercial law, public law, and international law.

5.1. Civil and Commercial Law

The Code Civil Mauricien (CCM) and the Code de Commerce are the main source of civil and commercial law in Mauritius. The Code de Commerce Mauricien (CdCM) contains articles which cover various aspects of actes de commerce, les sociétés commerciales, various protocols, conventions and Supreme Court Rules, and District, Industrial, and Intermediate Rules; it also contains a Code of Civil Procedure.

The Code Civil Mauricien (CCM) contains articles which cover various aspects of family law (absences and disappeared person, names of the individuals, marriage, divorce, adoption, and parental authority over minors) but the procedure is English inspired (The Civil Status Act, The Divorce and Judicial Separation Act or The Protection from Domestic Violence Act). The CCM contains articles which cover property law and sales/vente in Mauritius, also with English-inspired procedure (The Sales of Immoveable Property Act 1868, The Land Acquisition Act 1973, The Non-Citizens (Property Restriction) Act). The CCM contains articles covering contracts, torts (Articles 1382-1386 CCM, Public Officers Protection Act, Occupational Safety and Health Act 2005, Factories Act, Workmen’s Compensation Act 1932, National Pension Act 1976), and successions and wills (Successions and Wills Act 1883).

The CCM contains on the law of religious marriage—on past religious marriage to be more precise—but the procedure is found in the Civil Status Act and the Muslim Family Council. Customs and traditions are also an important source of law in Mauritius with its different communities, religions, and castes. The Code Pénal Mauricien, also colonial law, is still in force and covers various offences.

5.2. Public Law – Constitutional and Administrative Law

Another very important branch in the Mauritian legal system is Constitutional and Administrative Law, both forms of public law. As explained, the Mauritian government and democracy inherited the Westminster model with a Prime Minister, a Leader of Opposition together with important institutions with constitutional powers based on the doctrine of separation of powers (Mahboob v. Government of Mauritius 1982 MR 135)[19] developed by John Locke and Montesquieu but with check and balances to ensure good governance in Mauritius, while ensuring that the executive, legislative, and judicial powers may function properly and independently without interferences.

The Constitution 1968 provides for a Public Service Commission (PSC), and it started to recruit public officers in various public institutions in Mauritius after independence such that any aggrieved person may proceed by way of judicial review based on UK Order 53, which has been amended. A Public Body Appeal Tribunal (PBAT) was also set up to hear appeals from public officers whenever they are aggrieved by any decision reached against them and in case disciplinary measures have been imposed upon them (as per the Public Service Commission Regulations) but the Supreme Court remains the only jurisdiction in Mauritius to hear an application for leave for judicial review but with an appeal as of right to the Judicial Committee of the Privy Council. Parliament makes law for the good governance of the island and provides health and security to all its citizens attracting foreigner to settle in Mauritius as a safe destination for tourism, business, finance and trade for the welfare and socio-economic development of the country and its potential in the African region.

5.3. Private and Public International Law

Mauritius and its legal system have retained French international private law because its Civil Law is also French Civil Law as reflected in Article 3 of the Mauritian Code Civil Mauricien, and in the case of Austin v. Bailey, 1962 MR 113. Save to some very few exceptions the small Republic of Mauritius has signed most regional and international legal instruments to which it is a Member State as it remains very influential in most African regional blocks (COMESA and the SADC), and has ratified most ILO Conventions, United Nations Resolutions on peace and security, and disarmament in the Indian Ocean, on the African continent and worldwide to enhance peace and security for one and all. Mauritius has also ratified the Double Taxation Avoidance Agreement (DTAA) with more than 50 countries, encouraging foreigners to invest in a safe Mauritius, and various legislations have been passed to reflect to what extent the Mauritian government wants to reassure foreigners that Mauritian legislature has promulgated all necessary legislations to facilitate business and investment, trade, commerce or finance. And as explained, Parliament is fully empowered by way of une transposition des normes for any international or regional covenant to become an Act of Parliament (The Geneva Conventions Act, The Biological and Toxin Weapons Act) and even ILO Conventions are implemented in its legislation and domesticated.

6. Statutory Interpretation

In a country where the doctrine of the separation of powers prevails, and where there is a mixed system there is a need which law is applicable in a particular dispute, and how to interpret them properly by a Court of law (Ealing Borough Council v. Race Relations Boards 1972 AC 342),[20] as there are rules of law to comply with in a society (Stock v. Frank Jones Tipton Ltd 1978 ICR 347).[21]

It may happen that terms in a statute are not clear, ambiguous, uncertain, or even couched in negative terms (R. Shummoogum 1977 MR 1).[22] Therefore, a court of law has a plethora of rules, maxims, decisions and opinion of judges to know the exact intention of Parliament when the law was passed to arrive to the correct interpretation of the law, but the task is not easy as it pretends. And as rightly pointed out by Lord Reid in the case of Black-Clawson International Ltd v. Papierwerke Waldhof-Aschaffenburg A.G 1975 AS.C. 591, 613, “We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.”[23]

In Mauritius, the Constitution is the supreme law of the land, and the Judicial Committee of the Privy Council has been retained as a last court of appeal (infra, section 81 Constitution 1968), similar to some Commonwealth countries like Trinidad and Tobago, where decisions of their Law Lords are binding over decisions reached by the Supreme Court of Mauritius. In the case of Société United Docks v. Government of Mauritius 1985 AC 585, the Supreme Court of Mauritius was following the rational e reached in the case of Attorney General of Trinidad and Tobago v. Whiteman 1991 2 AC 240, Lord Keith stated that: “the language of a Constitution falls to be construed not in the narrow and legalistic way, but broadly and purposively so as to give effect to its spirit and this is particularly true of those provisions which are concerned with the protection of human rights.”

As explained, Parliament makes the law (Duport Steel Ltd v. Sir 1980 1 AER 529),[24] but the judiciary must interpret them properly to know the exact intention of Parliament (Ealing London Borough Council v. Race Relations Boards 1972 AC 342) when the law was passed to give it its true meaning (Becke v. Smith 1836 2 M and W 191;[25] Pinner v. Everett 1969 3 All ER 257)[26] in its context otherwise it would lead to an absurdity and even that the Court has to interpret it because Parliament is sovereign in passing the law (R v. Judge of the City of London Court 1892 1 QB 273, 290; Parsand v. Ministry of Labour and Social Security 1964 MR 144),[27] or if a wrong interpretation is construed it would be repugnant. Therefore, the first question to be asked is, what is the natural or ordinary meaning (Mian & Ors v. R 1981 MR 561)[28] of a term or phrase in its context (Bromley London Borough Council v. Greater London Council 1983 1 AC 768)[29] in the statute (Pinner v. Everett 1969 3 ALL ER 257)?

However, a lot of uncertainties exist because people construed the same word or term differently (R v. Adams 1980 QB 575). With a view to harmonise all these doubts and uncertainties and to clarify them Mauritian courts are borrowing English rules of interpretation, various maxims of interpretation as external aids (such as the ejusdem generis rule (Ramtohul v. The Queen 1971 MR 301,[30] Allen v. Emmerson 1944 KB 362),[31] noscitur a sociis (Bourne v. Norwich Crematorium Ltd 1967 1 WLR 691,[32] Pengellery v. Bell Puch Co. Ltd 1964 1 WLR 1055),[33] expressio unius est exclusion alterius); coupled with some French doctrine such as la théorie de l’exégèse and les travaux préparatoires or parliamentary debates/materials (Francoeur v. Francoeur;[34] Davis v. Johnson 1979 AC 264,[35] Madelen clothing Ltd v. TCSB 1988 MR 284), which is gaining much more importance with time, notwithstanding that not all legislations have an interpretation section and shall there be one it does not interpret all terms especially when some statutes are complicated and may lead, once more, to several meanings.

In the overall, interpretation of statutes is a matter of common sense: there is a wide choice between an ordinary meaning and a technical meaning (Mansell v. Olins 1975 AC 373;[36] Unwin v. Hanson 1891 2 QB 115),[37] a choice between primary and secondary meanings and fringe meanings (Smart v. Allan 1963 1 QB 291,[38] and New Berry v. Simmonds 1961 2 QB 345).[39] However, if there are facts which need no proof (judicial notice) then presumptions, to some extent, may be relied upon (Masson v. R 1962 MR 124,[40] Rogers v. Comptroller of Customs).[41]

Indeed, statutes are drafted in such a way to include a title, a preamble (The Northwhale 1975 QB 589),[42] subtitles (Re Boaler 1915 1 KB 21, 40),[43] headings, sections and sub-sections, paragraphs and margins, punctuations (Hanlon v. The Law Society 1981 AC 124),[44] even sidenotes (DPP v. Schildkamp)[45] or such number of schedules (Philippe Rogers v. The Comptroller of Customs 1994 SCJ 115).[46] The Mauritian legislator makes law and the judiciary has to interpret them in a country where there is a strong separation of powers between the two. When statutes are not clear, the Mauritian legislator shall refer to various rules of interpretation which have been borrowed from England (Golden Rule, Mischief Rule or the Literal Rule) and French doctrine (theory of l’exegèse). They allow the Courts to know the real intention of Parliament.

To know and better understand the exact meaning of a term in a statute, which has been passed by Parliament, judges in England have started developing their own rules of interpretation such as the Golden Rule (Grey v. Pearson 1857 6 HL, Cas.61,[47] River Wear Commissioners v. Adamson 1877 2 App. Cas.743)),[48] the Literal Rule (R v. Harris 1836 7 C. & P. 446,[49] Mian v. The Queen 1985 MR 561), or the Mischief/Heydon’s Rule (Sussex Peerage case 1844 11 CI & Fin. 85,[50] Pierrot v. de Baize 1880 MR 158).[51]

As explained, in a mixed system there are both English and French law cohabiting together without animosity. The Interpretation and General Clauses Act 1974 (IGCA 1974) was also passed by the Mauritian legislator to cater for repealed enactments, the legal issue of French and English terms as per section 10 of the same act (R v. Canhye 1863 MR 164, R v. Mirza 1891 MR 9): “Where in an enactment a French term or expression is used, or an English term or expression is explained by reference to a French term or expression, the interpretation of the enactment shall be in accordance with that of the French term of expression” (IGCA 1974).

In Commonwealth countries, the law relating to the interpretation of statutes remains very open. Therefore, in a very broad purposive approach, it is perfectly lawful and legitimate for any person to use any sort of materials in the form of dictionaries, manuals, textbooks, encyclopedias, expert opinion evidence, judgments of foreign courts a well as treaties, conventions (Fothergill v. Monarch Airlines Ltd 1980 AC 251). And for, inter alia, laws, legislations, and regulations to be interpreted and applied properly by judges there must be relevant courts with the relevant jurisdictions which are empowered to impose penalties, fees and disciplinary measures and to give awards and damages.

7. Jurisdictions and Courts

Decisions reached by superior courts (Supreme Court, Court of Civil Appeal, Court of Criminal Appeal, and the Judicial Committee of the Privy Council) are binding over inferior and subordinate courts (District Courts, Fair and Rent Tribunal, Bail and Remand Court, Children Court, Juvenile Court, Environment Tribunal, Court of Rodrigues, Industrial Court, Reviewing Authority, Intermediate Court, Court of Assizes) with regular sittings throughout the year with such number of Magistrates in either civil or criminal cases but there may be a change in venue (section 102 Courts Act 1945) from District Court to another District Court or Intermediate Court (for security reasons or if an action has been wrongly lodged) or challenge of a Magistrate (section 125 Courts Act 1945) to avoid any decision to be biased.

7.1. District Courts

In Mauritius, there are nine District Courts having both civil and criminal jurisdiction (section 93(1) Courts Act 1945) and each District Court is presided by a District Magistrate (section 94 Courts Act 1945) to issue warrants to apprehend a person following a charge or complaint made on oath before a Magistrate suspected of having committed an offence to apprehend that person to be brought before him or any other Magistrate to answer such charge or complaint (section 4(1)(a) District and Intermediate (Criminal (Jurisdiction) Act). In Rodrigues, there is the Court for Rodrigues (infra) to hear both civil and criminal cases. A District Court has jurisdiction in both civil cases and criminal cases, and he is empowered to take the appropriate action as per the relevant legislations and regulations in force (Courts Act, DIC (Criminal jurisdiction) Act, The DIC (Civil Jurisdiction) Act). A District Magistrate has jurisdiction to order a post-mortem examination (section 50(2) DIC (Criminal Jurisdiction) Act), to grant bail (section 113 DIC (Criminal Jurisdiction) Act).

In civil cases, actions shall not exceed Rs 50,000 (now up to Rs 250,000 following amendments brought by the Judicial and Legal Provisions (Amendment No. 2) Act 2018) except in the following cases irrespective of the amount claimed: actions under the Landlord and Tenant Act irrespective of the property lent (except the fixing of a fair rent which is determined under the Fair Rent Tribunal a per section 32 of the Landlord and Tenant Act (Act No. 6 of 1999) which came into operation on 12 August 1999 by Proclamation No. 11 of 1999), actions entered against the Government of Mauritius, alimony cases, possessory actions whatever the value of the immoveable property (Article 23 Code de Procédure Civile) or the recovery of State debts and municipality debts; and the Intermediate Court (Civil Division) has no jurisdiction in all these civil matters. And by the Justice Act (Act 4/1999), a District Court has jurisdiction to entertain small claims of Rs 25,000 or less. A District Magistrate may hear juveniles in camera (Juvenile Court and refer to the Juvenile Offenders Act), grant building permits and act as a licensing authority.

In criminal cases, as per sections 114 and 116 of the Courts Act 1945, a District Court has jurisdiction in cases of murder, manslaughter, assault causing death without intention to kill, involuntary homicide, wounds and blows, offences against the State or complicity, and its sentencing power is provided under section 114 of the Courts Act 1945 limited to two years’ imprisonment with or without hard labour and a fine not exceeding Rs 200. Section 117 of the Courts Act 1945 the DPP may authorize the Magistrate to entertain certain cases such as abuse of authority by a public officer (section 77), a public officer flouting claim of illegal detention (section 79), extortion of a public officer (section 124), officer of a public body accepting bribes (section 126) and aggravated for under section 126, bribery of an officer of a public body (section 128) and binding persons to engage in breach of public order (section 211).

There are some exceptions where a District Court may impose a higher fine or imprisonment. By virtue of section 114(2) of the Courts Act 1945, a District Court may impose a higher sentence provided the law so provides: as an illustration it may impose a fine in excess of Rs 200 such as under the Building Act, or under the Customs Act. Otherwise, the District Court has no jurisdiction as explained in the case of Peerbaccus v. R 1994 SCJ 444, where the Supreme court held that: “At the time Peerbaccus was being prosecuted, section 33 of the Dangerous Drugs Act provides for a fine not less than Rs 10,000 and not more than R 50,000 and for penal servitude not exceeding 12 years. Peerbaccus was convicted under that section and sentenced to imprisonment. On appeal, it was held that the District Court has no jurisdiction to hear the case.”

7.2. Intermediate Court

In Mauritius, there is one Intermediate Court with two divisions: one Civil Division and one Criminal Division. It is an inferior/subordinate court and there is a right of appeal to a superior court. The Intermediate Court was first set up in 1960, during the British colonisation, by the Courts (Amendment) Ordinance No. 14 of 1960 which repealed and replaced section 136 of the Courts Ordinance Cap 168, now the Courts Act 1945, as explained in the case of Police v. Flore 1993 MR 106 where the Supreme court stated that: “It was then known as the Intermediate Criminal Court. The properly constituted court had to sit with three Magistrates. It had jurisdiction to hear criminal cases including certain cases which, until then, were triable only at Assizes following a preliminary enquiry before a District Magistrate. Power was also given to the chief Justice to transfer a case scheduled to be heard before the Assizes to the Intermediate Criminal Court. By the Courts Amendment Act No. 7 of 1971 the Intermediate Criminal Court was restyled the Intermediate Court and it was given jurisdiction to hear both civil and criminal cases. Before the newly set up Intermediate Court, cases could be heard and determined by not less than two and not more than three Magistrates…”

Section 80 of the Courts Act 1945 provides for an Intermediate Court as a court of record with civil and criminal jurisdiction in all districts of the Republic of Mauritius. The Intermediate Court consists of a President and such number of Magistrates as may be established under the Civil Establishment Act.

Criminal cases are decided by one Magistrate (Section 85 and section 86 Courts Act 1945), or two Magistrates (section 85(1)(d) Courts Act 1945) if the decision is unanimous decision of the two Magistrates. Where there is a difference of opinion between the two Magistrates, the trial must be started anew before three Magistrates, and the decision of the Intermediate Court is the unanimous decision of the majority of these three Magistrates (section 85(2)(b) and 85(3) Courts Act 1945). The Intermediate Court is a court of record, the minutes of evidence and the proceedings in any criminal trial shall be recorded by any Magistrate of the Intermediate Court and it is not necessary that the minutes be recorded throughout by the same Magistrate, and the minutes of every unanimous judgment shall be signed by all the Magistrates and if the judgment is not unanimous, each Magistrate shall sigh the minutes of his judgment (section 88 Courts Act 1945). The Intermediate Court (Criminal Division) has jurisdiction to impose penalties and forfeitures (section 113 Courts Act 1945), impose a sentence of imprisonment or penal servitudes, and sentences as per the Dangerous Drugs Act (section 41(3) Dangerous Drugs Act) and cases which are referred to the Intermediate Court (Criminal Division) by the Director of Public Prosecutions (DPP).

The Intermediate Court (Civil Division) has jurisdiction on claims up to a prescribed limit of Rs 50,000 (now Rs 2,000,000 following amendments made by The Judicial and Legal Provisions (Amendment No. 2) Act 2018), exclusive of interest and costs as per section 104 Courts Act (GN 330/1980) but it has no jurisdiction in alimony cases, a petition for divorce, rights of inheritance, successions and wills; an action for the rectification of civil status (Civil Status Act), actions entered under the Landlord and Tenant Act, possessory actions or an application for apposition and removal of seals as all these actions are under the exclusive jurisdiction of a district Court. However, it can entertain a demand for damages resulting from the trouble caused to a lawful possessor following what has been said in the case of Goorghan v. Joye 1986 SCJ 11.

The Intermediate Court (Criminal Division) has jurisdiction in criminal cases. By virtue of section 112 of the Courts Act 1945, the Intermediate Court has jurisdiction to try any cases a District Court has jurisdiction to try, cases triable in Rodrigues or any island under the jurisdiction of the State of Mauritius, cases of abuse of authority, extortion and bribery (section 117 Courts Act 1945), ex-assize cases as listed in section 112(d) of the Courts Act 1945, embezzlement by public officers, abortion, arson, bigamy, rape, sexual intercourse with a female under the age of 12, involuntary homicide and wounds and blows causing death without intention to kill, any offence under the Forests and Reserves Act 1983, any offence declared triable by the Intermediate Court under any other enactments (section 41 Courts Act 1945, Dangerous Drugs Act 1986).

7.3. Industrial Court and the Reviewing Authority

The Industrial Court was first set by the Industrial Court Ordinance 1944 and then by the Industrial Court Act 1973 to cater for an Industrial Court and a Reviewing Authority. The Court has jurisdiction over labour disputes with special legislations (Labour Act 1975 (repealed), Industrial Expansion Act, Occupational Safety, Health and Welfare Act 1988 (repealed), Workmen’s’ Compensation Act 1934, Employment and Training Act, National Pension Act 1976, Workers’ Rights Act 2019 (Act 201/2019), Employment Relations Act 2008) that have been passed by the Mauritian legislator giving special jurisdiction to the Industrial Court in the following disputes:

• disputes between employees and employers
• vicarious liability
• health
• security on the workplace or dismissal
• dismissal in case of misconduct, gross misconduct, and various types of fatues based on the French fautes de licenciement notwithstanding that, under section 3 of the Industrial Court Act 1973, the Additional Remuneration Act, and the End of Year Gratuity Act, states that “exclusive civil and criminal jurisdiction to try any matter arising out of the enactments set out in the First Schedule or any regulations made under those enactments and with such other jurisdiction as may be conferred upon it by any other enactment”(Kosseeal v. Dauget 1999 SCJ 216, Maxo Products Ltd v. Permanent Secretary Ministry of Labour 1999 SCJ 225).

