1. The 2014 amendment was intended for one election only

In a comprehensive analytical report underpinned by thorough mathematical testings, former Finance Minister and electoral systems specialist Rama Sithanen raises serious concerns about the unfairness and discriminatory impact of the proposed reform relating to the declaration of candidates’ communities at elections. He cautions that the proposal could significantly weaken minority representation and destabilize Mauritius’s long standing parliamentary balance, which is anchored in Clause 5.1 of the First Schedule to the Constitution requiring “fair and adequate representation of each community.” This clause represents a historic consociational compromise between majority governance and minority protection.

Sithanen has therefore recommended that both the Prime Minister and the Electoral Commissioner reject this flawed, arbitrary, and discriminatory amendment. Instead, he urges them to consider alternative remedies to address the three well known anomalies of the Mauritian electoral system.

In 2014, Parliament adopted a temporary, one time amendment allowing candidates to avoid declaring their community, but strictly for that election only. This measure was presented as a transitional arrangement pending comprehensive electoral reform, which would include a degree of proportional representation within a mixed FPTP/PR system, greater participation of women in politics, and the eventual subsumption of the Best Loser System (BLS).

The amendment explicitly limited its application to the 2014 election. During parliamentary debates, then Prime Minister Navin Ramgoolam and Opposition Leader Paul Bérenger both argued that the agreed upon full electoral reform would soon replace this transitional provision, and they outlined granular proposals to tackle the three key issues.

Sithanen argues that converting this one off measure into a permanent constitutional provision would inevitably trigger what PM Ramgoolam himself warned against in 2014: Murphy’s Law and its “unintended consequences.”

It would also go against the assurance given by PM Ramgoolam in the preface to the Consultation Paper on electoral reform in March 2014 that

‘Any reform of our electoral system should maintain and reinforce the existing tendency to produce diverse and broad representation of all’

Sithanen submits that entrenching the 2014 amendment permanently in the Constitution would be deeply flawed, profoundly unfair, and highly discriminatory.

2. Two communities arbitrarily excluded

He has back tested the effects of the amendment across all thirteen elections held since 1967 and conducted simulations for future elections. His mathematical analysis shows that the amendment increases the under representation of two minority communities by creating a sharp disconnect between the actual ethnic composition of elected MPs—as required by Clause 5.8 of the First Schedule—and a “deep frozen, pre determined” ethnic calculation used under the amendment to allocate Best Loser seats.

Under the amendment, Hindus would be totally excluded from the allocation of Best Loser seats. Historically, Hindus have generally exceeded their constitutional entitlement based on 50.3% of the 1972 census (equivalent to 35 of 70 seats) once Clause 5.8 is applied. In the last five elections, Hindu FPTP MPs numbered 36 in four elections and reached 40 in 2005. However, exceptions do occur. In 1967, Hindus were slightly under represented, with 34 out of 69 MPs after the seventh BL seat was allocated. The eighth BL seat was therefore correctly assigned to a Hindu candidate to ensure the community reached its entitlement of 35 seats —an illustration of Murphy’s Law in action.

The amendment could also affect the allocation of the eighth BL seat to the Sino Mauritian community in some elections. In 2010, this seat was due to go to a Sino Mauritian candidate (appropriate community) from the MMM (appropriate party) . However, as the party had no unreturned Sino Mauritian candidate, the seat was not allocated, leaving only seven BL seats that year.

3. General Population community lost 2 BL seats in 2014 due to unintended consequences

While the likelihood of Hindus or Sino Mauritians being disadvantaged remains relatively low, the amendment would systematically penalize the two largest minority communities, particularly the GP, both in scale and frequency.

Even with the application of Clause 5.8, the GP community remains more under represented than Muslims. It has never reached its constitutional entitlement of 22 MPs out of 70, except in 1967. Over the last five elections, GP representation stood at 19 MPs in three elections and 21 MPs in two elections, despite receiving six BL seats in 2005 and five in both 2014 and 2019. This persistent under representation stems from the inadequate number of GP candidates fielded, despite the group accounting for 30.7% of the 1972 population census. In 2024, only 13 GP candidates were fielded in the 20 constituencies of Mauritius (excluding 2 from Rodrigues) instead of an entitlement of 17, a massive shortfall of 4 candidates.

Under the amendment, this under representation would worsen, as GP would lose seats to which it is entitled under the existing constitutional formula. Indeed, the community already lost two BL seats in the 2014 election due to the amendment’s unintended consequences. Two Best Loser seats were allocated to Sorefan and Abass Mamode from the Muslim community, even though it was already perfectly represented with 11 FPTP MPs, its exact constitutional entitlement under Clause 5.8 in a 70 member Parliament (16.11%). Those two seats should instead have gone to two GP candidates, Cangy and Martin, as that community had only 15 FPTP MPs against an entitlement of 22. As a result, the GP obtained only four BL seats instead of six, bringing its total to 19 MPs, still well short of its quota of 22 seats.

