Electoral Supervisory Commission
should seek court ruling on meaning of Sino-Mauritian
Who is a Sino-Mauritian for the purpose of Paragraph 3 of the First Schedule of the Constitution of Mauritius? As a starting point it should be clear that the National Assembly is constituted of 70 members. The first 62 members are elected members and the remaining 8 seats are allocated by the Electoral Supervisory Commission to best losers.In normal circumstances neither independent candidates nor any party which has not returned at least one candidate may participate in the allocation of additional seats. The allocation of the first four of the eight additional seats is made on a communal basis to the most successful candidates based on the 1972 official census. Once this exercise is carried out, the next four seats are allocated to preserve to the most successful party its majority over other parties as determined at the polls which the allocation of the first four seats may have upset.
The allocation of 8 additional seats is justified on the ground that they will ensure a “fair and adequate representation of each community”.
Apart from the fact that there are problems inherent in the best loser system as it gives rise to communal considerations in a constitutional context, the meaning ascribed to the term appropriate community under the First Schedule remains to date a most unsatisfactory state of affairs. The definition of appropriate community is a circular one since paragraph 3(4) of the First Schedule provides that “the population of Mauritius shall be regarded as including a Hindu Community, a Muslim Community, and a Sino-Mauritian Community; and every person who does not appear, from his way of life, to belong to one or other of those 3 communities shall be regarded as belonging to the General Population, which shall itself be regarded as a fourth community”.
The other difficulty (if not absurdity) relates to the fact that the outdated 1972 census is used to ensure a “fair and adequate representation of communities”.
Three points call for comments.
The first two communities Hindu and Muslim are described on the basis of faith whilst the third community Sino-Mauritian is described on the basis of ancestral origins.
Second, the General Population is regarded as a fourth community accommodating all those who cannot from their “way of life” categorize themselves as belonging to the Hindu/Muslim/Sino-Mauritian community.
Third, the expression “way of life” is nebulous as a criterion and means different things to different people at different times. In the case of Carrimkhan V Tin How Lew Chin & Ors, Mr Justice Settling highlighted these difficulties when considering the meaning of “way of life”.
“Way of life,” he explained, “may depend on a series of factors — the way one dresses, the food one eats, the religion one practices, the music one listens to, the films one watches. External appearance and the name one bears are also pointers as to the community to which one may belong. The expression “way of life” used in the First Schedule has never been put to the test and some 33 years after the Constitution was drafted one cannot escape the conclusion that a common way of Mauritian life has gradually and steadily developed in Mauritius which cuts across communal barriers. (…)
“Our attention has been drawn to the fact that a way of life can also be dependent on a class distinction, for a rich Hindu and a rich Sino-Mauritian may have a similar way of life, depending on their financial means, whereas a rich Hindu and a poor Hindu may lead altogether different ways of life.”
The formulation for the determination of best losers is arguably outdated. Whatever may have been the legitimate qualms of some members of the judiciary (see Judgment Narrain v ESC, Marie v ESC), the fact is that the judiciary has no option but to interpret and apply the law as it presently is. In its interpretation of the law, it is of critical importance that the judiciary must not be unduly influenced by considerations as to what the law should be as opposed to what the law, even if found distasteful, actually is.
Mauritius, as a nation, was forewarned by Professor De Smith (Constitutional Commissioner for Mauritius, prior to independence) of the deleterious effect of embedding communal considerations in our Constitution. In his book “The New Commonwealth and its Constitutions” referred to by Justice Lallah in the case of Duval V Francois 1982 Mr. 1984, de Smith wrote the following:
“…the idea of minority communities should be guaranteed special representation is seldom acceptable in Africa. Communalism stands for divided loyalties; it inhibits the development of a national consciousness; it is identified with religious fanaticism… In the UK Jews, Roman Catholics and West Indians may suffer unofficial discrimination in various ways but it is not thought necessary to give them distinct representation in the House of Commons. Why then should it be thought necessary to single out communal groups in new states for this form of preferential treatment?”
Professor De Smith expressed the same concern at paragraph 19 of the Sessional Paper No 2 of 1965 of the Mauritius Legislative Assembly when dealing with the question of communal representation:
“Some proponents of communal representation sought to show that this would discourage communalism and strengthen tendencies to vote along party lines; others conceded that it would encourage communalism, asserted that in any event communalism is an ineluctable fact of life in Mauritius. My own belief is that the immediate effect of the introduction of communal representation in any form would be to intensify communalism by endowing it with the accolade of legitimacy, that candidates in an electoral campaign would experience irresistible temptations to appeal to the narrower communal prejudices, that there would be increasing demands for communal representation in other walks of private life, and that the long-term effects would be deleterious both to the minorities which now think of it as a safeguard and to the general welfare of the island.”
Who is a Sino-Mauritian for the purpose of paragraph 3 of the First Schedule of the Constitution? The ancestral origin of the person is in my view a determining factor as well as such other factors as the name of the person, the club he belongs to, the festivals he celebrates, the food he eats, among others. It would be difficult on the basis of these criteria for Mr Sunil Dowarkasing, candidate at the last general elections, to be eligible to be registered as a Sino- Mauritian. But that only partly answers the question, since the other question which arises is whether a person whose ancestral origin is Chinese, celebrates the Spring Festival and is a member of a Chinese association can be debarred from declaring as belonging to the General Population.
It can be argued that those who drafted our Constitution had expressly provided for a community categorized as Sino- Mauritian and a person satisfying the criteria mentioned above should de facto be disqualified to declare himself or herself as General Population.
It is a matter upon which the Electoral Supervisory Commission should seek the ruling of our Constitutional court to avoid any future uncertainty on the matter, unless the National Assembly takes the cue and provides for reforms.
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