The Constitution (Declaration of Community)
(Temporary Provisions) Bill (No. V of 2014)
Friday 11 July 2014
Mr Speaker, Sir,
Let me start by thanking all Hon Members who have contributed to this important and historical debate. While some have made some pertinent comments, I note with regret that others have not been able to resist the temptation of riding their hobby horse of blatant communalism to create division and hatred between our people.
Before I refute some of the points made and correct some misunderstandings, let me make some general observations.
Some Hon Members seem to have completely forgotten why we have been debating this Bill now on the 3rd day of debate.
I did explain the background to this Bill when I introduced it on the 4th July.
Let me briefly restate the plain facts.
We have been speaking of electoral reform since a long time now.
There have been seven reports which have been published, four since 2000.
There have been several Court judgements since and all have urged us to bring electoral reform.
I have said since many years now, that it is time we identify ourselves as Mauritians and not as distinct communities living in Mauritius.
It cannot be right that 46 years after Independence, we cannot call ourselves Mauritians !
And, I am the first Prime Minister to actually publish a document with proposals for electoral reform.
And as I have said I will be circulating a Bill on electoral reform very soon.
Mr Speaker, Sir,
If the Bill we are debating today – what many misguidedly persist to describe as a mini-amendment has taken so many weeks to prepare – imagine how more complicated has been the preparation of the Electoral Reform Bill ! You will see for yourselves.
I wish, Mr Speaker, Sir, that Hon Members realise how complicated and difficult it is to implement electoral reforms. I am amazed how some Hon Members and some outside, who love writing in the press or speak on radio do not have the remotest idea of the complexity of electoral reform and that is such a major change that you cannot impose it on the people.
Mr Speaker, Sir,
They seem to forget that we as politicians are the servants and not the masters of the people we serve.
So the people of this country have a legitimate right to have their say on such major Constitutional and electoral change.
Mr Speaker, Sir,
It is probably more difficult to introduce electoral reforms than to climb Mount Everest. Very few countries have been able to carry out changes in their voting formula. The UK, the cradle of FPTP, has been attempting to reform its electoral system to elect members to the House of Commons for over one hundred years; countless reports have been produced on the subject. The latest one was by Prime Minister Blair, who had taken a manifesto commitment to bring electoral reform. He set up an independent Commission headed by Lord Jenkins, in December 1997. It produced its report in October 1998. Yet nothing came of it as for the other countless reports. There has been, no electoral reform after over 100 years of debating the subject in the UK.
Canada, another robust democracy, has been considering changes for a very long time. It took New Zealand, one of the beacon of Parliamentary democracies, over 75 years to reform its electoral system. Japan struggled for a long number of years to reform its voting formula, while both France and Italy changed their formulae only to revert to the old system some years later.
Mr Speaker, Sir, it is not an easy task. Otherwise it would have been done since a long time in all these countries.
I wish that Honourable members had a quick look in the rear window to take stock of how many attempts have been made in the past to introduce electoral reforms in Mauritius without any success. The subject has been on the back burner for many years. My friends who are today in the Opposition have tried on several occasions to take the bull by the horn; unfortunately it is the bull that has taken them by, I do not know which part of their anatomy. I can only laugh when I hear the criticisms of Hon Jugnauth and Hon Bodha as they belonged to the party that deliberately stifled any attempt to reform the system. They have had many opportunities to do it but they have systematically found false excuses to shirk away from their responsibilities on this subject.
Hon members should realise that there is no ideal electoral system. If there were a perfect formula, all countries would embrace it. Unlike the beautiful game of football which is the same worldwide, there is probably as many electoral systems in the world as there are countries. Worse, very often in the same country (such as the UK and France), there are many voting formulae that coexist depending on the election that is being held (House of Commons, Assemblée Nationale, Regional Assemblies in Wales and Scotland, EU elections and so on).
I wish some Hon Members had carefully read the document I presented on the proposed electoral reform on the 24th March before making wild and unwarranted statements on such a complex issue.
Mr Speaker, Sir,
After seeking advice from many Constitutional experts and testing the hypotheses for the new proposed electoral system against the data we have since the 1967 elections and after careful reflection and analysis, Government published the White Paper on the 24th March of this year.
The proposals for electoral reforms, in the Bill, go beyond removing the need to declare one’s community to be eligible to stand as a candidate in a general election.
It is far more than this; it goes beyond removing the shadow of communalism from our Constitution.
