Kara Sears
Madagascar has a civil law system based on the old French civil code and customary law in matters of marriage, family, and obligation. The country has undergone a succession of four republics in 50 years since its independence, with legislative unification underway since. The legal system is affected by the long process of procedures, the interference of authorities, and the lack of information about legal affairs and jurisprudence. The right to a fair and public trial is provided by law, but the courts have the authority to direct that a trial be closed to protect the victim or to maintain public order. The Constitution includes a guarantee of the political neutrality of the police and the right of all persons to life, with no one able to be arbitrarily deprived of life.
| Characteristics | Values |
|---|---|
| Type of Law | Civil law system based on the old French civil code and customary law in matters of marriage, family, and obligation |
| Legal System | Supreme Court, Appeal Courts, Tribunals and the High Court of Justice |
| Jurisdiction | Two levels: the independence of the judge and the authority of the judgment |
| Marriage | Arranged by the elders of each spouse, with consent from both families |
| Divorce | Allowed, e.g. if the husband isn't providing enough food or the wife isn't caring for the children |
| Adoption | Occurs occasionally, with requirements such as residency for at least one parent |
| Inheritance | Determined by the product given up, e.g. land goes to the oldest male child, jewellery to the oldest female child |
| Constitution | The 2010 Constitution guarantees the right to life, freedom from torture, and political neutrality of the police |
| Military Courts | Generally follow civil judicial procedures, except military jury members must be officers |
| Human Rights | An Ombudsman promotes and protects human rights, but has been criticised for ineffectiveness |
| Financial Disclosure | Law requires income and asset declarations by high-ranking individuals, including Prime Minister, ministers, and military officers |
| Labour Laws | Not effectively enforced, with common violations of wage, overtime, and occupational safety standards |
| Nationality | Previous nationality code resulted in statelessness for some Muslims and South Asians |
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What You'll Learn
- Madagascar's legal system is a civil law system
- It is based on customary law and the old French civil code
- The country has undergone a succession of four republics in 50 years
- The Malagasy Constitution guarantees human rights and the protection of individual liberties
- The legal system is affected by a long process of procedures and the interference of different authorities
Madagascar's legal system is a civil law system
The French Code de Commerce is the only codification that has remained unchanged since Madagascar's independence. Some of the new laws were adaptations of French law, which were accepted in areas where there was no Malagasy tradition. The Commission on the Reform of Commercial Law drafted a commercial code in 2001, based on the OHADA uniform law on companies, which represented a total reform of company and business association law.
The Constitution of Madagascar includes a guarantee of the political neutrality of the police, and the right of all persons to life, with no one able to be arbitrarily deprived of life. It also states that no one may be subjected to torture or cruel, inhuman, or degrading punishment or treatment. The 1998 Constitution confirms respect for human rights and the protection of fundamental individual and collective liberties, as well as transparency in the conduct of public affairs and the application of the rule of law. It also prohibits all discrimination based on sex, education, wealth, origin, race, religion, or opinion.
The legal system is affected by the lengthy procedures, the interference of different authorities, and the lack of information about legal affairs and jurisprudence. The President of the Republic appoints and revokes magistrates by decree, and the government must provide counsel for all detainees. There are two main law enforcement agencies in Madagascar: the National Police, which is responsible for urban areas, and the Gendarmerie Nationale, which polices outside urban areas.
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It is based on customary law and the old French civil code
The legal system in Madagascar is a civil law system based on customary law and the old French civil code in matters of marriage, family, and obligation. The country's legal system has been influenced by customary law and the French civil code, with some unique features and developments over time.
Customary law, as the term suggests, is based on the customs and traditions of a community. It is often unwritten and focuses on regulating social relations within the community. In the context of Madagascar, customary law plays a significant role in marriage practices. Traditionally, marriage in Madagascar is arranged by the elders of each spouse's family, and both families must consent to the union. This practice is rooted in the cultural value of strengthening familial and social relationships through marriage.
