Debate on Best Loser System

Section 12(5) of the 1968 National Assembly Regulations makes in compulsory for a candidate to declare on the nomination form his (her) community as defined in the Constitution, failing which the form is invalidated.

Because Resistans ek Alternativ wants to campaign against the BLS, […] its candidates deliberately […] refused to select any of the 4 categories in the knowledge their nominatison forms would be rejected so they can mount a legal battle. They effectively engineered the rejection of their nomination forms by not complying with the regulations both at the 2005 and 2010 general elections. Based upon the advice of the Privy Council, which threw out Rezistans ek Alternativ’s application for special leave to appeal (with respect to the invalidation of its candidacies at the 2010 general elections), the party is challenging the Mauritian Constitution (the BLS) through the Mauritian Supreme Court. This case is subjudice, but the UNHR Committee found it proper to submit a […] report dated 31^st August 2012 in support of Rezistans ek Alternativ. […]

Rezistans ek Alternativ has a political agenda and it [...] about declaration of the candidate’s community (any of 3+1) to achieve its political aim of abolishing the reforming BLS System […]. The Law Lords of the Privy Council have summarized them very well indeed. In their 20^th December 2011 judgment dismissing Rezistans ek Alternativ, the Law Lords clearly stated that those were « political issues » and advised the applicants to challenge the Mauritian Constitution in the Mauritian Courts (which they have done since then). They stated that « The true complaint that the applicants have is that the best loser system is wrong in principle and should be abolished » and « that the debate is a political debate and that there is no basis for mounting a legal challenge to the system » (p.17 of judgement). Rezistans ek Alternativ should be made to pay all costs incurred by government since they relate to taxpayers’ money […]. 

UNHR Committee’s ‘judgement’, as clear as mud

1. Under para.14.1 on page 11 of the UNHRC report, we read the following : that « the issue before the Committee originated from the 2005 general elections and not from the 2010 elections and the provisions of the Covenant are not enforceable by national courts »; that « the cause of the violation appears to be the same, namely the requirement of communale classification ». Note that the Committee uses the term « communal » […]; it should be « community ». The case before the Committee only concerns the 2005 elections and not the 2010 elections, but they amalgamated both. 

2.1 Under para.8.3 on page 8, the Committee stated « With regard to the concept of “way of life”, the State party argues that Constitutions are bound to be broad and that it is clear from paragraph 3 (4) of the First Schedule  that the “general population” community was meant to be a residual category comprising those who are neither Hindu, Muslim or Sino-Mauritian. », but the Committee clearly did display an understanding of its dimension. Under para.15.2, accepting Rezistans ek Alternativ’s [argument] that « « the criterion of a person’s “way of life”, which is the basis of the four-fold classification of the State party’s population is not only vague and undetermined but is also totally unacceptable in a democratic political system » (p.5,para.3.2), the Committee says « the criterion “way of life” which serves as the basis for the classification is vague and not defined by law ». 

2.2 This is incorrect because the « way of life » test does not apply to the General Population 4^th category, which is merely a residual category. But, for administrative purposes, this 4^th category « shall be regarded as a fourth community ». The very purpose of a residual category is for those who do not wish to be identified under the first 3 communities, which are Hindus, Muslims and Sino-Mauritian, and there is nothing « vague », nor « undetermined », nor « undemocratic » about them. A Hindu or a Muslim or a Sino-Mauritian has the democratic right to be identified as such. There will always be an « other » categories or communities, call them General Population […] or by other name. 

2.3 Moreover, « way of life » is a matter of fact which can only be established based of factual evidence. There is no requirement that this should be « defined by law » as said by the UNHRC.

3. Under para.15.4 on page 12, the Committee states that under Article 25 of the Covenant, « Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation ». But then it goes on to say that « the Committee has to determine whether the mandatory requirement to declare a candidate’s community affiliation is based on objective, reasonable criteria, which are neither arbitrary nor discriminatory ». Now, where does ‘community affiliation’ appear under the Covenant? Rather, it speaks of « political affiliation ». […]

4.1. Under para.15.5, the Committee refers to the allocation of 8 seats under BLS « with reliance on population figures of the 1972 census » but complains that « community affiliation has not been the subject of a census since 1972 » (again ‘community affiliation’ rather than « political affiliation” as stated in the Covenant), and, as such, « that the continued maintenance of the requirement of mandatory classification of a candidate for general elections without the corresponding updated figures of the community affiliation of the population in general, would appear to be arbitrary and therefore violates article 25 (b), of the Covenant ». 

4.2. Hence, in contradiction of what it stated under para.14.1 about « the cause of the violation » being « the requirement of communal classification », the Committee is now saying that the cause of violation has to do, not with the « mandatory classification of a candidate for general elections », but with the fact that such classification has taken place « without the corresponding updated figures of the community affiliation of the population in general », meaning that the 1972 census has not been updated. 

4.3. Furthermore, under para.17 on page 12, the Committee advises the Mauritian Government « to update the 1972 census with regard to community affiliation and to reconsider whether the community based electoral system is still necessary ». This is exactly what Paul Bérenger, leader of the Opposition, has pointed out and he even accused Ashok Subron, mouthpiece of Rezistans ek Alternativ, of creating a terrible confusion amongst the population. (Défi Quotidien, Saturday 8 September 2012 : « Paul Bérenger : « Rezistans ek Alternativ a créé une confusion terrible » ». Bérenger’s view is also echoed by Mr Yousouf Mohamed, Senior Counsel, who put the Rezistans ek Alternativ member Georges Legallant in his proper place  (ref. « Yousuf Mohamed : « Rezistans ek Alternativ n’a pas gagné » », Défi 9 Sept 12). In truth, the UNHR Committee’s report itself is as clear as mud. 

4.4. Even where the UNHR Committee recommends the updating the 1972 census, it does so for the […] reasons, namely that the old census allegedly violates the Covenant and, consequently, the Civil and Political Rights of the Resistans ek Alternativ’s complaining candidates who, in defiance of Regulations, refused to declare their appurtenance or non-appurtenance (General Population) to any of the 3 specified communities. If fact, the old census would have done injustice to the BLS because the BLS nominations may have differed had it been based on an updated census. Hence, the main reason to update the 1972 census is to do justice to BLS. On the other hand, the Rezistans ek Alternativ candidates are not interested in BLS and they were neither elected under the FPTP system nor carried the most votes amongst the unelected. How could the 1972 census have infringed their alleged rights? The Committee’s reasoning is totally confused [...]. 

Conclusion

One moment, the violation of the said Covenant has to do with mandatory declaration under Section 12(5) of the 1968 National Assembly Regulations, the next moment it has to do with the fact that the 1972 census upon which the BLS is based has not been updated. Even though the Mauritian government should update the census as a matter of course, Mauritius is not bound by the UNHR Committee’s report, not even morally as alleged by Mr Nilen Vencadasamy, one of the lawyers of Rezistans ek Alternativ (Défi 8 Sept 12 - « Avis du comité de l’onu sur l’appartenance ethnique – Nilen Vencadasmy : « Pas de force de loi mais un droit moral » ». […]

M Rafic Soormally

London

9 September 2012