Elections & Community-based Politics
Qs & As
The Best Loser System was devised in particular circumstances of fear generated in minorities during the transition to independence and can be said to have played some role in allaying that fear, while by the same token, entrenching community-based politics ever since. Neither the Court cases, spearheaded by ReA, nor the Law Lords, nor even the pronouncements of the UN Human Rights Committee, can solve for us a complex political issue. Lex comments the history of such rulings for MT readers.
* The case of Rezistans ek Alternativ (ReA) against mandatory declaration of communal classification of candidates for general elections purposes came up again on 13 Sept 2021. The mandatory ‘community’ declaration was initially rejected in 2005 by the Supreme Court; that decision was subsequently reversed by another Bench. ReA took up the case to the Privy Council, which in 2011 recommended that the issue be rather determined by a local court – thus the case now being heard by the Supreme Court. Why does it seem to be such a hard-constitutional nut to crack?
Parliament consists of 70 members, 62 elected and 8 chosen according to the Best Loser System which also forms part of the Constitution. A balance has to be struck, on the one hand, between the composition of parliament which the Constitution states has 70 members, including Best Losers, and the right of a citizen to stand as a candidate without any shackles in the way of standing as candidate, including communal affiliation that may smack of discrimination.
* Why did the Supreme Court find the mandatory declaration of communal classification of candidates unconstitutional, and why was that judgement subsequently reversed?
In the first judgement, Justice Balancy was of the view that the regulation that compels a candidate to inscribe his community on the Nomination Paper was unconstitutional. He wrote as follows: “It may appear strange, in strict logic, that nomination, which is effected by a prescribed number of registered electors may, once complete, be thereafter rendered void by the subsequent refusal of a candidate to declare to which of the stated communities he belongs.”
The Full Bench of three judges subsequently held that “although an independent unreturned candidate has no claim to any one of the additional eight seats under the First Schedule, yet if he is elected, the declaration as to his community plays an important role in the determination of the eight additional seats.”
The Full Bench further held that “prospective candidates at a general election are under a legal obligation to declare on their Nomination Papers the communities to which they belong, failing which, their Nomination Papers will be held invalid by their respective Returning Officers.”
The Full Bench was more concerned with the spirit of the Constitution that details how candidates should be nominated as Best Losers and thereby the Court strictly followed the principle that Parliament cannot be deprived of the additional seats by simply obviating the insertion of one’s community on one’s Nomination Paper.
* Why did the Privy Council refrain to make a pronouncement on that issue, and was that to be expected from the Law Lords?
The case went to the Privy Council on a special leave application to appeal the judgment of the Full Bench of Mauritius. The law Lords gave two reasons to refuse special leave for the case to be heard by them. The main reason reads as follows:
“In the opinion of the Board, it is of the utmost importance that, save perhaps in an exceptional case, the Judicial Committee should not pronounce upon what are or may be issues of considerable constitutional importance without having the benefit of the opinion of the Supreme Court or the Court of Appeal upon them. Those courts have much greater familiarity with the history and development of the voting system in Mauritius and, so far as they may be relevant, with both issues of policy and the political realities in Mauritius today. They are in a far better position than the Board, at any rate in the first instance, to grapple with such issues and to identify which issues are in truth issues of law and which are issues of policy.”
* The constitutional provision that requires the mandatory declaration of communal classification of candidates, is meant for the purpose of the Best Loser system (BLS). A favourable judgment of the Supreme Court would challenge the BLS which is founded on the ethnic classification of the population. How would this impact the composition of Parliament following the nomination of elected members in the absence of the BLS?
The Constitution in its article 31 makes provision for 70 members. It does not say that parliament should consist of 70 members as the Supreme Court determined in the case of Roussety v Electoral Supervisory Commission in 1982 following the general elections of that year which resulted in one party winning all the seats. Only four seats were allocated on community basis.
* The United Nations Human Rights Committee ruled in 2012 that the mandatory declarations of candidates at general elections violates Article 19 (b) of the United Nations Civil and Political Rights Covenant. Strictly speaking, did it rule against the BLS and the ethnic classification of the population?
No, it did not rule against the BLS. All it said was that the obligation imposed on every candidate at general elections to declare the community to which he or she belongs violates the International Covenant on Civil and Political Rights.
* The BLS was introduced in a particular politico-communal context, and seen from a broader perspective, not the restrictive legal one, it could be argued that it has served its purpose well to this day by ensuring a more or less fair representation of the different communities in Parliament. Isn’t that so?
