You are on page 1of 14

Sources of law

It is therefore not denied that the sources of our law in Mauritius are therefore a good
mixture of French law (coutumes, usages, les lois) and English law (statutes in the form of The
Criminal Procedure Act, The Companies Act, The Banking Act, The Labour Act..)

A public Act which relates to matters affecting the general public, a private Act which relate to the
powers and interests of particular individuals or institutions and delegated or enabling legislation.

Examples of public Act:


1. Education Act 1957 (Act 39/1957)
2. Banking Act 2004 (Act 35/2004)
3. Prevention of Corruption Act 2002 (Act 5/2002)
4. Road Traffic Act 1963

Examples of Private Act:


1. Louis Espitalier Noel Foundation Act 1974 (Act 36/1974)
2. Maharishi Dayanand Institute Act 1984 (Act 10/1984)
3. La Clinique Mauricienne Act
4. Nunkeesor Saddul Foundation Act 1983 (Act 24/1983)

• Case law- Hasam v Deedarally 1989 MR 278/SCJ 409 ( In copybook )

There are different sources of law. They are, inter alia,:


1. Common Law
2. Equity and trust
3. Judicial precedents
4. Legislations
5. Law of European Communities
6. Customs and usages
7. Law merchant
8. Canon Law
9. Roman Law
10. Doctrine (or text books)
11. German law
12. The Constitution
13.#International customary law(law of armed conflicts and international humanitarian law)
Common law
In that sense it was possible to view the common law as a collection of general customs nationally
applied. In fact it was far more likely that judges arrived at their own conclusions; it was they who
made up the law, using their makers in their own right. From early days, however, the courts imposed
certain tests in order that a local custom could be recognized by the judges as part of common law. In
practice customs that dated from after 1189 were still often accepted by the courts.

Equity and common law


The expressions ‘equity’ and ‘rules of equity’ were synonymous with rules of justice and conscience.
Accordingly, the principles originally applied by Lord Chancellors to determine disputes were based on
rules of natural justice or conscience. These principles became known as equity. Today, it would not be
accurate to correlate ‘equity’ with ‘justice’, for rules of equity have become settled in much the same
way as the common law’’.

Equity
The first rule that equity established was that ‘equity follows the law’, that is that where there was a
clear rule of law, then the law must be applied. Where there was no clear rule, then equity could
intervene to enable a just result and consequently developed a new and parallel set of rules. This
development occurred predominantly in matters relating to trusts, wills, land and the wardship of
children… Equitable remedies appear to be capable of limitless expansion and adaptation to modern
needs, as shown in the matter of Mareva injunctions and Anton Pillar orders…
Today, therefore, equitable remedies are applied equally in matters of property and trusts and tort and
contract, the sort of issues that the Chancery and Queen’s Bench Divisions of the High Court handle.
Two examples of equitable remedies are promissory estoppels which is a rule of contract law and
equitable execution which is a rule of law that may be applied in bankruptcy hearings.
The application of equitable remedies is at the discretion of the court. They will be used if the court
thinks it fair, reasonable and just to do so, having replied to al the circumstances of the case. Equity
means in a wider sense simply justice, fairness, reasonableness. If something is inequitable, it is unfair
and unjust.

Courts Act, 1945.


Section 16 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.

‘‘A trust is an equitable obligation, binding a person (called a trustee) to deal with property over which
he h has control (which is called the trust property) for the benefit of persons (who are called the
beneficiaries or cestuis que trust) of whom he may himself be one, and any one of whom may enforce
the obligation’’.
The doctrine of judicial precedent
‘‘Their Lordships regard the use of precedent as an indispensable foundation upon which to decide
what is the law and its application to individual cases. It provides at least some degrees of certainty
upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly
development of legal rules. Their Lordships nevertheless recognize that too rigid adherence to
precedent may lead to injustice in a particular case and also unduly restrict the proper development of
the law.