It proposes the introduction of a dose of PR to tamper the excesses of the FPTP System to reflect fairness and equity, while ensuring stability.
It does so – not by abolishing the BLS – as some have said but by subsuming it.
It is also a major step towards fairer gender representation and a real advance for the women of our country.
A lot of intense work has been done on the Bill and I want here to thank the Attorney General, Hon Ganoo, the Solicitor General, his deputy, Mrs Narain, Mr Seetaram as well as Sir Victor Glover and Mr Rama Sithanen for all the hours and detailed work they have put into it. Selfless service for a cause. The Bill is practically ready, except on second thoughts, there are some alternate proposals that we think could be included, to give parties options to choose from.
For e.g. we think parties can have the option of double-candidacies and we also think that for the 20 additional seats – there could be 2 lists – list A with 14 to be chosen from and a list B with 6 to be chosen by party leaders from Or alternatively only one list of 20 but from which 6 will be chosen from the leaders.
Two alternative mechanisms but which will produce the same end result.
As I have said before, I believe the people have a legitimate right to examine what we are proposing and then give us a mandate to bring the electoral reforms. Even this Bill, which is complex but less so than the full Electoral Reform Bill. You have seen Mr Speaker what passion it has generated. It is important for the people to know what exactly we are proposing and endorse it through the next general election.
In the meantime, we have had judgments over judgments from our own Supreme Court and the Judicial Committee of the Privy Council since 2000 urging us to act.
And Rezistans Ek Alternativ, have been asking the Courts to allow a candidate to stand in general elections without having to declare his or her community.
As I said they did not ask for full blown electoral reform and neither are they asking for the abolishment of the BLS.
This is less than we are proposing as I have explained. Now the UNHRC has pronounced itself. They found we are in violation of Article 25(b) of the HR Convention and they say we have a duty as a state to provide an effective and enforceable remedy to the violation of article 25(b) of the covenant and we are under an obligation to avoid similar violations in the future.
Furthermore, Mr Speaker, Sir, there is the last judgment of the Judicial Committee of the Privy Council which concludes by saying “if the issues cannot be resolved politically, they may be raised before the Judicial Committee by the applicants as a Constitutional challenge”.
Now, Hon Cehl Meeah, leader of the FSM, says we can ignore the declaration of the UNHRC, as well as, the Judicial Committee of the Privy Council.
I think, he thought I said there is no money.
Let me enlighten him, if that is possible.
The declaration of the UNHRC cannot be enforced on us legally – but there are consequences in ignoring it.
We can expect, the EU to take sanctions against us.
They will certainly withhold all the financial assistance we receive from them. That has been made clear to me already when I attended the EU – Africa Summit in Brussels earlier this year.
So, it beggars belief that the Hon member says we should ignore it.
And do I need reminding him that the Judicial Committee of the Privy Council is our ultimate Court of Appeal.
And they have practically invited the members of Rezistans Ek Alternativ, that if they still do not get satisfaction and the issue is unresolved at the political level, then they can come back to the Judicial Committee of the Privy Council with a Constitutional challenge.
I ask myself whether the Hon member realizes the absurdity of what he has said.
It is totally irresponsible.
Doing nothing, and burying our head in the sand is not an option.
That is why, Mr Speaker, Sir – we are debating this transitional amendment Bill today.
This is the minimum that we have to do before getting a mandate to bring in the full electoral reform after the general elections.
Now, Mr Speaker, Sir,
Concerning this Bill itself and to respond to the misguided arguments of some Hon members – let me say this:
I wish that Hon Members had not only perused our Constitution but had carefully read and fully understood the significance of the sentence in para 5(1) of the First Schedule. Let me read the first sentence “In order to ensure a fair and adequate representation of each community”.
The operative words are ‘‘fair and adequate representation of each community”, that is each of the four communities described in para 3 (4) of the First Schedule. We cannot ignore this at all, as it is part of our Constitution.
This is also well argued by the full bench of our Supreme Court in its landmark judgment 2005 and as referred to by the Attorney General in his speech on Monday. I note that many members, even those from the legal profession who should know better, have often spoken in complete disregard of this fundamental provision of our Constitution. Worse, in some cases, as Hon Bodha, they have made proposals that are so aberrant, and misconceived that they would make an utter mockery of our Constitution.
Mr Speaker, Sir,
I wish that Hon Members realized the giant leap we are about to take today. It is the first time in our history that a Government is bringing a Bill to give the option to our citizens not to be disqualified as a candidate at a general election if they do not disclose their community. The MSM has been in office for around 16 years and it has never attempted to introduce such historical legislation. All talk and no walk.