The French civil code, also known as the Napoleonic Code, has also left its mark on Madagascar's legal system. During the colonial era, the French legal system was imposed on the island, and even after independence, some aspects of French law remained. Notably, the French Code de Commerce was retained in its original form after Madagascar gained sovereignty. Additionally, the civil and criminal procedure codes promulgated in 1962 were influenced by the French legal tradition.
The amalgamation of customary law and the French civil code in Madagascar's legal system is a unique blend. The Malagasy law is one of the first to successfully combine customary African law with European civil law. This fusion is evident in various aspects of the law, including inheritance practices. Inheritance in Madagascar is determined by the nature of the property being passed on. For example, land is typically inherited by the oldest male child, while jewellery is inherited by the oldest female child.
Since independence, Madagascar has undergone significant legislative reforms and has transitioned through four republics in 50 years. Each republic has brought changes to the constitution and the legal framework. The most recent constitution, the 2010 Constitution of the Fifth Republic of Madagascar, guarantees fundamental rights and freedoms, including the right to life, protection from torture, and freedom of assembly. It also establishes the independence of the judiciary, with the Supreme Court, Appeal Courts, Tribunals, and the High Court of Justice holding judicial power.
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The country has undergone a succession of four republics in 50 years
Madagascar has a civil law system based on the old French civil code and customary law in matters of marriage, family, and obligation. The country gained independence in 1960, and in the first 14 years after independence, Madagascar underwent legislative drafting and reform. The goal of the drafters was to maintain custom in written law, and Malagasy law was the first to amalgamate customary African law with European civil law.
Since independence, Madagascar has undergone a succession of four republics in 50 years. The first Republic, which was relatively stable, ended in May 1972. President Philibert Tsiranana, known as the father of independence, dissolved the Parliament and handed over power to the army Chief General Ramanantsoa, who proposed a provisional Constitution.
In December 1975, following a coup d’état, the Constitution of the Second Republic (called the Democratic Republic of Madagascar) was adopted by referendum, and Lieutenant-Commander Didier Ratsiraka was elected President. The Third Republic was established after the controversial 1989 presidential elections, which saw prolonged periods of protests and demonstrations against President Ratsiraka. A compromise was reached with the insurgent government, and the Constitution of the Third Republic was adopted by referendum in August 1992.
The Constitution of the Fourth Republic was established in 2009, and the most recent constitution, that of the Fifth Republic, was ratified in 2010. It includes provisions such as the right to life, freedom from torture and cruel punishment, and the guarantee of the political neutrality of the police.
Madagascar's legal system is affected by lengthy procedures, interference from different authorities, and a lack of information about legal affairs and jurisprudence. The country's Supreme Court, Appeal Courts, Tribunals, and High Court of Justice have judicial power according to the Constitution and the law. The President of the Republic appoints and revokes magistrates by decree, and there are two levels of jurisdiction in the legal system: the independence of the judge and the authority of the judgment.
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The Malagasy Constitution guarantees human rights and the protection of individual liberties
Madagascar's legal system is a civil law system based on the old French civil code and customary law in matters of marriage, family, and obligation. During the first 14 years after independence, Madagascar underwent legislative drafting and reform, amalgamating customary African law with European civil law. This resulted in the creation of the Code Civil Malagacge, a reformed French civil code that followed indigenous customary laws in matters of marriage, family, and obligations.
The Malagasy Constitution, first drafted in 1992, guarantees human rights and the protection of individual liberties. The Constitution explicitly outlines the fundamental rights of individual citizens and groups, including freedom of speech and freedom of the press. It also guarantees the existence of an independent press, free from government control or censorship. The Constitution provides for the separation of powers among the executive, legislative, and judicial branches of government, and the creation of a multiparty political system.
