1. An unfortunate technical setback for an admirable national cause 

One can feel dejected to read that Reziztans ek Alternativ has lost on a technical issue while the substance of its case, a matter of very high public interest, has been totally ignored . Basically whether the obligation to disclose one’s ethnic identity to stand as candidate for general elections violates the constitutional right of our citizens. Another court in another country may well have acted differently. Even if one concedes on the incriminatedtechnical and procedural shortcomings, this is an iconic legal issue and an enduring battle, known to everybody and adjudicated upon by no less than the United Nations Human Rights Committee ( UNHRC) and the Privy Council in favour of the plaintiffs.

To be candid, I think it would be very difficult to separate this fundamental right with the provisions of the Constitution to allocate a maximum of 8 Best Loser seats to underrepresented communities after the election of 62 Mps. Simply because ,without the declared ethnic identity of returned candidates, it is impossible to implement the BLS. This is unfortunately the crude legal and constitutional reality. So we need to address the problem at its very roots .

2. The two options to cure the defects

Attitude on the Best Loser System remains deeply cleaved notwithstanding the pronouncement of the UNHRC, the severe reprimand of the Supreme Court, the warning of the Privy Council and the fact that alternatives exist to ensure socio-demographic diversity in Parliament

There are broadly two schools of thoughts that mirror the two recommendations of the UNHRC.

i) first is the proposal to embrace an electoral system that is devoid of any reference to communities in our Constitution while articulating a well calibrated electoral reform that ensures adequate socio-demographic parliamentary representation . These would meet the criteria of diversity and inclusion in a plural society.

Clause 5 (1) of the First Schedule of the Constitution  explicitly states the need  

               ‘ to ensure a fair and adequate representation of each community’. 

I support this approach of subsuming the BLS into a new electoral compact that would do away with ethnic categorisation while providing for political inclusion and parliamentary diversity .

ii) second are those who favour an updating the 1972 population census so as to comply with the other proposed remedy of the UNHRC, the Privy Council and the Supreme Court. Its supporters believe that the BL system has fulfilled its expectations of compensation for the under representation  of some communities and that no viable substitute exists to provide such entrenched guarantee. However there are risks that it may open up a can of worms and become catnips for some with potential effects on social cohesion and national unity. In the event that the BLS is kept with an updatedpopulation census, it must be reformed to remove its discriminatory aspects, to curb its arbitrariness, to do away with its anachronism, to cure its defects, to minimise its irrationality, and to eliminate some of its paradoxes.

An exceptionally complex and difficult task to accomplish . 

I am opposed to this approach because of its deleterious effects on nation building after 55 years of independence and its huge potential to further balkanise an already cleaved society. 

The suggestion that the Constitutional amendment introduced in 2014 to do away with the compulsory declaration of the community of candidates can be extended to future elections is fraught with challenges. It could provide some transitional relief to the point raised by R & A in its prayer . There would be no mandatory requirement to declare the ethnic identity of candidates. In cases where successful candidates do not disclose their ethnic belonging ( there were six of them in 2014including the current PM), it could distort the allotment of the 8 seats. There is also one big lacuna. The system will continue to use the outdated population census of 1972 to apportion those seats. Which goes against the recommendations of the Supreme Court, the Privy Council and the UNHRC.

3. The solution lies with the political class and not with the Courts

This is abundantly clear from the recommendations of the Supreme Court, the Privy Council and the UNHRC.

In 2005, the Supreme Court stated that  

‘it is really unfortunate that the learned Judge's hope, as at 8 September 2000, that the defects would be remedied in the near future having regard to the project of electoral reform which was on the cards has remained a pious wish and no improvement has, up to now, been brought about.

17 years after that 2005 observation, the political class has still not found a cure for the problem identified by the Supreme Court. 

It still remains a pious wish .

The Privy council has chastised the BLS for its use of anachronistic figures to allot the 8 seats. 

In 2011, it argued that 

             ‘a  system based on figures now nearly forty years old ( now 50 years) makes no sense’. 

While it stated that it has no jurisdiction on the matter, it urged for the problem to be resolved through political debate and constitutional reform and warned that it will not prevent a constitutional challenge being brought against the Best Loser System in the future . 

The compulsory disclosure of a candidate’s community has been found arbitrary and discriminatory and to constitute a violation of the rights of our citizens by the UNHRC in August 2012. Thecountry was enjoined to submit an effective and enforceable remedy within 180 days so as to avoid such violation of rights in the future.  

Mauritius has been incapable to find a remedy to cure such violation of rights after 10 years now. Amazing !

4. Yes to reform but no to the fine prints 

Even if electoral reform is very complex, complicated and highly sensitive, political parties have not risen to the expectations of the nation to evolve a voting system that will expunge the constitution of ethnic consideration while providing diverse and inclusive representation to all components of our rainbow nation.

It is plain that there is not the same degree of commitment from political parties for electoral reforms. It is also clear that some will scupper any initiative to change the current voting formula.Some political stakeholders , however well intentioned , do not always have all the expert knowledge and information to fully grasp all the consequences and ramifications of different electoral reforms. They believe what they know is what is best for the country or what is best for  them is also best for the country.

Petty short term vested interests, parochial party partisanship, tactical calculations and strategic considerations, a lack of knowledge and understanding of how electoral systems work, a distorted view of  fairness and inclusion in a diverse society, a legacy of historical prejudices on PR , an abject refusal to learn from best international practices and a cynical disregard for the recommendations of electoral experts, all have coalesced to stifle any attempt to rise to the political and constitutional challenges of reforming the voting system.

As a result we have utter confusion which is an agenda for inaction. And only lip service to reform.

Some want to retain the BLS in its current shape and form even it violates the fundamental rights of our citizens. Some would like to update the population census of 1972 along exactly the same four ethnic categories, failing to acknowledge that Mauritius has changed considerably and the population mix is different. Some advocate reform in general while contesting the details of necessary changes and would like to push their own partisan agenda. Some unashamedly advocate for the difference in seats between winner and the second party to widen. Some would like a dose of PR that has two lists, one chosen by the electorate on the basis of a party list and one appointed at the sole discretion of party leaders after polling. No expert such as Sachs and Carcassonne has recommended such a weird system as it does not exist in a democratic country. It lacks transparency, is open to corrupt practices and sends us back to the Governor’s absolute and arbitrary discretion to choose Mps on a ‘ look at ‘ basis .

5. What will likely happen ? Status quo or the cure worse than the disease

Based on what has happened at the Supreme Court, the Privy Council and the UNHRC over such a very long time and the impotency of the political elite to address the fundamental issues,it looks  the status quo will likely persist. 

No idea whether it is worse than an undemocratic reform that will give more power to political leaders to choose MPs on a ‘ look at basis’ after the elections or one that will widen the seat majority of the winning party. The devil and the deep sea.!

And of course, each party will blame the other for lack of progress in the reform agenda.

In the meantime, our compatriots continue to be pigeon holed on the basis of four outdated ethnic groups. They also cannot exercise a basic constitutional right to stand as candidate if they do not disclose their ethnic identity. Women remain significantly underrepresented in Parliament and the Cabinet . Forget Norway, Canada , France and New Zealand. We are very far behind even Cuba, Rwanda, Nicaragua and Mozambique in female political representation. The difference between vote share and seats share remains abysmal. And sadly, Rezistans ek Alternativ will continue to spend time, effort, energy and money to defend this admirable cause with resilience, perseverance and dignity. Probably in the wrong courts as those tasked to cure the defects are in a dreadful dereliction of duty.

So goes vested interest in Mauritius.