They propose, therefore, to modify their present practice and, while treating former decisions of this
House as normally binding, to depart from a previous decision when it appears right to do so. In this
connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts,
settlements of property and fiscal arrangements have been entered into and also the especial need for
certainty as to the criminal law. This announcement is not intended to affect the use of precedent
elsewhere than in this House’’.

Precedent cases
Sir Rupert Cross’s definition of precedent and common or case-law is as follows. Case-law consists of
the rules and principles stated and acted upon by judges in giving decisions. In a system based on case-
law, a judge in a subsequent case must have regard to these matters; they are not, as in some other legal
system, merely material which he may take into consideration in coming to his decision.

Case Study- Johar v Carrimbaccus 1989 MR 281/SCJ 435


In Johar v Carrimbaccus 1989 MR 282/SCJ 435 Justice Ahnee was following Jacob v Jacob 1956 MR
447 and Hossenbux v Soobhany 1955 SCR 7026 where the Supreme Court considered that ‘out of
work’ implies inability to work and not deliberate abstention from it and stated that if the applicant
stated that she does not work is quite capable of finding some remunerative form of occupation rather
than devote all her time to her children and her prayers.

R v Governor of Brockhill Prison, ex parte Evans 1997 1 All ER 439 Queen’s Bench Division.
The applicant had been sentenced to four concurrent terms of imprisonment for various offences, the
longest term of imprisonment being two years but the governor of the prison took the view that no
discount should be made for the time spent in custody for the other offences. The applicant sought
judicial review of the governor’s decision. The Court held that judicial review would be granted to
quash the governor’s decision because, upon a correct interpretation of the relevant statute law, the
period by which the sentences is to be reduced in such a case is the total period that the defendant spent
in custody before sentence.
R v Governor of Brockhill Prison, ex parte Evans 1997 1 All ER 439 Queen’s Bench Division.
(Contd….)
Bingham LCJ explained that: ‘It has been urged upon us, and we unreservedly accept, that we should
not depart from previous decisions of this court unless we are satisfied that they are wrong. Our
reluctance must be the greater when, as in this case, the authorities have quite rightly founded their
practice on these decisions. We are, however, of the clear opinion that the construction previously pt
upon the legislative provisions we have reviewed was wrong. We are moreover of opinion that that
construction is capable of producing, and has in some of the decided cases produced, injustice.

Doctrine of binding precedents


Two points thus arose: was the Court of Appeal bound by its own previous decisions, that is by its own
precedents (the rule of stare decisis)? This appeared to be so, since the decision in Young v Bristol
Aeroplane Co. Ltd in 1944 clearly laid down such a rule, subject to three basic exceptions. The
exceptions were: where two decisions plainly conflicted with each other; where a decision had been
subsequently overtaken by a decision in the House of Lords; and where a previous decision had been
given per incuriam, in other words negligently. It was this last exception which Lord Denning plainly
sought to expand.

‘Negligence’ is a rather all embracing term; it could certainly mean, for example, that a court had
arrived at a wrong decision in an earlier case because insufficient evidence had been brought before it.
The Master of Rolls, Lord Denning, argued that those exceptions had been built upon so much by the
Court of appeal in the post-war period that the rule was hardly any longer a fixed one and that in any
case as the House of Lords had in 1966 announced that it was free to depart from its previous decisions,
so now should the Court of Appeal. But some of Lord Denning’s colleagues argued that the Court of
Appeal was bound by its own precedents and that it was up to the House of Lords alone to overrule the
Court.

Younghusband v Luftig 1949 2 All ER 72.