However, the term “employee” must be dealt cautiously. Indeed, these legislations have been inspired from English legislations such that most of the Mauritian legislations (Labour Act 1975 (repealed), Industrial Relations Act 1976 (repealed), Employment Rights Act 2008 (repealed), Workers’ Rights Act 2019, Workmen’s Compensation Act, Employment Relations Act 2008 as amended) on labour and industrial relations law provide for a “worker”, as defined under section 2 of the 2019 Workers’ Rights Act (Act 20/2019) which replaced actually the Employment Rights Act 2008 (Act 33/2008). In Mauritius, any worker may be represented by the Permanent Secretary of the Ministry of Labour an industrial Relations, under section 15 of the Industrial Court Act 1973) to represent him/her before the Industrial Court, and there is no cost to pay unless the case is vexatious and frivolous, but the Ministry of Labour did not become a party to the suit (Lee v. Labonne & Ors 1980 MR 33). Otherwise, the Presiding Magistrate of the Industrial Court has informal powers (as per section 5 of the Industrial Court Act 1973) to give free advice, help, and guidance, provided it is an out of court settlement.

In Rodrigues, in the absence of any Industrial Court, the Magistrate for Rodrigues has jurisdiction to try the matter in dispute (Section 4(2) of the Industrial Court Act 1973). The Industrial Court is an inferior court (section 11 of the Industrial Court Act 1973) and there is a right of appeal to the Supreme Court as the Appellate Court. It hears cases on misconduct and dismissal but there is no proper definition of the term “misconduct”, but both the Industrial Court and the Supreme Court take inspiration from English courts (House of Lords) and the French Cour de cassation, and they are reproduced extensively in the Mauritian Supreme Court Judgment (SCJ) and the Mauritius Reports (MR). The various forms of dismissal (Constructive dismissal, wrongful dismissal, unjustified dismissal, unfair dismissal, and redundancy) that prevail in England also form part of the Mauritian law coupled with the French licenciement, provided there is a cause réelle et sérieuse based on the French legislation.

The protection of all individuals in Mauritius is one of the priorities of the Mauritian legislator so that nobody is denied justice or justice is delayed as reflected in most Mauritian legislations. It is trite law in Mauritius that any individual must have an opportunity to be heard before a disciplinary or any court of law to rebut any allegation which has been retained against him/her, to have the assistance of a legal representative of his own choice and a member of his trade union before a Disciplinary Committee (DC), and if finds guilty the worker is dismissed within the prescribed statutory delay of seven days otherwise the employer would have waived his right to dismiss the worker and would obtain severance allowance (MGI v. Mungur 1989 SCJ 379). However, based on UK common law which was introduced during colonial time under The Termination of contract of Service Ordinance 1963), in Mauritius a worker may be summarily dismissed for gross misconduct for faute grave (larceny on the workplace, abandonment at work, smuggling of good, poor performance at work) that is without notice and without any severance allowance at all following what has been said in a large number of local cases, in Mauritius. As explained, based on English law of evidence the onus of proof is on the employer except in case of constructive dismissal (such as in case of failure to remuneration by an employer, unilateral modification of a contract of employment and to which the worker is not agreeable or in case of ill-treatment by the employer so that it is the employer who is at fault pushing the worker towards the exit and to claim constructive dismissal).

Instead of an appeal, any worker who is aggrieved by a decision of the Industrial Court may apply to the Reviewing Authority (Ghoolet v. Gaytree Textiles 1992 MR 105) where the matter in dispute is heard before the Chief Justice or a judge of the Supreme Court (sections 12 and 13 of the Industrial Court Act 1973) and sent it back to the Industrial Court Magistrate for any suggested amendment (if any). Meanwhile, there is a stay of execution judgment as per section 14 of the Industrial Court Act 1973. The Reviewing Authority is still an inferior and its decision is appealable within the statutory prescribed delay of six weeks (following what has been said in Mauritius Tuna Fishing and Canning Enterprises Ltd v. Manne 1989 MR 115 and Keerodhar v. JR Investment Ltd 1993 SCJ 381) when the Mauritian legislator passed the Judicial and Legal Provision Act 1993, extending the delay of 21 days to six months, as explained. In Mauritian legal system, any Magistrate may be challenged (section 8 Industrial Court Act 1973), provided he is related to one of the parties to the civil suit by blood or marriage otherwise the decision reached would be biased, and if this is the case the Magistrate is removed and replaced by another magistrate by the Chief Justice.

7.4. Employment Relations Tribunal (ERT)

The Industrial Relations Act 1976 was repealed and replaced by the Employment Relations Act 2008 (Act 32/2008); which in turn was amended successively by the Employment Relations (Amendment) Act 2013 and The Employment Relations (Amendment) Act 2019, which is in force in Mauritius as the Principal Act. It provides for relevant enactments on registration of a trade union by the Registration of Association (Registration of Association Act 1979) who has huge powers to register a trade union or for the cancellation of a trade union in case of fraud, misrepresentation, or the number of trade union members have fallen below 30. In Mauritius, a trade union is a body corporate (section 9 Workers’ Rights Act 2019) and therefore it may be sued or sue in its own name, it may be merged (amalgamated) with other trade unions to form federations and confederations. When the Industrial Relations Act 1976 was repealed the Permanent Arbitration Tribunal (PAT) also became a defunct body, and was replaced by the Employment Relations Tribunal (ERT) where the President, the Vice-President and its members have huge powers to hear cases from trade unionists who are aggrieved by a decision reached by the Commission for Conciliation and Mediation (CCM) or by the Registrar of Association to reach a settlement or to prevent a strike (Section 79 Workers’ Rights Act 2019). The settlement of the industrial disputes is in the form of an award (section 2 of the Employment Relations Act 2008) which is binding in effect, may be extended to another employer and is published in the Government Gazette.

7.5. Court of Rodrigues

Rodrigues is another constituency of the Republic of Mauritius, with its own Regional Assembly, though it still remains under the political and jurisdictional control of the Republic of Mauritius, and the Chief Justice of Mauritius may order and direct the Magistrate for Rodrigues to hear matters which are within the jurisdiction of the Magistrate of the Court of Rodrigues, and any matter which falls within the exclusive jurisdiction of the Industrial Court Act 1973 (section 4(2) Industrial Court Act 1973). Coupled with the Additional Remuneration Act and the End of Gratuity Act, the Magistrate of the Court of Rodrigues has exclusive jurisdiction to hear and determine any civil or criminal proceedings arising under these enactments in Rodrigues.

The Magistrate of the Court of Rodrigues has jurisdiction similar to a District Magistrate (supra) in Mauritius, with additional powers which are set up under section 12 of the Court of Rodrigues Jurisdiction Act such that the Magistrate of the Court of Rodrigues has jurisdiction to hear and determine offences which are within the province of the Intermediate Court with the same penalty.

However, administrative duties (affixing and removal of seals, issue of warrants for an arrest, search warrants, remanding persons in custody, taking and receiving dying declarations, receiving information and to issue orders for the interim detention under the Lunacy Act) fall under the purview of The Administrative Secretary for Rodrigues with powers provided under The Rodrigues (Administrative and Judicial) Provision Act (section 5).

There is only one (1) court in Rodrigues and the Mauritian legislator has passed the Court of Rodrigues Jurisdiction Act confers jurisdiction for the Court of Rodrigues which is constituted of the Magistrate of Rodrigues. As explained, in the absence of any Industrial Court in Rodrigues, the Magistrate of Rodrigues has jurisdiction to try labour disputes (Section 4(2) Industrial Court Act 1973). Similarly, the Chief Justice by virtue of the Administration of Justice (Miscellaneous Provisions) Act (Act No. 4/ 1999) may direct, under its section 81(3) and section 81(5) of the Courts Act 1945, that a civil case lodged before the Intermediate Court (Civil Jurisdiction) be tried in Rodrigues.

Under section 4 the Court of Rodrigues Jurisdiction Act has jurisdiction in all civil cases related to cases on taxes, rents, civil debts and section 12 covers criminal cases (wounds and blows causing death without intention to kill, abortion, bigamy, rape, involuntary homicide, arson). Under section 159, the Magistrate for Rodrigues may inflict penalties similar to the jurisdiction of the Intermediate Court (Criminal Division), contraventions, fines and imprisonment.

Again, in the absence of the Family Division of the Supreme Court in Rodrigues divorce petitions may be heard in Rodrigues before the Magistrate for Rodrigues by virtue of sections 20 A, 6, 7, 8, and 19 of the Divorce and Judicial Separation Act, try to a reconciliation, order provisional measures for alimony and custody pending the hearing of the main case, which is filed by way of petition before a Judge in Chambers of the Supreme Court. For the Supreme Court (family division) to pronounce a divorce decree nisi based on fautes or injures graves of one of the parties to the divorce petition or aux torts partagés as per the relevant articles of the Code Civil Mauricien (CCM). As a democratic State, any individual in Rodrigues may appeal against any decision of the District Magistrate for Rodrigues to the Supreme Court of Mauritius (section 5 of Act 40/1985).

7.6. Children’s Court

The Children’s Court Act 2020 has just been passed recently by the Mauritian Parliament in order to cater to a Children’s Court with a criminal division.

7.7. Juvenile Court

For criminal cases (section 3(4) of the Juvenile Offenders Act) where juveniles (under 14 or a young person between 14 and 17 years of age) are involved, the Mauritian Parliament passed the Juvenile Offenders Act to try juveniles in a District Court (in the Magistrate’s Chambers, or he may specify any place other than the District Court where the Juvenile Court may sit (section 2(b) of the Juvenile Offenders Act). The District Magistrate is empowered to have the necessary criminal jurisdiction under the Courts Act 1945, and the District and Intermediate Courts (Criminal Jurisdiction) Act even if the offence has not been committed in his district (section 4 Juvenile Offenders Act). Juvenile may also be tried by the Juvenile Court or a Jury of the Intermediate Court especially if a juvenile is charged with another person who is also not a juvenile in the commission of the offence (section 4(2) and section 6 of the Juvenile Offenders Act). Sections 15 and 17 of the Juvenile Offenders Act provides for the sentencing power of the Juvenile Court with a right of appeal (section 23 of the Juvenile Offenders Act) from the Juvenile Court to the Supreme Court.

7.8. Visiting Magistrate for Agalega

With its very few inhabitants and by virtue of section 3 of Ordinance No. 4 of 1904 Magistrates in Mauritius have been administering justices in Lesser Dependencies. The Mauritian legislator passed the Agalega (Administrative and Judicial Provisions) Act (Sections 5(2), 5(3) and section 9) to cater for a Visiting Magistrate for Agalega. Coupled with the Courts Act (Sections 112 and 113 Courts Act 1945), the latter has the necessary powers and duties in civil and criminal proceedings arising out on the small island of Agalega with cases related to the drafting of notarial deeds and has jurisdiction for the trial of a case as per the Bankruptcy Act. Under the Additional Remuneration Act and the End of Gratuity Act, the Magistrate of the Court of Rodrigues has exclusive jurisdiction to hear and determine any civil or criminal proceedings arising under these enactments.

7.9. Supreme Court

The Supreme Court is at the apex of all courts in Mauritius and was first established by the Charter of Justice (1850-1851), during the British colonisation (1810-1968), and it was already a Court of Equity with an appellate jurisdiction. At the very outset, it is important to point out that, in Mauritius, no action shall be taken against any judge of the Supreme Court of Mauritius (Sirros v. Moore 1974 3 WLR 459, Maharaj v. Attoney General of Trinidad and Tobago 1979 AC 385). Unless they commit any criminal offence, they shall be amenable before the relevant jurisdiction to be tried, and the same rationale apply in civil cases. Article 4 of the French Civil Code provides for un déni de justice (article 505 Code de Procédure Civile). Claims above MUR 2,000,000 are to be initiated before the Supreme Court of Mauritius following amendments brought by the Judicial and Legal Provisions (Amendment No. 2) Act 2018.

The Courts Act of 1945 provides for the organisation of the Supreme Court. The Supreme Court may be constituted of only one judge, such as in an application for leave for a judicial review at its filtering stage. In drug cases where there is a judge sitting alone, it may be constituted of two judges (in civil cases, or in case where leave for judicial review has been granted at its second or final stage) having regard to the magnitude of the interests at stake (Section 36 of the Courts Act 1945). There may also be a quorum of two or more judges. The Chief Justice may, either proprio motu or on application in writing made to him by any party to a case stating the reasons for such application, direct that any case shall be heard by two or more judges, having regard to the magnitude of the interests at stake or the importance or intricacy of the questions of fact or law involved. The court may be constituted of three or five judges, and the unanimous decision or at a majority of them shall be taken to be the decision of the full court (section 39 Courts Act 1945).[52] In criminal trials, the Supreme Court includes a Presiding Judge and a jury of nine persons qualified to serve as jurors (section 42(1) of the Courts Act 1945), subject, however, to section 10 of the Criminal Procedure Act 1853 (Act 29/1853), which provides for trials before the Supreme Court without a jury in cases listed in the 5th Schedule to the Act.[53] Appeals to the Supreme Court shall be heard by at least two judges (section 70 Courts Act 1945),[54] and the Court of Criminal Act shall be constituted of three judges (Criminal Appeal Act 1955, as amended).

Otherwise, Chapter VII of the Constitution provides for a judicature (sections 76-84) with relevant sections on the powers and jurisdiction of the Supreme Court of Mauritius. The Supreme Court is constituted of a Chief Justice, a Senior Puisne Judge, and such number of Judges who are appointed by the Judicial and Legal Service Commission (Judicial and Legal Service Commission Act).[55] In Mauritius, barristers may work in the private or elect to join le Parquet as State Counsels. Normally, Magistrates of inferior/subordinate courts are recruited among barristers from le Parquet, initially Crown Law Office, until they climb the promotion ladder to become Senior District Magistrates, the President Magistrate (or Vice-President) of the Industrial Court, Magistrates of the Intermediate Court, Parliamentary Counsel, and Master and Registrar of the Supreme Court before they are appointed judges of the Supreme Court. In the same rationale, the Director Public Prosecutions (DPP) was also previously a counsel posted au Parquet with extensive constitutional powers.

With a written Constitution in 1968, section 80 provides for a Supreme Court with its two divisions,[56] the Court of Civil Appeal (Civil Appeal Act) and the Court of Criminal Appeal (Criminal Appeal Act 1955), as amended with a right of appeal, as of right, to the Judicial Committee of the Privy Council as a court of last resort (section 70A Courts Act 1945),[57] provided leave has been granted to the appellant (section 81 of the Constitution 1968). The Constitution 1968 also provides for the nomination (section 77(1))[58] Constitution) and removal (section 78 of the Constitution)[59] of judges of the Supreme Court (section 77 of the Constitution 1968) which has unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law other than a disciplinary law and such powers as may be conferred upon it by the Constitution or any other law (section 76(1) of the Constitution).[60]

As explained, under section 82 of the Constitution 1968 there is a right of appeal from inferior courts to the Supreme Court as the Appellate Court, with a supervisory jurisdiction over decisions of subordinate courts and make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court.[61] It has original and inherent jurisdiction in constitutional matters (section 83,[62] section 84)[63] and any individual aggrieved by a decision of the Supreme Court may seek relief under the Supreme Court (Constitutional Relief) Rule 2000 (section 17,[64] section 83)[65] of the Constitution, provided that the applicant has exhausted all possible remedies first, and indication which section(s) of the Constitution has been breached. Only the Supreme Court may hear an application for leave for judicial review. The court hears election petitions and has jurisdiction in divorce petitions, and only the Supreme Court (Family Division) may order a decree nisi.

There are also other relevant legislations and relevant enactments which provide for the Supreme Court as a Court of Equity (section 16 Courts Act 1945),[66] to hear cases for contempt of court (section 18C of the Courts Act 1945)[67] with disciplinary power (section 18(1) Courts Act 1945)[68] and have all the necessary powers and the necessary judicial jurisdiction to administer the laws of the nations (section 15 Courts Act 1945).[69] Section 15 of Cap 168 Courts Ordinance 1945 also provides for an Admiralty jurisdiction of the Supreme Court and shall be exercised in virtue and in pursuance of the provisions of the Colonial Court of Admiralty Act 1890, as confirmed in the case of Unuth v. Police Service Commission 1982 SCJ 284 where the judges of the Supreme Court have to deal with questions arising between co-owner of a ship as to possession, employment, and mortgages or charges on a vessel coupled with relevant articles of the Code de Commerce Mauricien.[70]

7.10. Bankruptcy Division of the Supreme Court

The Supreme Court has also a Commercial Division, and a Bankruptcy Division, comprised of the Master and Registrar of the Supreme Court, who hear cases on bankruptcy, insolvency, and winding up of companies in Mauritius, and who shall have all the powers and privileges of the Judges of the Supreme Court of Mauritius (sections 62 and 63 Courts Act 1945). Both the Bankruptcy Act (sections 9, 18, 19) and the Insolvency Act (sections 12, 15, 18, 19) provide the necessary provisions relating to debts coupled with relevant articles of the Code Civil Mauricien (Articles 898 and 1268 CCM).

7.11. Judge in Chambers

In civil cases, the Judge in Chambers in Mauritius has similar powers to the French Juge des Référés in terms of célérité pending the main case to be decided by the Supreme Court. Therefore, a Judge in Chambers may grant or eventually refuse injunctions (in cases of adoption, Code Civil Mauricien) and to hear parties to a divorce petition with a view to reconciliation (Divorce and Judicial Separation Act). He is empowered to do so by virtue of relevant sections of the Courts Act 1945, and other relevant legislations.

7.12. Public Bodies Appeal Tribunal (PBAT)

In Mauritius, just like in England, the Public Service Commission (PC) was created by the legislator (Public Service Commission Act) to recruit public officers and for them to be employed the in the public sector, and to impose the necessary disciplinary measures in case of misconduct (Public Service Commission regulations). However, it was found that there are, inter alia, many irregularities, discrimination, decisions which are biased, gender inequality such that the Constitution 1968 was amended to implement a new section, section 91(1)(A) Constitution 1968, to cater for a new tribunal known as the Public Bodies Appeal Tribunal (PBAT) and its powers and composition are regulated by the Public Bodies Appeal Tribunal (PBAT) Act 2008 (Act 10/2008).

The Public Bodies Appeal Tribunal (PBAT) Act 2008 (Act 10/2008) provides for the jurisdiction of the PBAT (section 3), an advisor (section), qualifications of members (section 5), procedure and powers (section 6), proceedings (section 7), determination of the PBAT (section 8), and judicial review (section 9). Henceforth, public officers who feel aggrieved by a decision reached by the Public Service Commission (PSC) or the Local Government Service Commission (regulated by the Local Government Service Commission Act) pertaining to an appointment exercise or to a disciplinary action taken against any pubic officer may appeal against a decision reached by that public statutory body with an application for leave for judicial review before the Supreme Court (section 9 PBAT Act) in its original and inherent jurisdiction.

7.13. Judicial Committee of the Privy Council (JCPC)

The Mauritian legal system includes among its courts the Judicial Committee of the Privy Council as a court of last resort, in its appellate jurisdiction as explained in R v. Bertrand 1876 LR 1 PC 520, second as of right to all individuals provided conditions available under section 81 of the Constitution 1968 which provides for conditional leave and special leave but the main criterion for an appeal to the Judicial Committee is that it shall be one which is of right, as explained by Lord Goff in the case of Fisher v. Minister of Public Safety and Immigration and Others 1997 4 LRC 345.[71] That it is a final decision of the Supreme Court (vide Auchraje v. The State 1992 SCJ 221) where the Supreme Court would have to form its own judgment as to whether the appeal amounts to a final decision on a question as to the interpretation of the Constitution provided the interpretation of the Constitution was in issue and canvassed on appeal before the Supreme Court in K. Nundah v. The State 2003 SCJ 189.