The Constitution ensures that the exercise and protection of individual rights and fundamental liberties are organized by law. It guarantees freedom of opinion and expression, communication, press, association, assembly, travel, conscience, and religion for all citizens. These freedoms may be limited in respect of the rights and liberties of others and to maintain public order. The Constitution also grants citizens the right to leave and return to the territory, and the right to travel and settle freely within the Republic, while respecting the rights of others and the law. It ensures the protection of an individual's person, residence, and correspondence.
The Malagasy Constitution affirms the country's adoption of the International Charter of Human Rights, the African Charter of Human Rights, and the Convention on Children's Rights, considering them an integral part of Malagasy law. It emphasizes respect for and protection of fundamental liberties, individual and collective, and the separation and balance of powers through democratic procedures. The Constitution promotes openness in the conduct of public affairs to guarantee citizen participation and effective supervision. It establishes the principle of equality before the law for citizens and public officials.
The Constitution of Madagascar has undergone several amendments, with the third constitution being amended in 1995, 1998, and 2007. These amendments reflect the country's commitment to protecting human rights and individual liberties, adapting the legal framework to the evolving needs of its people.
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The legal system is affected by a long process of procedures and the interference of different authorities
Madagascar has a civil law system based on the old French civil code and customary law in matters of marriage, family, and obligation. During the first 14 years after independence, Madagascar engaged in legislative drafting and reform, amalgamating customary African law with European civil law. This resulted in the creation of the Code Civil Malagacge, a reformed French civil code that followed indigenous customary laws in matters of marriage, family, and obligations. Additionally, a new civil and criminal procedure code was promulgated in 1962.
The legal system of Madagascar is influenced by a long process of procedures and the interference of different authorities. The country has experienced a succession of four republics in 50 years, with each president working to limit the power of the legislature. This has prevented the legislature from effectively exercising its supervisory functions and has allowed presidents to create an impression of due process while serving their interests. The judicial power in Madagascar is vested in the Supreme Court, Appeal Courts, Tribunals, and the High Court of Justice, with two levels of jurisdiction: the independence of the judge and the authority of the judgment. The president of the republic appoints and revokes magistrates by decree, and the legal system is affected by the interference of various competent or incompetent authorities in penal procedures.
The country's legal system also faces challenges such as a lack of information about legal affairs and jurisprudence, as well as rumors of corruption. There have been concerns about human rights violations, including torture and degrading treatment during arrest and police custody. The National Assembly's decision to assign the role of promoting and protecting human rights to a national Ombudsman has been criticized for relying on moral persuasion rather than concrete action.
Madagascar's legal system also includes military courts for trials of military personnel, which generally follow the procedures of the civil judicial system. However, military jury members must be officers, and trials are not public. The law provides for the right to a fair and public trial, but courts can direct that a trial be closed to protect the victim or maintain public order. The right to a presumption of innocence is often ignored by authorities, and prolonged incarceration without charge and postponed hearings are common.
The enforcement of labor laws is also an area of concern, with a lack of labor inspectors and insufficient inspections leading to widespread violations of wage, overtime, and occupational safety and health standards, especially in the informal sector and domestic work.
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Frequently asked questions
Madagascar has a civil law system based on the old French civil code and customary law in matters of marriage, family, and obligation.
Civil law is one of the most common legal systems in the world, originating in Europe and influencing the legal systems of many countries, especially former colonies. It is a comprehensive, codified system that focuses on legislation, where laws are organised into codes that cover specific topics.
Customary law is based on the customs and traditions of a community and is often unwritten. It is usually developed in small agrarian and hunter-gatherer communities and tends to focus on reconciliation rather than punishment for law infractions.
Madagascar's legal system is based on the French civil code, with the Code de Commerce remaining unchanged after independence. The country has also incorporated customary law, especially in matters of marriage, family, and obligations. The Constitution of Madagascar guarantees human rights, including the right to a fair and public trial, respect for human rights, and the protection of individual and collective liberties. The legal system includes two levels of jurisdiction: the independence of the judge and the authority of the judgment.