Mr Speaker, ‘on juge un maçon au pied du mur’. I am walking the talk while others have not even bothered to talk the talk. This is the difference between conviction and hypocrisy, between faith in the Mauritian nation and a distorted view of history.
I wish that Hon Members appreciated that context, circumstances and a sense of history is key to an understanding the amendment being proposed. 46 years after our independence, and as I have been saying it is time to move on and consolidate our nation unity and our national identity as Mauritians. We cannot continue to look in the rear mirror as some want us to do. We must resolutely move forward and construct a nation-state that can fulfil the aspirations and the expectations of our people. I am extremely sad to have heard some speeches that are fit for another age and another century. Rabble rousers and ethnic entrepreneurs who desperately want to lit a match to spark a fire and fan the flames of communalism. It is a shame that there are people who still believe that they can stop the march of history and turn the clock back.
Mr Speaker, Sir,
I wish that Hon Members understood that we had a difficult task to accomplish. Any MP with a modicum of intelligence would already have realized by now that under normal circumstances, it is impossible to allocate the 8 additional seats if a returned candidate has not declared his community. This is crystal clear from the judgment of the Supreme Court and from what has been stated by the Judicial Committee of the Privy Council. Yet this is precisely what we have attempted to do. It is not a perfect solution but it at least reconciles two opposite objectives.
I hope Hon Members understood the fact that this amendment is an integral part of a wider constitutional amendment to reform in depth our electoral system. The Bill is being finalized.
I wish Hon Members reckoned that it is easy to criticize and but very difficult to make constructive proposals. All along the debate, there have been many criticisms of what is being proposed and yet there have been not one meaningful alternative proposed to address the issues at hand. A couple of proposals has been made but they are so preposterous that they are not even worth the paper from which they were read. For instance, when Hon Bodha argued that we should allow Party leaders to choose the BLS, little does he realise that this goes totally counter to the letter and the spirit of the constitution that speaks of fair and adequate representation of each of the four communities. And this can only be objectively determined in the current BLS formula by the ESC. Pity that such proposal should emanate from a lawyer.
Mr Speaker, Sir,
I wish Hon Members acknowledged that we cannot hedge every possible electoral outcome. There is no electoral system that can do this. There can always be an element of unintended consequences in any proposal. Even in the current system, there are risks of some communities not being represented at all or being severely under-represented in Parliament. Any alert observer would have seen this already. There is no perfect formula. We need some ground rules to make the system operational in the overwhelming majority of cases. It would not be possible to hedge each and every conceivable scenario.
Mr Speaker, Sir,
I wish Hon Members understood that the BL system will still be in place for the next general elections. Speaking of a conspiracy to eliminate something that will continue to exist is the height of disinformation and demagogy as Hon Cehl Meeah has repeatedly said and is now putting up posters saying so. Anybody with a modicum of understanding of the bill and a paucity of legislative knowledge would surely have recognised that the BLS will function at the next general elections as it has since 1967. Equally, I can tell you that the objective of the BLS in terms of parliamentary diversity and rainbow representation will remain in the reform that is finalized. The objective of the BLS will remain while its mechanism will change. It will consolidate democracy and national unity in addition to being fairer to women – a point that many seem to treat lightly. I am sure that our women folk will have noted who are those who just do not care about gender.
Mr Speaker, Sir,
Some Hon Members have tried to stir up communal feelings by suggesting that this Bill will deprive the Chinese community from representation in our Parliament – Some have said Hindus will lose out and others have said General population will lose out.
Nothing could be further from the truth.
You just have to look at the statistics to know this.
In fact in every election since independence, there has been an MP from every community in Parliament, and always at least one MP from the Chinese community.
None was selected through the BLS because the Chinese community was not under-represented.
What happened in 1948, which the Hon Leader of the Opposition alluded to, where no Muslim candidate was returned to Parliament is not a scenario which will be repeated – and the reason is very simple.
There was no universal suffrage in 1948.
In spite of an increase in the number of voters, still the percentage of voters was very low.
With the advent of universal suffrage, the Muslim community has always been represented in Parliament.
The same goes for the Chinese community.
But because these ‘pyromanes’ have “semé le doute” I will move the amendment circulated at Committee Stage to remove any doubt which might have been created for obscure purposes or cheap political gains.
We are still maintaining what we proposed but added a new section 4(2)(b) for avoidance of doubt.