All these relevant conditions for an appeal are clearly set up under section 81 of the Constitution 1968, and relevant cases emanating from the Supreme Court and their Law Lords of the Judicial Committee have construed this section properly in their judgments for the judicial Committee to consider an appeal. As an illustration, to what extent there is an appeal to their Law Lords have been explained in the case of Ibrahim v. R 1914 A.C. 599, where they stated, “Their Lordships’ practice has been repeatedly defined. Leave to appeal is not granted except where some clear departure from the requirements of justice exists (vide also Riel v. The Queen 1885 10 App. Cas.675, ex parte Deeming 1892 A.C. 422) nor unless by a disregard of the forms of legal process, or by some violation of the principle of natural justice, or otherwise, substantial and grave injustice has been done (Dillet’s Case 1887 12 Ap. Cas. 459). In the case of R v. Bertrand 1867 LR 1 PC 520.

In this case (K. Nundah v. The State 2003 SCJ 189), Justice B. Domah and Justice A. Caunhye found that the question as to the interpretation of the Constitution was not raised in the course of the appeal,[72] and there was no adjudication or final decision of the Supreme Court against which an appeal would lie to the Judicial Committee of the Privy Council by virtue of section 81(1)(a) Constitution), provided the matter in dispute is of great general public importance or there is a genuinely disputable question of interpretation of the Constitution,[73] (infra) and not merely one to obtain leave (Fratter v. The Queen 1981 1 WKR 1468). In the same line the case of Mosafeer v. The State 2003 SCJ 237, the applicant was seeking to ground his application for leave to appeal to their Law Lords of the Judicial Committee based on section 81(1)(a) by invoking a breach of sections 3(a) and 10(1) of the constitution. Chief Justice Y. K. J. Yeung Sik Yuen and Justice Caunhye made the following observation: “With regard to that ground, the question of unconstitutionality was never raised before the trial court nor before the Court of Criminal appeal and cannot be entertained at this stage under section 81(1)(a) of the Constitution.”

Is the Judicial Committee a Court of Criminal Appeal? Certainly not. In Mauritius, in 1980, Parliament enacted section 7 of the Courts (Amendment) Act 1980 to section 70A of the Courts Act 1945,[74] under which a right of appeal to her Majesty in Council was created in all criminal cases (section 81(1)(d) of the Constitution) following the leading case of Badry v. DPP 1983 2 AC 297,[75] but to what extent? According to the leading case of Darmalingum v. The State 1999 SCJ 67A/67B, where the case of Ibrahim v. R 1914 AC 599 was quoted,[76] the Judicial Committee is a certainly not a court of Criminal Appeal, In Buxoo v. R, Justice D. B. Seetulsingh and Justice R. N. Narayen reiterated the same rationale explaining why leave to the Judicial Committee was not granted: “We hasten to add that we do not agree with learned counsel for the applicant that the Court acts merely as a rubber stamp and that, as a matter of course, leave is granted. The function of the Court is to determine whether the application calls for an interpretation of the Constitution, if the Court finds that it does, then and only then the Court has no discretion but to grant leave. The judicial Committee had repeated ad nauseam that it does not sit as a Court of Criminal Appeal. Consequently, the applicant in the present case is not asking the Judicial Committee to interpret Section 10(1) of the Constitution but he would simply be asking the Board to sit as a Court of Criminal Appeal to rule that the majority judgment was wrong to consider that the delay had been explained.”[77] Section 10(1) Constitution 1968 enacts that: “(1)Where any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established.

In Mauritius, just like most countries which have inspired or inherited English law, it is trite law that “the Supreme Court of Mauritius has original jurisdiction in the matter, and will not give judgment unless the person has exhausted all remedies available before him before coming to the Supreme Court” (Norton v. PSC 1983 MR), and in practically the same line the Supreme Court in the case of Vert v. District Magistrate of Plaine Wilhems, 1993 MR 28, stated that “since there were adequate means of redress, there was no need to apply under section 17 of the Constitution…”[78]

Whether there is a right of appeal must be read with other legislations. As an illustration, and in close association with the Representation of the People Act, which was amended to introduce a new section 48A, such that there shall lie to Her Majesty in Council as of right from a decision of the Court, under section 45, in an election petition complaining of an undue return or undue election of a member to serve in the National Assembly, following what has been said in the case of Leal v. Moignac 1964 MR 138, and Gutheea v. Dulloo 1992 MR 55. In the case of Duval v. Labelle 2000 SCJ 211; however, an application for conditional leave to appeal as of right to the Privy Council against an interlocutory judgment was based under section 48A of the Representation of the People Act was set aside on the ground that it was not a final decision of the Supreme Court. In the same rationale, under section 4(1) of the National Assembly (Vacation of Office and Membership) Act provides that an appeal shall lie as of right to the Judicial Committee from a determination of the Supreme Court on any question under section 37(1) of the Constitution. Paragraph 3(2) of the First Schedule of the Constitution enacts that there is no appeal from a decision reached by a Judge of the Supreme Court as, in Mauritius, any candidate to the general election must declare their community in order to be selected among the best losers to be a member of the National Assembly (vide D. Narrain and Others v. The Electoral Commissioner and Others 2005 SCJ 159). Paragraph 4(4) of the First Schedule of the Constitution 1968 enacts that “where a Returning Officer decided that a nomination is invalid, his decision may be questioned upon an application to a Judge of the Supreme Court made within such time and in such manner as may be prescribed, and the determination of the Judge shall not be subject to appeal”.

Section 81 of the Constitution sets various requirements, criteria and conditions that must be followed stricto sensu for an appeal to their Law Lords to succeed. In addition, by virtue of section 81(4) of the Constitution where the Supreme Court is of the opinion that an application is frivolous and vexatious (Auchraje v. The State 1992 SCJ 221) that is an application which has insufficient grounds for the purpose of causing trouble to the defendant, which is also careless, selfish, insensitive, and thoughtless (World Book Dictionaries), it may refuse conditional leave to appeal to the Judicial Committee, but the applicant, who is found in this situation, may still seek special leave from their Law Lords of the Judicial Committee (Dev Hurnam v. Paratian). In the leading case of Bunwaree v. The Government of Mauritius 1994 SCJ 305, there was an appeal to the Judicial Committee on the ground that the Supreme Court had erred when it found that the amendment brought to the Commission of Inquiry Act was quite proper and did not offend the provisions of the Constitution and more particularly section 16 of the Constitution, and the Supreme Court stated that: “it was a totally frivolous application which does not have the remotest constitutional connection”, and it follows that under section 81(4) of the Constitution, the case cannot be considered as one where there is an appeal as of right to the Judicial Committee (on the issue of frivolous and vexatious application vide also the case of Awotar v. Stella Insurance Co. Ltd and anor 1992 MR 97, and the case of Ghoorun v. Ghoorun 1992 SCJ 272).

Therefore, the gist of the appeal as of right with its conditional and special leave is found under section 81 of the Constitution 1968 coupled with the relevant legislations in force in Mauritius (mainly the Mauritius (Appeals to Privy Council) Order in 1968 and the Mauritius Republic Act 1992). Judgments of their Law Lords of the Judicial Committee of the Privy Council cover a very wide spectrum of litigations on, inter alia, human rights issues (infra), civil and criminal cases (infra), and judicial review with landmark decisions that have inspired Mauritian courts. For instance, in the case of Matadeen v. Pointu 1999 1 AC 98, the Judicial Committee refused to find a general principle of equality of treatment in the Constitution of Mauritius and held that individuals were protected against discrimination only on the specific grounds as lay down in the Constitution; and in the famous case of Société United Docks v. Government of Mauritius 1985 AC 585, the Judicial Committee has to deal with the right not to be deprived of property without compensation.

Having jurisdiction in both civil and criminal cases, it is understood that for a right to appeal it shall be a final decision of the Supreme Court and that “provided that no such appeal shall lie from decisions of the Supreme court in any case in which an appeal lies as of right from the Supreme Court to the Court of Civil Appeal” (section 81 Constitution 1968).[79] As explained by Justice Yeung Sik Yuen while interpreting section 81 of the Mauritian Constitution in the local case of Gaytree Textiles Ltd v. Ghollet 1993 MR 140, [80] and following what has been said in the case of Ghoorun v. Ghoorun 1992 SCJ 272, where the Supreme Court of Mauritius observed that it had no jurisdiction to grant leave in this matter since the proviso to section 81 of the Constitution enacts that no appeal shall lie from decisions of the Supreme Court in any case in which an appeal lies as of right from the Supreme Court to the Court of Appeal. But at which stage is a judgment ‘final’ or interlocutory (vide Medine Mosque Waqf Society v. Medine Mosque Society 1972 MR 97,[81] Lord Denning’s remarks in Salter Rex v. Ghosh 1971 2 AER 865)?[82]

Therefore, there is under section 81 Constitution a set of conditions (vide YKJ Yeung Sik Yuen v. M. Ramdoo 2003 SCJ 318)[83] for an appeal to be as of right as explained by the Supreme Court of Mauritius in the case of Bissessur v. Irrigation Authority 1993 MR 24,[84] The Supreme Court must be satisfied that these conditions are satisfied prior to grant leave or not as suggested in the case of Lady Davis v. Lord Shoughnessy 1932 AC 106 PC, and Lopes v. Valliapa Chettiar 1968 AC 88. But whether the Supreme Court has a discretion to grant or refuse leave has been clearly expounded in the case of Awotar v. Stella Insurance Co. Ltd and anor 1992 MR 97,[85] and it is clear that in cases where the matter in dispute is of great general or public importance or otherwise ought to be submitted to Her Majesty in Council for determination. Indeed, it would never be in the spirit of the Supreme Court to act as a rubber stamp and to grant leave blindly, as explained in the case of Sufraz v. The State 1992 SCJ 473.[86]

Therefore, leave as of right is not imperative or mandatory and if appeal has been refused, section 81(5) of the Mauritius Constitution allows an applicant to seek special leave directly from the Judicial Committee without the need to ask leave from the Supreme Court.[87] However, special leave to appeal will not be granted from the decision of a statutory tribunal or of a court exercising statutory jurisdiction from which it was never intended that there should be an appeal (Théberge v. Laudry 1876 2 App. Cas. 102 PC, Lord Strickland v. Grima 1930 AC 285 PC). In the case of Patterson v. Solomon 1960 AC 579, 1960 2 All ER 20 PC, it was held that an objection that no appeal lie may be taken even where special leave has been granted and was followed by the Supreme Court of Mauritius in the case of R v. Kristamah 1992 MR 16, and Goolfee v. R 1989 Privy Council Appeal No 47, judgment of 11 November 1991, and that it is the general practice to endeavor to give a final decision on the point before granting leave as explained in the case of Dennis Hotels Pty Ltd v. State of Victoria 1962 AC 25, 1961 2 All ER 940 PC.

Historically, prior to its independence, the Judicial Committee Act 1833 extended by the Judicial Committee Act 1844. After independence, appeals to the Judicial Committee were maintained when the Mauritius (Appeals to Privy Council) Order in 1968 remained in force, and following independence the Mauritius Republic Act 1992 was proclaimed and the Mauritius (Appeal to Privy Council) Order 1992 was passed.[88] Whether these legislations are still in force were confirmed in the case of Gunnesing Ashok Kailaysur v. The State 2004 PC, where their Law Lords observed that under section 3 of the Judicial Committee Act 1833 coupled with the Mauritius (Appeal to Privy Council) Order 1992, the Judicial Committee has jurisdiction to entertain the appeal implying that the Act of 1833 was still applicable.

The Judicial Committee of the Privy Council was first established in 1833 by the Judicial Committee Act 1833, which limited the membership exclusively to the most senior judges. Its composition includes the Lord President of the Council, the lord chancellor, the Lords of Appeal as well as other members of the Privy Council who hold high judicial office and former holders of these offices with a judge of the commonwealth countries. It is based in London, England and it resolves questions of law on appeal only.

Therefore, their Law Lords must be satisfied that there has been, inter alia, a serious miscarriage of justice and breach of natural justice but a mere misdirection as such and even an irregularity would not suffice (ex parte Macrea A.C. 346). As an illustration, in the case of Bishop of Roman Catholic Diocese of Port Louis & Ors v. Tengur S. & Ors 2002 SCJ 326A the respondents, as plaintiffs, initiated proceedings under section 17 of the Constitution (infra) against the respondents, as defendants who in turn initiated an appeal under section 81(1)(c) of the Constitution to appeal as of right from a final decision. The Judicial Committee of the Privy Council found there was discrimination in Mauritius with some secondary schools allowing and reserving seats to 50% of students of Catholic faith. Their Law lords would hear an appeal as of right (supra) provided it is a final decision of the Supreme Court, and with leave of the Supreme Court. In Mauritius, the Constitution 1968 was based on the Westminster model, and the draftsmen, in particular Professor de Smith and other local jurists, implemented section 81 of the Constitution for a right of appeal to the Judicial Committee of the Privy Council (JCPC) as a Court of last resort similar to some Commonwealth countries which have retained the Judicial Committee as of right either as a conditional leave or as a special leave (supra), its decision is strictly judicial and not discretionary following what has been said in the case of British Coal Corporation v. R 1935 AC 500 PC, and is not and English court per se but a Commonwealth court as explained in the case of Hull & Co. v. McKenna 1926 IR 402 PC, and it has jurisdiction, at least, for those Commonwealth countries which have retained it but slowly with time they are removing themselves from the jurisdiction of the Judicial Committee of the Privy Council. As an illustration, the Abolition of Privy Council Jurisdiction Act 1949 of India terminated the right of appeal to the Judicial Committee of the Privy Council.

Decisions of their Law Lords take the form of an advice to Her Majesty the Queen, to which effect is given by an order in Council with binding effects on all commonwealth courts but, due to sovereignty mainly, some countries (India and Canada) have left the Judicial Committee of the Privy Council, and some have still retained it (Trinidad and Tobago, Mauritius). Up to now, many appeals have been granted by the Supreme Court, and on appeal before the Judicial Committee their Law Lords have found that some of the decisions reached by the Supreme Court was bad in law.

8. Appeals

There is a right of appeal from inferior courts to superior courts and it is made statutory in relevant legislations passed by Parliament, coupled with the Supreme Court Rules. As an illustration, there is a right of appeal from the Industrial Court to the Supreme Court (section 11 Industrial Court Act 1973) or a right of appeal as of right from the Supreme Court to the Judicial Committee of the Privy Council (section 81 Constitution 1968). An appeal must be distinguished from a new trial where, in civil cases, it is the same court which will hear an application, within 14 days from judgment, because there has been an error, violence, fraud or new evidence is available now unless the application is set aside.

An appeal is also to be distinguished from an application, made within three months the decision arose from a public statutory body, for leave for judicial review (infra). An appeal is made within 21 days judgment was given and a superior court will decide on the merits of the case. The Supreme Court has huge powers on appeal to amend, reverse, order a new trial or set aside an appeal based on grounds which have been subject of the appeal. In the Mauritian legal system, every person appealing to the Supreme Court has 30 days from the date he lodges his notice of appeal in the Registry to file and serve on the adverse party skeleton arguments.[89] Submissions of his ground of appeals in such manner as may be prescribed by rules of court (Appeal (Skeleton Arguments) Rules 1994),[90] and the needful is done by an attorney-at-law.[91] There are two main types of appeals: appeals in civil cases and appeals in criminal cases.

8.1. Appeal in Civil Cases

In civil cases, the procedure for an appeal is set under the Supreme Court Rules 2000. An appeal lies after a final judgment irrespective of whether it is final, interlocutory, or even a non-sue, following what has been said in the case of Cie Sucrière de Bel Ombre v. Grizelle 1985 MR. For an appeal from an inferior court to the Supreme court as a superior court, an appeal is made as per section 36 of the District and Intermediate Court (Civil Jurisdiction) Act,[92] with 21 days as per section 37 of the District and Intermediate Court (Civil Jurisdiction) Act.[93] The procedure for an appeal from an inferior court to the Supreme Court is set up under section 93 DIC (Civil Jurisdiction) Act.[94]

An appeal from a decision of the Master and Registrar to the Supreme Court is lodged in the Registry and shall serve notice of the appeal on all interested parties within 21 days from the date of the order or decision as per section 6 of the Supreme Court Rules.[95] In Mauritius and its legal system, there is a Judge in Chambers where there is an appeal to the Supreme Court and not to a Court of Civil Appeal following what has been said in the case of Gaëjan v. Parmessur 1977 MR. However, all categories of judgment are appealable in civil cases except in three exceptions where leave of the judge who gave that judgment must be obtained first before an appeal against his judgment: if the judgment is interlocutory, if the judgment is given as to cost payable by the adverse party and if the judgment is given by consent of parties that the parties to the dispute come to an agreement. In practice, an ex parte application is made by way of motion and affidavit before the judge who gave that judgment. If he refused to grant leave an application may be made to the Court of Civil Appeal (supra) to ask for leave.

8.2. Appeal in Civil Cases to the Court of Civil Appeal

Section 80 of the Constitution establishes the Court of Civil Appeals, which hears appeals from decisions of the Supreme Court as per section 34 of the Courts Act 1945,[96] and section 3 of the Supreme Court Rules 2000.[97] The Court of Civil Appeal consists of one or more judges and may hear an appeal from a decision reached by the Supreme Court, within 21 days from the day of judgment, with a judge sitting alone such as in cases of divorce, contract, sale of immoveable properties or street accidents. The appellant must present himself before the Master and Registrar of the Supreme Court for a recognizance bond. Within five days from lodging his appeal, the appellant must pay for the drawing of the record of the case. The notice of appeal containing its grounds of the appeal must be served on the respondent and the Master and Registrar within the statutory prescribed delay of 21 days otherwise it is time-barred, and no delay will be extended except if there is a valuable excuse for the Supreme court to grant a motion or not. The notice of appeal is duly served with return of the usher and a proecipe in order to put the appeal in the cause-list, which is filed with the Master and Registrar of the Supreme Court. Shall a party to the suit is still aggrieved by a decision reached by the Supreme court on appeal there is a final leave to the Privy Council.

8.3. Appeal to the Judicial Committee to the Privy Council in Civil Cases

There is a final appeal to the Judicial Committee of the Privy Council in civil matters as per section 81 of the Constitution provided there is leave of the Supreme Court, it is a final decision of the Supreme Court in any civil or criminal proceedings on questions as to the interpretation of the Mauritian Constitution, final decisions in proceedings under section 17 of the Constitution and the appeal in the opinion of the Supreme Court the question involved is one that by reason of its great and general public importance or otherwise could be submitted to the Judicial Committee of the Privy Council. An application for leave must be made within 21 days from the day of judgment by way of motion and affidavit, notice of motion is given to the Respondent. If appeal is allowed, there is a second motion made to the Supreme Court, notice of motion is served on the adverse party asking the Supreme Court to grant finally. The appellant must furnish security and to dispatch the brief with 40 copies, printed and each paragraph numbered, to England within a delay fixed by the Court and not exceeding ten days.

8.4. Appeal in Criminal Cases to the Supreme Court as the Appellate Court

There is a right of appeal from a final decision of any inferior/subordinate courts to the Supreme Court under section 92 of the District and Intermediate (Criminal Jurisdiction) Act by the person charged against his conviction or sentence or by the DPP or, in the case of a private prosecution, by the prosecutor against any dismissal of a charge or conviction against the imposition of any sentence.

Section 93 of the District and Intermediate (Criminal Jurisdiction) Act enacts that any person wishing to appeal under section 92 of the District and Intermediate (Criminal Jurisdiction) Act shall lodge a written notice of appeal within 21 days of the adjudication, and within 15 days from the day of lodging the appeal (Pursen v. Vacoas Transport Co. Ltd 1969 MR 148) with the clerk, the appellant shall prosecute his appeal from the Supreme Court and serve notice of appeal on the respondent and any other party to the appeal. A suspect is often granted bail pending appeal following what has been said in the case of Dauget v. DPP 1986 MR 169, Victor v. Matadeen 1997 SCJ165, and the case of Edoo v. DPP 1983 MR 199.

