In this second article on the fall out from the Rodrigues’ election results, Dr Rama Sithanen considers three other important questions. It looks like it will considerably weaken reform prospects in Mauritius, raise the risks of having no legal choice than to update the 1972 community census, and cause the State to seek another postponement when the case is called before the Supreme Court.
1. If not bruised and battered already, the electoral reform agenda will limp to back burner mode
Even without the outcome from Rodrigues, the reform agenda was going nowhere. Now it will be very difficult to sustain even if the rhetoric may point to the other direction with the resumption of the Ministerial and alternative facts driving the analysis instead of informed judgement and evidence-based arguments. If we add the Best Loser conundrum and the thorny problem of gender representation, it is clear that there will be talk only and hardly any significant actions and policies. The devil will always be in the details. We have seen it before. While there is consensus on the necessity to remedy the defects of First Past The Post (FPTP), it is near impossible to find an acceptable alternative. In spite of the urgent calls for change by the various judgements of the Supreme Court and the Privy Council on the one hand and the pronouncement of the United Nations Human Rights Committee (UNHRC) to cure the violation of rights and the humongous difficulty of the State to defend the status quo on the other, some actors will seize on the Rodrigues elections and its potential replication in Mauritius to scupper change and reassert strongly the preponderance of the FPTP formula in spite of its several lacunae.
To complicate matters, the emphatic statement of SAJ that the voting system of Rodrigues will never become reality in Mauritius under his watch and his appointment as new Chairperson of the Ministerial Committee on electoral reform are unmistakably indicative of the direction in which the conclusions and recommendations will lean. Right or wrong, SAJ has been consistent throughout on both PR and the Best Loser system. He simply does not trust proportional representation (PR) even in a small dose. At best, he will continue with his mantra that he is for reform as long as it does not alter the choice of people as delivered by the FPTP mode. As stated earlier on, how can there be change if we want to retain the same outcome! This is patently a disguised way to ensure there is no reform at all or only a cosmetic one. Equally he has always been a fervent supporter of community-based representation through the Best Loser system (BLS).
“SAJ (...) simply does not trust proportional representation even in a small dose.”
Other countries use much better formulae to ensure diversity of representation. But they are different in form and shape to the BLS as excellently asserted by both Sachs and Carcassonne. However many in Mauritius want its replacement to be a mirror image of the BLS. This is at best a polite way to entrench the existence of the BLS. The prospects of reform are therefore dimmer today.
2. UNHRC response: choosing between the devil and the deep blue sea
In the absence of any reform, Mauritius must find an acceptable response to the pronouncements of the UNHRC of 2012 on the current requirement to declare one’s community to stand as candidate for general elections and the use of the 1972 population census to allocate the 8 Best Loser seats. That practice was found to be arbitrary and to “violate article 25 (b) of the International Covenant on Civil and Political Rights” as the census has not been updated since 1972.
The Committee observed that Mauritius is under an obligation to provide an effective and enforceable remedy for the violation established and that it has to
i) avoid similar violations in the future;
ii) choose from a narrow set menu how to cure the violation. Either it updates the 1972 community census or it considers whether the community based electoral system is still necessary;
iii) communicate to the Committee information on the effective and enforceable measures within 180 days.
Deadlock is the most accurate description of where we are with a remedy. We are outside the 180 days’ time frame. We are four years behind schedule and there is still no effective and enforceable cure in sight.
I totally agree with the experienced lawyers of the UN panel that we do not have many solutions, only a narrow set menu. Our choice for remedy is either to update the 1972 census or to adopt a non-community voting system. The Constitutional amendment introduced only for the 2014 elections to allow candidates the option to declare their community is not sustainable as it violates our Constitution and does not meet the requirements laid down by the UNHRC. First, even after the 2014 amendment, we are still using the 1972 census to award the 8 Best Loser seats.
There have been several judicial statements, both locally and internationally, condemning the functioning of the BLS.
In 1991 the Supreme Court stated:
“whether it is possible to effect any representation which is fair and adequate when it is based on a figure which may not reflect present reality but the reality of 20 years ago (now 45 years)?”
“Many of our compatriots do not have a problem with representation based on the ‘politics of presence’.”
Simply bringing back the 2014 amendment will not pass the litmus test of the UN either. It will probably give us some time to dawdle on reform. Otherwise the Committee would have included it as a possible cure in their narrow set menu! Second, the Constitution is clear that the Best Loser seats should be allotted to the “appropriate community’’.
The Supreme Court has emphatically concluded that:
“The purpose of Article 5(1) is to ensure fair and adequate representation of each community. This exercise can only be done on the basis of the latest official census, as originally envisaged in the 1966 Constitution.”
The allocation of the 7 BL seats in 2014 did not satisfy this important requirement of “fair and adequate" representation as 2 seats were not distributed to the appropriate community while the same 2 seats were apportioned to a community that was already “fairly and adequately represented’’.
This takes us back to the dire option of the UNHRC in case we cannot evolve a non-community based electoral system. The UNHRC never passed a judgement on the nature of our current electoral system. It simply highlighted the violation attributable to the lack of an update of the community census of 1972 and its continued use to allot the 8 Best Loser seats. Put differently, had the community census been updated, there would have been no arbitrariness and no violation of political rights.
It seems that in the absence of electoral reform to embrace a non-community voting system, there is no other choice than to update the 1972 community census. We know its awful implications as it is abhorrent, against nation building and what we have accomplished as a nation since independence. But sadly, we cannot hide our head in the sand and pretend otherwise just because we do not like that option. The more so that many of our compatriots do not have a problem with representation based on the “politics of presence’. I am totally against it but I must admit that both the current and the past Chairperson of the Committee on electoral reform are strong advocates of such representation. We can bide some time by tweaking with the Constitution and kick the can down the road. But it is clear that a repetition of the 2014amendment will not pass the test of the Supreme Court, the Privy Council and the UNHCR. Hence the return of the 1972 ogre with the opening of an ugly can of worms. Not now but ultimately. The cure is worse than the disease and we all dread it. But in the absence of reform, there is hardly any other legally unimpeachable remedy.
3. The State simply does not know what to do. Another request for postponement is a certainty
Since 1991, the State has been incapable to find a cure for the several criticisms made by the Supreme Court on our electoral system. All major political parties have been in office during that period. In spite of rhetoric, there is no political will to take the bull by the horn and propose solutions that will address the various points raised by judicial institutions.
Rezistans ek Alternativ must be commended for taking this case to the UNHRC and now to the Supreme Court. The Ministerial committee upon which State lawyers depend to build their case has not been able to make any recommendations on these major issues. Even with Xavier Duval as Chairperson, not much progress was made on a dose of PR and a substitute for the community- based electoral system. This is even less likely with the new Chairperson as his views on both subjects are well known.
State lawyers will therefore have no option than to ask for another postponement. This has been the predicament for the last 25 years. The MSM-led government is probably caught in a riddle wrapped in a mystery inside an enigma. Its preferred choice is most likely not to introduce any meaningful reform because of its proclivity for FPTP and the Best Loser system. However it also realizes that the alternative option of an update of the 1972 population census proposed by the UNHRC will face the opprobrium of a majority of people as it will consecrate communalism in our Constitution. This is certainly not consistent with the modernity and reform-minded outlook and image that Pravind Jugnauth wants to display as new PM. It is difficult to understand why he has entrusted the Chairmanship of the committee to SAJ. It could be a poisoned chalice with the Minister mentor recommending an update of the 1972 community- based population census. Unless the intention is to do nothing and set aside the advice of the Supreme Court, the Privy Council and the UNCHR as there is no acceptable solution.
The postponement sought by the State before the Supreme Court on 22nd June will rest on more time required by the Committee to make up its mind as the chairmanship of the Ministerial Committee has changed. How long will Rezistans e Alternativ have to wait before the Supreme Court gives its judgement is anybody’s guess. However there is the high probability of the Supreme Court and the Privy Council endorsing the findings of the Human Rights Commission. The Judicial Committee of the Privy Council has warned in 2011 that:
“a system based on figures now nearly forty years old makes no sense.
It appreciates that, if the issues cannot be resolved politically, they may be raised before the Judicial Committee in the future.”
4. Concluding remarks
There are three likely possibilities. First nothing happens until we have some painful self-inflicted wounds. Those who support the status quo are hoist by their petard where they are denied any seat even with 30 % of vote. Had the previous Government enacted change with the legislation that was ready, the Labour Party would have a sizeable contingent in Parliament with many of its stalwarts returned as MPs. The LP/MMM alliance captured only 21 % of seats on 38 % of vote. Better, there would have been no frequent changes to the Constitution as the reform would not have given more than 75 % of the seats to an alliance that captured less than 50 % of vote.
Unfortunately, as is often said, the only thing we learn from history is that we do not learn anything!
Second another disaster befalls our country with a party that polls fewer vote winning the election. This is worse than 60-0. It has happened few times in the UK, Canada, India and Malaysia. Essentially a party with 45% of vote takes a majority of seats against another party with 50 % of vote. The perfect illustration of minority transformed into majority by the contingency of an unfair electoral system. It occurred twice in New Zealand. People revolted, took to the streets and the political elite had to change the voting formula
Third, as stated by the Privy Council, it accepts that the matter be raised before it.
No prize for guessing which way the judgement will go. It has already given us a flavor. Many will probably not be there to draw the consequences of their persistent inactions.