Best loser system: “Sometimes protection by communalism is essential”  

Interview: Barbara de Smith

* “We tried to avoid institutionalizing communalism, yet we have seen what has happened: bombing, bloodshed and very unpleasant social relations” 


 * “Stanley de Smith never had the slightest doubt that Mauritius would be a huge success and would become prosperous,
which it has”

Mrs Barbara de Smith, a Senior Member of Wolfson College, Cambridge, is presently in Mauritius as guest of the Mauritius London School of Economics Trust Fund. She is the widow of Professor Stanley de Smith, who was Constitutional Commissioner in the crucial period when Mauritius was in the process of gaining independence. Drawing from the privileged position gained while assisting her late husband during those decisive pre-independence days when the constitutional talks were being conducted by the different Mauritian delegations to England, and her own academic grounding, she has delivered lectures and talks to University of Mauritius students and to the Bar Council about the “Life and work of late Stanley de Smith” and on “Exporting the Westminster Model”. She spoke to the Mauritius Times about the Constitution and some other issues likely to interest our readers…

Mauritius Times: You have spoken about the “Life and work of late Stanley de Smith” at the Bar Council, this week. I believe your late husband must have kept abreast, down the years, with the constitutional process here since Independence. Would you say that he derived satisfaction with the way things worked out in Mauritius and that our Constitution delivered on its promises?

Enormous satisfaction! He never had the slightest doubt that Mauritius would be a huge success and would become prosperous, which it has. But of course I’m afraid that, at the time he died, Britain had just joined the European Community, and he was worried about the success of the negotiations over the sugar exports. Fortunately they proved to be a success. He had no doubt that the Mauritians were doing a superb job particularly, he said, because of their knowledge of French, which allowed them to deal with the people of the Common Market, as it was then known, and protect the Mauritian sugar position. Stanley was very happy and proud about Mauritius and its people then and would be now if he were alive.

As regards the Constitution, he certainly thought it delivered on its promises although he did realize that it was a compromise. Certain compromises had to be made in order to achieve independence because the British government required that it was a quasi-independent, but not totally internationally independent, government that took the decision to become a totally free state.   

* If you were to travel back to those days when Stanley de Smith was drafting the Mauritian Constitution, what were, in his view, the major problems he confronted?  

The major problem was obviously the electoral system, and he was coming up with all sorts of different solutions to the problems of the electoral system and those of the different communities within Mauritius. He was a lawyer, and he wanted to provide answers for what the people of Mauritius wanted. So the moment there was a government elected in Mauritius, with a Premier and a Cabinet, then it was what that government wanted that counted in the Constitution. Certainly the British government wanted to accommodate the wishes of the people of Mauritius. His first draft, if you look at the Report of the Constitutional Commissioner, shows that as regards some solutions he would not have put them as of choice. But the leaders had to decide what was necessary in order to achieve a possible compromise and to achieve satisfaction for everyone.   

* Would you say that, in spite of the problems he had to confront, he was confident then that this would work out?  

Absolutely confident, because of the character of the leaders. He certainly had a very high opinion of all the leaders in Mauritius. He visited lots of wonderful islands; there are lots of them round the world with wonderful climate, wonderful sea, wonderful hotels and great food. As regards Mauritius, it was the people. He said, ‘Yes, they have enormous problems with the diversity of the population, enormous problems of lack of natural resources, enormous problems with being a mono-crop economy, but educationally, socially, intellectually these are outstanding people.’ And they are going to be able to overcome them on their own and hold their own in the international forum. This is exactly what has happened.   

* Given the diversity of the Mauritian population, did he think the Best Loser system was what was required for Mauritius?  

The discussions over the Best Loser system came up at the end of difficult negotiations. Independence had already been decided upon, it was up to Mauritius to come up with an acceptable electoral system and this was the proposal that was made by Sir Veerasamy, as I understand it. Insofar as it was acceptable, then he thought it was absolutely splendid to go ahead. He didn’t like any hint of communalism coming into the picture. As a point of principle, he thought it would be better not to have it. But, as I was saying about the case in Northern Ireland, we tried to avoid institutionalizing communalism, yet we have seen what has happened: bombing, bloodshed and very unpleasant social relations. So sometimes protection by communalism is essential. And we now have power sharing in Northern Ireland and hopefully peace. To come back to the Best Loser system in Mauritius, I think that at the time this was considered the good solution for Mauritius.   

* Do you think he was uncomfortable with the detachment of the Chagos Islands from Mauritian territory?  

I was never privy to those secret negotiations. What I do know is he appreciated the legal situation which was that, technically, the British Indian Ocean Territory was separated from Mauritius before Independence. So you could technically say that the unit was not governed by the imperial power as one unit. Obviously it was difficult to say that the islands were uninhabited, but then what is the definition of ‘uninhabited’? These were people who were taken in as indentured labourers under a limited contract. I am not too sure about the terms of their contract… It’s a difficult situation, isn’t it? I don’t want to join in one of the most contentious legal issues, which is, as I understand it, going before the Court at this present time.

* As the person who drafted the Constitution of Mauritius, how did he react to the postponing of scheduled elections in 1972 for a brief period of time?  

