The National Assembly meets today in a special session, after over two months of prorogation, to consider the minor amendment to the Constitution which will render unnecessary the declaration of the community to which he belongs by a candidate to the General Elections in Mauritius. It will be recalled that this is a demand of the Rezistans ek Alternativ party whose struggle on this issue took it, eventually, right up to the United Nations Human Rights Committee (HRC). The Committee took up the issue at its 105th session, held from 9 to 27 July 2012, and made its views known to the State party.
Taking into cognizance that ‘the Committee has to determine whether the mandatory requirement to declare a candidate’s community affiliation is based on objective, reasonable criteria, which are neither arbitrary nor discriminatory’ HRC came to the conclusion that ‘the continued maintenance of the requirement of mandatory classification of a candidate for general elections… would appear to be arbitrary.’ Further, this amounted to a ‘violation of the rights of the authors (NB: Rezistans ek Aklternativ) under article 25 (b), of the Covenant,‘ and opined that ‘the State party is under an obligation to provide the authors with an effective remedy, … and to reconsider whether the community based electoral system is still necessary. The State party is under an obligation to avoid similar violations in the future.’
It is in response to meeting this obligation of the UN HRC that ostensibly the National Assembly was prorogued so that, according to the Prime Minister, the government could focus all its energies on working out the necessary amendment(s). Apparently, this could not be done while the National Assembly would be in session, because it was so important that it needed the exclusive attention of Parliamentarians. In reality, a Committee was set up under Minister Satish Faugoo to make proposals about electoral reforms, while the two leaders, Navin Ramgoolam and Paul Berenger were effectively discussing with each other what to them was probably their main issue of concern, namely the sharing of power in a new configuration between the two them as President and Prime Minister respectively.
Since these two leaders, following their back and forth engagement (with Berenger keeping a door open to the MSM and the latter through SAJ expressing eventual willingness to welcome him back as a pese nez-nez boire di l’huile gesture) were not able to come to any agreement, a small team headed by the Attorney General and including ex-Chief justice Sir Victor Glover was appointed to work out the minor amendment to the Constitution. This is what will be presented tomorrow to the National Assembly, and the expectation is that there will be the required three-fourths majority to have it passed.
However, Rezistans ek Alternativ has made it known that even if this were to happen, it would not be adequate, as it would still leave the door open for parties to accommodate candidates on the basis of the BL system. Thus they rightly argue that the element of community — read communalism – is not eliminated altogether despite the amendment.
A first point that must be made relates to the manner of working out the minor amendment to the Constitution. It is significant that Sir Victor Glover himself has observed that given the criticality of this issue, it would have been preferable to have three to four Constitutional experts from abroad to assist the country in this matter, besides the short amount of time that the Committee was given to work the amendment out. Nevertheless, he added, he felt that they had done a good job. This is not convincing, given his own comment on the need for foreign expertise and the time inadequacy.
This is about a minor amendment. Now imagine the scenario when it comes to the major amendments that are required to be made to the Constitution for the purpose of a Second Republic with the sharing of powers between the President and the Prime Minister. Clearly, if we go by Sir Victor Glover’s reservations, both foreign expertise in Constitutional matters and much more time will be absolutely necessary. The task may even take a couple of years. Previous analyses in this paper have drawn attention to the amount of time and the profound deliberations that went into the working out of other Constitutions, such as that of India to which our legislators have a tendency to refer frequently. Should we not, then, heed that lesson?
Besides the political consideration of the inherent instability about a bipolar power situation, there is the question of all the other matters that need to be addressed in the Constitutional amendments, such as party financing or the terms of the mandates of ministers/the prime minister/ the president about which not a word has been heard from the mouth of the leaders.
And, given the past history of the party leaders in this country, what is there to guarantee that any combination of alliances will be able to work together for the whole duration of a mandate? As Rajiv Servansingh has noted earlier, ‘Without such a clear understanding there is bound to be either a deadlock or, in spite of whatever niceties may be exchanged between the two contenders, an unsustainable compromise carrying within it the seeds of its own destruction.’
Moreover, we have not heard anything about a larger vision, a common programme which must be clearly spelt out before the people by any potential alliance partners, so that the people can then decide whether to grant approval or not. It can be seen that there are far too many pending issues and matters of serious import, and that a hatchet job of amendment(s) to the Constitution will ill serve the interests of the population, although it may benefit the individual leaders in the fulfilment of their personal agenda. In Mauritius at least, in recent times it has not been evident that the personal agendas of its leaders are coterminous with the national agenda or interest.
* Published in print edition on 4 July 2014