The Best Loser System (BLS), a Minority Protection System, was both a condition for independence and a constitutional safeguard to protect minorities. Any attempt by the Hindu majority to remove BLS from the Constitution may well be unconstitutional.
Reform of Democracy and BLS
Mauritius adopted the British First Past the Post (FPTP) democratic system. But this system creates anomalies as parties tend to return elected candidates in numbers which proportion exceed the percentage of votes received. Given that Hindus are in majority in Mauritius, followed by Christians and Muslims, FPTP democracy tends to return more Hindus as MPs, and Christians and Muslims tend to be under-represented in Parliament. Hence, in the years preceding Mauritian independence on 12 March 1968, as a condition for independence, the main political parties, Labour Party (mainly Hindus) led by Sir Seewoosagur Ramgoolam, the PMSD Party (mainly Christians) led by Sir Gaëtan Duval, and the Comité d’Action Musulman (CAM) (a Muslim Party) led by Sir Razack Mohamed, agreed to reform this type of democracy and adopted the Best Loser System (BLS) which was enshrined in the Constitution as a condition for independence.This safeguard was not supposed to be removed. BLS is therefore a reforming system to protect minorities and the majority Hindus should not be allowed to vote for its removal from the Constitution. Such a move undermines both Mauritian independence and its Constitution.
What the Constitution says
In addition to the 62 MPs elected under FPTP, BLS adds up to 8 more MPs selected from candidates from minority communities who lost but won most votes. For this system to work, the candidate is required by law to identify the community he/she belongs to by way of life. The First Schedule [Section 31(2)(4)] of the Mauritian Constitution states:
« 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. »
Hindus, Muslims and Sino-Mauritians are recognised as communities by way of life, but way of life does not apply to the General Population category since it is a residual category even though it is regarded as a fourth community for administrative purposes. The BLS system also operates hand in glove with census figures to ensure that the correct minority candidate is selected having regard to the percentage of that minority amongst the population. The problem is that the Mauritian census has not been updated since 1972 when this exercise should have taken place every 10 years so the country can allocate resources properly and fairly. This anomaly was highlighted by the UN Human Rights Committee in its 31 August 2012 report in which it said that « the requirement of mandatory classification of a candidate for general elections without the corresponding updated figures of the community affiliation in general would appear to be arbitrary » (section 15.5). It is up to government to ensure the census is updated and that the overriding interests of the country are preserved since BLS has maintained peace and harmony in the country for 50 years.
Ethnic means non-White
However, BLS antagonists accuse the minority protection system of being racist and discriminatory. One Economist and former Finance Minister, Rama Sithanen, even invented a new English word by setting out to « deethnicise » the electoral system (by proposing the removal of BLS from the Constitution and « subsuming » it in corruptible party lists at the mercy of equally corruptible party leaders) when ethnicity identifies non-White people in a White-majority country.The European world uses the term ethnic to identify non-White minorities. The White minority in South Africa, for example, is not referred to as ethnic. In European countries, ethnic minorities are identified so they may be fairly included in the political process and elsewhere. Even the MI6 has started a recruitment drive to attract ethnic minorities. If those minorities are not identified by law, how will they be recruited? How can women be included in a political process if the woman cannot be identified?
Mauritius is neither populated nor ruled by a White majority. Hence, there are no ethnic communities in Mauritius. What is Rama Sithanen trying to « deethnicise » then? The Hindu community is of Indian stock and they are the majority community in Mauritius. The minorities are Sino-Mauritians and mainly religious minorities like the Christians and Muslims. Sino-Mauritians are identified as such in the Constitution. But, while Muslim political leaders (who, like Hindus, were in favour of independence) insisted for Muslims to be included in the Constitution since Muslims have a specific way of life, Christian political leaders (who were against independence) did not so insist because some preferred the Afro-Mauritian appellation and others the Creole appellation. But the problem was that there are many Hindus and Muslims amongst Afro-Mauritians or Creoles, which would amount to double-counting. Hence, Christians are included under the residual category of « General Population ». Instead of fine-tuning BLS and make a case for the minority Christians to be specified, the likes of Rama Sithanen are obsessed with destroying the BLS. Critics argue that Rama Sithanen is mainly targeting the constitutional recognition of the Muslim minority which Muslims want to preserve.