Goddard LCJ had this to explain on precedents: ‘Before considering the law applicable to the case, we
think it well to emphasis that a Divisional Court of five judges has no greater powers than one of three
or even two. This court is bound by its own decision as is the Court of Appeal, whatever the number of
judges that constitute it: see Huddersfield Police Authority v Watson. The principles of Young v Bristol
Aeroplane Co ltd apply equally to this court. It was there held by the Court of Appeal 1944 2 All ER
300: ‘‘The only exceptions to this rule … are (i) The court is entitled and bound to decide which of two
conflicting decisions of its own it will follow. (ii) The court is bound to refuse to follow a decision of
its own which, though not expressly over-ruled, cannot in its opinion stand with a decision of the
House of Lords.
Younghusband v Luftig 1949 2 All ER 72. (contd….)
(iii) The court is not bound to follow a decision of its own if it is satisfied that the decision was given
per incuriam.’’ That is to say, the court is not bound by a decision of its own if a case or a statute had
not been brought to the attention of the court and the decision had been given in ignorance or
forgetfulness of the existence of that case or statute. The case most relied on by the appellant here was
Jutson v Barrow 1936 1 KB 236, and it was because the court before which the case which is now
before us came in the first instance thought that there were certain dicta in Jutson v Barrow which
might be in conflict with or go beyond certain earlier decisions, which were apparently not cited, that
they directed a re-argument, and when re-argument is directed it is often desirable that it should take
place before a full court.’’

Legislations and the legislative process.


Legislation consists of the laying down of rules by a body which has law-making authority. Before it
becomes law, an Act of Parliament is known as a bill which may be either private, public or private
member’s bill. According to Section 45 of the Constitution “subject to the Constitution, Parliament may
make laws for the peace, order and good government of Mauritius”. In a democratic country,
Parliament makes laws and the judiciary interpret them otherwise there would be no separation of
powers if, for example, the judiciary interprets law it would consequently usurpate the function of
Parliament.

And Section 46 (1) of the Constitution enacts:-


“The power of Parliament to make laws shall be exercisable by bills passed by the Assembly and
assented by the President”.
Bills are proposed by Parliaments and undergo several readings (first reading, second reading, third
reading) followed by amendments after parliamentary debates during les travaux préparatoires until the
President of the Republic of Mauritius gives his assent unless he decides to bring any amendment to the
bill (which he considered to be ‘anti-constitutional’ for example), bill which he would send back to the
National Assembly for re-consideration and amendment but Parliaments are not bound to follow his
proposals and amendments. Finally, it is passed and published in the Government Gazette in the form
of an Act of Parliament.

In Mauritius, just like in the UK, law has no retrospective effect (section 10(4) Constitution, 1968) for
criminal offences (however, in France criminal law has a retrospective effect and as an illustration
reference can be made to cases where people were convicted for the deportation of jews to Germany
during World War II).

Constitution. Section 10 (4).


No person shall be held to be guilty of a criminal offence on account of any act or omission that did
not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any
criminal offence that is severer in degree or description than the maximum penalty that might have
been imposed for that offence at the time when it was committed.
Customs
In England, just like in France (coutume), customs are those habits observed by human beings
according to their behaviour, manners and conduct in the society.
At international level, some fields and some areas of the law like International Humanitarian Law find
their sources of law in international customary law.

Doctrine
In England, the ‘doctrine’ is not considered as a source of law in the strict sense as it has never been
passed by Parliament. It concerns academic research and articles, the opinions of scholars, jurists,
barristers, judges, professors, just to name a few. Just like in France, Mauritius has its own ‘doctrine’.
In France, the judges will cite Pr Garçon, Pr Garraud, and Pr Ripert; in Mauritius, for example, judges
will cite Venchard or Pr Garron. In Busgeeth v. Busgeeth 1997 SCJ 236, for example, the Supreme
Court of Mauritius referred to an article written by Pr Garron published in the Mauritius Law Review
of 1980.