Let us face it. Mauritius is a victim of its sociological make-up and historical circumstances. Prior to and during the campaign for independence, fear was instilled in the so-called minorities that they would be swamped by the majority community. The BLS was a means of attenuating the fears of the so-called minorities. The tragedy of that majority population is that it has been parcelled into many minorities on a caste basis. Had there been a consensus in favour of independence, the history of the country would have been different.
* The negative (political) point that can be made against the ethnic classification of the population and the BLS is that such classification is and can be leveraged by politicians for electoral reasons and for ensuring their self-perpetuation. A divided nation can only serve their interest, right?
Indeed. Look at how elections are fought and won. Look at how candidates are chosen to stand in particular constituencies. Look at the pressure group represented by different socio-cultural groups and the influence they have on the community of castes they portend to represent. Look at the lobbies of other communities who exact certain advantages before they would vote for a particular party or candidate.
* One could argue that the BLS has outlived its purpose 53 years after Independence, but how do we ensure a fair representation of all communities in Parliament without the BLS?
Has it outlived its purpose? Do you think that with the abolition of the BLS people will stop thinking on communal lines? With or without the BLS, candidates will be chosen by their respective parties and by the electorate on communal and caste lines.
* There’s also the electoral behaviour of voters. An analysis of election results since 1967 to this day indicates that the vast majority have voted on communal grounds. That particular electoral behaviour, mostly based on communal considerations, is checked – but not entirely – by our electoral boundaries which results in all communities being represented in Parliament. Isn’t that sufficient?
Whatever proposals the electoral boundaries commission comes up with, that will not make any difference. People’s minds have already been poisoned by communal and caste considerations when they go to vote. Add to this the influence of money. So, the winning formula is about community plus caste plus money. This is the winning formula at an election. There are no principles, no ethical considerations; people only talk of patriotism when it suits them…
* If the people were to decide in favour of the maintenance of the BLS, wouldn’t it suffice to make bring a permanent amendment to the Constitution, not a mini-amendment as resorted to by the then Ramgoolam-led government for the 2014 general election, to remove the obligation of mandatory communal classification of candidates for general elections purposes? Would that be feasible?
The Full Bench stated the following:
“Although an independent unreturned candidate has no claim to any one of the additional eight seats … yet if he is elected, the declaration as to his community plays an important role in the determination of the eight additional seats.
“Indeed in order to determine as to which community a seat is to be allocated in turn, it is essential to ascertain the number of persons of that community who have been returned as successful candidates, irrespective of the party to which those persons belong as that number will be a component of the denominator by which the total number of persons comprising that community as per the 1972 census will be divided in order to ascertain the representation of that community in respect of each exercise for the purpose of allocating the additional seats.
“In the absence of the declaration of the community of a successful candidate, irrespective of whether he belongs to a party or not, the whole exercise will be stultified, thereby rendering nugatory the allocation of the eight additional seats.”
So, if a candidate does not declare his community, he would not qualify to be considered for a best loser seat, but his election would jeopardise the BLS calculations.
* After the 2019 general elections, upon a report of Rezistans ek Alternativ, the United Nations Human Rights Committee, in 2021, have called once again to the State of Mauritius to comply to the pronouncement of the United Nations Human Rights Committee, of 2012. What if the Government of Mauritius decides to ignore that ruling. Are we bound to comply with its ruling?
Technically NO. But as a rule, it would not look good if we were to ignore the rulings of international bodies dealing with human rights. So, it would be wise for the government and all political parties to come up with a political reform acceptable to all communities and which will comply with international conventions.
* At the end of the day, shouldn’t it be best left to the people of Mauritius – not the Courts nor the UNHRC – to decide what electoral system or reformed system they want for their country, one that would have passed the test of a three-quarters parliamentary majority? Isn’t it what the British Law Lords in their wisdom intimated?
It is more a political matter than legal. The Privy Council did not intervene and suggested that the matter be better left to the local authorities, either the Supreme Court or the legislature, to take the appropriate decision. It also suggested that it would have been better for ReA to enter a constitutional case instead of challenging the decision of the Electoral Supervisory Commission regarding the declaration of communal affiliation in Nomination Papers by candidates; it did not make any pronouncement on any constitutional issue. It therefore remains to be seen whether the matter will ultimately be trashed out by the Supreme Court or by the Legislature.
* Published in print edition on 21 September 2021
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