Mr Speaker, Sir,
As I have repeatedly said – 46 years after independence, we still cannot call ourselves Mauritians first?
Our Constitution and our electoral system need to evolve to adapt to changing times. Societies are never static. 1968 is not 2014.
In 1982 – as the Hon Leader of the Opposition said the first step was taken to do away with the mandatory collection of data about a citizen’s community in the census.
As I said it was a far sighted decision.
But by this decision, the seed of the eventual problem was sown and the BLS inevitably started living on borrowed time.
We did not need the United Nations Human Rights Committee to tell us this inescapable fact – we have to look at reality and grasp the bull by the horns.
Let me now respond to some of the main points raised by Hon Members and I shall take this opportunity to clear the air on some unfortunate accusations by some members:
That the Bill has been drafted in an infelicitous (inappropriate) manner;
And that clause 4(2)(b)(i) which relates to determining the appropriate community of an elected member who has not declared his community and allocation of additional seats after the next general elections is pregnant with ambiguity and a clear intention to mislead'.
I totally reject this unfounded allegation unless the Hon Members want to play politics and to stoke unwarranted fear in the minds of some people.
I must confess that it was an extremely difficult Bill to draft as we wanted to accomplish two aims that are contradictory in our Constitution.
How do we allow the option for candidates not to declare their community while also to ensure that the allocation of the additional seats is consistent with the provision of the Constitution for a fair and adequate representation of each of the four communities ? - Those who understand mathematics know that you cannot have two unknowns in a formula. You must absolutely freeze one of the unknowns for the formula to be workable.
This is the challenge, Mr Speaker, Sir.
There is absolutely no intention to mislead anybody. Any Hon Member who says so has either understood nothing or is deliberately trying to play on the fears of the people and fan the flames of communalism. One Hon Member mentioned that the ESC will determine the community of the returned candidate who has not disclosed his community. This is absolute non-sense and plainly untrue.
There is no question of determining the appropriate community of an elected candidate who has not declared his community.
Mr Speaker, Sir, how can we assign a community to an elected candidate who has decided not to disclose his community. lt is very clear that the Honourable member has either not understood the meaning of the clause or he is trying to give a twisted interpretation to it with the deliberate intent of misleading people.
And some Members have asked what mechanism will be used to determine the Best Losers.
And that the ESC has already predetermined the communities which will benefit from the BLS.
Again, Mr Speaker, Sir,
I find this baffling to say the least.
These Hon Members may wish to note that Mr Subron of Rezistans Ek Alternativ has stated in an interview that he cannot understand those who say the mechanism is not explained, as it is very clear.
Mr Subron has clearly understood it.
I know Hon Jugnauth has had to withdraw the word pre-determined but let me still tell him – he ought to find out how the BL seats are determined.
It is not as straight forward as some appear to think.
First of all nobody can pre-determine who are the MPs who will be elected.
You have to know the election results first to start working out who the Best Losers will be – This is elementary.
Once the election results are known – the ESC then determines the first four best loser seats on the basis of which communities – irrespective of party – are under-represented according to the 1972 census.
Now if when filing candidates – parties have already chosen them with clear over-representation of a community – and the candidates from this community are elected – then clearly they will be over-represented and therefore, unlikely to get any Best Loser seat.
On the other hand, if at the very start, when the parties file their candidates, a community is under-represented, it is clear that it will benefit from best loser seats – because this is precisely the purpose of the Best Loser System.
The first four seats are there to correct under-representation of one of the four communities defined in Schedule I of our Constitution.
This explains why, you have had best loser seats going mainly to the General population and then to the Muslim community.
This also explains why the Sino-Mauritian community has never benefitted from a best loser seat since the 1967 elections.
Because they have never been under-represented.
And the chances of this happening is practically zero – It is hypothetical.
But as I explained, because of this doubt created by some, in order to make it absolutely clear I have brought in this amendment that has been circulated.
The amendment is not one of substance, nor is it a policy change – rather it is a clarificatory one.
Once the first four seats have been allocated, then the second set of Best Loser seats are allocated on the basis of both the appropriate party and under-represented communities with a view to redressing any imbalance in the majority caused by the allocation of the first four seats.
This is to ensure that the will of the people is not frustrated so that a losing party of a general election is not transformed into a winning party.
A constitutional amendment was made in 1992 to restore the balance in respect of the second set of four seats, irrespective of community in case candidates from the appropriate under-represented community are unavailable as all have been elected.