Natural law
Locke, Wolff et Montesquieu have contributed to natural law. They found that:
1. Natural law existed before society did;
2. It is superior to the law of religion or the law of the State;
3. Law and justice may change according to context of time and place;
4. The true purpose of political association is the assurance of people’s liberty;
5. This liberty can only be ensured if there is a Separation of Powers (legislative, executive and
judiciary) and there are the necessary checks and balances between institutions; and
6. Finally, law should be clear and certain.
According to Grotius: “the laws of nature would exist even if it were conceded’’ and “That there is no
God, or that the affairs of men are of no concern to him”. For Hobbs: “there was one instinct which
ruled life on earth: the law of preservation of life which inevitably forced a ‘social contract’ between
men and men such that they submit themselves to a ‘just sovereign’’ who thereby becomes the sole
judge of what is good for his subjects”. Wolff, the German philosopher, wrote that:
“There are human rights which are universally applicable, without discrimination of race, colour or
creed, freedom flows from obedience to natural law.”

Summary
The Constitution of Mauritius 1968, legislations (Acts of Parliaments, statutes, regulations), precedents
cases, doctrine, customs and usages are the main sources of law in Mauritius. In addition, there are
other sources such as precedents (from the House of Lords, Judicial Committee of the Privy Council,
the French Cour de cassation) and various doctrine (Pr. Camerlynck, Pr. E.Garçon, Pr. R. Garron, Pr.
Ph. Simler), because they are authority in their field, are constantly borrowed from French law and
English law and this inspiration and implementation allow our domestic Courts to enlighten their
decisions. The hiérarchie des normes is therefore in the form of a pyramid with the supreme law of the
land on top with relatively lesser important sources down as summarized below.
Chapter 3 - Constitutional Law and Fundamental Rights

‘‘A fundamental violations of human rights always lead to people feeling less and less human’’-
Aung San Suu Kyi.

Introduction
Mauritius, unlike some other countries, has a written Constitution, which provides for the fundamental
rights of the citizen. A country may obtain a written Constitution as a result of independence, civil war
or from a federation of existing units or cantons. The UK, Israel and New Zealand have no written
Constitution. The Constitution of Mauritius is the supreme law of the country such that ‘‘the terms of
the Constitution are in the nature of absolute commands’’ (per Justice Rault in Babet v R). In Attorney-
General of Trinidad and Tobago & Anor v Whiteman 1991 LRC, p.551 Lord Keith of Kinkel of the
Privy Council stated that:

“The language of a Constitution falls to be construed, not in a 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.”
How should the Constitution be construed and what are its limits are to be found in the leading case of
D.Matadeen and Anor v. M.G.C.Pointu and Ors PC Appeal No.14 of 1997 where their Lordships held
that:
“The Board said in its opinion that ‘a Constitution concerned to protect the fundamental rights and
freedoms of the individuals should not be narrowly construed in a matter which produces anomalies
and inexplicable inconsistencies’’.

Their Lordships would not wish in any way to detract from this statement of principle but it cannot
mean that either section 3 or the later sections can be construed as creating rights which they do not
contain.” It is expected to be at the summit of the hierarchy of norms. Lord Diplock in the famous case
of Thornhill v Attorney General of Trinidad and Tobago 1961 A.C. 61, 71 declared that:
“The rights and freedoms declared to have existed in constitutions and continue to exist are not
described with the particularity that would be appropriate to an ordinary Act of Parliament nor are they
expressed in words that bear precise meanings as terms of legal art. They are statements of principles of
great breadth and generality, expressed in the kind of language more commonly associated with
political manifestos or international conventions…”

