Rezistans ek Alternativ (ReA) has demanded that the government come up with a second ‘mini-amendment’ to do away with the obligations of citizens to declare their community before standing in an election, pointing to the 2012 decision of the UN Human Rights Committee (UNHRC). Here is why this demand is less dramatic than it seems. And why it’s more about ReA’s own political compulsions as much as anything else.

1. The road to the ‘mini amendment’

The party Rezistans ek Alternativ (ReA) has demanded that the government pass a new ‘mini amendment’ along the lines of the one passed just ahead of the 2014 election which temporarily fulfilled ReA’s long-standing demand to do away with the need for candidates in elections having to declare their community. This is while the party is fighting to take their case to the Privy Council in London. The ReA’s Stefan Gua has argued that a second such ‘mini amendment’ would allow Mauritius to stop being a “rogue state” for being in violation of a 2012 decision of the UN Human Rights Committee (UNHRC).

But first, it is important to look at the background of ReA’s long struggle to get its demand through. Beginning in the early 2000s, the party began demanding that the need for candidates to identify with one of the four constitutionally recognized communities to stand in an election be scrapped. This system arose in the first place to allow election officials to figure out which communities were under-represented in elections and then allocate best loser seats (BLS) to mitigate the problem. The first breakthrough came just ahead of the 2005 election when Supreme Court judge Eddy Balancy decided in favour of ReA, allowing its 11 candidates to stand in those elections. That made the 2005 election the first one in Mauritian political history where the requirement for candidates to identify with a particular community did not apply. The Balancy judgement, however, was subsequently overturned by a full bench of the Supreme Court which argued that Balancy got the law wrong and reinstated the requirement. Ahead of the 2010 elections, ReA unsuccessfully again tried to get the courts to do away with the system. However, the next major step to come the ReA’s way was the 2012 decision of the UNHRC.

2. How important is this demand, really?

While the ReA’s demand has been painted for years as a blow to the BLS and “communalism” within the constitution, in reality the party’s demand is much more modest than it is painted out to be.

This was proved by the aftermath of the 2012 UNHRC decision. That body, while it criticized the way the system worked effectively gave the Mauritian state two distinct choices: either it comes up with a wide-ranging electoral reform to change the system in place or it re-instates ‘community’ category in the census to allow the system in place to work properly. But if the ReA is brandishing the threat of the UNHRC it is first important to know the stakes, and how legally significant its decision is to begin with. This was answered by then-Prime Minister Navin Ramgoolam himself in July 2014; “it is true we knew it from the beginning, they (the UNHRC -ed.) cannot actually enforce us legally to do what they are saying we should do. They have made a declaration, but there is no legal force behind it”. After all, between a non-binding UNHRC decision and a binding decision from the full bench of the Mauritian Supreme Court upholding the requirement to declare one’s community, it was always obvious which one was legally more important. But the reason the UNHRC decision assumed the political importance it did was in no small part due to the government itself at the time. Failure to implement that would lead to “the European Union taking sanctions”, much as earlier a similarly ill-defined threat of sanctions was dangled to browbeat parliament to pass the draconian Prevention of Terrorism Act (PoTA) between 2000 and 2005.

The reason for such exaggeration was that the government at the time led by the Labour Party and the opposition led by the MMM were using the UNHRC pronouncement as a steppingstone to build an electoral alliance for the 2014 election. What they came up with was the ‘mini-amendment’ that did the bare minimum: it lifted the requirement to declare one’s community but for the 2014 elections only. And since the Labour-MMM alliance pledged to bring in electoral reform when they came to power; the question of revising the census did not arise. The ‘mini amendment’ passed with 63 parliamentarians voting in favour, 1 no vote, 3 abstentions and 2 MPs absent.

What the ‘mini amendment’ demonstrated was just how hollow a tool ReA’s demand turned out to be. After 2005, the 2014 election was the second such election where ReA got its wish. The result was underwhelming; since not declaring your community meant that you would not be eligible for a BLS seat, most candidates continued declaring their community anyway so as not to lose a shot at getting into parliament through the BLS and the BLS itself continued smoothly. Just as it had in the 2005 election. Just how little ReA’s demand affected the BLS and ‘communalism’ really was not lost on the politicians. As Ramgoolam himself explained while presenting the ‘mini amendment’ on 11 July 2014; “they (ReA -ed.) did not ask for full-blown electoral reforms, neither have they been asking for the abolition of the Best Loser System…anybody again, with a little knowledge and understanding of the bill and a paucity of legislative knowledge would surely have recognized that the Best Loser System will function at the next general election as it has since 1967”.

Even if the ReA gets its demand, things would change no more than they did in 2005 or 2014 when the system hummed along just fine.

3. The boomerang effect

The problem is not simply that the importance of a non-binding UNHRC decision is being exaggerated to try to pass an equally exaggerated demand. The point is that by sticking to this demand, more bad than good seems to have come out of it.

In 1982, the MMM-PSM government did away with the census classifying the population into four communities (Hindu, General Population, Muslim and Sino-Mauritian). Specifically, the working of paragraph 5(8) of the first schedule of the Constitution was changed so that BLS calculations would no longer be based on “the results of the latest published official census” and replaced with “the results of the published 1972 official census”. The idea was to combat centrifugal tendencies within the Mauritian polity by throwing out community classification by the census. Whatever the ideological assumptions behind the move may have been, Mauritian courts have never been too impressed with this amendment. As early as 1991 in the Ex-Parte Electoral Supervisory Commission case where the Supreme Court was asked to weigh in on the allocation of BLS seats following the 1991 election, the court asked, “would it be possible, one may ask, 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? All these, however, are problems for the legislator, and not for us, to solve”. While this criticism was limited to within the courts, political parties themselves could ignore the question of whether they had sacrificed the principle of proper representation in a multiethnic society to the pursuit of an (ultimately failed) ideological chimera.

