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.
Conclusion
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
Economist
02 June 2018
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