There is no proper definition of the word ‘‘Constitution’’. Broadly, it may be defined as a composition
of a written set of rules associated to rights of individuals and powers of the legislative, executive and
judiciary. This is the theory of John Locke which inspired Montesquieu when he wrote ‘‘L’esprit des
lois’’. The function of the legislation is to make or amend law, the executive power will administer and
regulate these laws properly through the ministerial cabinet to ensure the best policy and the judiciary
will be invited to interpret statutes in order to avoid injustice and for justice to flavourish. Although
there is a separation of powers the judiciary, the legislative and the executive must be dependent of
each other but no far. Without a Constitution a State may run into anarchy and by consequence may be
ruined democratically.
It is also a contract between men and the Nation. Individuals must be free and enjoy freedom although
there are laws and strict rules and regulations. This explains sometimes the coercive power of the State.
It is from these rules that courts derive their authority and wisdom. The Constitution of the Republic of
Mauritius is a perfect machine capable of implementing both criminal law and criminal procedure.
There are some important fundamental principles, which are laid out so as to ensure that the liberty and
freedom of citizens and individuals of this country are respected.
Section 1 of the Constitution enacts that: “Mauritius shall be a sovereign democratic State which shall
be known as the Republic of Mauritius”. Section 2 of the Constitution enacts that:
“This Constitution is the supreme law of Mauritius and if any other law is inconsistent with this
Constitution, that other law shall, to the extent of the inconsistency, be void”.
Sections 3 to 16 of the Mauritian Constitution provide protection of fundamental rights and freedoms
of the individual both in criminal and civil cases whereas section 17 is a special enactment as it is
closely associated to practice in our courts that is The Supreme Court (Constitutional relief) Rules
2000.

Right to appeal
If a citizen of Mauritius feels that his constitutional rights have been infringed he can find relief as per
the conditions and rules which are found under The Supreme Court (Constitutional Relief) Rule 2000
provided an application is made under section 17(1) or section 83(1) of the Constitution.
Right to appeal is made a constitutional right (Section 80, 81 of the Constitution-refer to table below) in
Mauritius but depending on the circumstances of the case and /or the nature of the offence an accused
person or a suspect may be admitted to bail according to the new Bail Act 1999 or pending his appeal
but though the Republic of Mauritius is a sovereign country and its judiciary system completely
independent and impartial the Judicial Committee of the Privy Council of her Majesty is retained,
however, as a court of appeal.

The accused and the Constitution


Human rights, protection of fundamental rights and freedoms of the individual can be traced back to
Greek Antiquity where human rights were known, then as natural rights, as it was demonstrated in the
case of Police v Labat by the Supreme Court where it was held that:
‘‘When we deal with what are now commonly called human rights, it is important to remember that
these rights have been known for many centuries as natural rights and have been enforced as such by
the Courts of many countries. Even before the Stoic philosophers formulated the theory of natural law,
the citizens of certain Greek had enjoyed such rights as equal freedom of speech, equality before the
law and equal respect for all’’.
According to the Constitution for example any individual has the right to consult a legal representative
of his choice, to be afforded reasonable time to prepare his defence and to be tried within a reasonable
time. Any individual should be afforded a fair hearing and to be tried before an impartial court within a
reasonable time. It also provides some fundamental rights and freedoms of the individual. In courts
applicants or the accused may appeal to the Supreme Court on serious grounds that they were not
afforded with a fair hearing, issues involved as to the interpretation of sections 5, 10(1) and (2) of the
Constitution, they were not afforded with reasonable facilities for consultation with a legal
representative - in Zahida Banu Mohamed Husain v The State and Shamin Bano Naeemuddin v The
State 1994 SCJ 298; per Justice Lallah and Sik Yuen. In Société United Docks v Government of
Mauritius 1981 MR 500 Justice Rault stated that:
‘‘Every pronouncement of the Constitution enshrined a principle of abiding value and where human
rights are concerned these pronouncements must be given their full force and effect’’.

Right to personal liberty


Section 5 of the Constitution provides protection of right to personal liberty. Section 5(1) of the
Constitution deals with the protection of the right to personal liberty:
‘‘No person shall be deprived of his personal liberty save as may be authorised by law (a)….in
execution of the sentence or order of a court, whether in Mauritius or elsewhere, in respect of a
criminal offence of which he has been convicted.’’
If a person considers that he is illegally detained he may apply for a writ of habeas corpus-infra. A
person charged with a criminal offence must be informed of the reasons for his arrest or detention
(section 5(2) Constitution) or after being arrested or upon being detained to be afforded reasonable
facilities to consult a legal representative of one’s own choice (section 5(3) Constitution) and to be
brought without undue delay before a Court (section 5(3) Constitution).