In a judgement of 1991 of the Supreme Court by former Chief Justice Glover, Senior Puisne Judge Lallah and Justice Ahmed pointed out this loophole by saying by the omission of not putting in the last suggestion of Stonehouse – proposal E – a situation could arise “where a 32 to 30 majority in favour of one party or party alliance could be converted into a 32 to 34 minority”.
As a result of this 1992 amendment, two MP’s from the Hindu community were appointed Best losers MPs in the 2000 general elections, even though the Hindus were not statistically under-represented. It was done to try to correct the imbalance created as far as the majority vote is concerned.
Prior to this amendment, the Hindu community had only benefitted from one best loser seat in 1967 because it was then under-represented according to the 1962 census.
It is also important to note that not all eight seats are determined from the start. It is one after the other. Once the first seat is allocated, the whole exercise of under-representation has to be worked out and then the second seat is allocated and so on.
So Hon Members, I hope you can see how complex the allocation of the Best loser seats are.
You have 3 conditions which have to be satisfied:
It starts with the appropriate community which is under-represented irrespective of party being allocated the first 4 seats;
Then it has to look at the appropriate party with the appropriate community; and then
It has to ensure as far as possible that the majority of the winning party or alliance is not compromised thereby changing the results of the general election.
And all this is done step after step and re-calculating every time one seat is allocated.
That is why the allocation of seats can be erratic, illogical and irrational.
I give examples in the document on electoral reform.
An example which speaks for itself and illustrates what I have said is what happened to the Honourable Leader of the Opposition in the 1987 elections.
Mr Régis Finette of the PMSD had polled 13,541 votes – which was 47.4% of the votes, was allocated a seat.
While Mr Paul Bérenger polled 15,332 votes which was 48.4% of the votes, was not allocated a seat.
This is because when the seat had to be allocated to a member of the General Population – the community under-represented, Mr Bérenger was in the appropriate community but not in the appropriate party.
But when another seat was to go to the MMM, Mr Bérenger was then in the appropriate party – the MMM – but not in the appropriate Community (General Population) because by then the appropriate community was not the General Population but the Muslim community. Because as I said every time a seat is allocated, the ESC has to redo the calculations.
Thus it was Mr Peerun (MMM) who had polled 44% and got 12,999 votes was selected in spite of the fact that Mr Bérenger had polled 48.4% with 15,332 votes and both belonged to the same party.
These are other telling examples in the Consultation Paper.
And I must remind Honourable Members – the mechanism is the same today and still based on the 1972 census – so the same erratic, illogical and irrational selection can occur.
Mr Speaker, Sir,
The meaning of the average number of returned candidates for each of the four communities to be worked out from clause 4 (2) (b)(i) is by itself a simple exercise. There is no ambiguity at all as these figures are publicly available. Whether the Honourable member agrees with the formula is an altogether different matter. But to argue that there is a shroud of mystery and a deliberate attempt to hide the figure is totally irresponsible, if not plain stupidity. Unless he has a hidden agenda.
The figures also cannot be misleading as many people have already worked them out. They are objective and published by an independent institution.
2. The allegation that the proposed formula could distort the allocation of additional seats to an appropriate community.
The example of distortion given by Honourable Jugnauth (i.e 10 candidates from a particular community who decide not to declare their community and are elected. As a result that particular community will be 'deemed' to be under-represented and the ESC will have the obligation, according to the Hon Member, to allocate additional seats to candidates who have declared themselves under that particular community).
As a matter of fact, the Hon Member is proving the very essence of clause 4 (2)(b) that he is criticizing. Had we not introduced that specific clause, and had we simply replaced 'shall declare' by 'may declare', the Hon Member would have been right as the risks existed of the additional seats not being allocated to the appropriate community as defined in our Constitution.
Clause at 4(2)(b) is included to precisely prevent such an occurrence. If one or more elected members have not declared their community and to avoid what the Honourable member has given as example, the average figure mentioned in the clause shall apply. In other words, it will ensure that the allocation of additional seats do not go against the provision of the Constitution for a fair and adequate representation of each of the four communities, which is the whole objective of paragraph 5 of the First Schedule to the Constitution, as amply emphasized by the landmark judgment of the full bench of the Supreme Court.
And we know who have benefitted from the BLS over the years and we also know accurately the community belonging of all the 62 returned candidates at each general elections held since 1976.
3. Hon Jugnauth said that 'the calculation in the clause would replace the 1972 census'.
Again this is absolutely not true. We simply cannot replace the population census of 1972.
