S.Modeliar

Michael Sik Yuen: Best loser!

 

The appointment of Mr Michael Sik Yuen as a Member of the National Assembly under the Best Loser system as a member of the General Population has provoked some reaction from politicians, the press and the Fédération des Créoles Mauriciens (FCM). The FCM accuses Michael Sik Yuen of having resorted to a “usurpation de l’identité culturelle de l’autre”, and adds that what the new Member of Parliament did goes against the Constitution.

Others argue that the stratagem of Michael Sik Yuen may be a colourable device to enter Parliament but is not illegal. Paul Bérenger, the leader of the MMM, who himself was saved by the Best Loser system in 1983 expressed the view that the MMM legal advisers were studying the issue of allocation of seats in general and more particularly the case of Michael Sik Yuen because he may have “faussé le système de best loser”.

 

 

The Constitution provides that: The Assembly shall consist of persons elected in accordance with the First Schedule, which makes provision for the election of 70 members (Section 31.2 of the Constitution).
Section 1.1 of the First Schedule states: There shall be 62 seats in the Assembly for members representing constituencies and accordingly each constituency shall return 3 members to the Assembly in such manner as may be prescribed, except Rodrigues, which shall so return 2 members.

Section 5.1 of the First Schedule also states: In order to ensure a fair and adequate representation of each community, there shall be 8 seats in the Assembly, additional to the 62 seats for members representing constituencies, which shall so far as is possible be allocated to persons belonging to parties who have stood as candidates for election as members at the general election but have not been returned as members to represent constituencies.

It is precisely to give effect to section 5.1 of the First Schedule on the allocation of additional seats that candidates have to declare their respective community on the Nomination Paper. It is that process of appointing best losers that ensures that the Assembly will have 70 members or less according to the results of the elections. In 1982, the MMM had, as one party, won all the seats only four additional seats were allocated on a community basis and the remaining four that have to be allocated both on a community basis, if this is feasible, and on a party basis were not allocated following a judgment of the Supreme Court. The word feasible is used in view of the wording of Section 5.4 of the First Schedule that provides that, in the absence of an appropriate community, the seat can be allocated irrespective of community. Presumably this is why only seven best losers were allocated following the 2010 elections.

Now Section 3.1 of the First Schedule to the Constitution states that: Every candidate for election at any general election of members of the Assembly shall declare in such manner as may be prescribed which community he belongs to and that community shall be stated in a published notice of his nomination.

Michael Sik Yuen decided to register himself as a member of the General Population. His Nomination Paper was published and nobody challenged the Nomination Paper as being flawed on account of the designated community. A challenge against a Nomination Paper is possible by virtue of section 3.2 of the First Schedule which reads: Within 7 days of the nomination of any candidate at an election, an application may be made by an elector in such manner as may be prescribed to the Supreme Court to resolve any question as to the correctness of the declaration relating to his community made by that candidate in connection with his nomination, in which case the application shall (unless withdrawn) be heard and determined by a Judge of the Supreme Court, in such manner as may be prescribed, within 14 days of the nomination, and the determination of the Judge shall not be subject to appeal.

Instead of playing politics and demagoguery, the FCM or the leader of the MMM should have sought advice from good lawyers and act accordingly. Nobody thought of section 3.2 of the Constitution. When the FCM says that Michael Sik Yuen has usurped the identity of others, one wonders whether the FCM can establish this baseless accusation legally. It is high time that the FCM stops analyzing every situation on a pure ethnic basis because the appellation of General Population in a Nomination Paper cannot and should not be decided by the FCM or the MMM but by the Supreme Court. The Constitution does not say that the authorization of the FCM is required before a potential candidate uses the appellation General Population on his Nomination Paper.

Let us take a concrete example to explain how irrational the stand of the FCM and the MMM is. If we have a person born of a Hindu father and a mother who belongs to the General Population and that person decides to stand as a candidate and registers himself as belonging to the General Population, what right will the FCM have to question that fact? Michael Sik Yuen is biologically of Chinese origin but that does not prohibit him from living according to the customs of another community.

Section 3.4 of the First Schedule provides: For the purposes of this Schedule, 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.

Who is prepared to say that Michael Sik Yuen is not from his way of life a member of the General Population whilst respective the cultural heritage that his biological birth entitles him to do. We all in Mauritius use fire crackers to celebrate New Year or an important event. That does not make us all Chinese but we have adopted that tradition as part of the multi-cultural society to which we belong.

The elections are behind us. Let us move on. There is no legal basis to challenge Michael Sik Yuen’s nomination. There can be only an ethnic motive in some crooked minds.

 

S. MODELIAR

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