Right to be tried without undue delay


The accused should be tried without undue delay but provided he knows the reasons of his arrest. There
were contrasting discussions in the local case of Sooriamurthy Darmalingum v. The State 294 SCJ
1997 (per Justice Boolell) where Justice Boolell, after referring to some authorities, stated that the
appellant’s conviction should be quashed because “for the long delay in lodging the information”
whereas in the same case, Sooriamurthy Darmalingum v The State (295 SCJ 1997 per Justice Balancy
and Lam Shang Leen), the case was tried anew but this time before Justices Balancy and Lam Shang
Leen who stated that since there was no evidence that the accused has been prejudiced by the undue
delay and the case was remitted to the Chief Justice.

The right to be informed of arrest and detention


The Court, in the local case of Babeea v R 1981 MR 69, held that:
‘‘The right of a citizen to be informed of what the State holds against him is so important that
specifically provided for whether he is under arrest or detention’’.
Even if the court has reasonable suspicion that the accused committed the offence then the police has
powers of arrest and kept in custody unless bail is granted-Sheriff v District Magistrate of Port–Louis
1989 MR 260. The Bail Act 1989 is repealed. The actual Bail Act 1999 is in force.
Rights of a person charged with a criminal offence
Section 10 of the Constitution enacts the necessary provisions of a person charged with a criminal
offence.
Right to a fair hearing
According to section 10(1) of the Constitution he shall be afforded a fair hearing within a reasonable
time by an independent and impartial court established by law.
In Babet v The Queen and Jandhoo v R 1993 SCJ 332 where the prosecution raised a motion that the
case of rape to be held in camera but defence counsel objected. On appeal the Supreme Court held that
in the particular circumstances the publicity will prejudice the interest of public morality and therefore
the Magistrate of the Intermediate Court granted the motion for the prosecution.

Right of the person charged with an offence in and outside court


The court and the Magistrates or judges who are hearing the case must observed that procedures both
pre-trial and trial are observed, followed and respected in order to provide a fair trial to the accused.
Presumption of innocence
The person charged with an offence is innocent until he is proved guilty (section 10(2)(a) Constitution),
that he has the right to be informed as soon as reasonably practicable, in a language which he
understands
The leading case is R v Kramutally 1989 MR 198 where the accused was charged with murder and at
the preliminary inquiry counsel for the accused moved that various witnesses give evidence in Creole,
as the accused did not understand English.

Interpreter
Section 10 (2) (f) of the Constitution
Provisions to secure protection of law
Every person who is charged with a criminal offence – shall be permitted to have without payment the
assistance of an interpreter if he cannot understand the language used at the trial of the offence
A legal representative of his own choice.
According to section 10(2)(d) of the Constitution:
“Every person who is charged with a criminal offence (d) shall be permitted to defend himself in
person or, at his own expense, by a legal representative of his choice or, where so prescribed, by a legal
representative provided at the public expense.”

Inops consolii.
Section 10 (2) (d) of the Constitution
Provisions to secure protection of law
Every person who is charged with a criminal offence – shall be permitted to defend himself in person
or, at his own expense, by a legal representative of his own choice or, where so prescribed, by a legal
representative provided at the public expense.
Absence of the accused in court.
However if his conduct in court renders the continuance of the proceedings in his presence
impracticable the court may in such circumstances order him to be removed and the trial to proceed in
his absence (section 10(2) Constitution).

