According to some political commentators, a new dawn has broken, a new era has ushered in with someone from a very small minority taking the Jewel of the Crown of political power in the country. This has been heralded as a great example of national unity, a lesson to more mature democracies like the UK, France and the US where this would be unthinkable.

?Il serait magnifique aujourd?hui, qu?un Premier ministre, issu d?une famille appartenant à l?une des ?communautés minoritaires? que la Constitution visait à ?protéger? réussisse à réaliser le dernier voeu de son prédécesseur, quant à l?égalité de tous les citoyens, en faisant, dans ce but, disparaitre à jamais de notre Constitution la notion honteuse de ?communautés séparées? et ses effets, telle la nomination de ?Best Losers?, basée sur ce principe désormais rétrogade?. (D. Lagesse in L?express of 04 octobre 2003.)

Can and will the new PM rise to this noble challenge and seize this unique opportunity to rid our Constitution of blatant communalism and racism? History can be cruel. Some could argue that the notion of ?minorities? requiring protection when the Prime Minister is from the ?majority? has a corollary. What happens in the reverse situation when there is a Prime Minister that hails from a ?small minority?? Will there be two classes of logic? One based on division of race and ethnicity when it comes to one cause and one centred on national unity when it fits another purpose. I am in favour of subsuming the Best Loser System (BLS) in a dose of PR that will be introduced, as recommended by the Sachs Commission and as being studied by the Select Committee chaired by Ivan Collendavelloo. Well crafted, the dose of PR can certainly achieve broad representation while deethnicising the electoral formula and deracialising the Constitution.

Some of the strong objections to the BLS are well known; however there are other fundamental defects that have gone unnoticed even if they pervert the system.

i) Raj Mathur writes that ?the BLS is most undemocratic and is incompatible with the spirit and the letter of the Constitution, which stipulates that Mauritius shall be a sovereign and a democratic state?. He adds that ?it is certainly an aberration that, when real attempts are being made at nation-building, we are still being saddled with vexatious provisions in our Constitution which in effect institutionalise communalism.? It is against republican values and ?mauritianhood ? to have ethnic considerations written in our Constitution for the designation of some MPs. This is tantamount to allowing the cancer of communalism to vitiate the very foundation of our democratic framework. The BLS ethnicises the electoral system, classifies candidates and electors, legitimises communalism and inhibits nation building in total contradiction to the new dawn hailed by many ;

ii) The arbitrary choice of only four eligible communities is discriminatory. It is argued that all the colours of the Mauritian rainbow are not present in their own rights. A huge contradiction may be underscored. How on earth can three communities, if not more, be told that they can have their own identities and specificities in respect of public holidays, the distribution of religious subsidies by the state, the setting up of cultural centres by Government, the construction of temples, the promotion of their languages on radio and TV, the teaching of these languages at schools, the appointment of Ministers to the Cabinet, the nomination of ambassadors, the selection of members to many important para-statal bodies, etc. and yet they are denied these very same ?identities and specificities? when it comes to such very important matters as access to Parliament and possibly a place in the Council of Ministers? How can such exclusion and such discrimination persist in this new era with Bérenger as Prime Minister? He who is so fond of stating, rightly, that ?there is no small community?.

iii). We cannot ignore the judgement of the Supreme Court on the BLS in 2000. After a thorough examination of the provisions of the Constitution, Judge Seetulsing reached the conclusion that it was perfectly constitutional for Ram Seegobin, Rajni Lallah and Veerasamy Renghen to be classified as General Population, which is a ?residual community? in the Constitution. Consequenty, he has questioned the enforceability of the BLS and stated that this problem should be addressed within the context of electoral and constitutional reform. Some abuse could pervert the basis for which these seats are allotted. If, in the light of the Seetulsing judgement, S. Ghurburrun (a Hindu) had registered as a General Population in 2000, he would have been the fourth Best Loser from the second set of four with 43.99% of the votes in lieu of XL Duval with 42.77%. While being constitutional, this is simply absurd. The Sachs Commission has deliberated on this issue and recommended that the BLS be subsumed in the dose of PR to be introduced in our voting system;

iv) In a paper on electoral reforms, Sir Marc David and Pierre Dinan state that the BLS is archaic and anachronistic. Since 1972, there is no publication of the breakdown of ethnic composition. Yet seats are allocated according to communal distribution. Thus, the BL seats in 2000 were distributed using the population size and the ethnic makeup of the 1972 census, almost 28 years ago. The population has increased by almost 40% since 1972 and it is plain that the ethnic composition also is no longer the same. Yet we continue to use outdated statistics to allot BL seats. The reliability of these figures and the fairness of the method can be contested. First, if the 1962 census were used instead of the one of 1972, the allocation of BL seats would have been different in terms of parties, communities and individuals for most elections. Second, if we use religion as a proxy for community in subsequent census and make some simple assumptions, this would give a third set of BL. Finally, if there were seven eligible communities instead of four, the allocation of BL would again be different. How can we maintain such a inequitable system?