The ReA taking its case to the UNHRC took this criticism out of the courtroom and back into the political arena. With the UNHRC proposing the option of reinstating the communal census in its 2012 decision, mainstream parties such as the PMSD and sections of the Labour Party itself, began calling for communities to once again be recorded in the census to ensure that the BLS system functions as it was intended to, reflecting the current demographics of the country and not a snapshot of 1972 eternally reproducing itself. Since the Labour-MMM combine did not win in 2014 and no electoral reform came, the ‘mini amendment’ came and went, resolving nothing. Except that now the genie of the census question cannot be put back in the bottle and corked up again.

But the ‘mini amendment’ passed in 2014 ultimately ended up hurting the ReA’s own legal strategy too. Because it was intended only to apply to the 2014 election, by the time the 2019 elections drew round, the ReA was obliged once again to turn to the Supreme Court. But as the case continued and elections drew near, the ReA made a strange demand: that then-Chief Justice Eddy Balancy unilaterally declare that ReA could participate in the 2019 polls without having to declare their community. What was being asked was that a single judge should off his own bat overturn an earlier binding precedent set by a full bench of the Supreme Court, pre-empt the decision in a case that was still making its way through the court at the time and by-pass parliament entirely. What the curious episode seemed to suggest was that the ReA was prepared to precipitate a crisis within the judiciary and a wider constitutional crisis to try to get its own way. As the ReA argued that unless they were allowed to participate in the election on their own terms, the elections would not be “free and fair”, implying that every election in the history of independent Mauritius (with the exception of those of 2005 and 2014) were not valid. An interpretation that few could agree with.

But the ‘mini amendment’ also worked against the ReA in another way too. When the Supreme Court finally rejected this latest legal attempt by the ReA on 30 September 2022, it became clear how so. When the ReA lodged its plaint in May 2019, at the time the regulations inspired by the ‘mini amendment’ were still on the books, doing away with the regulations dating back to 1968 that the ReA was taking exception with. At the time, regulations passed in October 2019 restoring the requirement of candidates to declare their community on election forms had not yet been introduced. The result, the court noted, was that the ReA had brought its case at a time when the regulations passed under the ‘mini amendment’ were still technically in effect, theoretically granting everything the ReA was asking for (although everyone concerned knew it could not possibly apply to the 2019 election) hence the ReA had no case at the time it brought its case to court. It was this bureaucratic and technical loophole that the temporary ‘mini amendment’ had created through which the latest ReA case at the Supreme Court fell through and ultimately failed.

4. Why the demand now?

If the spectre of the UNHCR is once again being raised and exaggerated now, it is because there is another set of political compulsions behind it. And that’s how the ReA – uniquely among the small, extra-parliamentary political parties – has put itself at a political and electoral disadvantage.

By elevating this demand for not being obliged to declare one’s community on election papers into the centrepiece of their politics for nearly two decades, the ReA has effectively frozen itself out of electoral politics. If they stand in elections while declaring their community, they undermine their long-standing demand. If they stick to their guns, and insist that they cannot stand in elections while having their candidates forced to declare their community, they cannot stand in any general election at all. This opens up electoral space for other extraparliamentary parties – mushrooming in recent years - to scoop up any electoral support that the ReA might have had, while disincentivizing mainstream opposition parties from entering into an arrangement with an electorally non-threatening ReA. Put simply, through its strategy, the ReA has effectively handed a veto to any government of the day to decide whether the ReA can participate in an election or not. No other political party – parliamentary or extra-parliamentary – has ever limited itself in this way in Mauritian political history. Hence, the ReA’s political need for a second ‘mini amendment’ now. It’s the only way it can compete in an election.

It’s highly unlikely that the government will be looking to oblige the ReA either. This is because the political context back in 2014 that allowed the ‘mini amendment’ to pass is just too different from today. Back then, parliament was dominated by a big Labour Party dominating the government benches and a big MMM dominating the opposition ones and both coming together with an eventual election alliance in mind. Today, it is the MSM that dominates the government benches. In 2014, the MSM led by Pravind Jugnauth in parliament vociferously criticised and attempted to undermine the ‘mini amendment’ both within and outside parliament, even though he and most of his party eventually voted for it. It’s unlikely that the MSM would be willing to admit that it was wrong in 2014 by passing a ‘mini amendment’ of their own.

Unlike most of the opposition in 2014 that supported the government banking on an eventual alliance, the three parties of the opposition today are clearly ranged against the ruling MSM. And this opposition bloc includes the PMSD that also opposed the ‘mini amendment’ in 2014, with most of its MPs abstaining from the vote. It’s equally unlikely that a brittle opposition bloc that has just come together would be willing to sow discord within by pushing for a ‘mini amendment’ themselves.

With little hope of getting the 3/4ths needed to pass a ‘mini amendment’ with opposition support, the MSM has little incentive for such a move. Nor are the ReA’s arguments for why it’s so urgent for the government to abide by a non-binding UNHRC pronouncement now. Particularly if we keep in mind that after the 2014 election and the end of the old ‘mini amendment’, Mauritius has once again fallen into defiance of the UNHRC. A defiance that seems to have had no real international, diplomatic, legal or economic effect so far. The spectre of EU sanctions never materialized. Nor, of course, is the real crux of the matter: why it’s so urgent for the government to go out of its way to help the ReA get over its own self-imposed handicap and participate in the next election.