‘Communal representation is not a human right’

Qs & As

‘As long as no one is prohibited from standing as a candidate regardless of race, no human rights issue arises’

* ‘Whether we like it or not, proportional representation will still be shaped by party leaders’ communal and caste considerations’

By Lex

Discussions regarding the reform of the electoral system invariably includes the controversial plan to do away with the Best Loser System (BLS). The BLS was originallyimplemented as a constitutional measure to guarantee better representation for all ethnic groups, with a focus on the Muslims and the General Population minority groups. While the system has historically worked well, it faces continuing criticism that it institutionalizes communalism in Mauritian politics. In its place, some have argued for the adoption of a Proportional Representation (PR) system.

One alternative proposed was a PR model that would effectively subsume the BLS while simultaneously ensuring that all parties that have crossed a specified national threshold of total votes are also represented in Parliament. Another recent proposal was to have both PR added to the electoral system whilst maintaining the BLS. The debate over abolishing the BLS is one of the most significant constitutional and legal challenges in Mauritius. Beyond the immediate question of the required three-quarters majority, the matter raises several profound issues.

* Even with a three-quarters majority, does Parliament have the legal power to remove a provision considered by many to be part of the Constitution’s fundamental, unchangeable structure?

First, it must be established whether the provision forms part of the Constitution’s fundamental structure, such as the right to life or the prohibition against inhuman treatment or torture.
When the 1982 MMM government amended the Constitution to make the postponement of general elections almost impossible, this was accepted because elections are part of the Constitution’s fundamental, unchangeable structure.
Can it be said that communal representation in a multi-ethnic society is so fundamental to democracy that it cannot be amended or abolished?

* Could the judiciary be asked to rule if the principle of a multi-ethnic, pluralistic democracy — which relies on minority representation — is so essential that Parliament cannot legally remove it, even with a supermajority (three-quarters) vote?

Parliament may amend the section on multi-ethnic representation if it secures the required weighted majority. The Supreme Court may always be solicited to challenge the abolition of multi-ethnic representation. But on what grounds could such a challenge be made?
Would the argument be that abolition is undemocratic? Would it be that each community has an undeniable right to a specific number of parliamentary seats? Would it be argued that a member of a minority community is elected primarily to serve that community rather than the constituency or the nation?

* Even if the required votes are secured, can someone still take the government to court to argue that abolishing the BLS is wrong or unfair to minority groups?

If and when a proper substitute is found to replace the BLS, it will be difficult to challenge its abolition. Proportional representation may be used by party leaders to correct any communal imbalance.

* The BLS uses community numbers from way back in 1972. Is it constitutional to keep using data that is over 50 years old to decide how seats are given out today?

Justice Sachs explains this clearly in his report:

“By being based fairly and squarely on community and religious identification, the BLS finds itself isolated and stranded as an uncomfortable relic of an earlier era. The degree of reassurance it provides is more of a symbolic and emotional nature than a practical one. Such comfort as it offers comes at the price of it appearing as odd and anachronistic to the very security it was designed to offer. It carries with it the real danger of marginalising from the rest of society those identified with it, so that what started off as intended to be a protection could end up becoming an impediment.”

* Is the current BLS system itself illegal or discriminatory because it forces people to declare their ethnic group for political reasons?

It is a fact, with few exceptions, that political leaders consider ethnic factors when selecting candidates, and it is common to see mixed-ethnicity candidate slates in some constituencies. This reflects the demographic profile of constituencies, as politicians believe they stand a better chance of election where a majority of voters share their ethnicity. All political parties have used this approach to maximise electoral success. So far, nothing illegal has been found in the system.

* Any reform must satisfy international human rights conventions, particularly the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Abolishing the BLS without a proper substitute could be seen as a retreat from the obligation to ensure effective representation for minority groups, isn’t it?

Communal representation is not a human right. The Constitution and international conventions prohibit discrimination against individuals on the grounds of race or religion. As long as no one is prohibited from standing as a candidate regardless of race, no human rights issue arises.

* If the BLS is abolished, could the State face a challenge from minority groups at an international forum, arguing that the new system (e.g., pure Proportional Representation) fails to provide the special measures necessary to ensure their effective representation?

Except in a few constituencies, can a candidate seriously claim that he can only be elected through votes exclusively from his own ethnic group or caste? Historical examples show otherwise:

– In 1959, Mr Foondun, a Muslim standing for the IFB, defeated Robin Ghurburrun, a Hindu, standing for Labour.

– In 1963, Mr Ajum Dahal, a Muslim candidate for Labour, defeated Dharma Rajan, a Hindu, of the IFB.

– In 1982, Azize Asgarally defeated Sir Satcam Boolell in the predominantly Hindu constituency of Montagne Blanche.

These facts speak for themselves.

Historical electoral results indeed show that candidates often win outside their community, and electoral success is not determined solely by ethnic alignment.

* If a mixed system (FPTP + PR) is adopted, what specific constitutional safeguards must be embedded within the PR component to ensure it demonstrably achieves the “adequate representation” that the BLS was designed to guarantee?

Since a dose of proportional representation is being proposed, this method would undoubtedly be used to correct communal imbalances arising from general election results. This is precisely what the BLS sought to do.
But how can such imbalances be assessed if candidates do not state their ethnicity — or are prohibited from doing so — on Nomination Papers? That is the real difficulty.
Whether we like it or not, proportional representation will still be shaped by party leaders’ communal and caste considerations to ensure that each segment of the population is fairly represented if under-represented in the FPTP results.

PR will likely be used to correct under-representation arising from FPTP. However, without community declarations on nomination papers, calculating imbalances becomes extremely complex. In practice, party leaders will continue balancing their lists along communal lines.

* What is the legal risk associated with introducing a national threshold for PR seats? Could a threshold that is too high be challenged as being unfair or discriminatory to smaller political parties representing specific demographic interests?

This depends on the percentage proposed. A threshold that is too high may be held unconstitutional if it prevents smaller parties from obtaining any representation in Parliament.

Mauritius Times ePaper Friday 28 November 2025