As a matter of fact, even if we are not happy about it, the 1972 population census will still be used to allocate the additional seats at the next general elections as there is no better alternative. Some of the proposals made by some Honourable members go against the provision of our Constitution. I shall come back to them later on.
Mr Speaker, Sir,
The Hon Member is unfortunately mixing two very different statistics that the ESC uses to allocate the BLS seats:
the population breakdown into the four communities as obtained from the census of 1972; and
the community mix of the 62 elected candidates after the results of FPTP elections are known.
The first one will not change in any way at the next elections. The ESC will still use the 1972 census.
As a matter of fact, his confusion is betrayed when he himself criticized such use later in his speech.
Mr Speaker, it cannot be both. Either it is kept or it is changed. In fact, it is being kept for lack of a better alternative until the full electoral reform is introduced.
Let me stress that the second statistics will not change at all if all the returned candidates have declared their community. And the BLS as we know it now will apply exactly as provided for in the Constitution.
It is only in the case of one or more members not having declared their community being elected that we shall use the formula in the Bill.
And with one specific purpose only.
That is, to meet the mandatory requirement of the Constitution to ensure a fair and adequate representation of each of the four communities.
4. Many have wandered and wondered about the alleged omission of the specific mechanism to allocate the additional seats in circumstances when an elected member has not declared his community.
Mr Speaker, Sir,
This is patently untrue as the clause clearly contains the formula, as Mr Subron has grasped early on.
First, it should be pointed out that in the existing legislation, the process for the allocation of the BL seats is spelt out while the details of its operationalisation are carried by the ESC. In fact, it is clear that there are few people who fully grasp the underlying mathematics that drive even the allocation of the first set of 4 seats. The distribution of the second set of 4 seats is much more complicated and at times, we have had to go to the court to seek its interpretation.
What we are proposing in this clause is much simpler to compute. It is an average that anybody who knows basic mathematics, can calculate and then the ESC shall proceed exactly as it does today.
As rightly pointed out by Mr Subron and many others who have done their homework, it is very simple to compute it. As a matter of fact, many observers have already worked out the figures. My understanding is that Hon Duval has given the figures and has signified his approval of the formula. He is a Chartered Accountant and he has been Minister of Finance. He has obviously understood the mathematics. Unfortunately not all former Ministers of Finance have the same flair, even if it is not a hard one to compute. But so is life, Mr Speaker, Sir.
I am therefore at a loss to understand what some of the Hon Members want to convey by saying that the formula is not in the Bill when in fact it is there and can be computed easily.
It is rather unfortunate that some members of this House have tried to give a communal twist to the computation of the allocation of seats to imply that in one case two given communities would be allegedly penalized while in another case, the two other communities would equally be disadvantaged. Mr Speaker, Sir, it is a well known fact that in a zero sum game everybody cannot lose. This is convoluted reasoning that demonstrates clearly who has a hidden agenda.
Mr Speaker, as mentioned earlier on, we know exactly which communities have benefitted from the BL seats and what is the community of the 62 candidates elected at each election since 1976. It all depends which of the communities are under-represented and it starts the day your party or an alliance file their candidates.
5. The 1972 census is still being used and contradicts the UNHRC declaration.
Hon Pravind Jugnauth also says that “this calculation would replace supposedly the 1972 census, because we are going to be in violation of the United Nations ruling, if we go according to the 1972 census”.
Later on, in his speech he contradicts himself by saying that we are referring to the same 1972 census which has been found by the UNHRC to violate Article 25(b) of the Covenant.
And he finds it scandalous.
Let me clarify this in simple terms for him.
The calculation is not replacing the 1972 census. It is the latest census that we have and the BLS which we are not abolishing, as Hon Cehl Meeah has said depends on a census and the one available is the 1972 one.
If Hon Jugnauth had read the findings of the UNHRC carefully he would have seen that the cause of action by Rezistans Ek Alternativ was that the State of Mauritius was in violation of Article 25(b) of the Covenant by depriving their candidates from standing at a general election if they do not declare to which community they belong.
If you read the declaration of the UNHRC properly and in context, this is what it says:
Asking a candidate at a general election to declare to which of the four communities he or she belongs and if he or she does not – refusing him
or her the right to stand as a candidate is a fundamental breach of his or her human rights and is in violation of Article 25(b) of the Covenant;
It says we have to reconsider whether the community-based electoral system is still necessary; and
If you do – then you must update the 1972 census.