As explained, the Supreme Court of Mauritius has unlimited jurisdiction in any criminal proceeding, and the powers of the Supreme Court on appeal is enacted under section 96 of the District and Intermediate (Criminal Jurisdiction) Act so that it has huge powers to affirm, reverse, amend or alter the conviction, order, or sentence. And their Law Lords of the judicial committee in the case of Rajen Sabapathee v. DPP held that the Supreme Court is also a revising jurisdiction.[98] Shall a party to the suit still be aggrieved by a decision reached by the Supreme Court on appeal, there is a final leave to the Privy Council.

8.5. Appeal in Criminal Cases to the Court of Criminal Appeal

There is a Court of Criminal Appeal in Mauritius, and it is regulated by the Criminal Appeal Act, as amended. It is constituted of the Chief Justice, the Senior Puisne Judge, and a judge of the Supreme Court to hear cases where there has been, inter alia, a serious miscarriage of justice and a decision is reached by a majority of the judges. Section 5 of the Criminal Appeal Act provides that a person convicted before the Supreme Court may appeal under this Act against his conviction or sentence. The DPP may also appeal under the same Act against the imposition of any sentence by the Supreme Court. In contrast to the Supreme Court where no new evidence is allowed on appeal the Court of criminal appeal has the power to receive fresh evidence upon hearing an appeal in criminal cases as per section 11 of the Supplementary Powers of the Court of the Criminal Appeal Act.

8.6. Appeal to the Judicial Committee to the Privy Council in Criminal Cases

There is a right of appeal under section 81 of the Constitution provided the matter in dispute is of great and general public importance, as explained in the leading case of Doomun v. R 1991 MR 252, and leave of the Supreme Court is obtained as explained in the case of Tyack v. Jhurry, where the Supreme court held that: “Conditional leave must be first be obtained by the appellant in accordance with the provision of section 4 of the Mauritius (Appeals to the Privy Council) Order 1968”.[99] It is an appeal from a final decision of the Supreme court, and it is implied that there is no appeal from a decision reached by an inferior/subordinate court as explained in the case of Duval v. District Magitrate of Flacq 1989 MR 206/1989 MR 166.

Section 4 of the Mauritius (Appeals to the Privy Council) Order 1968 enacts that: “Leave to appeal to the Judicial Committee in pursuance of the provisions of any law relating to such appeals shall, in the first instance, be granted by the Court only— (a) upon condition of the appellant, within a period to be fixed by the Court but not exceeding 90 days from the date of the hearing of the application for leave to appeal, entering into good and sufficient security to the satisfaction of the Court in a sum not exceeding 150,000 rupees for the due prosecution of the appeal and the payment of all such costs as may become payable by the applicant in the event of his not obtaining an order granting him final leave to appeal, or of the appeal being dismissed for non-prosecution, or of the Judicial Committee ordering the appellant to pay the costs of the appeal (as the case may be); and (b) upon any other conditions as to the time or times within which the appellant shall take the necessary steps for the purposes of procuring the preparation of the record and its dispatch to England as the Court, having regard to all the circumstances of the case, may think it reasonable to impose”

9. Administrative Law and Judicial Review

The Mauritian Administrative Law is also colonial law (1810-1968) when UK Order 53 was the procedure applicable in the ancient colony of Mauritius by the British Empire and until now, the Mauritian legal system has retained this procedure. Judicial review is a public law remedy where there are public rights involved against a public statutory body (Public Service Commission (PSC), the PSSA, the University of Mauritius (UoM), The University of Technology of Mauritius (UTM), The Central Electricity Board (CEB), Mauritius Revenue Authority (MRA), the Bank of Mauritius (BoM), Judicial and Legal Service Commission (JLSC), Mauritius Institute of Education (MIE), Mahatma Gandhi Institute-MGI, or the National Transport Authority-NTA to review a decision which emanates from a public statutory body but there are conditions and grounds to be followed otherwise leave would be refused by the Supreme Court to proceed to the second of final stage. At the very outset it must be explained that judicial review is not an appeal and therefore it is not based on the merits of the case but on the decision-making process.

An appeal is made within 21 days based on the merits of the case from a decision reached by an inferior court to a superior court (supra). Judicial review is available against a decision reached by a department of the central government, local authorities and district councils (Mon Loisir v. District Council 1983 MR 183), and bodies created under statutes (infra). However, since judicial review is a discretionary remedy a court of leave may refuse to intervene (R v. Secretary of state for the Home Department ex parte MC Avry 1984 1 WLR 1408), in the absence of a public element in the application (Augustave v. MSTC 1990 MR 222, Islam v. Mauritius Housing Corporation 1992 SCJ 127), the rights involved are not public law rights-Bissessur v. Irrigation Authority 1992 SCJ 392,[100] Marcachand v Sugar Industry Development Fund (SIDF) 1993 SCJ 6, Koo Tse Mew v. MBF 1993 CJ 480, Mauritius Housing Corporation v. Cooroopdass 1991 SCJ 347, Sham v. Mauritius Turf Club 1985 MR 217, or if other remedies are available (R v. Epping & Harlow Gen. Commis. Ex parte Goldstraw 1983 3 AER 257,[101] or where Parliament has provided a comprehensive appellate system (R v. SOS for the Home Department ex parte Swati 1986 2 WLR 477). However, there are relevant cases where the Court will grant leave by way of judicial review without requiring the applicant to pursue the alternative remedy available to him (Mersey Side Police ex parte Calvely 1986 2 WLR 144, Khedoo v. RTC 1981 MR 62, and Municipal Council 1988 SCJ 345).

In Mauritius, judicial review/revision judiciaire is heard only before the Supreme Court of Mauritius at the first or filtering stage before a judge of the Supreme Court and if leave is granted the matter is heard at the second or final stage before two judges of the Supreme Court an applicant who has not be able to have a fair treatment (Chief Constable of North Wales Police v. Evans 1982 1 WLR 1155),[102] the decision reached by that public statutory body was biased or has a legitimate expectation to be promoted.

Indeed, judicial review in Mauritius is not involved with private law or a legal dispute of a contractual nature but public law and there must be, as a result, a public element (Bissessur v. Irrigation Authority) in it otherwise the Supreme Court of Mauritius would refuse an application for leave for judicial review even if all conditions and all grounds are complied with. In case a public officer, who has been recruited by the Public Service Commission (PSC), and is aggrieved by a decision reached by any public statutory body in terms of promotion, a fine (Norton v. PSC), refusal of a license or permit, disciplinary measures to which the public officer is not agreeable then the aggrieved person must proceed by way of judicial review, which is a discretionary remedy, and the matter in dispute is heard before the Public Bodies Appeal Tribunal (supra), otherwise the applicant would be set aside before the Supreme Court as the applicant has not exhausted any available remedy first, and then if the appellant is still aggrieved by a decision reached by the Public Bodies Appeal Tribunal (PBAT) against a decision reached by the Public Service Commission the applicant may make an application to the Supreme Court where leave must be granted first for the applicant to proceed to the next stage where the matter is heard before two judges of the Supreme Court. In Mauritius, only the Supreme Court has jurisdiction to hear an application for leave for judicial review with a right of appeal to the Judicial Committee of the Privy Council. Academics of the University of Mauritius are public officers, but they are not recruited by the Public Service Commission (PSC) and there is no need for them to apply for leave for judicial review before the Public Bodies Appeal Tribunal (PBAT).

The applicant must make a prompt application within three months of the decision reached by that public statutory body as per the legislation in force (Public Service Commission Act, Planche v. PSC 1993 SCJ 128, University of Mauritius Act, University of Technology Act, Mauritius Institute of Education Act, Central Electricity Board (CEB) Act, Banking Act, Mahatma Gandhi Institute Act, PSSA Act, Judicial and Legal Service Commission Act, Mauritius Revenue Act, Local Government Act, Public Bodies Tribunal Appeal Act, National Transport Authority-Jaunbaccus v. NTA 1993, Central Water Authority Act). But even if an application is made within three months, the court has discretionary power to refuse leave as it has not been made promptly (R v. Ind. Telev. Commission ex parte TV No. 1 The Times Dec. 30 1991,[103] Monthy v. PSC, 1981 MR 244), or to extend the time (Murdaye v. CP 1984 MR 118).

As explained, it is a discretionary measure and a public remedy where the applicant would apply for an order of certiorari in order to set aside the decision reached by that public statutory body and to appoint the applicant, in case of a promotion for example, instead of the co-respondent because the decision reached by that public statutory body was so unfair, illegal, unreasonable in all sense as per the Wednesbury case, against the applicant coupled with sufficient grounds for an applicant for leave for judicial review as there might have been an error on the face of the record, the decision reached by that public statutory body was against the rules of natural justice which stand on two limbs: the audi alteram partem rule and nemo judex in rea sua, or the decision reached was ultimately biased.

The applicant must have sufficient interest in the matter, or locus standi (Betsy v. The Bank of Mauritius 1992 MR), to make an ex parte application before a single judge of the Supreme Court by way of motion plus affidavit. Leave may be granted, provided the applicant has an arguable case and has made a full and frank disclosure (R v. The Jockey Club Licensing Committee ex parte Wright 1991 COD 306 QBD,[104] Gopaul v. The National Transport Authority 1991 SCJ 388), or eventually refused. In the next stage, the Supreme Court will hear the matter in the presence of the respondent and co-respondent and the application has been made by way of motion plus affidavit (CEB v. Forget 1974 MR 299).

10. Civil Procedure

Mauritius has a Code de Procédure Civil, an English civil procedure law based on equity (injunctions) coupled with the Mauritius Supreme Court (a Court of Equity), and legislation form the civil law.

• Courts Act 1945, District and Intermediate (Civil Jurisdiction) Act, Supreme Court Rules, and the District, Industrial, and Intermediate Rules

Therefore, there are both French and English civil procedures with relevant actions (action réelle, action personnelle, action en revendication, action en bornage, action possessoire et action pétitoire) inspired by French civil procedure (droit de retention, la tierce opposition) with French doctrine on la règle de non cumul, different types of seizures (saisie-arrêt, saisie exécution, or saisie conservatoire), and English-inspired legislations on mortgage (Mortgage Act, Sales of Immoveable Property Act, Sales by Levy Act) and, as explained, with the right of appeal from decisions reached by subordinate courts to superior courts, procedure for a new trial, challenge of a magistrate, change of venue from one court to another, de bene esse examinations, call of witnesses on their personal answers, asking of (better) particulars by attorneys for attorneys for drafting of petition in divorce cases for the matter to be heard before a judge, proecipe and plaint with summons (PWS) in the name of their clients, which they represent, in order for all parties to a civil suit to know exactly the legal dispute before the relevant jurisdiction, to pay for damages with costs by the losing party, and for counsel to pay for wasted costs for their laches (if they do not attend court).

11. Criminal Procedure

Mauritian Criminal Law is still French colonial law, which the small island of Mauritius inherited during the French colonisation. However, when the island fell into the hands of the British Empire English criminal procedure started gradually to flourish such as habeas corpus, bail, bail pending appeal, arrest with or without warrant, judicial enquiry and preliminary enquiry, information, seizure, arrest, and detention with huge (constitutional) powers of a Director of Public Prosecution (DPP), under section 72 (3) of the Constitution, and the police force. Together with other protagonists (infra), all these actors play an important role in the Mauritian legal system.

The main sources of the Mauritian Criminal Procedure are, inter alia, the Criminal Procedure Act, District and Intermediate Court (Criminal Jurisdiction) Act, Police Act, Criminal Appeal Act 1955, Courts Act 1945, the Constitution as the supreme law of the land, and English precedents. There are other important legislations such as the Public Health Act, Income Tax Act, Customs Act, Dangerous Drugs Act 2000, Unified Revenue Act 1983, Bail Act 1999, Fisheries Act, and Forests and Reserves Act. There are the Judge’s Rules (infra) or the English law of evidence so the suspect/accused party may enjoy a fair trial within a reasonable time before the relevant court (Bail and Remand Court, District Courts, Intermediate Court (Criminal Division), Supreme Court, Court of Criminal Appeal, and eventually for a right of appeal before their Law Lords of the Judicial Committee of the Privy Council (section 81 of the Constitution) with huge powers given to Magistrates to issue warrants. In the interest of public safety and order, the Magistrate after hearing evidence on oath, order the arrested person to furnish securities as per section 23 District and Intermediate Court (Criminal Jurisdiction) Act.

And the role played by the Police force in the Mauritian legal system must be pointed out (Procureur Général v. Teckham 1909 MR 57), especially in the field of seizure, arrest with or without a warrant, entry and search, or detention also form part of the Mauritian criminal procedure and process so that nobody is denied justice. It is also important to point out that in the Mauritian legal system, though there are branches of law to distinguish civil law from criminal law and criminal procedure, there are existing legislations in Mauritius which although they fall into the field of civil law nevertheless there are legislations which cover labour law but which provide for criminal offences such as failure to remuneration by an employer or failure to provide a work a safe place to work and in these circumstances there are fines and imprisonment where the Industrial Court, as per section 3 of the Industrial Court Act 1973, has exclusive jurisdiction in both civil and criminal proceedings especially where criminal offences such as, inter alia, larceny, possession of drugs, swindling, embezzlement, fraud, or injuries inflicted in the workplace by an employee or worker.

Therefore, though any individual may fully enjoy his right to privacy, the police force is perfectly entitled, in the interest of peace, law and order, to entry and search in any private dwellings (section 34 District and Intermediate (Criminal) Jurisdiction Act) and to search for, inter alia, stolen property and dangerous drugs (section 44 Dangerous Drugs Act 2000). Customs officers may board any aircraft or ship to examine and search for dutiable and prohibited goods (Section 12 Customs Act) and may proceed to bodily search for hidden drugs, open suitcases, and packages. They may also enter premises to detect any nuisance and infectious disease (section 20 and section 46 Public Health Act), to inspect bank statements for the purpose of determining any tax liability (section 30 Income Tax Act), fraud and fiscal evasion (section 8 Unified Revenue Act 1983), or disclosure of confidential documents, provided the police or a Revenue Commissioner applies to a Judge in Chambers to order the disclosure (section 39 Banking Act).

In the Mauritian legal system, the Law of Criminal Procedure is influenced by English legislation together with important legislations such as the Bail Act 1999, Courts Act 1945, Criminal Procedure Act, Criminal Appeal Act 1955 as amended, Judge’s Rules, fundamental rights (as enshrined in Chapter II of the Constitution 1968) to protect a suspected party before a court of law in order for him to enjoy a fair trial as per section 10(1) Constitution (Babet v. The Queen 1979 MR 222) within a reasonable time before an independent and impartial court with a legal representative of his own choice and for him to be given sufficient time and facilities to prepare his defence properly under section 10(2)(c) of the Constitution (Francois v. The Queen 1975 MR 236). The Constitution remains an important tool to protect any individual in Mauritius otherwise decision reached would be biased.

All these fundamental rights are inspired from the Universal Declaration on Human Rights 1948 and various other international legal instruments which Mauritius has signed and ratified to provide additional rights and freedom to all its individuals to enhance freedom of expression, speech, and debate in a democratic country so that no individual in Mauritius is illegally detained without reason and sufficient evidence. In the Mauritian legal system, where a person is suspected of being detained unlawfully, any other person, even a stranger, may apply ex parte for a habeas corpus to the Supreme Court as per section 188 Criminal Procedure Act). Illegal detention based on, inter alia, discrimination based on race, political opinion, religion, caste, gender, sex, sexual orientation is not tolerated. The Supreme Court would not grant an order where the detainee has already been charged with the commission of an offence following what has been said and applied in the case of Togally v. Commissioner of Police 1981 MR 230, R v. Lemsatef 1977 64 CAR 242. In the relevant case of ex parte Vendhetar 1979 MR 120 the Supreme Court may not disclose all material facts and show uberima fides.

Most of these fundamental rights, as explained, have been implemented in the Constitution for any suspected who has been brought to trial may enjoy a fair trial by an independent and impartial court within a reasonable time by a legal representative of his own choice. Based on the English law of evidence, if the prosecution fails to prove its case on the required standard of proof beyond reasonable doubt, the suspect/accused/appellant is entitled to an acquittal otherwise it is convicted with a right of appeal to a superior court. In the Mauritian legal system courts having criminal jurisdiction are empowered to impose the relevant penalties, imprisonment or imprisonment with penal servitude and fines as per the District and Intermediate (Criminal) Jurisdiction Act, Court Act 1945, and Criminal Procedure Act 1955 (Act 9/1954).

An important feature in Mauritius is that there are both private prosecutions as per section 4 of the Criminal Procedure Act especially when the DPP has declined to prosecute, and public prosecutions which remain under the purview and jurisdiction of the Director of Public Prosecution (DPP), who has constitutional powers (section 72 Constitution 1968). Following what has been said in the case of Edath-Tally v. Glover 1994 SCJ 409, and as per section 121 of the District and Intermediate Court (Criminal jurisdiction) Act a person to whom prejudice an offence has been committed may enter a private prosecution.

Part II of the Criminal Procedure Act provides for the information, a legal document containing all relevant charges and section of the law which have been breached by which the court is apprised of and for the suspect or accused to prepare his defense properly. The information is signed by the Magistrate who hears the case, or eventually by the DPP with a list of witnesses for the prosecution. Section 67A (1) District and Intermediate Court (Criminal Jurisdiction) Act and section 67A (2) District and Intermediate Court (Criminal Jurisdiction) Act provides for the number of counts. (Lepion v. The State 1997 SCJ 153, Bhagat v. R 1982 MR 151 and Highen v. R 1874 MR 35). Such defects of flaws may be cured provided no prejudice has been caused to the accused, even on appeal before the Supreme Court.

In Mauritius, prior to an arrest the suspect or accused must be informed of his right to counsel as per the Judges’ Rules which administrative decisions are given to the Police as explained in the case of R v. Boyjoo, R v. Samserally and the leading case of R v. Coowar 1997, where the Supreme Court was constituted of three judges and held that the Judges’ Rules have a force of law with constitutional status. in the case of R v. Boyjoo the Supreme Court was following two decisions of the Judicial Committee of the Privy Council namely Thornhill v. Attorney General of Trinidad and Tobago 1991 2 AC 240, and Attorney General of Trinidad & Tobago v. Whitman 1981 2 A.C. 143 where section 5(3) of the Mauritian Constitution, similar to that which prevails in Trinidad and Tobago, was in issue, and it was held that the Police must inform an accused party of his right to counsel (Togally v. Commissioner of Police 1981 MR 230).[105]

In Mauritius, a “private person who sees a crime committed or attempted to be committed or a dangerous wound given, may, without warrant, arrest the offender” (section 16 DIC (CJ) Act). Following what has been said in the case of Colendavelloo v. R 1945, a private person may also apprehend an individual caught stealing (section 17 DIC (Criminal Jurisdiction) Act). Sections 4 and 5 of the DIC (Criminal Justice) Act address the issuance of a warrant and the role of Magistrate. The role of police officers is outlined in section 12 of the Police Act, section 22 of the DIC (Criminal jurisdiction) Act, Vingtachellum v. R 1861, including an arrest by officers other than police officers, such as Customs Officers (section 137 Customs Act), Fisheries Officers (section 29 Fisheries Act) or Forest Officers (section 12 of the Forests and Reserves Act). There is no need for an officer executing an arrest to exhibit the warrant unless required by the arrested party as per section 10 of the DIC (Criminal Jurisdiction) Act. Section 10 District and Intermediate Court (Criminal Jurisdiction) Act: “An officer executing a warrant need not exhibit the warrant unless so required by the party, and it is always advisable to produce it.” In Mauritius, an officer is entitled to open any door/window, even by force if necessary, of any dwelling in order for him to execute a warrant.

As per the law existing in Mauritius, the arrested person must be informed of the reasons of his arrest (section 5 of the Constitution), and the police officer must be precise about it, in a language which the suspect or accused understand (foreigners are very often arrested for possession of imported dangerous drugs in Mauritius at the SSR Airport).

Irrespective of whether a person has been arrested by a private person or the police, the person is delivered to the police or to take him before a magistrate as soon as possible as per sections 21, 13, and 14 of the District and Intermediate Court (Criminal Jurisdiction) Act. The suspect of the arrested person is brought before a Magistrate, provided he has been given any available facilities to consult his counsel of his own choice (section 5 Constitution), informed of his rights (section 15 District and Intermediate Court (Criminal Jurisdiction) Act, English law of evidence), and not induced by threat, menace, or promise by the police. Otherwise, such evidence would be ill gotten evidence. In Mauritius, under section 10(7) of the Constitution 1968, no one is compelled to give evidence in court and the evidence shared between the suspect or accused party and his counsel, priest or informant is strictly confidential.

