The Republic of Mauritius is based on the Westminster Model which provides for the separation of powers. Under this, the Judiciary is vested with all the powers to administer justice. The independence of the judiciary empowers the Courts to uphold the rule of law and to act as guardians of the fundamental rights of citizens as entrenched in the Constitution. For this series of Let’s Talk About, the Chambers of Urmila Boolell SC will focus on the jurisdiction of the Supreme Court and the Judicial Committee of the Privy Council.
THE SUPREME COURT OF MAURITIUS
The Supreme Court of Mauritius is the highest Court of the land and it exercises its supervisory jurisdiction over subordinate courts (District Court, Industrial Court, etc..). It has the sole power to determine whether any provision of the Constitution has been contravened, including the power to determine whether any law enacted by the Parliament contravenes any provision of the Constitution. The Supreme Court has three main jurisdictions namely (i) Civil (ii) Criminal and (iii) Appeal.
CIVIL JURISDICTION OF THE SUPREME COURT
The Supreme Court has exclusive jurisdiction in any civil matter, where the dispute is of a value which is more than MUR 2 million. The Supreme Court also has exclusive jurisdiction in matters pertaining to (i) divorce and matrimonial proceedings (ii) petitions for insolvency and all matters of a commercial nature (iii) admiralty matters (iv) claims for Constitutional relief and (v) matters related to the judicial review of administrative decisions.
Family Division
The Family division of the Supreme Court exercises its jurisdiction on any matter under the Divorce and Judicial Separation Act or under any other enactment which relates to alimony, maintenance, the custody or guardianship of minors, other than a matter which is under an enactment within the exclusive jurisdiction of a Magistrate.
The Commercial Division
The Commercial Division entertains, hears and determines matters arising under the Insolvency Act 2009, Companies Act, disputes relating to banking, bills of exchange, offshore business, patents and trademarks or passing off, disputes between traders and related matters and anything which is deemed to be of a commercial nature.
Master’s Court
The Master’s Court is presided by the Master and Registrar and the Deputy Master & Registrar. It exercises the jurisdiction conferred upon it by the Code Civil Mauricien in relation to successions and wills, the division of immoveable property and by the Sale of Immoveable Property Act. The Master’s Court also deals with and rules upon all pre-trial issues for civil cases lodged before the Supreme Court.
The Mediation Division
The Chief Justice may, upon the application of any party, refer a civil suit, action, cause or matter pending before the Supreme Court to the Mediation Division. The aim of mediation is to dispose of civil suits, actions, causes or matters by a common and mutual agreement between the parties or alternatively to narrow down the issues of a dispute.
CRIMINAL JURISDICTION OF THE SUPREME COURT
The Supreme Court has the power to try any person charged with having committed a crime or a misdemeanour. Assizes and serious drug cases are heard at the Criminal Division of the Supreme Court. Offences laid under the Criminal Code falling under the exclusive jurisdiction of the Supreme Court are tried at the Criminal Division before a Presiding Judge and a jury. Conversely, there are certain offences which do not require the need of a jury trial.
The Supreme Court is empowered to inflict penal servitude for up to life in cases of murder.
DID YOU KNOW?
Criminal trials are either (i) held before a Presiding Judge and a jury consisting of 9 persons who are qualified to serve as jurors or (ii) before a Presiding Judge without a jury.
APPELLATE JURISDICTION OF THE SUPREME COURT
The Supreme Court has full power and jurisdiction to hear and determine all appeal cases, whether civil or criminal, from the decision of:
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- a Judge in the exercise of his original jurisdiction;
- the Master’s Court;
- the Intermediate Court;
- the Industrial Court;
- the District Courts,
- Bail and Remand Court;
- and any other Court or body established under any other enactment.
Appeals to the Supreme Court are heard before at least two Judges, except as otherwise provided any other enactment.
Court of Civil Appeal
The Court of Civil Appeal is a Division of the Supreme Court. It hears and determines all appeals from the decisions of the Supreme Court sitting as the Court of first instance in civil proceedings. It is constituted of two or three Judges, as the Chief Justice may decide. Where the Chief Justice is absent or unable to sit on the Court of Civil Appeal, the Senior Puisne Judge presides.
Court of Criminal Appeal
The Court of Criminal Appeal is also a Division of the Supreme Court. It is constituted of three Judges and has full power to hear and determine all appeals from the decisions of the Supreme Court sitting as the Court of first instance in criminal proceedings. The Chief Justice and, in his absence, the Senior Puisne Judge, presides.
THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL
The Judicial Committee of the Privy Council (JCPC) is the final court of appeal of Mauritius. When Mauritius became a British colony in 1810, it was proclaimed that any litigant in a court case could appeal to His Majesty’s Council. After the independence in 1968, Mauritius deemed it fit to maintain the Judicial Committee of the Privy Council as its highest court of appeal. However, there are specific instances where an appeal can be made before the JCPC such as:
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- final decisions in any civil or criminal proceedings and on questions relating to the interpretation of the Constitution;
- where the matter in dispute is of the value of Rs 10,000 or upwards or where the appeal involves directly or indirectly a claim to or a question respecting property or a right of the value of Rs 10,000 or upwards;
- final decisions in proceedings under section 17 of the Constitution for the enforcement of protective provisions;
- with leave of the Supreme Court, where in the opinion of the Court the question involved in the appeal is one that by reason of its great general or public importance or otherwise ought to be submitted to the Judicial Committee.
FINAL THOUGHTS
The Supreme Court of Mauritius was established in its current form in 1850, replacing the Cour d’Appel established in 1808 during the French administration. On the 30th July 2020, the new building of the Supreme Court was inaugurated jointly by the Indian Prime Minister Narendra Modi and the Mauritian Prime Minister, Pravind Jugnauth. The Chief Justice is the head of the Court and has precedence over any other judges in Mauritius. The current Chief Justice is Mr Asraf Ally Caunhye.
By Cedric Tuyau, LL.M
Legal Editor
Next week the Chambers of Urmila Boolell SC will take a look at the Subordinate Courts of the Republic of Mauritius.