What we are doing today is to address declaration (1), that is, now, if this Bill is adopted – there would be no requirement for a candidate to declare his or her community to be able to stand as a candidate.
And therefore, we would not be in violation of Article 25(b). That is fundamental – We are providing an effective remedy to the violation of Article 25(b). That is the crux of the matter.
Point (2) will be addressed by the Electoral Reform Bill, where we are subsuming the BLS.
It will not be a community-based electoral system.
Because we are doing this – the question of updating the 1972 census therefore, does not arise.
As simple as this.
6. The alternative of updating the 1972 population census to reflect current population mix.
Mr Speaker, Sir,
Nobody in his or her right mind would even think of updating the 1972 census – it would be a real Pandora box and be very divisive.
Hon Meeah has a point when he argues that the UNHRC did propose it as one of the two alternatives. The second one being to have an electoral system that is not based on communities.
Mr Speaker, both the Hon Leader of the Opposition and myself have stated in no uncertain terms that this is totally out of the question. We simply cannot do this in modern Mauritius, 46 years after the Independence of our country. This is a retrograde, a reactionary and a repugnant alternative.
And as well argued by the Sachs commission, by Professor Carcassonne and by Mr Rama Sithanen in their respective documents, there are good alternatives to ensure broad based rainbow representation in the National Assembly. And this is what we shall do with the electoral reform which is being finalized.
6. That we are creating two categories of candidates as mentioned by Hon Guimbeau.
Those who will declare their communities will participate in the allocation of the additional seats while those who do not declare will be our. Hon Guimbeau is absolutely right. While I recognize that it is unfair, I must state that it is inescapable for a very simple reason. As stated by the Supreme Court, the declaration of the candidate community is at the heart of the BLS. If a candidate does not declare his community, he is forfeiting his right to participate in the allocation of these additional seats. In fact the Bill provides for this.
It will apply for one general election only. This is the price that must be paid for giving the option to a candidate not to disclose his community.
In fact, each one of us has a duty towards the actual requirement of our Constitution. Schedule I of the Constitution is unchanged and remains paramount.
Section 4(2)(b)(i) and (ii) must be read in conjunction with paragraph 5 of Schedule I.
Those who are saying they will not declare their community will be going against Schedule I and many want to do it to disrupt the system.
In fact, they want the system not to work and put fear in the minds of the people by making it a communal issue.
And this is precisely why we have put in such a mechanism instead of just changing “shall” to “may”.
But Schedule 1 is overriding.
Mr Speaker, Sir, there will always be people who never propose solutions and then are quick to find what problems they can create to the solutions proposed for obscure purposes or cheap political gains.
There is no ideal solution – there never is.
But because of the doubts created, on purpose, I am moving the amendment as circulated for clarification purposes.
7. Hon Guimbeau proposed the alternative of appointing BL seats to the most successful unreturned candidate irrespective of communities.
Unfortunately this will be against the provision of the Constitution which clearly states that these seats must be alloted to the appropriate community. This means in the language of the Constitution that it has to be distributed to underrepresented communities after the results of the 62 FPTP seats are known. A quick calculation of the results of the 2010 elections would show that many of these seats would not have gone to these appropriate communities.
8) The alternative of allowing Party leaders to choose who to appoint as Best Losers.
Mr Speaker Sir, this is preposterous. It is the worst proposal that I have heard. Not only does it go against the very provision of the Constitution for a fair and adequate representation of each of the four communities but it introduces an element of subjectivity, partiality and discretion in the allocation of these seats. Today these seats are determined in an objective and rules based manner by an independent institution. How does one determine who will obtain the first, the second until the eighth seat ? How does one balance the formula to avoid that the will of the people is not frustrated ? Simply impossible and therefore cannot even be contemplated.
9. Why we do not proceed with full electoral reform now and have to wait after the next elections.
We need a clear mandate from the people of Mauritius to effect such a major constitutional change. Of course many parties have in the past signalled their intention to introduce electoral reform to cure the imperfections of the current FPTP system. But noboby could anticipate what would be the exact architecture and detailed content of the electoral reform as there are thousands of permutations and combinations. Electoral reform comes in various shapes and forms. What will be proposed is very specific in many aspects as well articulated in the Consultation paper on electoral reform.
Mr Speaker, Sir,
The reforms currently being finalized constitute very significant changes in the voting formula of our country. In the Consultation document, there are at least 10 major policy decisions that have been proposed. In addition there are spill over consequences. This is certainly not a simple change in an ordinary law. And it may well stay with us for a very long time. So the people have a legitimate claim to a say in this process. We will seek the electorate’s endorsement of the reform before it is implemented for general elections.
