The temporary remedy being proposed in the Bill to comply with the UN Human Rights Committee ruling is neither effective nor satisfactory
The live televised debates on the ‘The Constitution (Declaration of Community) (Temporary Provisions) Bill have exposed its many failings and shortcomings. Hiding behind the convenient alibi that an ideal solution does not exist and that it is not possible to find a better alternative cannot mask the fact that in spite of the collective effort and minds put in by the Government/Opposition over some two months, it is a botched up draft Bill.
The televised debates have underscored the weakness and flimsiness of some of the arguments advanced by both the proponents and some opponents of the Bill. It also laid bare so many questionable and seedy aspects of our democracy. The selected participants in the debate very often spoke only cursorily on the tenor of the Bill itself but took advantage of the live TV broadcast to dwell (unchecked) lengthily on communal hangovers of the past, when most of today’s Mauritians were not even born, to justify the Best Loser System (BLS) whilst speaking of nationhood, nation building and meritocracy in the same breath.
In this respect, it was shocking to hear the infra dig remarks made by several Members of the National Assembly to cast aspersions and taint the memory of the 1948 general elections which is a glorious moment in our struggle for freedom when for the first time in our history the Labour Party and its candidates led by Guy Rozemont won a decisive victory at the general elections against the forces of reaction. The elections which were based on franchise (voting right) extended to all adults who could write their name resulted in a resounding victory of the Labour Party and its party candidates, carried by the will of the downtrodden people united in a common resolve, irrespective of their creed or community, to get rid of the ruling oligarchy. The voters exercised the power of their vote as only one community, that of the oppressed under the yoke of an unjust regime they willed to overthrow.
Thanks to a campaign of mobilisation by the Labour candidates, there was a surge of support among the significantly larger electorate in favour of the Labour Party. Guy Rozemont was himself elected the first Member from Port Louis together with Dr Edgar Millien and Renganaden Seeneevassen. Although the Labour Party won the majority of the 19 elected Members of the Legislative Council, the Governor-General appointed, as provided in the new Constitution at the time, 12 conservatives to negate the election result and to tip the scales against the will of the people to shore up the numerical strength of the defeated reactionary forces in the Council. The stalwarts of that ‘golden’ generation drove a parliamentary and political process which was with other like minded Mauritians to steer Mauritius and the people towards freedom.
Other participants in the debate also used the live TV platform to extol the merits of the proposed electoral reform when there is no public mandate for it and proposed to use the colourable device of embedding it in the political manifestos of political parties in the next general elections when such a sea change in our electoral system should necessarily be first explained to and put to the electorate for a mandate through a dedicated process of referendum.
In contrast to the situation prevailing in Mauritius, we also had during the debates on the Bill refreshing examples and lessons from the MNA’s from Rodrigues evidencing how Rodriguan candidates to the legislature are chosen on merit rather than communal considerations.
The Government and the MMM who have jointly drafted the Bill and are secure in obtaining the required majority of three quarters to pass the Bill appeared hostile to valid criticisms and arguments made on the Bill by Members of the Opposition and aired by the public. In the best traditions of a banana republic, there is also an absence of fair reporting as the national TV and the partisan press occulted these criticisms from their respective news reports. The live TV broadcasts also revealed certain high-handedness towards the opponents and those critical of the Bill reminiscent of the arbitrariness of Napoleon in George Orwell’s Animal Farm. Is that a glimpse of what we are to expect should the aborted alliance were to jell and come to power?
In a democracy, the National Assembly or the Parliament is a forum for honest and thoughtful debate to arrive at a consensus especially on pieces of legislation which are to amend the Constitution, the supreme Law of the country. In the interests of the nation, democrats should be open and receptive to constructive criticisms instead of camping on their flawed positions.
