The Best Loser System
Paragraph 3 of the First Schedule to our Constitution sets out the basis on which the best loser system functions in that it deals with the mandatory declaration of community by a prospective candidate to a general election.
(1) 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.
(2) 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to his community made by that candidate in connection with his nomination, in which case the application shall (unless withdrawn) be heard and determined by a Judge of the Supreme Court, in such manner as may be prescribed, within 14 days of the nomination, and the determination of the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.
(3) For the purposes of this Schedule, each candidate at an election shall be regarded as belonging to the community to which he declared he belonged at his nomination as such, or if the Supreme Court has held in proceedings questioning the correctness of his declaration that he belongs to another community, to that other community, but the community to which any candidate belongs for those purposes shall not be stated upon any ballot paper prepared for those purposes.
(4) 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.”
In the year 2000 in the case of Carrimkhan vs Lew Chin and Ors, in which Justice Seetulsing made the following observation which did not get the attention which it deserved:
“Although some may hold the view that the members of the General Population are Christians, nowhere is this mentioned. Thus, the General Population means that all the inhabitants of Mauritius who are not Hindus, Muslims or Sino-Mauritians fall into that category. Paragraph 3(4) of the First Schedule is very clear in this respect. The General Population is, what some may call, a residual group, which is considered to be a community for the allocation of the best loser system seats.”
What this reveals is that the declaration of community is not as simple an issue as it would at first appear. Can it be gainsaid that the best loser system, as it is, ensures that there will be adequate representation for the representatives of the Christian component of the Mauritian population?
In the last general elections, the declaration of community of Michael Sik Yuen as representative of the General Population was not challenged pursuant to paragraph 3(2) of the Constitution so that it would not be futile to revisit the issue as to whether Michael Sik Yuen is really a representative of the General Population or the Sino-Mauritian community.
Interestingly, in the recent case of Dany Sylvie Marie and Dhovajen Vencadsamy and others v ESC and the State  UKPC 45, the Judicial Committee highlighted the thorny issue of declaration of community as follows:
“The Board was told that until this case there had only been one challenge under paragraph 3(2) to the correctness of a declaration relating to community. That was in the case of Parvez Carrimkhan v Tin How Lew Chin (2000) SCJ 264. Like the applicants in this case, the respondents disapproved of the best loser system. They only entered a community on the form in order to be able to stand and they chose a community only after the drawing of lots. It appears that, again like the applicants here, they did not intend to take one of the eight seats available under the best loser system.
“Seetulsingh J discussed some of the problems of deciding what community a person belongs to. Not unnaturally, he rejected the declaration of community based on the drawing of lots. He said that he was unable to decide whether, from their way of life, the respondents belonged to the Hindu, Muslim or Sino-Mauritian communities. He held that, in these circumstances, the only alternative was to hold that they each belonged to the fourth category identified in paragraph 3(4), namely the General Population.
“In the light of the substantive issues between the parties in the proposed appeal, it is perhaps noteworthy that Seetulsingh J said that he understood that a project of electoral reform was on the cards and expressed the hope that what he regarded as defects in the system would be remedied in the near future. The Board was told much the same in the course of argument.”
Having regard to the above, can it be said that the best loser system protects the right to adequate representation of all communities when someone who is apparently Sino-Mauritian may choose to stand as a member of the General Population? (It is assumed for the purpose of argument that it is generally agreed that in the Mauritian context, ‘General Population’ would imply the members of the Mauritian community who are Christian).
Further, it is important to note that for the computation of the best loser seat, the 1972 census has been used as a basis. This begs the following questions:
(a) Has the demography of Mauritius remained static since the 1972 census?
(b) If the answer to (a) is in the negative (it is safe to assume this), is the very basis for computing the best loser seats not inherently flawed?
The MMM, abolished the requirement to declare one’s community for the purposes of the census in Mauritius and is now timidly defending “the retention of the best loser system until the system dies out on its own”. How this warped logic can be justified is best known to the thinkers of the MMM. It is unfortunate that nobody from among those who take the axe whenever non-MMMs make convoluted statements of the sort, has taken the MMM to task on this issue as yet.
What the MMM has so far failed to explain is that notwithstanding its perverse stand, according to the findings of Dr Rama Sithanen, 82% of Muslim MPs have been elected since 1967 through the First Past The Post system. Given the stand of the MMM on the best loser system, one should think whether the party is still committed to “ene sel lepep, ene sel nation” or whether realpolitik has taken over the party after two successive electoral defeats which have also seen its support from the Muslim community wane…
Another flaw with the current best loser system is that the number of electors in a constituency affects the allocation of best loser seats. As matters stand, a candidate can secure a best loser seat with far fewer votes than another one belonging to the same community and the same party. This statistical aberration in itself gives rise to the thorny issue of whether one Mauritian elector’s vote carries the same weight as the next one.
One merely has to look at the number of electors in constituencies No 2, and 3 as compared with constituencies Nos. 5, 15 or 14. This shows that some constituencies return 3 MPs for half or one-third the number of votes required to return an MP in another constituency. Again, for purely political reasons, political parties have not sought to ensure that constituencies are more or less of the same size with more or less the same number of electors. This issue is intricately linked to the computation of best loser seats but it would take a brave politician to tackle it. From what we have seen, we may as well leave matters here, as we may no longer have politicians of this mettle in our midst.
It is time for our political class to address their mind to the fact that since 1968, we have come a long way and that the days of the best loser system, as rightly mentioned by the DPP, S Boolell SC, in the latest issue of the DPP’s newsletter, are numbered. Those who think otherwise are not moving with their times.
* Published in print edition on 27 January 2012