In Mauritius, any person may defend himself in person before a court of law unless the court decides otherwise in the interest of that accused party as per section 10(2)(d) constitution following the leading case of R v. Boyjoo 1991 MR 284).

12. Evidence

There is no proper conviction or justice if there is no evidence before any court of law. Section 162 of the Courts Act 1945 enacts that the English law of evidence shall prevail for the time being in Mauritius. Before the Mauritian courts, just like in England and any country which has borrowed and inspired from the English law of evidence, the onus of proof is on the plaintiff in civil cases to prove his case on a balance of probabilities as who asserts must prove whereas in criminal cases, the onus of proof is on the prosecution to prove its case beyond reasonable doubts but shall there be any least single doubt the suspect is entitled to an acquittal. Similarly, in case of corroboration, competence and compellability, similar fact evidence, character evidence, public policy and privileges the English law of evidence is applicable unless it is made statutory in the Mauritian law because there are more and more relevant statutory enactments which provides for the Mauritian law of evidence. Save to some exceptions, hearsay evidence is inadmissible before a court of law similar to opinion evidence unless it is expert opinion evidence which is not within the knowledge of the court for it to be admissible. The Police force has recourse to an identification parade with English precedents which are very often injected in the Supreme Court’s judgments with a binding effect over lower courts. There is also the English common law of evidence which is also applicable such as in cases of insanity.

13. Human Rights in the Mauritian Legal System

The Mauritian legal system provides for legislations and commissions which cater for the protection of human rights coupled with international and regional conventions that, as usual, the Republic of Mauritius has signed and ratified—in particular the ILO Conventions—to protect all workers in Mauritius. Some of them have been enacted in the Mauritian domestic legislations such as the Worker’s Rights Act 2019 (Act 20/2019) (employment of young person) or the Employment Relations Act 2008 (Act 32/2008) (right to lawful strike), as amended.

As explained, Chapter II of the Constitution 1968 provides for fundamental rights of all individuals in Mauritius especially for an accused party to enjoy a fair trial before an independent and impartial court and these fundamental rights remain part and parcel of the Mauritian Law on Criminal Procedure. It includes the rights to life (section 4), protection against slavery (section 6), freedom of conscience, property (section 8), privacy (section 9), establish schools, freedom of association and assembly (section 13), and protection against discrimination (section 16) with a number of cases which have been heard before the Mauritian Supreme Court and on appeal under section 81 of the Constitution before their Law Lords of the Judicial Committee of the Privy Council.

In the Mauritian legal system, whenever any fundamental right of the individual has been infringed there is the Supreme Court (Constitutional Relief) Rule 2000 but the applicant, under section 17 or 83 of the Constitution, must point out exactly which section(s) of Chapter II of the Constitution 1968 have been infringed following what has been said in Ramawat Dosoruth v. The State 2003 PC Appeal No. 49, and Bishop of Roman Catholic Diocese of Port Louis & Ors v. Tengur S. & Ors 2002 SCJ 326A. Section 17 of the Constitution provides that any person who alleges that “any of the sections 3 to 16 of the Constitution is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter that is lawfully available, that person may apply to the Supreme Court, in its original and inherent jurisdiction, for redress” provided the set of conditions and procedures under the Supreme Court (Constitutional Relief) Rule 2000 are strictly complied with; otherwise application would be set aside (section 17 of the Constitution). In the case of Norton v. PSC 1983 MR, the Supreme Court of Mauritius held that “judgment will not be given unless the person has exhausted all remedies available before him before coming to the Supreme Court”, whereas in the case of Vert v District Magistrate of Plaine Wilhems, 1993 MR 28, the Supreme court held that “since there were adequate means of redress, there was no need to apply under section 17 of the Constitution”.

Important legislation has been passed by the Mauritian legislator to protect all individuals in Mauritius in terms of health and security (Occupational Safety and Health Act 2005). Chapter IV of the Employment Relations Act 2008 provides for fundamental rights of all workers in Mauritius to join a lawful strike (section 83 and be protected as whistleblowers against their employers). It also protects workers against victimisation and discrimination (sections 29 and 30), ill-treatment and violence at work, and termination of agreement in case a worker has attended a lawful strike. Closed shop is prohibited in Mauritius (section 34) as in England; otherwise, it would infringe upon their rights to freedom of association and assembly. Workers in Mauritius have access to their workplace and right to information. Prior to organizing any strike, the Commission for Conciliation and Mediation (CCM) would listen to trade union and its members to come to a peaceful settlement otherwise the matter is heard before the Employment Relations Tribunal (ERT) and the Supreme Court in case of an appeal.

The Mauritian legislator has also passed the Protection of Human Rights Act and the Equal Opportunity Act to hear cases on discrimination and other various abuses with the creation of important commissions such as the Equal Opportunity Commission and the National Human Rights Commission to listen to individual grievances, and an Ombudsperson for children, coupled with important NGOs and associations to debate over issues like drug addiction, poverty, unemployment, and domestic violence.

14. Sentencing

Magistrates and judges both have huge sentencing power in their respective courts, granted when the Mauritian legislature amended existing legislations with fines, penalties, or imprisonment (with or without penal servitudes) with heavier penalties following heinous crimes perpetrated by offenders and persistent offenders. Still, crime is on the rise every year, death penalty or not. In Mauritius, death penalty was once in force for drug traffickers, but it has been abolished by the Abolition of the Penalty Act. In prison, prisoners in Mauritius are rehabilitated so that they are employable or self-employed in various small and medium enterprises so that they become more independent, and they may also afford a decent salary. In Mauritius, around 80% of people who have been in prison return to prison after release.

Sentencing Power of a District Court: By virtue of section 114 Courts Act (as amended by the Judicial Provisions Act (Act No.5 of 1999), 1 July 1999) and section 72(5) of the District and Intermediate (Criminal Jurisdiction) Act (as amended by Act No. 5 of 1999), District Magistrates have jurisdiction to try offences in their respective district (there are nine Districts Courts on the island) with a fine of Rs 10,000 and two years’ imprisonment. They may impose a more severe punishment if a special legislation so provides.

District Courts have power and jurisdiction to hear and determine criminal cases punishable by a term of imprisonment not exceeding five years and a fine not exceeding MUR 100,000. As an illustration, section 33 of the Land and Tenant Act. A District Court Magistrate has also jurisdiction to try juveniles (person less than 17 years of age) in camera (Juvenile Court, supra). A District Court Magistrate may hold preliminary enquiries (with the consent of the DPP) as per section 115 Courts Act, and if the offence is not within its jurisdiction (section 44 DIC (CJ) Act and section 116 of the Courts Act 1945) he may commit the party charged for trial before the Supreme Court with a Presiding Judge and nine jurors provided there is a prima facie case against that accused party. If a person has died in circumstances which are not natural, a District Magistrate may hold a judicial enquiry and report to the DPP.

Sentencing Power of the Intermediate Court (Criminal Division): The Intermediate Court has power to inflict penal servitude on convicted offenders for a period not exceeding 15 years and imprisonment for a period not exceeding ten years. However, for persistent offenders, it may increase the sentence to 20 years’ penal servitude.

Sentencing Power of the Supreme Court: By virtue of section 76 of the Constitution, the Supreme Court has unlimited jurisdiction in both civil and criminal proceedings. On appeal,[106] it has huge powers to amend a decision from a lower court,[107] amend an information,[108] order a new trial, and reverse a decision from a lower court in terms of sentence. On appeal, by virtue of section 96 of the District and Intermediate Court (Criminal jurisdiction) Act, no new evidence may be allowed.[109]

15. Arbitration

Despite an efficient judiciary with relevant law, legislations, and regulations, the Mauritius legislature passed the International Arbitration Act 2008 inspired by the UNCITRAL Model and the New York Convention so that the Republic of Mauritius becomes a platform for arbitration.

16. The Different Protagonists

The judiciary functions thanks to ushers, clerk, Judge’s Secretary, police officers, barristers (both in the private and those who are State Counsel (Parquet)), ombudsperson, judges, Attorney General, a public officer, and DPP. All these officials give support, help, and guidance and impose penalties where necessary. These commissions include the National Human Rights Commission, Commission for Conciliation and Mediation, Public Service Commission, Judicial and Legal Service Commission, Local Government Service Commission, and Equal Opportunity Commission.

In Mauritius, any person has the power of arrest, and the police are empowered to make an arrest with or without warrant and have the power of search and seizure. Shall there be a prima facie case that any individual has committed a serious offence in his district, the Magistrate shall carry a preliminary enquiry (section 115 Courts Act 1945) with the consent of the DPP under the District and Intermediate Courts (Criminal Jurisdiction) Act.

In case of violent or suspicious death, or death in a legal custody, there is a judicial enquiry (section 110 Courts Act 1945), but in practice the Police shall make the necessary enquiry and investigation. In Mauritius, public officers including Magistrates and the Police are protected under the Public Officers Protection Act. However, Magistrates are judicial officers, and they cannot be called as a witness unless they have material evidence to give: an ex parte application by way of proecipe (plaint) and affidavit are sent to a Judge in Chambers who will make an order to the District Clerk. The District Clerk then issues the summons, but the Magistrate is perfectly entitled to make a motion to the Supreme Court to set aside the summons if he has no material evidence to give or a party has wrongly summoned him as a witness.

There is an Intermediate Court with its two divisions (civil and criminal) and such number of Magistrates, as well as a Court of Assizes which sits as a Court of First Instance in, inter alia, murder cases or arson. There are many inferior courts, including the Fair and Rent Tribunal, Environment Tribunal, Court of Rodrigues, Industrial Court, Reviewing Authority, Juvenile Court, Children’s Court, Bail and Remand Court, and nine District Courts, where the matter in dispute is heard before a Magistrate. Magistrates are appointed or removed from office by the Judicial and Legal Service Commission (Judicial and Legal Service Commission Act), provided they have been a barrister of at least three years standing at the bar. They remain under the administrative control of the Chief Justice of Mauritius. They are empowered to hear cases within their jurisdictions according to the relevant legislations and regulations in force such as the Courts Act 1945, District and Intermediate Court (Civil Jurisdiction) Act, and District and Intermediate Court (Criminal jurisdiction) Act, coupled with other rules such as, inter alia, the Supreme Court Rules, Supreme Court (Constitutional Relief) Rule 2000, and the District, Industrial, and Intermediate Rules. The jurisdiction of the Industrial Court and the Reviewing Authority are regulated by the Industrial Court Act 1973 which empowers the Presiding Magistrate (Industrial Court) or the Chief Justice (Reviewing Authority) to have the necessary jurisdiction in case of labour disputes. In Mauritius, Magistrates may be appointed on a contractual basis and they may be promoted to Senior Magistrate.

As inferior courts, there is a right of appeal against sentence and conviction and even the DPP has a right of appeal against sentence and conviction (section 98 DIC (Criminal Jurisdiction) Act). Under section 72 of the Constitution 1968, the DPP has constitutional powers to continue or discontinue any proceedings. In case the DPP decides to discontinue any criminal proceedings, an individual may proceed with a private prosecution (section 4 Criminal Procedure Act).

17. References (Available on Google Scholar)

The following publications are by Professor R. P. Gunputh:

• La Cour Suprême de l’Ile Maurice– Volume 1, Star Publication, New Delhi, India
• Traité de Droit Civil-Volume 2, Star Publication, New Delhi, India
• Treaty of Criminal Law-Volume 3, Star Publication, New Delhi, India
• Traité Pratique du Droit du Travail Mauricien– Volume 4, Star Publication, New Delhi, India
• Treatise on Public International Law and International Humanitarian Law-Volume 5, Star Publication, New Delhi, India
• (With others) International Humanitarian Law, Star Publication, New Delhi, India
• (With Pr. (Dr.) V.P. Torul) Procedural Fairness in the Law of Unfair Dismissal, Star Publication, New Delhi, India
• (With D.Sornum) Getting into International Arbitration, Edition de l’Océan Indien
• Labour Law and Industrial Relations, CPDL, University of Mauritius
• International Humanitarian Law, CPDL, University of Mauritius
• (With P.Bissessur) Law of Evidence, CPDL, University of Mauritius
• Foundations of Mauritian Law, 200 p., Open University, 2014
• Media Law & Ethics, Open University, 315 p., 2015
• The burgeoning of the EPAs-EU’s negotiations: Probable impacts on the SADC Configuration and some key factors for enhancing trade liberalization and development in the Indian Ocean, published by the University of Mauritius, Research journal, ISBN: 978-99903-73-27-1 (2009)
• (With Dr. H.B. Chittoo and Mr Soorea) The Worker’s Guide on the Employment Rights Act 2008 and Employment Relations Rights 2008. 3 authors.
• Chapter 1: Sources of IHL, pp.18-29, International Humanitarian Law. Star Publications Pvt. Co. Ltd. ISBN. (2010)
• Chapter 6: Disasters and Poverty, International Humanitarian Law. Star Publications Pvt. Co. Ltd. ISBN. (2010)
• Chapter 9: Non-State Actors’ Accountability in compliance with national and international rules and regulations, International Humanitarian Law. Star Publications Pvt. Co. Ltd. ISBN. (2010)
• Chapter 10: The accused accountability for crime in non-international armed conflicts according to international customary law: cases and materials, International Humanitarian Law. Star Publications Pvt. Co. Ltd. ISBN. (2010)
• Chapter 12: The law of fake surrenders: perfidy, International Humanitarian Law. Star Publications Pvt. Co. Ltd. ISBN. (2012)
• The professional and vocational training of lawyers according to the Anglo-Saxon model in a mixed legal system in How to become a lawyer. (2012)
• How to become a lawyer? (2013)
• Le développement constitutionnel dans les États du sud ouest de l’Océan indien (2013)
• Chapter, Law of the Sea, JOLGA, 2017
• (With Pudaruth, and S., Soyjaudah, K. M. S.) (2016) Categorisation of Supreme Court Cases using Multiple Horizontal Thesauri. In: Berretti, Thampi and Dasgupta, ed. Intelligent Systems Technologies and Applications (Springer), Vol 2, pp. 355-368.
• Le droit de la famille à l’île Maurice, Revue Juridique de l’Océan Indien, No. 3, 2002-2003, pp.163-168, Conference Proceedings.
• Famille: Les Mariages Religieux, Revue Juridique de l’Océan Indien, Vol. 3, 2002-2003, p.163, Conference Proceedings
• l’Organisation de l’Unité Africaine, 2001-2002, No, 2, p.455, Revue Juridique de l’Océan Indien, Conference Proceedings
• Justifications et Codification du Droit dans le système du Common Law, 6-7 October 2003, Revue juridique de l’Océan Indien, Conference Proceedings
• Codification dans les Pays de Common Law: le cas de l’Ile Maurice, Revue juridique de l’Océan Indien, p.17, 2003-2—4, No. 4, Conference Proceedings
• l’Interprétation du Code Napoléon par les juridictions mauriciennes – Revue de la Recherche juridique d’Aix en Provence, Droit Prospectif, RRJ-2006-1, pp.2057-2088, Referee Journal
• Une étude sur les justifications et enjeux de la codification dans la tradition de common law -le cas de l’île Maurice, pays du Commonwealth, Revue de la Recherche Juridique-Droit Prospectif, Presses Universitaires d’Aix-Marseille, 2006, no.3, pp/1694-1721, Refereed Journal
• Du droit positif pour les déracinés de la terre dans les anciennes colonies. La cas de l’ile Maurice in Revue Juridique et Politique des Etats Francophones. No .4, octobre-décembre 2006, pp. 530-559. Editions Juris Africa, Refereed Journal
• Disaster Management Programme : Environment Impact and Measures for Redressal in Effulgence- Bi-Annual Management Journal, January-June 2008, pp.11-15, Refereed Journal
• Le maintien du Comité Judiciaire du conseil Privé dans les Etats Souverains et judiciairement indépendants- le cas de l’île Maurice. Revue Juridique et Politique des Etats Francophones, janvier-mars 2008, No 1, pp.76-94. Editions Juris Africa, Refereed Journal
• Déportation dans la région de l’Afrique australe : l’affaire chagosienne ou l’histoire de l’extinction d’une peuple en exil, in Revue Juridique et Politique des Etats Francophones, No. 2, juillet-septembre 2008, pp.315- 345, Refereed Journal
• Les limites d’adaptation-interprétation du Code civil français dans la synthèse du droit mixte mauricien- Coexistence et influence dans les Mascareignes. Revue Internationale de Droit Comparé. No 4. Octobre-Décembre 2008, pp.885-925. Revue trimestrielle publiée avec le concours du CNRS, Refereed Journal
• Alarm bell around the Cat’s Neck, Conference: Fourth National Ocean Science Forum. Book of Abstracts. University of Mauritius. Octave Wiéhé Auditorium- Réduit- 11th-12 July 2007, published in University of Mauritius Research Journal, Refereed Journal
• (2009) Droit des Biens, Bulletin of the Faculty of University of Macau-no. 25, pp.297-333, Refereed Journal
• (2009) To what extent are domestic penal laws retroactive for crime against humanity? The Mauritian Perspective- The SICT: a Case to remember, submitted for Research Week at the University of Mauritius in University of Mauritius Research Journal, Refereed Journal
• (2009) La malédiction du Code Noir de 1723 dans les îles mascareignes. Revue de la Recherche Juridique, Presse Universitaire de France, pp.919-934, Refereed Journal
• Droit électoral. Projet de réforme électorale prospective en droit constitutionnel ou la pratique du Best Loser System et du système proportionnelle au service du pluralisme ethnique : justice constitutionnelle ou injustice parlementaire ? Droit Constitutionnel (France), No.78, Avril 2009. pp.431-445, Refereed Journal
• Le modèle du contentieux administrative anglais dans la Constitution et la Fonction Publique des anciennes colonies françaises dotées d’un système de droit mixte-le cas de l’île Maurice, in University of Mauritius Research Journal, Refereed Journal (2009)
• La nécessité d’un cadre légal afin de mieux gérer l’eau en Afrique : le cas de l’île Maurice, Penant, Revue trimestrielle de droit Africain, Octobre-Décembre 2009, No. 869, pp. 504-520. Editions Juris Africa, Refereed Journal
• Obstacles in Managing Funds and large Cohorts in Tertiary Education, in MERI- Journal of Management & IT, April 2009, Vol. 2 , No. 2, pp.1-10, Refereed Journal
• Droit de la propriété intellectuelle- le défi mauricien à l’aube du troisième millénaire, Mauritius Business Law Review, Revue du Droit des Affaires. Ile Maurice, Vol.01, September 2009, pp. 32-41, Refereed Journal
• (With Dr Anupam Jha) (2009) The Legal System of Mauritius : A brief Study on a Hybrid Model in AALCO, Quarterly Bulletin, Volume 5, Number 1-4, published by the Secretariat Asian-African Legal Consultative Organization, New-Delhi, pp.95-113, Refereed Journal
• La protection constitutionnelle en droit mauricien: les systèmes juridiques entre interprétation et application dans un système de common law. Revue de la Recherche Juridique, Presse Universitaire de France, 2010-1, pp.457-474, Refereed Journal
• L’harmonisation du droit des affaires en Afrique par l’OHADA- un moyen pour l’attraction des investissements étrangers en Afrique, le regard de Maurice, Colloque organisé par la Faculté du droit et d’Economie de la Réunion, 8 décembre 2009, pp. 43-62, Conference Proceedings
• Droit bancaire et financier : les sûretés fixes et flottantes in Mauritius, in Business Law Review, Revue du Droit des Affaires, Ile Maurice, vol. 2, April 2010, pp.29-34, Refereed Journal
• Le Comité Judiciaire du Conseil Privé dans les anciennes colonies anglaises: les pouvoirs, compétences et mécanismes de pourvoi selon les lois en vigueur, in University of Mauritius Research Journal, Issue: Volume 16 – Year 2010, Refereed Journal
• Managing disasters in the new millennium: A disaster management programme against ecosystem and biodiversity degradation-The Mauritian Legal Framework– MERI- Journal of Management & IT, Volume 4, number 2, Oct. 2010, pp. 1-10, Refereed Journal
• (2011) Constitutional Rights of the Accused in a Westminster Model- The Mauritian Case Study. International Conference on Contemporary Mauritius, MGI, 14-16 Sept. 2011. CD Rom, Conference Proceedings
• Some innovations in microcredit for human resource development in SMES: The Mauritian Case Study, 5th International Business conference Mauritius, 26-30 September 2011, Grand Mauritian Hotel , Mauritius, conference Proceedings. CD Rom
• The SADC Conference on Social Protection of Migrant workers in the SADC infected with HIV/AIDS , Maputo, Mozambique, 15-19 nov. 2011. Conference Proceedings
• Maritime security in the Indian Ocean for commercial and business application of de- sea water- The Mauritian Case Study- Global Maritime security and Anti-Piracy Conference 2011, 26th and 27th November 2011, Research Papers and Reference Material, Gujarat National Law University, 2011, Conference Proceedings
• Enhancing the entrepreneurial minds in the informal sector- The Mauritian SMEs Case Study, MERI- Journal of Management & IT, April 2011, Volume 4, number 2, pp.1-5, Refereed Journal
• Ile Maurice: Paradis des formations Professionnelles sur le continent africain, Juris Africa. (2012)
• A contextual approach to a legal and institutional framework to financing problems of SMEs in Mauritius : The Mauritian Success- what a young entrepreneur must know prior to commencement of business and investment ? 3rd International Conference on Business and Economic Research, 12-13 March 2012, Indonesia, Conference Proceedings
• Police and Military response to maritime piracy in the Indian Ocean-The Mauritian Case Study, University of Limpopo all African Conference on organized Crime and Criminal Justice Issues, 26-29 June 2012, South Africa, Conference Proceedings
• Some Investment Mechanisms to Enhance Foreign Direct Investment (FDI) -The Mauritian Model Case Study-First National Conference on Globl Forces Shaping the Future of Business and Society, Nov. 30 to Dec. 1, 2012, Indore Institute of Management and Research , Indore, Conference Proceedings
• An overview of SADC legislations, domestic policies and strategies to eradicate HIV/AIDS among Migrant workers, International Labour Law and Social Protection-Conference 27-30 August 2012, Johannesburg, South Africa, 2012, Conference Proceedings
• The impact of multinational companies on the right to self-determination, Pacific Institute, Journal. (2012)
• Would Islamic banking enhance banking activities in Mauritius, The Mauritius Case Study, 2nd International Conference on International Trade and Investment, Financial Crisis and Trade and Investment in Developing Countries, 24-26 October 2012, Le Meridien Hotel, Mauritius, Conference Proceedings
• The contribution of domestic legislations to enhance Foreign Direct Investment (FDI) in some emerging sectors of Mauritius, 2nd international conference on international Trade and Investment, Financial Crisis and Trade and Investment in Developing Countries, 24-26 October 2012, Le Meridien Hotel, Mauritius, Conference Proceedings
• Analogy between Islamic banking and the Code Napoléon for the financing of Small and Medium Enterprises (SMEs)-The Mauritian Case study, Conference Proceedings (2012)
• Contribution of some Emerging Sectors to promote Sustainable Economic Development in Small Island Developing States (SIDS) in a Welfare State-The Mauritian Case Study- International Textile and Apparel Sustainability Conference, 16-21 July 2012, University of Mauritius. Conference Proceedings.
• (With Dr. V. Gandhi) Mahatma Gandhi’s Philosophy on Cultural Barriers to Peace in Intercultural Societies-The Mauritian Case Study, Conference Proceedings (2012)
• Would non-equity modes of economic and financial development shape the industrial development?-The Mauritian Success Model- Indore Institute of Management and Research, first National conference on Global Forces Shaping the Future of Business and Society, 30th Nov. -1st Dec. 2012, Conference Proceedings
• Le Comité Judiciaire du Conseil Privé-Atoux , Enjeux et Conséquences, conférence organisée par l’Université de la Réunion devant l’Auditorium Octave Wiehé (POWA) de l’Université de Maurice le vendredi 30 septembre 2012 et samedi 1er octobre 2012, Conference Proceedings
• Is there any possibility of extrapolating the Islamic legal and social contract model for modern entrepreneurs in non-Islamic countries? Indorre. (2013)
• Health and Safety Measures, South Africa, Pretoria, 11-12 March 2013, Conference Proceedings, Key note address, conference proceedings, Certificate of Attendance
• Casualties and Liabilities on the Workplace and Their legal Implications, India, Occupational hazards and welfare measures- a labour perspective, South Africa, Pretoria, Conference Proceedings (2013)
• Why do indigenous people suffer in Africa?-advocating indigenous rights in the light of strong violations of human rights in a socio-economic and political dimensions- indigenous rights, UNISA, South Africa, conference proceedings, 11 July 2013 workshop on African customary law: contemporary issues combined with the launch of the Centre for indigenous law. 11-12 July 2013, University of South Africa (UNISA), South Africa. Conference Proceedings.
• My Personal & Practical Experience in Managing High-Quality Education In Distance Education Through Online and the Internet- Reflective Learning & Module Development in Higher Education- HRDC, 17-18 October 2013, Mauritius, On-line , refereed article, South Africa, Pretoria, Conference Proceedings.
• Pirates of Aden v. Governments of Eden: Myth or reality? UClan, September 2013, Le Mauricien
• The impact of multinational companies on the right to self-determination on other continents: the African perspectives, South Africa, Pretoria, Conference Proceedings (2013)
• (With Pr. (Dr.) Laurent Sermet) Revue CHRONIQUE Droit constitutionnel étranger : Maurice et Seychelles, Chronique Droit Constituitonnel Etranger, Refereed Journal (2013)
• ANSA Paper. Labour Development, 2013
• Lessons learn from Tourism Outside India-The Mauritian Model Case Study-Amity Law University, 6 August 2013, India, Conference Proceedings
• Méthodologie du droit dans un système de droit positif mixte : le cas de l’ile Maurice dans la tradition civil law-common law. est-ce du droit compare ? University of Cape Town, South Africa (2013)
• (With Dr. Vikas Gandhi) understanding some legal issues to major obstacles to youth unemployment -The Mauritian-Indian Perspectives-Youth Employment, ADAPT Labour Book Series 2013, Refereed Journal
• Dilemma of Somali Pirates and SIDS in the Indian Ocean -The Mauritian Case Study-Global Maritime annual conference 2013, Gujarat National Law University, Gujarat, India, Conference Proceedings
• The impact of climate change on ocean and other natural resources: towards state responsibility to international environmental cooperation and consciousness, GNLU, Gujarat, India, 2013
• (With Associate Professor (Dr.) Roshan Ramessur and Dr. T.Ramessur) Coastal, Zone Management for Climate compatible Development and Legal Implications: The Mauritian Case Study, Journal of Coastal Development. Refereed Journal. (2013)
• Are Tax Havens a Necessary Evil in Investment Law?-The Double Taxation Avoidance Agreement (DTAA) between India and Mauritius Case Study-Student Promotion for International Law (SPIL), International Law Annual 2014, Mumbai, India
• International Law in a ‘Failed State’ -The Indian Ocean Somali Piracy Case Study- Indian Journal of International Law (2013)
• Ethnic-Cleansing in International Law- The BIOT or the Mauritian Case Study? (2013)
• Some Opening Strategies and Spillovers Effect in Emerging Economies in Africa-The Mauritius Case Study-, MIDAA, Nov. 2013.
• Some Investment Mechanisms to Enhance Foreign Direct Investment (FDI)-The Mauritian Model Case Study-Indore Journal. Refereed Journal (2013)
• Micro-Credit in Conventional Banking: Would Islamic Banking be the Golden Age for Entrepreneurs?-The Mauritius Case Study-The International Foundation for Research and Development, 4th International Conference on global business, 1-2 Feb. 2014, Bangkok, Thailand. Conference Proceedings
• Achieving developmental and pro-poor trade in Africa: the Mauritian transition-economy success case study-Initiatives, Innovations and Incentives- The International Foundation for Research and Development, 4th International Conference on Global Business, 1-2 Feb. 2014, Bangkok, Thailand, Feb. 2014. Conference Proceedings
• (With Ms. V.Uppiah) The legal implications for Mauritius to develop the medical tourism sector. 4th advances in hospitality and tourism marketing and management conference. 25-27 June 2014, Mauritius.
• (With Ms. V.Uppiah) Some Legislations to Health & Safety Measures to Improve Tourism in First Class Tourist Destinations -The Mauritian Case Study-. 4th Advances in hospitality and tourism marketing and management conference. 25-27 June 2014, Mauritius, Conference Proceedings
• (With Ms. Ash. Budoo) Termination of pregnancy of persons with mental disabilities on medical advice: a case study of South Africa. Refereed Journal (2014)
• (With Mrs. Sattiavattee Hurry) HIV/AIDS (2014)
• (With A.Taylor), The treatment of firearms intended for use in maritime security and under EU and national law, International Conference on Human Security, June 2014, Mauritius
• (With Dr. R.Bhagooli and Mr. M.Dowakarsing) Legislation checks of the sustainability within the major environment-related laws in an oceanic island State, GASAT, Mahatma Gandhi Institute (MGI), Mauritius (2014)
• (With Dr. R.Bhagooli and Mr. M.Dowakarsing) A Mini Review of the Legal Aspects Pertaining to Management of Coastal and Marine Areas of the Republic of Mauritius, GASAT, Mahatma Gandhi Institute (MGI), Mauritius, Conference Proceedings (2014)
• (With Ms. Raissa Philibert and Associate Professor (Dr.) Roshan Ramessur) Ocean Economy, Climate Compatible and Sustainable Development: Issues in Mauritius, GASAT, Mahatma Gandhi Institute (MGI), Mauritius, Conference Proceedings (2014)
• (With Mr. R.Mahadew) Human rights, abortion and parliamentary debates (2014)
• Low Cost Tertiary Education: The Price to Pay for Knowledge Hub! -The Mauritius Transitional Education Case Study-IFRD, Durban, South Africa, June 2014, Conference Proceedings
• (With Ms. V.Uppiah) The General Agreement on Trade and Services and Opportunities for Medical Tourism in Mauritius, Indian Ocean Africa Medical Tourism & Wellness Conference 7-8 April 2014, Pearl Beach Resort & SPA, Flic-en-Flac, Mauritius.
• (With Dr. Gandhi) The Revival of Gandhian Philosophy on Education in Modern Time and Lessons Forwards-IFRD, Durban, South Africa, June 14-15, 2014, Conference Proceedings
• (With Associate Professor (Dr.) R.Ramessur and Dr R.Bhagooli), The Green Economy and Climate Adaptation for SIDS, International Conference and Workshop on Renewable Energy Sources and Sustainability (RESUS-2014), Université des Mascareignes, December 2014, Mauritius, Conference Proceedings and Referred Journal
• (With Dr. Gandhi) Mahatma Gandhi’s Education: A lesson on philosophy and cultural barriers to peace in intercultural societies– The Indian-Mauritian Case Study-, Thailand, Bangkok, July 2014, Mauritius, Conference Proceedings
• (With Ms. V.Uppiah) Sex Workers, Indian Ocean Africa Medical Tourism & Wellness Conference 7-8 April 2014, Pearl Beach Resort & SPA, Flic-en-Flac, Mauritius.
• The Rights and Responsibilities of Medical Tourist in Mauritius in case of Negligence, Indian Ocean Africa Medical Tourism & Wellness Conference 7-8 April 2014, Pearl Beach Resort & SPA, Flic-en-Flac, Mauritius.
• A la découverte des fonds directs d’investissements étrangers dans les relations Maurice-Inde, Colloque international et Pluridisciplinaire : L’Inde et le Co-Développement dans l’Océan indien, Univ. de la Réunion, 2-4 décembre 2014, Conference Proceedings
• (2014) Death Penalty- JUST AFRICA, Refereed Journal
• Foreign direct investment: the double taxation avoidance agreement (DTAA) between India and Mauritius-From a Mauritian Perspective- Singapore, December 2014, Conference Proceedings
• May The International Arbitration Act 2008 Provide an Alternative to WTO’s Dispute Settlement Mechanisms in International Commercial Investment Disputes in Mauritius? University of New Delhi Law Journal, Referred Journal (2014)
• Prosecution of Non-State Actors under Municipal Law according to International Maritime Law. Some Legal Implications in a Failed State- The Somali Piracy Case Study-SPIL International Law Journal, Mumbai, India, 2014
• Knowledge Driven Economy of –E-Learning in Business Franchising Education of Overseas Partner Institutions in higher Education: Danger, Success of Dilemma? DEASA, 5th-7th December 2014, Open University, Mauritius.
• (With Dr. Kartina A. Choong) Surrogacy and tourism, 5th AHTMM Conference , 18-21 June 2015, Beppu, Japan, Best Award Paper
• (With G. Pignolet, J.Colom & Willy Lameyer), Tourist in space, 5th AHTMM Conference, 18-21 June 2015, Japan, website conference
• (With Dr. Anupam Jha) Boko Harem and the threat to regional peace and security: a critical survey, University of Johannesburg, South Africa, Conference by the South African Research Chair in International Law, University of Johannesburg, 20-21 Feb. 2015
• (With Dr. Panayotis Protopsaltis (Solicitor, Greece) and Dr Anupam Jha) The Legal Value of Corporate Codes of Conduct: the emergence of national and transnational law in private codes, Afruican Accounting and Finance Association conference (AAFA Conference), September 1-4 2015, Mauritius
• (With Dr. P.Khedun and Mr. Sh.Pudaruth) Water Law, October 2015, Mauritius
• (With Mr. Sh.Pudaruth) Categorisation of Supreme Court Cases using Multiple Horizontal Thesauri, Kochi, India, book published by Springer
• (With Dr. Upasana Gitanjali Singh & Sameerchand Pudaruth) The Forgotten, Excluded or Included? Awareness of Support Structures and Legislation, for Students with Disabilities -The Mauritian Case Study- published in Alternation, South Africa (2015)
• (With R.Ramessur, T.Ramessur, R.Lollchund, and K.Boodhoo) Business Opportunities from Deep Ocean Water (DOW) and Ocean-Based Industries-The Mauritian Case Study-Dubai Conference 2015
• (With Boopen Doobah) President of the l’IOCDAfrica Consortium, iocdafrica@gmail.com &, Univ. of Mauritius, rpgunput@uom.ac.mu, Medical Tourism and Wellness in the Indian Ocean; Opportunities and Challenges for Mauritius, 3rd International Conference on Recent Trends on Fitness, Health & Sports Science, University of Mauritius 14-15 July 2016. Book of Abstract, CD RoM
• Trade, Investment & National Policies in Small Island Developing States (|SIDS): The survival of the Mauritian Economy Case Study-Obstacles and Challenges in Regional Emerging Markets Independent of the European Market- Mauritius & European Law Forum, International Conference-Mauritius Monday 18 July- Tuesday 19 July 2016 organised by Middlesex University, Mauritius at Caudan Waterfront, Restaurant Labourdonnais
• An Investigation of The Impact of Knowledge Management-Economy on Knowledge Technology-Hub in Challenging and Competitive Tertiary Institutions-My Personal Experience to the Mauritian Case Study- Association of Commonwealth Universities (ACU) and the University of Mauritius are jointly organizing the 7th ACU HRM Network conference in Mauritius from 16-19 October 2016 at Le Meridien, Mauritius.
• (With S. Pudaruth, K. M. S. Soyjaudah and P. Doman) A Question Answer System for the Mauritian Judiciary, Extended Abstract, University of Mauritius Research Week 2016, Mauritius
• Human Rights and Religion: Bridging the Gap for Islamic Sharia, Extended Abstract, University of Mauritius Research Week 2016, Mauritius
• (With Pr. (Dr.) Ranita Nagar) Investment Economics: An Introduction (2016)
• Consumer Law and Policy in Africa-, The Mauritian Case Study, University of Cape town, 9-12 Mars-April 2017
• (With Sameerchand Pudaruth) AHTTM, Cyprus, April-July 2017, Murder and Related Offences: The Dilemma Among Tourists in Paradise-Tourist Destinations -The Mauritian New Phenomenon Case Study- online publication (2017)
• (With Dr Marie Chan Sun, Pr. Dogan Dursoy, Fang Liu, Haywantee R. Ramkissoon, Yangyang Jiang, Hristijan Kuzmanovikj, Wei Wei, and Allan Lu) Focus Group Discussion on the Smoke Free Support hotel Concept : Main Themes and Sub-Themes, AHTTM, April-July 2017, AHTTM, Cyprus, April-July 2017, online publication
• (With Dr. Sameerchand Pudaruth & Dr U. Singh) Disability: Forgotten, Excluded or Included? Students with Disabilities: A Case Study at the University of Mauritius– African Journal of Disability, June 2017
• (With Sameerchand Pudaruth & Anupam Jha) Round Tripping and Treaty Shopping: Controversies in Bilateral Agreements & Remedies Forward -The Double Taxation Avoidance Agreement (DTAA) between Mauritius and India and The Dilemma Forward, Kathmandu School of Law.[110]
• (With Dr. S. Pudaruth and Ms. Gunnuck) The linkage between performance management system and motivational level of employees- a case study at the Ministry of Finance and Economic Development. International Business Conference, 2017, Darussalam, Tanzania (2017)
• (With Dr. S. Pudaruth and Professor (Dr.) K. M. S. Soyjaudah) Innovative multi-segment strategy for the classification of legal judgments using the k-nearest neighbour classifier “Markov Chain Monte Carlo Methods and Evolutionary Algorithms for Automatic Feature Selection”, Complex & Intelligent Systems (Springer), pp. 1-10. doi: 10.1007/s40747-017-0042-z, Springer (2017)
• Consumer Protection law in Africa-The Mauritian Case Study-Journal of Consumer Policy
• Harassment at work in Mauritius Trade Union Congress magazine, p.39. 10th Anniversary, 1998-2008
• Regards sur la Région. L’AUF et l’Education Tertiaire. Comment et Pourquoi faire : in Mauritius Business Law Review, Revue du Droit des Affaires, Ile Maurice, Vol. 1, Septembre 2009, p.53.
• World Water Day. 22 March 2007. Book of Abstracts.
• Knowledge Hub or Knowledge Pub. Book of Abstracts
• Overseas partners’ institutions in higher Education- A glimpse of hope for Africa? The Mauritian Experience, p. 38, Book of abstracts, University Selangor, Malaysia, National post Graduate conference in education 2011, 27-28 June 2011
• Constitutional rights of the accused in a Westminster Model-the Mauritian case study, p.9, Book of Abstract, International conference on Contemporary Mauritius, 14-16 September 2011, organised by Mahatma Gandhi institute, University of Technology and Mauritius Research Council
• Les Mariages Religieux Musulmans- un sujet mal compris, Book of Abstracts, Research Week, 5-9 September 2011, p.12
• Foreign direct Investment in Mauritius-some legal aspects, Foreign Direct Investment in Mauritius, Event Guide, Conference Proceedings, p.31, National Conference 11 April 2012-Domaine les Pailles
• Death Penalty in Mauritius- an undying Problem, Book of Abstracts, University of Mauritius Research Week 2012 from 1st October to 5th October 2012
• A Critical Approach to Business Education of Overseas Partner Institutions in Higher Education – A Glimpse of Hope for Developing countries? -The Mauritian Experience”, Tertiary Education Commission (TEC), International Conference on Higher Education and Economic Development, Le Meridien Hotel, Mauritius, 3 to 5 September 2012.
• Strong violations of human rights before the Supreme Court of Mauritius, Book of Abstracts, University of Mauritius Research Week 2012 from 1st October to 5th October 2012
• Mahatma Gandhi’s Philosophy on Cultural Barriers to Peace in Intercultural Societies– The Mauritian Case Study (2013)
• When the employer has to stand up in court to explain his liability in case of injury at work. University of Mauritius Research Week 2013, Sept. 2013, Book of Abstract.
• Hiv/aids status and medical testing on the workplace: admission or exclusion from service? University of Mauritius Research Week 2013, Sept. 2013, Book of Abstract.
• La protection des courriels dans l’entreprise. University of Mauritius Research Week 2013, Sept. 2013, Book of Abstract.
• La protection et le respect de la vie prive de l’employé : limites et conséquences. University of Mauritius Research Week 2013, Sept. 2013, Book of Abstract.
• An investigation to what extent is freedom of expression an absolute right? University of Mauritius Research Week 2013, Sept. 2013, Book of Abstract.
• Pirates of Aden v. Governments of Eden: Myth or reality? UClan, September 2013, Garden Tower, Mauritius
• Human rights Impact Assessment to Evaluate HIV/AIDS Policy from a Gendered Perspective in Mauritius, Mrs. S. Hurry AND R.P. Gunputh, UoM Research Week, 2014
• Regulating Surrogacy: lessons and warnings from English Law, R.P.Gunputh and KA Choong, UoM Research Week, 2014
• Institutionalised religions and ‘dimoun mizer’ in contemporary Mauritius, UoM Research Week, 2014