v) Seats are allocated by the use of a very complicated formula. Very few people understand how it operates as it takes many factors into consideration. In many cases it is like a lottery. It can be quite arbitrary in its apportionment. In 1995 a party that polled 20% of the votes, with members of the ?appropriate community? among its defeated candidates, did not secure a single BL seat while four BL MPs came from parties with a very small percentage of votes. In 2000 also, two BL seats were distributed to a very small regional party at the expense of a large national formation that had many candidates of the ?appropriate communities? in its ranks. It is allotted, regardless of any threshold of votes nationally. The actual recommendations of the Banwell Commission that constitute the basis of our current electoral system were perverted by political negotiations. Banwell had, in fact, proposed that BL seats be allocated to parties having polled at least 10% of national votes and having won at least one constituency seat. There were very sound reasons for this. Yet these two conditions were removed at the last minute!

vi) It is quite erratic in its distribution. In 1983, Nawoor, a Muslim with only 16% of the vote, was chosen as BL while Kasenally with 47% and belonging to the same community was not returned! Likewise in 1987, Finette with 47% of the votes obtained a seat of BL while Bérenger did not go to Parliament with 49% of the votes, even if both are from the General Population;

vii) The number of electors in a constituency affects the allocation of BL seats. As a result of very unequal sizes of constituencies (from 22000 to 50000 voters), there are cases where a candidate secures a BL seat with far fewer votes than another one belonging to the same community and the same party! Is this fair? The most known example is the case of Alex Rima and Jules Koenig in 1967.Rima was allotted a BL seat with 6596 votes while Koenig did not get one with 6851 votes. Both were from the PMSD and belonged to the same community. It was the smaller size of the constituency that favoured Rima as his percentage of votes at 45.72% was higher than that of Koenig at 44.37%. This distortion has occurred in other elections too. In 1995 and 2000, it led to a double anomaly. Beeharry, a Muslim, was awarded a BL seat even if his party won a very insignificant percentage of national votes compared to the 20% of the MSM/RMM. Worse he won only 4405 votes while Soodhun, also a Muslim, polled 7416 votes (68% more) without a BL seat. In 2000, Leopold with only 7732 votes (his party got 1% of national votes) won a BL seat while Petit with 14626 (and his party had 37 % of overall votes) did not. In 1995, Von Mally became leader of the opposition through such an anomaly; Sir Anerood Jugnauth was denied this ?right? while his party captured 20% of votes nationally!. How on earth can we keep such a formula?

viii) It can be mind-boggling. In 1983, there was an alliance among three parties. For tactical reasons, it was agreed that in most constituencies all candidates of that alliance would stand under the joint sun/key symbol while in some districts the symbol would be a cockerel. Despite being in a total alliance, they registered as two parties for electoral purposes. Malherbe,a long serving LP member, stood on the PMSD platform. He polled 44.91% of the votes and was not returned as a BL while Candahoo, from the same alliance and belonging to the same community, got in with 43.78% of the votes because he contested under the MSM/LP banner! Had Malherbe been under the banner of his party, he would have been a BL. Amazing!

ix) Many are flabbergasted by the double standards of some who argue for the maintenance of the BLS based on ?communal representation? while campaigning for the banning of communal parties; they will also seek a high threshold of votes to be eligible for PR seats so as to prevent ?communal parties? from entering Parliament. Yet the BLS allows communal parties to access the Assembly, as there is no threshold requirement. It actually happened in 1995!. How inconsistent can we be? There is also the hypocrisy of having changed the Constitution in 1982 to forbid reference to specific communities in population census while compelling all candidates to state their communal belonging as some seats are allotted on that very same criterion!

x) Banwell proposed the BLS in a very specific context and it was intended as a purely temporary arrangement to facilitate the difficult political transition to our independence. He stated optimistically that ?we hope, however, that it will prove possible for all parties in Mauritius to agree on the ultimate disappearance of such political arrangements for communities?. 37 years have elapsed and the ?temporary arrangement? is still operational.

xi) Today, Mauritius is in a completely different context than in 1965. Rightly or wrongly, there were fears of political domination based on ethnicity and as a result some ?insurance? was necessary .The BLS allegedly provided such ?insurance?. Today we are in a very different environment. Someone from a very small minority is Prime Minister. The whole rationale underpinning the BLS has completely changed as the context has radically evolved. If anything, the ?political domination and constitutional protection dichotomy? has been turned on its head!

