In November 1964, when the Constitutional Commissioner Professor Stanley Alexander de Smith submitted his Report to the then colonial government, he expressed his concerns with regard to the question of communal representation as a guarantee to minorities. He warned that communalism stands for divided loyalties. It inhibits national consciousness.
After listening to the numerous proposals that were made by different socio-cultural groups and political parties on the appropriate electoral process for a newly independent Mauritius, he felt that we were going down a path that would heighten our existing communal differences, “inasmuch as communities are stirred to fuller self-consciousness and electoral campaigns are dominated by appeals to communal prejudices; and new communities discover themselves as further claims to separate representation are lodged”.
Professor de Smith had earlier made the same point in his book ‘The New Commonwealth and its Constitutions’ in relation to the representation of minority communities, when he wrote, at page 117, the following:
“The idea that minority communities should be guaranteed special representation as such in the legislature is seldom acceptable in Africa and Asia today. Communalism stands for divided loyalties; it inhibits the development of a national consciousness; it is identified with religious fanaticism or tribal separatism or economic and social privilege. In the United Kingdom, Jews, Roman Catholics and West Indians may suffer unofficial discrimination in various ways, but it is not thought necessary or desirable 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? The outside observer who detects the accents of special pleading must remind himself that communal representation, in so far as it entails the reservation of seats for communal members elected only by members of their own communities, has a poor record.”
He felt strongly about the deleterious effect of communal representations within the electoral system and wrote in that Report:
“Some of the 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 but asserted that communalism was in any event 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.”
Unfortunately the political class failed to pay heed to the wisdom of the Professor and today after 45 years of independence we are faced with the stark reality of deciding whether the Best Loser System is still necessary or has in effect has outlived its usefulness. It should have been clear to us that the Human Rights Committee set up under the Optional Protocol has its own way of couching its language. It should also have been clear to us that they are advising the abolition of the Best Loser System purely and simply.
The Committee also makes it clear that the right of vote is sacrosanct and so is the right to participate in an electoral process, and we would be acting in clear violation of our commitments under the Convention by debarring a candidate from standing on the grounds that he had failed to disclose his communal belonging.
Obviously Mauritius cannot behave like a rogue state and we should rejoice that Rezistans ek Alternativ has persevered in their convictions by seizing the Human Rights Committee. This pronouncement will no doubt have a strong persuasive effect on a future case raising similar issues before the Privy Council. By saying that the views expressed by the Committee are not binding or simply imposes a moral obligation on Government is merely postponing the issue.
It is a tragedy that once again the political class will ignore the warnings of Professor de smith. Listening to Rama Sithanen two days ago on radio, it was clear that the same communal assumption to the effect that communalism is an ineluctable fact of Mauritian life will be made. As a result, it is safer if we move from an explicit system of institutionalized communalism to that of an implicit system which has no constitutional entrenchment. Such confused thinking can be dangerous and harmful as Mauritians are being encouraged to think that the expressions of their right can only be asserted on communal basis.
Listen instead to the hearts of the youth of this country, the very ones who rejected the proposals of Rama Sithanen at the University of Mauritius. They speak the language of national consciousness; they can afford to do so, and they are not seeking desperately for communal votes.