Had BL seats been allocated strictly according to Clause 5.8 of the First schedule, Parliament would have comprised 11 Muslim MPs and 21 GP MPs, perfectly accurate for Muslims and very close to fair representation for the GP. Historical simulations confirm that, had the amendment been in force earlier, GP—and to some extent Muslims in elections such as in 1987 and 1991 —would have been frequently penalized. Testings for future elections show the same pattern of the GP community being disproportionately disadvantaged.

4. Replacing ‘Shall’ with ‘May’: A constitutional disaster for the two minorities

An even more egregious proposal, Sithanen warns, is the suggestion by some political actors to make the declaration of community optional by replacing the word “shall” with “may” in Clause 3(1) of the First Schedule. Under this approach, candidates who do not declare would forfeit eligibility for BL seats.

Judgments of the full bench of the Supreme Court have clearly stated that such optional declaration would render the BLS “stultified and nugatory”, in effect, useless and flawed.

In 2014, six elected Hindu MPs did not declare their community. Although 36 Hindus were returned, the BL system would have considered only 30 declared Hindus, leading to two BL seats being wrongly allocated to Hanoomanjee and Boolell, two Hindus who did declare, again at the expense of two GP candidates. The formula would thus award seats to an over represented community while denying them to an under represented one, in direct violation of Clauses 5.1 and 5.8 of the First schedule to the Constitution.

If, hypothetically, 12 out of 36 Hindu MPs declined to declare their community, all four reconfigured BL seats contained in one of the two proposals on the table would accrue to Hindus, even while minority communities remained very under represented. This creates perverse outcomes. GP, Muslims, and Sino Mauritian candidates have a strong interest in declaring, while Hindus do not, since they derive no benefit from BL seats and can game the system.

Sithanen argues that such outcomes would fundamentally undermine the constitutional principle of “fair and adequate representation to each community ” that has sustained Mauritian inclusive politics since independence. Moreover, the amendment fails to address longstanding criticisms from the Supreme Court, the Privy Council, and the UN Human Rights Committee regarding the continued use of the 1972 census to allocate BL seats in 2026 . Worse, it compounds the population distortion by introducing a second flawed variable. Both the population census and the ethnic make up of the 62 Mps would be distorted.

5. Avoid leaders’ discretionary appointment on a ‘ look at basis’

If a credible and transparent alternative existed within the FPTP system beyond one of the two options identified by the UNHRC, it would likely have been discovered over the past seventy years. Numerous constitutional experts, electoral and mathematical specialists, including those involved in the London Agreement, and the Trustram Eve, De Smith, Banwell, and Sachs commissions, have rigorously examined this issue since the mid 1950s. No such credible alternative has emerged to the BLS.

Discretionary nominations by political leaders on a “look at” basis must be categorically rejected. Similar arrangements such as the Governor’s appointments between 1948 and 1963, were unanimously dismissed in 1964 due to their arbitrary and undemocratic nature. The De Smith reforms and the Banwell Commission confirmed the discontinuation of such unacceptable nominations as they lacked transparency and were an extremely difficult and ungrateful task for one person as the choice generated deep disagreement both between and within communities. Such discretionary practices are also vulnerable to accusations of corruption, favouritism, cronyism, and now nepotism and money politics. We cannot reintroduce what was unanimously and rightly rejected more than 50 years ago.

6. Comparative lessons from other multi ethnic societies on minority representation

Many multi ethnic countries have adopted constitutional safeguards to preserve minority representation. Their experiences offer valuable lessons for Mauritius.

⚫ India has constitutionally reserved 24.1% of seats in the Lok Sabha for Scheduled Castes (15.5%) and Scheduled Tribes (8.6%), broadly reflecting their population share, while retaining the FPTP system.

⚫ Singapore reserves a minimum number of parliamentary seats for its Malay and Indian minorities through multi member FPTP constituencies, while requiring voters to cast a single vote to elect all candidates to prevent vote splitting that could disadvantage minority candidates. Although minorities constitute about 23% of the population, they currently occupy approximately 29% of parliamentary seats, embedding diversity as a pillar of national stability.

⚫ New Zealand employs both reserved seats and separate electoral rolls to ensure representation for the Māori population.

⚫ South Africa abandoned FPTP after apartheid, recognising that it would exclude many racial and ethnic groups. A full proportional representation system was adopted to ensure inclusive parliamentary presence.