Mr Speaker, Sir,
I believe that I have replied to most of the major points raised by Honourable members and I hope against hope to have cleared the misunderstandings.
While others have spent their time trying to divide and rule, while others hail from political parties which will forever belong to the dark pages of the History books as far as the national unity of the Mauritian nation is concerned, I am proud and honored, Mr Speaker, Sir, to lead a political party which has always been on the right side of History as far as the emancipation of our Nation, the emancipation of our Society and the emancipation of our People is concerned.
While others want to ‘instrumentalise’ our natural human differences for sheer cynical political calculations, I am driven by the dream, the aspiration, the unbending resolve to keep strengthening the notion of a common citizenship, a common sense of identity and destiny.
This is why I set up the pilot project for the National Institute for Citizenship Education. It’s a Nation Building program for the youths to build a strong sense of Patriotism, to know about their rights and duties as citizens of this country. To build a common sense of identity and destiny.
When I heard what Hon Perraud said, I am sure, encouraged by her leader – I am surprised and sad.
If you read our Constitution, you will see our founding fathers bent backwards to ensure all the communities in our rainbow nation are treated equally without any discrimination.
When she says that one community is being penalised for jobs in Government – I tell her go and see how and why the PSC, the LGSC and the DFSC were created.
Mr Speaker, Sir,
We do not live in a perfect world.
There will always be people who discriminate in every country in the world.
But our founding fathers gave us a Constitution with guarantees for fundamental human rights modeled on the Human Rights Convention.
Our Constitution is unique in the Commonwealth – go and compare.
But we have to strive to eradicate unfairness everywhere we see it.
I have always believed that all humanity is one, whatever our origins or colour or religion or community.
It is an ideal I will always fight for.
That is why I went even further.
I set up the Equal Opportunities Commission – so that each and every citizen of this country gets an equal opportunity to thrive and attain his or her goal.
I set up the Public Bodies Appeal Tribunal – so that if you feel you have been discriminated against – you can have a quick redress.
I set up the Truth and Justice Commission to close the deep wounds of our past.
And I never have and never will leave any stone unturned to Rally – to rassembler all Mauritian citizens around this common sense of identity and destiny. This is why I find it to be absolutely shocking that anyone could today in 2014, suggest that we should now, in 2014, start to count / categorize our population in rigid, hermetic straight-jackets which is the surest way to stifle the flourishing of more fluid citizen-based common identification to the Nation. Needless to say, I most vigorously denounce such historically retrograde ideas and I will never cease to forcefully fight against such evil-minded propositions which are downright dangerous for the social harmony of our Nation.
The Labour Party has always stood for progressive values and for the advancement of all Mauritians as a cohesive and a united nation in all its diversity. We will continue to uphold these noble principles and timeless values.
And no one should be surprised that the 2 biggest parties, the Labour Party and the MMM, although we have our differences, when national interests are at stake, tend to converge.
Mr Speaker, Sir,
Everybody knows that I stand for the unity of the Mauritian nation. Under my watch – I have always ensured that our rainbow Nation is reflected in my actions. But exceptionally, for the next general elections, I will and all the Members of the Labour Party will declare their community and remain faithful to the Constitution.
And it is for one election only.
Before I conclude let me borrow a paragraph from what is known as the ‘Duty, Honour, Country’ speech by General MacArthur. He says:
“Duty, Honor, Country. Those three hallowed words reverently dictate what you ought to be, what you can be, what you will be They are your rallying points: to build courage, when courage seems to fail, to regain faith when there seems to be little cause for faith; to create hope when hope becomes forlorn. The unbelievers will say they are but words, but a slogan, but a flamboyant phrase. Every pedant, every demagogue, every cynic, every hypocrite, every troublemaker, and I am sorry to say, some others of an entirely different character, will try to downgrade them even to the extent of mockery and ridicule.”
Mr Speaker Sir,
Everyone knows that throughout my political engagement, I have never been spared any criticism – justified or unjustified; any mockery or ridicule – whether based on facts or sheer myth-making, any slander on my character. In spite of all this, I proudly stand, even stronger in my unflinching aspiration to rally the whole Mauritian nation around a common sense of identity and destiny. To lead our country to an ever-brighter future, specially for the younger generations. I stand even stronger in my resolve to shape the future of this country so that the young of this country will for a long time, continue to sing the praises of: