The Constitution (Declaration of Community) (Temporary Provisions) Bill
« In its Explanatory Memorandum, the Bill limits the application of the proposed remedy ‘to the next general elections’ only ‘pending the subsuming of the Best Loser System in a different method of allocating additional seats’. Why should the Members of the National Assembly be made to endorse such a blank cheque commitment without any public mandate and tie their hands for the future? Far from defusing and permanently resolving the human rights issue of non eligibility of candidates, who refuse to declare their community, to participate in general elections, it allows this Damocles sword to remain hanging over Mauritius’ human rights record… »
The Constitution (Declaration of Community) (Temporary Provisions) Bill is to be tabled in the National Assembly on Friday 4th July. In a pre-scripted scenario, limited interventions principally by political leaders are expected followed presumably by a vote.
The 4th of July which is the Independence Day of the United States represents a symbol of freedom from Colonialism and a hallmark of democracy and the unalienable rights of the people, in the world. Yet, it is a let-down that after all the hype, the Bill which is one of the outcomes of the protracted discussions which have monopolised the attention of Government and the Opposition and the country for more than three months, has, apart from being posted online on the National Assembly website last week, not been officially communicated and explained in a spirit of transparency to the general public and the people.
After all the heightened build up regarding the urgency of addressing the censure of the United Nations Humans Rights Committee, it would have been logical and in order for the proposed remedy to be made available for public comment. It seems that this is not going to be so. Is the debate going to be the preserve of a handful of political leaders, two of whom have already discussed and agreed on the final text?
An examination of the draft Bill calls for inter alia the following comments and questions. The remedy being proposed allows a candidate the option to ‘elect not to declare the community to which he belongs’. If the candidate ‘does not make such a declaration’, it is implicit that he will now be allowed to participate in the elections. However, there is a built-in penalty for opting as a Mauritian not to declare the prescribed community he belongs to. Thus, the Bill ‘decrees’ in Article 4 (2) (a) that a candidate who does not declare the community to which he belongs to ‘shall be deemed to have opted not to be considered for the purpose of the allocation of additional seats’ pursuant to the First Schedule to the Constitution ‘and no additional seat shall be allocated to him’.
On the one hand, we are repeatedly told that the prime intent is to do away with communalism in the country but in reality, the Bill penalises the candidate who opts by not declaring his community to take a stand against communalism, by denying him the right to benefit from the allocation of additional seats.
When a candidate stands for election in a democracy, should he not benefit from all options available in the prevailing electoral system, to get elected?
Why should he, from the outset, be debarred from the Best Loser System (BLS) prescribed in the First Schedule of the Constitution whose computation we know is based on communal classification, even if the number of votes obtained by him at the general elections qualifies him as a ‘Best’ Loser?
Is it not important in the context of the BLS that the notion of ‘Best Loser’ i.e. having the highest vote tally after the elected in the Best Loser System, is not muted? Where it is convenient, the rules governing the BLS are already being tweaked in the proposed Bill.
Thus, Article 4 (2) (b) of the Bill aimed at remedying the situation stipulates that
‘Where a candidate has not declared his community and is returned as member, the Electoral Supervisory Commission shall, for the sole purposes of determining the appropriate community and allocating additional seats, proceed on the basis of the average number of returned members belonging to each community at all general elections held since 1976.’
As detailed in the Government White Paper on electoral reform tabled on 24 March 2014, we already know that valid and legitimate questions have been raised by the Supreme Court and the Judicial Committee of the Privy Council to the legislators as to whether the use of the now 42-year-old 1972 census figures (as opposed to using latest census figures contained in the original text of the First Schedule of the Constitution replaced by the 1972 census figures by the Government in 1982) to determine Best Losers can, as stipulated in paragraph 5(1) of the First Schedule of the Constitution, ‘ensure fair and adequate representation of each Community’.
The Judicial Committee stated that it made no sense to use such outdated figures. Can the use of the average number of returned members belonging to each community at all general elections held since 1976 in the specific scenario envisaged under Article 4 (2) (b) of the Bill detailed above, meet the test of judicial scrutiny?
As amoebas adapting to a hostile medium, what if political parties deliberately decide not to declare the community of some of their most electable candidates in safe constituencies so as to try, in case of victory of one of these candidates, to trigger the application of Article 4 (2) (b) of the Bill and benefit from the additional seats allocated under its provisions?
In its Explanatory Memorandum, the Bill limits the application of the proposed remedy ‘to the next general elections’ only ‘pending the subsuming of the Best Loser System in a different method of allocating additional seats’. Why should the Members of the National Assembly be made to endorse such a blank cheque commitment without any public mandate and tie their hands for the future?
Far from defusing and permanently resolving the human rights issue of non eligibility of candidates, who refuse to declare their community, to participate in general elections, it allows this Damocles sword to remain hanging over Mauritius’ human rights record. Is that deliberate so as to provoke continued urgency and create a platform for discussions between the Government and the Opposition to push forward with the disputed electoral reform proposals and other unavowed objectives?
In the light of all the above, shouldn’t the Bill be reviewed accordingly?
If we are to be logical in our approach, we should resolve the U.N. human rights issue by simply indefinitely allowing candidates who elect to do so, the option not to decline the community they belong to. The qualification and caveat in the first paragraph of the Explanatory Memorandum namely ‘to the next general election pending the subsuming of the Best Loser system in a different method of allocating additional seats’ should therefore be deleted. The paragraph should simply state that ‘The object of this Bill is to make special provision regarding the declaration of a candidate as to his community in general elections.’ It should clearly state that ‘It is no longer mandatory for a candidate to declare his community to be eligible to participate in general elections’.
Let us therefore not muddle things up and address and resolve in an unequivocal manner the Human Rights issue on which there is broad consensus, first. This will enable the country to have the serenity to take the time necessary to bring in the more important reforms to our Constitution and Bill of Rights through a Constituent Assembly with the help of internationally recognized constitutional jurists in a comprehensive manner which reflects our national ethos and democratic values in the interests of the nation rather than political imperatives.
* Published in print edition on 4 July 2014