Rama Sithanen’s Proposals
Former PM Navin Ramgoolam admitted that Economist Rama Sithanen, who is propelled as an 'expert’ on electoral reform simply because he wrote his student thesis on the subject, only wrote his 2012 Electoral Reform piece after taking cognizance of the jurists Sachs & Carcassonne reports on electoral reform for Mauritius. Therefore, Rama Sithanen clearly did not produce an inspired piece. In fact, he borrowed several ideas from Sachs & Carcassonne and copied several of their own serious failings, rehashed them and produced the worst of all. Even where he criticised Carcassone for using the Spanish model (p3), he contradicted himself by looking at the « Outcome of elections in Spain 1979-2011 » and said « The same phenomenon could very well happen in Mauritius » (pp.12-3).
1. Rama Sithanen proposed to abolish the BLS. He calls that to “deethnicise” the electoral system, a word which does not exist in the English language.
2. He proposes to “subsume” BLS in party lists without demonstrating how political parties will identify the candidates from minority communities. To use his invented term, is he not trying to ‘ethnicise’ party lists? But party leaders tend to recruit candidates who are more likely to attract votes and more likely to fill their coffers. Although anyone can join any party, only the leader chooses candidates for elections. Party lists also tend to be a source of corruption.
3. He proposes 20 PR seats in addition to the 62 FPTP seats, but does not demonstrate how he obtained those 20 seats. He proceeded to measure « unfairness in electoral systems » (p.62) through the use of the Least Squares Index (LSq) formula which measures the disparity between the distribution of votes and the allocation of seats, then he goes on to say « What degree of deviation constitutes a fair Parliament is a matter of judgement » (p.62). He just refers to lots of data to impress people but with no analytical results emanating from the data since he is using bias judgement. He even produced a d’Hondt formula which he applied wrongly by using percentage of votes (rather than the actual votes) which he divides by the number of seats (rather than a fixed series of numbers) plus one (p.102). Why plus one?
4. He also proposes, again without demonstrating how, a 10% of the national vote for any party to be eligible for PR seats. In other words, he is in favour of large parties and for the decimation of small parties.
Rama Sithanen is not measuring how minorities can be adequately represented. Nowhere has he formulated any function for what he set out to measure. For example, Gross National Product (GNP) = f (monetary and fiscal policies, inflation, capital spending, imports, exports, error), (ref. Forecasting Methods and Applications, Third Edition, by Spyros Makridakis, Steven Wheelwright & Rob Hyndman, p.54). His thinking is not only linear but inaccurate and misleading. Electoral models are non-linear and any minimization (of anomalies) must be done by using iterative numerical algorithms which he has not used. He has not identified either the dependent or the independent variable in each case. He has not used multiple regression analysis nor used environmental control variables which are vital in electoral calculations and forecasts.. He is grossly misleading the Mauritian people.
In a process of ‘sithanenising’ the electoral system, Rama Sithanen is being given so much media coverage even when he admits that what he is proposing is « not devoid of flaws », to the horror of right-thinking Mauritians.
No wonder Sithanen finds favour with the anti-BLS political party Rezistans ek Alternativ, led by Ashok Subron. This party put forward candidates at previous elections and, through civil disobedience, its candidates wilfully refused to select either a way of life community or the residual community under the electoral laws, which resulted in their candidacies being rejected. They took the matter to court all the way to the Privy Council which threw out their case since they were trying to challenge the constitution through the backdoor. However, the Privy Council Judges advised that if the party wanted to challenge the Constitution, it should do so before the Supreme Court first. So, Rezistans ek Alternativ lodged a case against the government to have BLS declared unconstitutional. But this does not mean that the Supreme Court or the Privy Council would agree. The BLS is perfectly legal and has been so for the last 50 years. A candidate who does not wish to identify himself/herself as Hindu, Muslim or Sino-Mauritian by way of life can easily choose the residual category General Population where way of life does not apply. One therefore wonders what the case of Rezistans ek Alternativ is all about if not a propaganda attempt to feed the anti-BLS movement. Their case looks like an abuse of the process of the court to bring pressure to bear on government.
Minority Protection in the form of BLS is rightly enshrined in the Mauritian Constitution. The UN Charter includes Minority Rights and strives to ensure that their rights are protected. As such, those minorities have to be identified and recognised by law. This is the duty of government. This duty cannot be shifted to corruptible political parties with equally corruptible party lists. Even here, the way of life of the candidates have to be identified by law, anyway. The BLS was the safeguard agreed by all political parties which paved the way to independence and the Hindu majority has no right to remove this minority protection as it undermines both the country’s independence and its Constitution. There are other safeguards in the Mauritian Constitution which cannot be removed, such as the right to liberty, freedom of association, freedom of religious belief.
M Rafic Soormally
02 June 2018
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