Section 10(2)(c) Provisions to secure protection of law


Every person who is charged with a criminal offence – shall be given adequate time and facilities for
the preparation of his defence;
Section 10(3)Constitution.
Where a person is tried for any criminal offence, the accused person or any person authorised by him in
that behalf shall, if he so requires and subject to payment of such reasonable fee as may be specified by
or under any law, be given within a reasonable time after judgment a copy for the use of the accused
person of any record of the proceedings made by or on behalf of the court.

Interpretation of time
Section 10 (4)Constitution.
No person shall be held to be guilty of a criminal offence on account of any act or omission that did
not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any
criminal offence that is severer in degree or description than the maximum penalty that might have
been imposed for that offence at the time when it was committed.

Right to be acquitted for the same offence


Section 10 (5) Constitution. No person who shows that he has been tried by a competent court for a
criminal offence and either convicted or acquitted shall again be tried for that offence or for any other
criminal offence of which he could have been convicted at the trial of that offence, except upon the
order of a superior court in the course of appeal or review proceedings relating to the conviction or
acquittal.
Pardon.
Once a pardon has been granted by competent authority he has the right not to be tried for a criminal
offence for that offence (section 10(6) of the Constitution).

Right to silence.
The defendant or appellant may choose not to depone.
According to section 10(7) of the Constitution:
‘‘No person who is tried for a criminal offence shall be compelled to give evidence at the trial”.
In Mahadeea v The State 264 SCJ 1997 the appellant was prosecuted on information containing two
counts of having had sexual intercourse with a female under the age of 16. He pleaded not guilty but
chose not to depone.
Public courts.
Section 10(9) of the Constitution provides that:
“Except with the agreement of all parties, all proceedings of every court and proceedings for the
determination of the existence or extent of any civil right or obligation before any other authority
including the announcement of the decision of the court or other authority shall be held in public”.

Freedom of conscience.
Section 11 of the Constitution provides for freedom of conscience.
In Minerve v Minerve 1987 the Supreme Court seems to extend the scope of section 11 and applies it to
divorce cases. The respondent changed religion and the Court considered that both parties were at fault
and divorce was granted. When freedom of conscience infra was in issue, in Minerve v Minerve 1987, a
Supreme Court’s case it was found that even one’s willingness to change one’s religion is part of his
freedom of conscience (per section 11 of the Constitution) and divorce was granted on this ground.

Freedom of expression.
Freedom of expression is important in a democratic country provided there is no trial by the press.
The leading case is Duval v The Commissioner of Police1974 SCJ 80A where the appellant sought a
remedy under article 12 of the Constitution and redress from section 17 of the Constitution. The
Supreme Court per Justice Garrioch found judgment in his favour. It is obvious that there must be a
freedom of the press and freedom of expression but in no circumstances the administration of justice of
the Supreme Court must be challenged.

Freedom of assembly and association (Section 13).


Citizens of the Republic of Mauritius enjoy freedom of assembly and association and they must feel
free to belong to trade unions or other associations. However the Commissioner of Police has an
unfettered discretion to control the right to assembly. The Commissioner of Police may prohibit a
gathering when he has reasonable ground to believe that the imposition of conditions will not prevent
public disorder, damage to property or disruption to the community- Bizlall and anor. v Commissioner
of Police 1993.

Freedom to establish schools


Mauritius is a multiracial country. It is well known as a democratic country where religion is tolerated.
In fact, no religious, social, ethnic or cultural association or group shall be prevented from establishing
and maintaining schools at its own expense.
Freedom of movement
Section 15 of the Constitution
Protection of freedom of movement
No person must be deprived of his freedom of movement but to this general rule there are some
restrictions such as an objection to departure where the accused if released will fail to surrender to the
police or authority .
A person charged with a criminal offence would not be afforded freedom of movement so easily. The
court must be satisfied that the accused, before he is released on bail, would not tamper with witnesses
once he is at large or jump bail.

Protection from discrimination


Section 16 of the Constitution
Protection from discrimination
In Jaulim v DPP 1976 the appellant considered that there was discrimination because jurors tried him
where none of them was a woman.