The prime object of the Bill is to provide an effective remedy to comply with the United Nations Human Rights Committee ruling that Mauritians cannot be debarred from participating in elections if they decide not to declare their community. This fundamental right cannot be thwarted because of the method of calculation based on communal statistics underpinning the Best Loser System, an ancillary appendage to our electoral system. The right of a citizen to participate in elections is an unalienable right in a democracy. The effective remedy proposed in the Bill should have unequivocally stated that ‘It is no longer mandatory for a candidate to declare his community to be eligible to participate in elections to the National Assembly’. Instead, the mini amendment provides only a temporary respite by giving the option to a candidate to ‘elect not to declare the community he belongs’ till the next general elections only (although the subsequent election is only in 2020) but concurrently debars him from the right to benefit from the allocation of additional seats. This penalty imposed in the Bill on those Mauritians who take a stand against communalism and do not declare their community in effect perversely coerces all candidates to declare their community if they want to benefit from the Best Loser System (BLS). It undermines nation building. One of the proponents of the Bill has candidly proposed that all candidates should declare their community in order to allow the BLS to function one last time! It should be flagged that, conversely, if all candidates without exception do not declare their community, the BLS will be scuttled.
In spite of reservations and warnings expressed by the Supreme Court and the Judicial Committee of the Privy Council on the use of outdated 1972 census figures, the Bill not only maintains this contested method of calculation of additional seats under Article 4 (2) (c) but also proposes using (in the scenario where a candidate who has not declared his community is returned as member) an alternative method based on the average number of returned members of each community at all general elections since 1976 as well as the benchmark of the outdated 1972 census figures.
Although criticisms made against the tenor of the Bill have elicited belated explanations in the press on the modus operandi of the alternative method of allocating additional seats provided in Article 4 (2) (b) of the Bill, there is a need for the Government to spell out in clear terms the manner this clause will determine the additional seats to avoid ambiguity and angst, before the Bill is put to the vote. It should be noted that an average spanning 34 years and 9 elections cannot be a substitute for the pattern of voting today. An examination of the election results and the allocation of BLS seats over that period shows that a movement of plus or minus one in the community averages used changes the outcome of the allocation exercise.
It is clear from the above that the temporary remedy being proposed in the Bill to comply with the UN Human Rights Committee ruling is neither effective nor satisfactory. Our inability to do so is hobbled by the maintenance of the BLS and its archaic communal basis. After 46 years of independence, do the people and the country not have the maturity to realise that the BLS cannot take precedence and hold the country ransom over strengthening democracy in Mauritius?
It must be remembered that the BLS was to be a temporary and short-lived measure. It must also be underlined that the BLS was couched in such a way that its application and net outcome has never reversed the choice of the electorate at the general elections since independence. An examination of the results of elections as from say the 1991 elections shows that plural Mauritius scientifically fragmented by political parties into the full spectrum of its communal and caste diversity is represented in the National Assembly at each successive election to date. As a consequence of this divisive policy ushered by power driven political agendas, we have all become a part of some minority devised by politicians.
Furthermore, an analysis of the elections results shows that the electorate driven by a greater sense of nationhood than politicians generally vote in a disciplined manner to elect the candidates fielded by their party. This is validated by say the results of the 2010 election where there were only 6 principally urban constituencies and Savanne/Black River where the pattern of voting led to candidates of different parties being elected as opposed to all three candidates of the same party being elected in the remaining 14 constituencies in mainland Mauritius. The rationale underpinning the BLS no longer holds. Is it not time to do away with the BLS which is the root cause of the communal mindset that it engenders? Instead of paying lip service to nationhood, this would be a potent way to genuinely consolidate the nation and strengthen democracy whilst promoting meritocracy in the country. It would break the logjam.
If we are to be humble and honest about the many criticisms levelled against the Bill, shouldn’t it be withdrawn and recast? Is it not time for the people and the political class to take a bold and determinant call to seek consensus to scuttle the BLS?
The legal difficulties in couching such a mini amendment in sound legalese should also humble us to accept that we cannot tinker with other reforms regarding our Constitution as we do not have the pointed expertise and required acumen to take on such a complex task. As has been the case in major democracies such as India and the US, the Constitution cannot be modified or amended by the State’s normal legislative processes. Instead, the more challenging task of a comprehensive review of the electoral system and reform of our Constitution to render it on a par with the best democratic Constitutions in the world would necessarily require the setting up of an independent Constituent Assembly working under the expert guidance of eminent international constitutional jurists. To do otherwise would invite a backlash and sanction by the people.
* Published in print edition on 11 July 2014