⚫ Fiji transitioned from FPTP to proportional representation, eliminating the need for ethnic quotas or community identification.

⚫ Sri Lanka similarly replaced FPTP with proportional representation to accommodate its Tamil and Muslim minorities. There is no need for community classification or a Best Loser mechanism.

It is unclear whether Mauritius would be willing to emulate models such as India or Singapore—by constitutionally reserving seats to retain FPTP—or to adopt a more radical shift toward proportional representation, as in South Africa, Fiji, or Sri Lanka, as a trade off for the abolition of both ethnic census and mandatory declaration and continue to ensure fair and adequate representation for each community .

7. A fair and inclusive reform pathway

As an alternative, Sithanen proposes an incremental reform package to address the three critical issues.

i) A flexible, a la carte ‘additional seats’ mechanism to correct severe disparities between vote share and seat share, particularly those penalizing second parties, while preserving the effectiveness and stability of the FPTP system. His model avoids extreme 60–0 outcomes and hugely disproportional results as in 1991 and 2000, while ensuring the FPTP winner retains a good governing majority.

ii) Gender representation reform, drawing on the 2002 Sachs recommendation of requiring at least one woman among candidates in each three member constituency. This would address Mauritius’s most serious democratic deficit . Women constitute 50.8% of the population but currently hold only 18% of parliamentary seats and 8% of Cabinet positions. The same principle of gender fairness should apply to Cabinet appointments.

The imbalance is stark. Hindu women, the single largest cohort at 25.6% of the population, hold just 4.5% of Mps and 4 % of executive posts, while Hindu men, under 25 % of the population, occupy 50 % of all seats and 56 % of Cabinet positions. Despite forming 50.9 % of the Hindu population, Hindu women account for only 8.3% of Hindu MPs and 6.7% of Hindu ministers, while Hindu men represent 91.7% of those seats and 93.3% of those Cabinet posts on only 49.1 % of Hindus. Such systemic marginalization cannot be justified.

iii) Resolving the 1972 census anomaly of using very outdated population statistics to allocate BL seats in 2026. Mauritius must choose between the two options recommended by the UNHRC of either updating the population census or moving toward a non community electoral system.

There is no third way.

8. Choosing the least imperfect option and what alternative to policy failure

Sithanen stresses that it is impossible to retain FPTP, reject both census updates and mandatory declaration without penalizing minorities and without violating the requirement of clause 5 of the First Schedule to the Constitution in terms of a ‘fair and adequate representation of each community’

He has been working for 25 years on potential alternatives and he continues to research two potential options, even if we have failed for 70 years to find the holy grail.

The first one is a bold model that removes both population census and declaration requirements. It looks disarmingly simple. However, it has to incorporate safeguards for minorities, not dissimilar to clause 5.8 of the First Schedule. One of them could be tricky. However it could be the price to pay for replacing the Best Loser.

The second option is a highly complex model relying on institutional safeguards, system design and good faith political behaviour in terms of fielding of candidates to reflect socio demographic realities.

Absent a credible non community system, he concludes that Mauritius has no choice but to adopt the other UNHRC endorsed solution of updating the census or using a reliable surrogate if it wishes to retain FPTP. It will still be the ‘least evil’.

Professor De Smith, the principal architect of the Constitution, opposed the “constitutional consecration of communalism,” but reluctantly considered BLS as the LEAST EVIL in the absence of a workable alternative, necessary for social harmony, peaceful coexistence and mutual trust in a multi ethnic and multi faith society.

9. Conclusion : satisfy four key principles

Sithanen ends with four core principles.

⚫ Electoral outcomes must be fairer without undermining stability and governability.

⚫ Women, at 50.8% of the population, must be equitably represented in Parliament and Cabinet.

⚫ As a rules based democracy, Mauritius must respect the judgments of its Supreme Court, its ultimate Court of Appeal and the UNHRC and finally correct the long standing anomalies of using 1972 population census to allot BL seats in 2026.

⚫ Mauritius should not violate clause 5.1 of the First Schedule to the Constitution on a ‘fair and adequate representation of each community’ and clause 5.8 by penalising an underrepresented community while rewarding an overrepresented one.

There are only two viable options

Each choice involves difficult trade offs. What is obvious, however, is that inclusion and diversity in divided societies are never accidental; they are the result of deliberate constitutional and electoral system design. It clearly demonstrates that Mauritius’s dilemma is not unique, and that every successful plural society has to make hard institutional choices.

It reinforces the conclusion that there are no cost free or ideologically pure solutions—only constitutionally defensible and fair and equitable ones.

The country must choose wisely.