When there is a proportional representation (PR) mode in a mixed formula, there is absolutely no need for the BLS. The PR list itself guarantees that Mps reflecting the diversity and plurality of the country will be returned. The country where Mr Sachs hails from is a case in point. South Africa has a list PR electoral system. There is absolutely no separate provision for Blacks, Whites, Indians and Coloured, even if the electoral system was introduced after many decades of apartheid and bitter racial animosities and overtones. The very essence of PR is to ensure as broad a representation as possible. In the South African Parliament, representation is both diverse and plural. The legislature is close to ?an accurate map of the whole nation, a portrait of the people, a faithful echo of their voices, a mirror, which reflects accurately the various parts of the public?. Yet there is neither BLS nor reserved seats The PR electoral system does the trick. In PR terminology, plurality and diversity could refer to gender, race, religion, language, ethnicity, minority views, environmental groups, small parties, etc. Countries with PR achieve diversity and plurality with a balanced slate of candidates on their PR list, both in terms of numbers and rank.

In the wake of the Constitutional talks to Independence, various electoral formulae were proposed. Some supported the FPTP system while others preferred the PR. However, the PR proposals were not supplemented by a BLS. And rightly so. The proponents of PR knew fully well that the party list would reflect the diversity and plurality of Mauritius. It was because PR was rejected that the current formula contains a BLS system as the FPTP cannot guarantee such diversity and plurality. It was either FPTP or PR. No mixed formula was contemplated. The Sachs commission has recommended and Govt has accepted a mixed FPTP/PR system. It is an altogether different game.

As the electoral system is being revisited and as we are likely to have a mixed formula, we should subsume the BLS in the dose of PR. Double candidacies can give an additional insurance for diversity and plurality. It is a fact that many PR formulae (Germany, Japan, New Zealand) give a second chance to some candidates and this should be used for a broad-based representation in Mauritius without resorting to BLS.

The introduction of a mixed system with a dose of PR gives us the opportunity to design a voting formula that will ensure broad representation. This includes party, gender and ?rainbow? representation without ethnicising the electoral systemI have submitted evidence and worked examples to the Sachs Commission to show that with the right PR dose in the mixed FPTP/PR formula, we can achieve broadly representative results that reflect the plurality and diversity of Mauritius. For instance under such a formula, Koenig would have been chosen in 1967, Mohamed and Duval in 1976, Ramgoolam in 1982,Berenger in 1987 and Jugnauth in 1995.Yet none of these political stalwarts got a seat in Parliament, even with the BLS, including Bérenger with a very high 49% of the votes in 87.

The arguments for the abolition of the Best Loser System have been considerably strengthened by two major factors. Can the new PM rise to the occasion and grab the twin opportunities given by his own accession to the supreme political post and the Sachs? recommendations of a dose of PR to reflect diversity and plurality? to consign this? archaic, anachronistic, arbitrary, discriminatory, erratic, undemocratic and vexatious provision? to history. Can rhetoric be transformed into concrete legislative actions to move the nation forward? Can good intention give way to robust constitutional measures to make all citizens equal before the supreme law of the land? This is the crucible of national unity. It would be a tryst with history to have a Constitution and an electoral system expunged of ethnic, communal and racist considerations. There is no best time to attain this lofty goal than today! Indeed a new dawn, a new era.

Rama Sithanen

How can such exclusion and such discrimination persist in this new era with Bérenger as Prime Minister? He who is so fond of stating, rightly, that ?there is no small community?.

Under such a formula, Koenig would have been chosen in 1967, Mohamed and Duval in 1976, Ramgoolam in 1982, Berenger in1987 and Jugnauth in 1995.

Yet none of these political stalwarts got a seat in Parliament, even with the BLS, including Bérenger with a very high 49% of the votes in 87.