18. Important Addresses in Mauritius

• Bank of Mauritius Sir William Newton Street Port Louis (Tel: 208 4164/208 9204)
• Board of Investment, 19th Floor, Cathedral Square Building, 16Jules Koenig Street, Port Louis (Tel: 203 3800/ Fax:208 29 24)
• Business Parks of Mauritius Ltd, 10th Floor, NPF Building, Rose Hill (Tel: 467 6900/467 6907)
• Development Bank of Mauritius, Chaussée Street, Port Louis (Tel: 2080241, Fax: 208 8498)
• Employment Division, Ministry of Labour, Industrial Relations and Employment 10th floor, Sterling Street Lislet Goffrey Street, Port Louis (Tel: 201 1073/208 7325)
• Export Division Ministry of Commerce and Co-operatives 4th Floor, Anglo Mauritius Building Port Louis (Tel: 201 1073/208 7325)
• Financial Services Commission (FRC) 4th Floor, Harbour Front building John Kennedy Street, Port Louis Tel: 210 7000/208 7172 fcmauritius@itenrt.mu
• Mauritius Chamber of Commerce and Industry 3 , Royal Road, Port Louis (Tel: 208 3301/208 0076)
• Ministry of Agriculture, Food Technology and Natural Resources 8th nd 9th Floor, NPF Building Jules Koenig Street, Port Louis (Tel: 212 0623/ 212 4427)
• Mauritius Freeport Authority 1st Floor, Trade & Marketing Centre Zone 6, Mer Rouge (Tel: 206 2500/206 2600)
• Ministry of Finance and Economic Development 3rd Floor, new Government House Port Louis (Tel: 201 1146/Fax: 2112567)
• Ministry of Industry, Financial Services and Corporate Affairs 7th Floor, Air Mauritius Centre John Kennedy Street, Port Louis (Tel: 210 71000/Fax : 2110855)
• Ministry of Labour, Industrial Relations and Employment Victoria House, Barracks Street Port Louis (Tel: 207 2600/2112 3070)
• Ministry of Social Security, National Solidarity, Senior Citizen Welfare and Reform Institutions, 13th Floor Renganaden Seeneevassen Building Port Louis Tel: 21230001/fax: 212 8190)
• Mauritius Venture Capital Fund Ltd, Trade & Marketing Centre, Mer Rouge (Tel: 206 2500/Fax: 206 2600)
• National Human Rights Commission, Jules Koenig St, Port Louis
• National Women Entrepreneur Council, 6th Floor, CSK House, Remy Ollier Street (Tel: 216 4880/218 4842)
• Prime Minister’s Office, Contact Officers for Residence Permits and Visas, 4th Floor, New Government Centre, Port Louis (Tel: 202 2154/Fax: 201 1022)
• Registrar of Companies, One Cathedral Square Building Port Louis (Tel: 21 4460/Fax: 208 72 63)
• Registrar of Businesses One Cathedral Square Building Port Louis (Tel: 2114460/Fax: 208 7263)
• Small Entrepreneur and Handicraft Development Authority Royal Road, Coromandel Tel: 233 5712/233 5545)
• Supreme Court Building, Address: New Supreme Court Building Corner Edith Cavell Street and Desroches Street Port Louis Telephone No.: 260 4100, Office of the Chief Registrar: Email: croffice@govmu.org.

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[1] Article 8 on the Capitulation Treaty (3 December 1810) stipulates that: “…the inhabitants will preserve their religions, laws and customs…”

[2] In the leading case of Mahboob v. Government of Mauritius 1982 MR 35, a civil dispute on the sale of an immoveable property and related to the separation of powers, Chief Justice Rault held that: “It is a fundamental disposition of the Constitution that there should be a separation of powers between the 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 a usurpation of judicial power and must be struck down. In spite of the Act, the plaintiff remained the legal owner of the immoveable. The Act mounted to a deprivation of property in breach of section 3 of the Constitution, and must be struck down,”

[3] Section 76(1) Constitution 1968 enacts that: “(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.

[4] Initially termed as the Code Napoléon 1804, and it was imposed on Isle de France (Republic of Mauritius) and Ile Bourbon (Reunion Island), it is now termed as the Code Civil Mauricien, which has been amended, to cater for a droit positif so that it contains relevant articles (which are in French) on Civil Law (marriage, divorce, successions, sales, contract, torts, properties) but the procedure is English based and inspired legislations (Divorce and Judicial Separation Act, Civil Status Act, Protection from Domestic Violence Act, Sales of Immoveable Property Act, Land Acquisition Act or the Successions and Wills Act).

[5] Section 162 Courts Act 1945. In the case of Jhundoo v. Jhuree, it was held that the English law of evidence shall prevail in Mauritius.

[6] In Busgeeth v. Busgeeth 1997 SCJ 236, the Supreme Court referred to an article by Professor Robert Garron, and which was published in Mauritius Law review 1980.

[7] In Noordally v. Attorney General and DPP 1986 MR 204, the Supreme Court held that “Within the framework of the Constitution, Parliaments’ right to pass law remains unfettered and a law which passes the test of constitutionality could not be questioned. The Court’s power to control the Executive in accordance with it constitutional role remains unfettered”.

[8] The Mauritian Prevention of Terrorism Act was inspired by Hong Kong, the Mauritian Prevention of Corruption Act was inspired by Singapore, and the Mauritian Company’s Act 2001 was inspired by both the UK Company Act and the New Zealand Company Act 1995.

[9] Francoeur v. Francoeur, 1989 MR 31/ SCJ 74 at p. 78.

[10] In Noordally v. Attorney General and DPP 1986 MR 204, the Supreme Court held that “Section 5 of the Constitution indicates that the suspect remaining at large is the rule, his detention on the ground of suspicion is the exception, and he must be tried within a reasonable time or released”. Further, in Sheriff v. District Magistrate of Port-Louis 1989 MR 260, the Supreme Court held that “the police have an undeniable right to arrest and detain persons suspected of having committed an offence is almost axiomatic. Detention should never be used as a disguised punishment against a suspect when the police feel they cannot pin down in the absence of a solid evidence.”

[11] In Virahsawmy v. Commissioner of Police 1972 MR 255, the Supreme Court found that solitary confinement and the physical and mental discomfort caused by such confinement did not constitute torture or inhuman treatment within the meaning of section 7(1) of the constitution of Mauritius.

[12] In Veeramootoo v. Veeramootoo 1919 MR 39, the Supreme Court was following Minerve v. Minerve 1987 MR 45, where it was held that freedom of conscience include freedom to change one’s religion.

[13] In Duval v. Commissioner of Police 1974 MR 130, the plaintiff wanted to hold a public meeting which was denied by the Commissioner of Police, and the Supreme Court found that the plaintiff is right when he avers that his freedom of expression had been unreasonably hindered by the defendant and direct that the defendant should in future refrain from doing so.

[14] In Cie de Beau Vallon Ltd v. Nilkomol 1979 MR 254, Nilkomol was summarily dismissed by his employer when he wrote defamatory remarks against them amounting to insults, and his defence was that he enjoyed his freedom of expression, but the Supreme Court found that his contract of employment had been properly terminated for serious misconduct.

[15] In Duval v. Commissioner of Police 1974 MR 130, the defendant had in his exercise of his powers under regulation 2 of the Emergency Powers (Control of the Press) Regulations 1971 and regulation 3(a) of the Emergency Powers (Control of Gatherings) Regulations 1971, make orders providing for the censoring of newspapers and prohibiting public and other specified gatherings but the Supreme Court found that the Regulations did constitute as hindrance to the freedoms protected by section 12 and 13 of the Constitution, and that it was unreasonable for the defendant to refuse the plaintiff permission to hold a meeting. In contrast, vide the case of Police v. Moorba 1971 MR 199 where a public gathering was denied because of national security.

[16] In Coorbanally v. The Queen 1981 MR 369, the applicant was convicted for the possession of opium, attempt to bribe a police officer, sentenced to five years’ penal servitude and six months’ imprisonment with hard labour, and granted leave to apply to the Privy Council from a decision of the Supreme Court.

[17] In Lagesse v. DPP 1990 MR 194, the plaintiff claimed damages against the DPP for malicious prosecution, whether it was open to a plaintiff to sue the DPP and whether he has acted in breach of the Constitution or any other law, and whether the provisions of the Public Officer’s Protection Act violate section 3 of the Constitution.

[18] In Jaulim v. DPP MR 1976, the plaintiff was charged with murder before the Court of Assizes raised an objection that women were excluded from the jury service, and that it violates section 3 and 16 of the Constitution, the combined effect of which was to forbid discrimination by reason of sex, among other grounds.

[19] Mahboob v. Government of Mauritius 1982 MR 135, where the Supreme Court (CJ Rault) held that: “It is a fundamental disposition of the Constitution that there should be a separation of powers between the 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 a usurpation of judicial power and must be struck down. In spite of the Act, the plaintiff remained the legal owner of the immoveable property. The Act amounted to a deprivation of property in breach of the Constitution, and must be struck down”. In the same line, the case of Noordally v. Attorney General and DPP 1986 MR 204, where the Supreme Court held that: “it is not in accordance of the Constitution to legislate and to allow the Executive to overstep the judiciary’s role in ensuring the citizen the protection afforded by the law”.

[20] In Ealing Borough Council v. Race Relations Boards 1972 AC 342, a duty to know and understand the Parliamentary Intention, the role of the Draftsman and the Court’s duty to interpret, was recognized.

[21] In Stock v. Frank jones Tipton Ltd 1978 ICR 347, Lord Simon of Glaisdale stated that: “in a society living under the rule of law, citizens are entitled to regulate their conduct according to what a statute has said, rather than that by what it is meant to say or by what it is meant to say or by what it would otherwise have said if a newly considered situation has been envisaged”.

[22] In R. Shummoogum 1977 MR 1, the accused was convicted for conspiracy and section 10(7) of the Constitution was in issue. The Supreme Court found that this section is couched in negative terms: it does not say that the accused has a right to silence, but that he shall not be compelled to give evidence. Section 10)7) of the constitution provides that: “No person who is tried for a criminal offence shall be compelled to give evidence at the trial”.

[23] Black-Clawson International Ld v. Papierwerke Waldhof-Aschaffenburg A.G 1975 AS.C. 591, 613.

[24] In Duport Steel Ltd v. Sir 1980 1 AER 529, Lord Diplock held that: “Parliament makes the law, the judiciary interprets them. When Parliament legislates to remedy what the majority of its members at the time perceive to be a defect or lacuna in the existing law the role of the judiciary is confined to ascertaining from the words that the Parliament has approved as expressing its intention that intention was and giving full effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for difference of opinion of to what is expedient, what is just and what is morally justifiable”.

[25] In Becke v. Smith 1836 2 M and W 191, it was held that: “It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used and to the grammatical construction unless that is at variance with the intention of the legislature to be collected from the statute itself or leads to any manifest absurdity or repugnance in which case the language may be varied or modified so as to avoid such inconvenience, but no further…”

[26] In Pinner v. Everett 1969 3 All ER 257, the Court held that: “In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature that it is proper to look for some other possible meaning of the word or phrase”.

[27] In the local case of Parsand v. Ministry of Labour and Social Security 1964 MR 144 the Supreme Court was following the rationale reached in R v. Judge of the City of London Court 1892 1 QB 273, 290 where Lord Esher stated that: “If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislature has committed an absurdity”, and the Supreme Court added that: “Where the words of a statute are clear and explicit, effect must be given to them, even if it leads to a manifest injustice”.

[28] In Mian & Ors v. R 1981 MR 56, the accused was convicted for importation of opium, and the word ‘import’ under the Dangerous Drugs Act 1974 was a live issue before the court, Counsel for the accused submitted that in omitting to reproduce in the Act the original definition of ‘import” contained in the Dangerous Drugs Ordinance, the legislator deliberately intended to restrict its meaning and , secondly, if the legislator had intended the term to have a broader meaning than it normally has, it would have expressly provided a definition which achieved this result as in the Customs Ordinance and the Supplies Control (Import Licences) Regulations and Supreme Court found the accused (appellant) guilty.

[29] In Bromley London Borough Council v. Greater London Council 1983 1 AC 768, the word “economic” was in dispute, for Bromley London Borough Council, its interpretation was that the words “economy” and “economics” were confined to acting on business principles and could not cover the running of the transport services at a large operating loss and balancing the books by means of a subsidy from the rates whereas for Greater London Council, it was argued that “economic” and “economy” simply meant “not wasteful of resources”, and the Court of Appeal and the majority of the House of Lords held that Bromley’s interpretation was the only permissible and that the decision of the Greater London Council was illegal.

[30] In Ramtohul v. The Queen, 1971 MR 301, the word ‘obstacle’ was in issue under section 48(1) of Public Order Act 1970, and the Supreme Court found that: “It is common place that the ejusdem generis rule is not an absolute one. At most, it gives rise to a presumption that the legislature intended to circumscribe the meaning of the general words by reference to the particular word that precede them. In the case of section 48(ii) of the Public Order Act 1970 it is not at all clear that the particular words ‘structure’, ‘fence’, and ‘ditch’ form a class which is a condition precedent to the application of the rule.”

[31] In Allen v. Emmerson 1944 KB 362, where the issue was whether there should be more than one species, as mentioned, to constitute a “genus”, it was held that the phrase “theatres and other places of entertainment” in section 33 of the Barrow-in-Furness Corporation Act 1872 did not constitute a genus”.

[32] In Bourne v. Norwich Crematorium Ltd 1967 1 WLR 691, noscitur a sociis was in issue (derive colour from those which surround him) and a thing is known to what it associates.

[33] In Pengellery v. Bell Puch Co. Ltd 1964 1 WLR 1055, noscitur a sociis was in issue with respect to the word ‘floor’ under the UK Factories Act 1961 in the phrase “floors, steps, stairs, passages and gangways” which were required to be kept free from obstruction, was held “not to apply to part of a factory floor used for storage rather than a passage.”

[34] In Pengellery v. Bell Puch

[35] Co. Ltd 1964 1 WLR 1055, noscitur a sociis was in issue with respect to the word ‘floor’ under the UK Factories Act 1961 in the phrase “floors, steps, stairs, passages and gangways” which were required to be kept free from obstruction, was hel

[36] d “not to apply to part of a factory floor used for storage rather than a passage”.

grammatical and ordinary or where appropriate to the technical meaning of words.

[37] Unwin v. Hanson 1891 2 QB 115, on the ordinary use of language the Court held that: “If the Act is directed at dealing with matters affecting everybody generally the words used have the meaning attached to them in the common and ordinary use of language. If the Act is one passed with reference to a particular trade, business or transaction, and words are used which everybody is conversant with that trade, business or transaction knows and understands to have a particular meaning in it then the words are to be construed as having that particular meaning, thought it may differ from the common or ordinary meaning of the words”.

[38] In Smart v. Allan 1963 1 QB 291, what is meant by a mechanically propelled vehicle being in issue? It was found that the defendant bought a car for two pounds as scrap and left it on the road, the engine was rusted and did not work, three tyres were flat and one was missing, there was no proper gear box or electrical accessories, and it was held that it was not a mechanically propelled vehicle.

[39] In New Berry v. Simmonds 1961 2 QB 345, what is meant by a mechanically propelled vehicle was in issue? It was found that a car which was kept standing on a road and whose engine had been stolen was held to be a mechanically propelled vehicle.

[40] In Masson v. R 1962 MR 124, the Supreme Court (Neerunjun CJ) stated that: “A ‘presumption’ means a rule of law that courts and judges shall draw a particular inference from a particular fact or from particular evidence unless and until the truth of such inference is disproved”.

[41] In Philippe Rogers v. Comptroller of Customs 1994 SCJ 115, the Supreme Court (Justice Vinod Boolell) held that there is a presumption of individual liberty and choice and that: “further a person’s right to receive broadcast is a component of the freedom of expression which is guaranteed by our Constitution and other instruments dealing with fundamental rights”.

[42] In The Northwhale 1975 QB 589, the preamble of a legislation was in issue, and it was held that “when there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provisions. The preamble is not, however, of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act or even in related Acts. There may be no exact correspondence between preamble and enactment, and the enactment may go beyond, or it may fall short of the indications that may be gathered from the preamble. Again, the preamble cannot be of much or any assistance in construing provisions which embody qualifications or exception from the operation of the general purpose of the Act. It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail”.

[43] In Re Boaler 1915 1 KB 21, 40, short titles were in issue, and some judges have questioned as to whether it should always be ignored. Short title is usually stated in a separate section at the beginning or at the end of the statute, for example, “This Act may be cited as the Companies Act”.

[44] In Hanlon v. The Law Society 1981 AC 124, punctuation in a statute was in issue and the Court explained that: “I consider that not to take account of punctuation disregards the reality that literate people, such a Parliamentary draftsman, punctuate what they write, if not, identically, at least in accordance with grammatical principles. Why should not literate people, such as judges, look at the punctuation in order to interpret the meaning of the legislation as accepted by Parliament”.

[45] In DPP v. Schildkamp, 3 All ER 1640 (HL) (1969), it was found that sidenotes or marginal notes, and there is no sensible reason why side-notes should be ignored.

[46] In Philippe Rogers v. The Comptroller of Customs 1994 SCJ 115, on Schedules Justice Vinod Boolell held that: “The schedule is as much part of the Statute, and is as much an enactment, as any other part but if an enactment in a schedule contradicts an earlier clause, the clause prevails against the schedule”. In addition, section 6(1) of the Interpretation and General Clauses Act 1974 provides that the Schedule, just like appendices, will be part of the enactment.

[47] In Grey v. Pearson 1857 6 HL Cas.61, the ordinary meaning of a term was in issue and Lord Wensleydale admitted that: “I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but not further”.

[48] In River Wear Commissioners v. Adamson 1877 2 App. Cas.743, Lord Blackburn stated that: “I believe that it is not disputed that what Lord Wensleydale used to call the golden rule is right, viz, that we are to take the whole statute together and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great could not have been to use them in their ordinary signification, and to justify the Court in putting on them some other signification, which, though less proper, is one which the Court thinks the words will bear”.

[49] In R v. Harris 1836 7 C. & P. 446, the court found that if a statute which made it an offence for someone ‘unlawfully and maliciously” to “stab, cut, or wound any person” was held not to apply where the defendant bite off the end of the victim’s nose, the words indicated that for an offence to be committed some form of instrument had to be used.

[50] In the Sussex Peerage Case 1844 11 CI & Fin. 85, it was held that it is generally accepted that the “mischief” should only be applied where the words were ambiguous.

[51] In Pierrot v. de Baize 1880 MR 158, the Supreme Court held that: “in the circumstances of doubtful and ambiguous clauses in a statute, great weight is attached to the object which the legislative had in view, and such construction will, if possible, be adopted as it will both remove the mischief which is intended to cure and advance the remedy which it intended to supply”.

