Members of ‘Rezistans ek Alternativ’ (ReA), a political party of Mauritius, had seen their nominations to stand as candidates for the general election of 2005 rejected by the Electoral Commission in May 2005. The rejection was based on the ground that the candidates had not filled in the part of the nomination form giving out their communal belonging, whereas Rule 12(5) of the National Assembly Elections Regulations 1968 requires candidates to specify the community to which they belong.
In November 2005, the Supreme Court (SC) ruled in favour of the Electoral Commission in this regard. It stated that there was a legal obligation for prospective candidates to declare the communities to which they belong, failing which nomination papers would be invalid. By so doing, the SC overruled a previous judgement given by another judge of the Supreme Court to the effect that, by preventing such candidates from standing as candidates for reason that they did not specify their communal belonging, the Electoral Commission had actually denied them their democratic right to stand for an election which he considered to be of higher importance.
It was clear that the contention was between section 1 of the Constitution which declares Mauritius to be a sovereign democratic state and the First Schedule to the Constitution, specifically clauses 3(1), 3(4) and 5 of this Schedule.
Clause 3(1) of the First Schedule states that “every candidate for election at any general election of the Assembly shall declare in such manner as may be prescribed which community he belongs to…”. Clause 3(4) states that “the population of Mauritius shall be regarded as including a Hindu community, a Muslim community and a Sino-Mauritian community; every person who does not appear from his way of life to belong to one or other of those three communities shall be regarded as belonging to the General Population, which shall itself be regarded as a fourth community”.
Clause 5 states that, apart from the 62 elected representatives from the 21 Constituencies of the country, up to 8 additional seats shall be allocated to unreturned candidates in the election “in order to ensure a fair and adequate representation of each community”. The representation is to be based on the distribution of the population among different communities as it obtained from the population census of 1972. The Clause goes on to state how to allocate those seats. In other words, this clause is the provision of what is commonly known as the Best Loser System (BLS).
ReA took the matter before the United Nations Human Rights Committee (UNHRC) in late 2007, claiming that the invalidation of their nomination violated article 25 of the UN Covenant on Human Rights. The case was brought up before the UNHRC in view of the following. The Judicial Committee of the Privy Council (our highest court of appeal) to which ReA had addressed an appeal against the SC’s judgement of November 2005 disqualifying them from standing as candidates for the election unless they declined their communal belonging on the nomination form, had stated not having a locus standi in the point at issue. Further, domestic courts did not have the power to review the Constitution to ensure its compatibility with the UN Covenant on Human Rights. Their objective to be allowed to stand as candidates despite the fact that they could not make out as to which of the four communal categories they belonged to by their “way of life” (a notion unclear to them), was thus frustrated by the existing electoral dispositions. Refusing to classify themselves in anyone of the existing four communal categories, as set out in the Constitution, they took the matter before the UNHRC as they had no other remedies, taking into consideration that Mauritius was a signatory of the UN Covenant on Human Rights.
It is well known that the communal classification of candidates to general elections is required for the purposes of allocating seats in the Assembly under the BLS. Failure to identify oneself as belonging to anyone of the four communal groups would therefore frustrate the mechanism underlying seat allocation under the BLS. It was also brought out before the UNHRC that communal affiliation had not been subject of a population census since 1972, ignoring therefore the population dynamics since then. The BLS being based on that census did not therefore reflect current reality.
The fundamental question before the UNHRC was whether a Mauritian has the right to stand as a candidate at general elections without having to submit to the requirement of his/her communal classification. The UNHRC has, after considering various submissions from the applicants (ReA) and the State, come to the conclusion that the continued maintenance of the mandatory communal classification of a candidate for general elections without the corresponding updated figures of the community affiliation of the population in general, appears to be arbitrary. This violates article 25(b) of the UN Covenant. It has therefore decided that the State should give an effective remedy to ReA, reimburse the expenses incurred by the latter in bringing up the disputed matter and reconsider whether the community based electoral system is still necessary. It has also invited the State to inform it in a period of 6 months of the steps taken by it to give effect to the views so expressed by it.
From 1968 to date, many in Mauritius have evolved their views as to whether giving communal caution of the kind that was then introduced for the sake of comforting minorities about their due representation in Parliament still holds good. On the one side, there is a risk that one might become prisoner of a system which privileged communal representation over citizenship at the time.
On the other side, there is a persistent feeling among some groups about the risk of their being under-represented in the absence of the BLS. They consider that the level of stability delivered by the BLS is a “bird in hand worth two in the bush”. As regards the UNHRC, its duty is to identify whether the system in place puts in jeopardy the democratic rights of individuals. It has delivered its judgment on this score, asking the State not to deny those wanting to stand at general elections from so doing for refusing to classify themselves in an unclear communal construct.
But there are larger considerations of social stability which dictate that the transition from an existing individual democratic-right denying system to a fairer non-arbitrary system should be proceeded with only after a pragmatic and concrete alternative to the existing system has been established. We need to know whether and how to gestate from an imperfect womb another child which is fair to all while not being discriminatory at the level of individual rights. It is not a question simply of writing off something which has been found to be cumbersome to individual rights. One needs a workable system acceptable to all to substitute for the system that has prevailed so far. Any alternative should undoubtedly command massive popular support taking into consideration the stability of our fragile social system.
* Published in print edition on 7 September 2012