Always with concern, but always with confidence. Never with any serious doubt. He knew enough of the island and the people and he dealt with them over a long period of years that he had a very high opinion of what was going to happen. You know, he had a very high opinion of people like Sir Seewoosagur, Sir Veerasamy and others, whom he thought were very impressive men.  

* You, have also talked about “exporting the Westminster model” to University of Mauritius students. Why is it that the Westminster model did not work out in so many African and Asian countries?  

The model has worked in many countries. It has worked even in India and Pakistan and you don’t need the Queen there. A governor general does well in the place of the Queen some times, but some times it is a disaster as it has happened in Australia. There have been countries like Uganda where it’s been very sad. But when you think of it, when Idi Amin was deposed in Uganda, what did the people turn to first of all? That was the Constitution. Constitutions survive, the people want certainty and a structure to the State and to relationships, but there again the people can alter their Constitution and the great thing is have a Constitution that works, that allows for a peaceful change of power and for protection of the rights of the individuals against the government. Slowly we are working towards that throughout the whole world and with the international law playing its part as well.   

* We also need political elites who are willing to be bound by the rules, isn’t it?  

It certainly helps, and the quality of leaders makes a fine country. Sometimes, sadly, you find in countries which became independent leaders who have become unbelievably rich and the poor poorer than they had been under British rule. That is a sad fact, but I am afraid it up to the people themselves to make sure that they have a better system.   

* Isn’t it more difficult to get such a model working effectively in a small, multi-racial society like Mauritius where you also have to deal with close-knit elites which makes the separation of powers more problematic?   

I think there is a separation of powers in Mauritius, there is a legislature, an active and very effective judiciary. I have read your local papers and I can say there is freedom of speech here. There are many of these great advantages, sometimes better than you would get in England. Our legislative system by now is not perfect. There is the House of Lords which is half-reformed and half not reformed; the first Chamber doesn’t do a great deal because it is in a way controlling the Cabinet, perhaps not to the extent it should be because so much of the legislation, some of which comes from Europe, is passed through Parliament and goes through at great speed and MPs have hardly any chance to talk about them. So what do they do other than turn up there and make sure who is going to be Prime Minister?  

The Westminster model is not perfect. What I said to the University students, was that it was the starting point, it was what the British knew when they were giving independence to countries that were about to become independent. I remember the discussions over a country in Africa which had a one-party state, and the people involved in the discussions were saying: How can this be the Westminster model? I remember Stanley saying, you have got here an uneducated electorate, but they can have symbols, they can be presented with two candidates, they can choose one or the other… and so there is a democratic structure there even though there is only one party. It was a state really with one tribe throughout it. To pretend there are two parties… it’s just nonsense. It isn’t necessary for democracy. That country actually became quite a successful unit of the Commonwealth.   

* Civil society and political leaders are saying that after 40 years of independence, it’s about time we revisit the Constitution. We have since 1968 brought about 26 amendments to the Constitution. Is the gradualist, piece-meal, evolutionary approach the best way to go about it, or do you think we need a new Constitution altogether?  

This Constitution has worked extremely well and is regarded as a model Constitution. Therefore scrapping the whole thing, I think, would be a waste of effort. There is certainly nothing wrong with the gradualist approach…  

* Is there a model where we can draw inspiration?   

At the time we were looking at the Westminster model, there was really the presidential model or the Soviet model. I don’t think Mauritians should be too keen to say that there is something wrong here… other countries may indeed look up to Mauritius for its constitutional model. Certainly this is a country I know with cultural divisions. Look at the England now: maybe in the 1960s we did not have the cultural and religious divisions in most of England that now exists. We have today Muslim minorities, Hindu minorities, Polish minorities and so on, and we have to accommodate all of that. Where do we look for advice? I think we would look over here. Don’t be too keen to say that Mauritius must follow the example of some other country. You know, lots of problems get solved by looking at India, even Pakistan. Think of how Pakistan reacted when the regime got rid of the Chief Justice and that in a very difficult situation with Pakistan’s enormous problems, yet they still wanted a stable judiciary.   

* We have political rights enshrined in the Constitution. Do you think it’s about time we go for economic rights?

We all looked at South Africa to see how economic rights come in and Britain has economic rights coming from the European Community where we share the burden of those economic rights without the members of the European Community. At the moment we are suffering in England because we don’t have enough doctors, and the doctors are limited in the hours they can work and this is causing enormous problems in the hospitals. One has to think carefully about economic rights, they are maybe the things of the future. If they are simply a direction to the legislature, then that is one matter. If they are justifiable rights whereby you want to go to court and say “I was not treated in so many days because there was not a suitable doctor,” then that is another matter.  

* You mentioned earlier about the case of a one-party state where things have worked out. But would you agree that it is nevertheless necessary to have a blocking quarter safeguard in the Constitution to avoid such electoral outcomes as the Mauritian 60-0?  

That’s asking me to talk in generality about politics. I am not a politician, but a mere humble constitutional lawyer. I am looking for technicalities so that the leaders of a country get the solution they want with certain standards maintained — such standards having really been created by international organisations such as the United Nations, the European Convention on Human Rights, etc. If those standards are maintained, then the humble constitutional lawyer says: Really, well anything goes.

* Published in print edition on 1 October 2010

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