[52] Section 39 Courts Act 1945. In any case pending before the Supreme Court, which the law requires to be taken before the full court, three or five judges shall hear the case, and in such a case, as well as in any case where the judges think it expedient to hold a sitting before three or five of them, the unanimous or majority decision of the judges shall be taken to be the decision of the full court.

[53] The 5th Schedule of the Criminal Procedure Act 1853 (Act 29/1853) provides that offences committed under the –

• Consumer Protection (Price and Supplies) Act;
• Criminal Code, sections 156, 249 (in respect of the offence of rape, where it is averred that the offence was committed by 2 or more individuals), 283, 284 and 288;
• Customs Act, sections 17(4), 21(8), 38(3), 83(3), 97(4), 111(2), 154, 156, 158(1), (2) and (3)(a), (b) and (c) and 163(2);
• Customs Tariff Act, section 5(4);
• Dangerous Drugs Act;
• Excise Act, sections 40, 41 and 45(2)(a),(b), (c), (d), and (g);
• Gaming Act, sections 59, 60 and 62;
• Horse Racing Board Act 2003, section 51(1), (2), (5), (6), (7), (8), and (10);
• Income Tax Act, sections 123(8) and 147;
• Industrial Expansion Act, section 41(2)(a);
• Prevention of Terrorism Act 2002, section 3;
• Registration Duty Act, section 24(7) (deleted by Act No. 4 of 2006);
• Value Added Tax, sections 54, 55, 57, 58, 59(b), 64(2), and 69(3);
• Freeport Act 2004, sections 14(6), 20(5), and 22(2).

Amended by [Act No. 12 of 1986]; [Act No. 2 of 2002]; [Act No. 17 of 2003]; [Act No. 23 of 2003]; [Act No. 30 of 2003], [Act No. 33 of 2004]; [Act No. 15 of 2006]

[54] Section 70 Courts Act 194570. Appeals to be heard before at least 2 judges. Save as otherwise expressly provided in any other enactment, appeals to the Supreme Court shall be heard before at least 2 judges.

[55] Section 76(2) Constitution. Subject to section 77, the judges of the Supreme Court shall be the Chief Justice, the Senior Puisne judge and such number of Puisne Judges as may be prescribed by Parliament: Provided that the office of a judge shall not be abolished while any person is holding that office unless he consents to its abolition.

[56] Section 80 Constitution 1968. 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. (2) The Court of Civil Appeal shall have such jurisdiction and powers to hear and determine appeals in civil matters and the Court of Criminal Appeal shall have such jurisdiction and powers to hear and determine appeals in criminal matters as may be conferred upon them respectively by this Constitution or any other law. (3) The Judges of the Court of Civil Appeal and the Court of Criminal Appeal shall be the judges for the time being of the Supreme Court.

[57] Section 70A Courts Act 1945. Appeals to the Judicial Committee in criminal matters. An appeal shall lie from final decisions of the Court of Appeal or of the Supreme Court to the Judicial Committee in criminal cases where, in the opinion of the Court, the question involved in the appeal is one that, by reason of its great general public importance or otherwise, ought to be submitted to the Judicial Committee. Amended by [Act No. 29 of 90]; [Act No. 48 of 1991].

[58] Section 77 Constitution 1968. Appointment of judges of Supreme Court (1) The Chief Justice shall be appointed by the President acting after consultation with the Prime Minister. (2) The Senior Puisne Judge shall be appointed by the President, acting in accordance with the advice of the Chief Justice. (3) The Puisne Judges shall be appointed by the President, acting in accordance with the advice of the Judicial and Legal Service Commission.(4) No person shall be qualified for appointment as a Judge of the Supreme Court unless he is, and has been for at least five years, a barrister entitled to practise before the Supreme Court.

[59] Section 78(2) Constitution 1968. (2) A Judge of the Supreme Court may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour, and shall not be so, removed except in accordance with subsection (3).

[60] Section 76(1) of the Constitution 1968 enacts that: “There shall be a Supreme Court for Mauritius which shall have unlimited jurisdiction to hear and determine any civil and 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”.

[61] Section 82(1) Constitution. Supreme Court and subordinate courts. (1) The Supreme Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court.

[62] Section 83(1) Constitution. Original jurisdiction of Supreme Court in constitutional questions.(1) Subject to sections 41(5), 64(5) and 101(1), where any person alleges that any provision of this Constitution (other than Chapter II) has been contravened and that his interests are being or are likely to be affected by such contravention, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for a declaration and for relief under this section.

[63] Section 84 Constitution. Reference of constitutional questions to Supreme Court. (1) Where any question as to the interpretation of this Constitution arises in any court of law established for Mauritius (other than the Court of Appeal, the Supreme Court, or a court martial) and the court is of opinion that the question involves a substantial question of law, the court shall refer the question to the Supreme Court. (2) Where any question is referred to the Supreme Court in pursuance of this section, the Supreme Court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision or, where the decision is the subject of an appeal to the Court of Appeal or the Judicial Committee, in accordance with the decision of the Court of Appeal or, as the case may be, of the Judicial Committee. Amended by [Act No. 48 of 1991].

[64] Section 17(1) of the Constitution enacts that: “17 Enforcement of protective provisions. (1) Where any person alleges that any of sections 3 to 16 has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter that is lawfully available, that person may apply to the Supreme Court for redress”.

[65] Section 83 (1) Original jurisdiction of Supreme Court in constitutional questions. (1) Subject to sections 41 (5), 64 (5) and 101(1), where any person alleges that any provision of this Constitution (other than Chapter II) has been contravened and that his interests are being or are likely to be affected by such contravention, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for a declaration and for relief under this section.

[66] Section 16 Courts Act 1945. Supreme Court – a Court of Equity. The Supreme Court shall be a Court of Equity vested with power, authority, and jurisdiction to administer justice, and to do all acts for the due execution of such equitable jurisdiction, in all cases where no legal remedy is provided by any enactment.

[67] Section 18C Courts Act 1945. Powers of Supreme Court in cases of contempt. Where the Supreme Court, on a motion made to that effect supported by affidavit, finds that a person has committed a contempt, the Court may (a) sentence that person to imprisonment for a term not exceeding one year or to a fine not exceeding 300,000 rupees; (b) make such other order as it thinks fit. Added by [Act No. 15 of 1994]

[68] Section 18(1) Courts Act 1945. Disciplinary Powers (1) Notwithstanding any other enactment, the Supreme Court shall have power and jurisdiction to hear and determine any complaint of a disciplinary nature in respect of the professional conduct of a law practitioner or a ministerial officer including a. land surveyor.

[69] Section 15 Courts Act 1945. Powers of Supreme Court. The Supreme Court shall be a superior Court of record and, in addition to any other jurisdiction conferred on it, shall have all the powers and judicial jurisdiction necessary to administer the laws of Mauritius.

[70] In the local case of Unuth v. Police Service Commission 1982 SCJ 284, where it was held that the amendment to the Courts Act cannot have for object the removal of the Court’s jurisdiction in matters of which it had cognizance, therefore of Admiralty jurisdiction.

[71] In the case of Fisher v. Minister of Public Safety and Immigration and Others 1997 4 LRC 345, the Judicial Committee had to construe Article 104(1) and 92) of the Constitution of the Bahamas which is similar in content to section 81(1) of the Mauritian Constitution which provides for leave to appeal to the Judicial Committee of the Privy Council as of right. Lord Goff said: “In such a case as the present one, the function of an application to the Court of Appeal for leave is to ask the Court of Appeal to indicate that the case is one in which an appeal lies to the Privy Council as of right. If the case falls with the class, the Court of Appeal indicates so by granting leave to appeal”.

[72] A number of cases has been heard before the Supreme court where an application asked for leave to the Judicial Committee but was not raised or canvassed on appeal before the Supreme Court-vide in this sense the case of Polimont v. The Queen 1980 MR 17, Unuth v. Police Service Commission & Anor. 1989 MR 1, Luk Tung v. The State 196 SCJ 180, Sans souci v. The State 1991 MR 204 or the case of Marie Anne Chantal Anne v. The State 2003 SCJ 163.

[73] Auchraje v. The State 1992 SCJ 221.

[74] Section 7 Courts (Amendment) Act 1980 enacts that: “(1) Notwithstanding any other enactment an appeal shall lie from decisions of the Supreme court or the Court of Criminal appeal to Her Majesty in Council as of right in all criminal cases”.

[75] In the case of Badry v. DPP 1983 2 AC 297, Lord Hallsham of St. Marylebone L.C. held that: “Since this appeal may be the first to be heard under the legislation (Courts (Amendment) Act 1980, section 7) extending the right of appeal to the Judicial Committee in appeals from Mauritius, their Lordships feel it right to reiterate the general principles on which they will continue to feel bound to tender their advice in criminal matters”.

[76] Ibrahim v. R 1914 AC 599.

[77] Buxoo and another v. The Queen (Mauritius), [1988] UKPC 1 (19 May 1988).

[78] Vert v. District Magistrate of Plaine Wilhems.

[79] In Duval v. District Magistrate of Flacq 1989 MR 206, the Supreme Court (Lallah SPJ and Pillay J) rightly explained the issue of a final decision of the Supreme Court and went on to say that: “It is true that section 81(1) (c) of the Constitution provides for a right of appeal to the Judicial Committee of the Privy Council from final decisions of the Supreme Court in proceedings under section 17 of the Constitution. It seems to us, however, that the mere fact that an action is sought to be brought under section 17 of the Constitution does not necessarily convert it into an action that is properly brought under that section. That action must relate to a right which is manifestly protected under any one of sections 3 to 16 of the Constitution. So that it is open to question whether the applicant could at all invoke section 81(1)(c) of the Constitution to ground his application, irrespective of the question of the finality of the decision of the Supreme Court with regard to a violation of the purported right invoked by the applicant”.

[80] In Gaytree Textiles Ltd v. Ghoolet 1993 MR 140, the Supreme Court stated that: “Indeed it seems that this latter interpretation would be the proper one in view of the possibilities of an appeal as of right to the Judicial Committee of the Privy Council, which is clearly delimited by section 81 of the Constitution and which applies only to judgments from the Supreme Court or from the Court of Appeal and not to decision of a Reviewing Authority. If there is no right of appeal from a decision of a Reviewing Authority to the Supreme Court there will, as a sequel, be no right of appeal to the Judicial Committee, something which cannot be envisaged. Incidentally, to hold that the Reviewing Authority is a subordinate court which has already reviewed a judgment on appeal, thus depriving a litigant from a right to appeal to the Supreme Court, would result in debarring him of his right of appeal to the Judicial Committee under section 81 of the Constitution which provides for appeals from decisions of the Supreme court”.

[81] In Medine Mosque Waqf Society v. Medine Mosque Society 1972 MR 97, the Supreme Court of Mauritius observed that: “various tests have been propounded and applied by the courts in England and followed by this Court on occasion for determination of question whether a judgment is final or interlocutory, but none seems to have been so successful as to become standard”.

[82] In Salter Rex v. Ghosh 1971 2 AER 865, Lord Denning remarked that: “this question of ‘final” or ‘interlocutory” is so uncertain, that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point. Most orders have now been the subject of decision. If a new case should arise, we must do the best we can with it. There is no other way”.

[83] In YKJ Yeung Sik Yuen v. M.Ramdoo 2003 SCJ 318, the test is laid under section 81 of the Constitution and the Supreme Court, which was constituted of two judges (Justice KP Matadeen and Justice P. Balgobin), held that: “It is appropriate that we stress at the very outset and this at the risk of stating the obvious, that we are not sitting on appeal over the decision of the Supreme Court. The proper authority to hear the appeal is the Judicial Committee is to be found in section 81 of the Constitution and the Mauritius (Appeal to Privy Council 0f Order 1968). Our role is simply to consider whether the applicants satisfy the test laid down in section 81 and to impose the conditions as required by section 4 of the Order”.

[84] In Bissessur v. Irrigation Authority 1993 MR 24, the Supreme Court stated that: “it is clear from the proviso to section 81(1) of the Constitution that an appeal lies from the decision of the Supreme Court to the Judicial Committee only where no such appeal lies as a matter of right to the Court of Civil Appeal”.

[85] In the case of Awotar v. Stella Insurance Co. Ltd and anor 1992 MR 97, the Supreme Court held that: “Section 81(2) of the Constitution makes provisions for cases where a prospective appellant must have the Supreme Court’s leave, or permission, before proceedings. That Court then has discretion to grant or to refuse leave. Section 81(1), on the other hand, sets out the cases where an appeal lies as of right. But it is well established that, even then leave must be sought. The Court from which leave is sought of course has no discretion to grant or withhold leave, but it has the duty to form its own judgment as to whether or not the case falls within the constitutional limits and the appeal does or does not lie as of right”.

[86] In the case of Sufraz v. The State 1992 SCJ 473, the Supreme Court held that: “all that the Court before which a motion for final leave is presented can do is to verify whether the conditions imposed earlier at the condition leave application stage have been complied with and, if such is this case, it is bound to grant the motion. As has been explained more than once, this Court has a duty to ensure that leave is only granted in cases where it should be given. This, in our judgment, is a duty that the Court should perform at every stage of the leave process; it cannot be that we should confine ourselves to a kind or rubber stamping exercise.”

[87] Vide the case of Oteri v. The Queen 1976 1 WLR 1272, and Holder v. The Queen 1980 AC 115.

[88] Section 2(2) of the Mauritius (Appeals to Privy Council) Order 1992 enacts that: “The provisions of the Judicial Committee Act 1833 and of any rules made there under from time to time shall, in so far as they relate to the powers of the Committee and the procedure to be adopted with respect to proceedings before it, apply in relation to proceedings before the Committee under section 81 of the Constitution and for that purpose shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary by reason of the nature of those proceedings or otherwise to bring them into conformity with the provisions of the Constitution”.

[89] Section 69(3) Courts Act enacts that: “Every person appealing to the Supreme Court shall within 30 days from the date which he lodges his notice of appeal in the Registry file and serve on the other party skeleton arguments and submissions on his ground of appeal in such manner as may be prescribed by rules of court”.

[90] Rule 3 of Appeal (Skeleton Arguments) Rules 1994: “(a) A number list of the points which counsel proposes to argue (in not more than a few sentences), each listed point being followed by full references to the authorities to be relied on, and to any evidence, judgment or transcript to be referred to; and (b) a list of any other matters to which the Court’s attention will be invited, such as, for example, chronologies of events”.

[91] Rule 4 of Appeal (Skeleton Arguments) Rules 1994: “The appellant’s attorney shall-(a) include the document referred to in Rule 3 in the brief prepared for, and forwarded to, the Court; and (b) update the document by indicating therein the exact references to the pages of the brief.”

[92] Section 36 of the District and Intermediate Court (Civil Jurisdiction) Act enacts that: “36(1)(a). a party to a suit or action before the Intermediate Court or a District Court, whether such suit or action has been entered by Plaint with Summons, or by any other process, may appeal to the Supreme Court against any final judgment. (b) Subject to paragraph (a), a judgment shall be final to all intents and purposes”.

[93] Section 37 of the District and Intermediate Court (Civil Jurisdiction) Act enacts that: “37(1)(a). Every person appealing shall, within 21 days from the date of the judgment exclusively give notice in writing of such appeal to the clerk of the Court”.

[94] Section 93 DIC (Civil Jurisdiction) Act enacts that: “(1) Any person wishing to appeal under section 92 shall lodge a written notice of appeal with the clerk of the court within 21 days of the adjudication”.

[95] Section 6 Supreme Court Rules 2000 enacts that: “Any person who wishes to appeal to the Supreme Court against any decision of the Master and Registrar under this Act shall lodge his appeal in the Registry and serve notice of the appeal on all interested parties within 21 days from the date of the order or decision”.

[96] Section 34 Courts Act 9145 enacts that: “In the exercise of civil jurisdiction, the Supreme court may hear and determine all civil matters whether sitting as a Court of Appeal or in exercise of its original jurisdiction, and it may sit publicly in more than one division at the same time for the dispatch of civil business, each such division may be composed of one or more judges as the nature of the suit or matter may require”.

[97] Section 3 Supreme Court Rules enacts that: “3(a) Every appellant shall not less than 45 days before the date of the hearing of the appeal, serve on the other parties and lodge in the Registry, in such form and manner as may be prescribed by rules of Court, skeleton arguments and submissions on the grounds of appeal. (b) Every other party to an appeal shall, not less than 30 days before the date of the hearing of the appeal, serve on the other parties to the appeal and lodge in the Registry, in such form and manner a may be prescribed, by rules of Court, skeleton arguments and submissions on the ground of appeal. (c) Where any appellant or party to an appeal does not comply with any provisions of paragraph (a)or (b), the court may ask- (i) such order as to costs as it thinks fit; or (ii) any wasted costs or order.”

[98] Rajen Sabapathee v. DPP Privy Council, appeal No. 29 of 1996.

[99] Tyack v. Jhurry, unreported decision.

[100] In Bissessur v. Irrigation Authority 1992 SCJ 392, a dispute arose between an employee and a corporation, but the Supreme Court stated that the dispute was of a contractual nature and judicial review was therefore not granted.

[101] In R v. Epping & Harlow Gen. Commis. Ex parte Goldstraw 1983 3 AER 257, Sir John Donaldson wrote that: “It is a cardinal principle that, save in the most exceptional circumstances, the jurisdiction to grant judicial review will not be exercised where other remedies were available and have not been used”.

[102] In Chief Constable of North Wales Police v. Evans 1982 1 WLR 1155, Lord Hailsham held that: “It is important to remember in every case that the purpose of the remedy in judicial review is to ensure that the individual is given fair treatments by the authority to which he has been subjected and what it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for what of the authority constituted by law to decide the matters in question”.

[103] In R v. Ind. Telev. Commission ex parte TV No. 1 The Times Dec. 30 1991, it was held that even though an application was within the 03 months period, leave still may be refused because on the facts, the application had not been made promptly.

[104] In R v. The Jockey Club Licensing Committee ex parte Wright, 1991 COD 306 QBD, it was held that the grant to leave to move for judicial review was t aside on the ground of material non-disclosure on the part of the applicant, and in the same line the local case of Gopaul v. The National Transport Authority 1991 SCJ 388.

[105] In Togally v. Commissioner of Police 1981 MR 230, it was held that: “There was no obligation on the part of the police to allow and arrested person to receive visits from relatives. As regards the right to consult a legal advisor the Supreme Court held that section 5 of the Mauritian Constitution lays down that it is only if the person is not released after his arrest that he should be afforded reasonable facilities to consult a legal representative of his own choice”.

[106] Section 92 DIC (CJ) Act. Right of appeal. Where any person is charged with an offence before a Magistrate or before the Intermediate Court, an appeal shall lie to the Supreme Court against any final decision of the Court, (a) by the person charged, against his conviction or sentence, where he is sentenced to undergo penal servitude or imprisonment with or without payment of a fine, or to pay a fine of 500 rupees or more; (b) by the Director of Public Prosecutions or, in the case of a private prosecution, by the prosecutor, against any dismissal of a charge or, in the case of a conviction, against the imposition of any sentence.

[107] Section 96 (2)DIC(CJ) Act. Subject to subsections (3), (4) and (5) the Supreme Court may affirm or reverse, amend or alter the conviction, order or sentence, and may, if the order made or sentence passed is one which the trial court had no power to make or pass, as the case may be, amend the judgment by substituting for the order or sentence such order or sentence as the court had power to make or pass, as the case may be.

[108] Section 97(2) DIC (CJ) Act. No conviction shall be quashed on the ground of any defect in substance or in form in the information, warrant or summons, or for any variance unless the Magistrate or Intermediate Court has refused to amend the information and to adjourn the hearing, and unless the court is satisfied that the appellant has thereby been misled or deceived and prejudiced in his defence.

[109] Section 96 DIC(CJ) Act. Powers of Supreme Court on appeal (1) On hearing an appeal, no new evidence shall be admitted, and the information, depositions and other evidence and conviction before the Intermediate or District Court shall be revised by the Supreme Court.

[110] The Double Taxation Avoidance Agreement between Mauritius and foreign countries, especially India, is formd by a network of 33 tax treaties where neither capital gains nor withholding taxes are levied and the Integrated Resort Scheme projects, for example, are also very promising.