What was really decided?

Electoral System & UNHRC

By Krishna Das

We should not see more in that decision of the Committee than what it says. It simply enjoins Mauritius to update the 1972 census. The rest belongs to the realm of speculation, propaganda and populism

Much has been written about the decision of the Human Rights Committee on the application of ‘Rezistans ek Alternativ’ to challenge paragraph 12.5 of the National Assembly Elections Regulations 1968 that would invalidate a nomination paper of a candidate in the absence of any mention about community, and paragraph 3.1 of the First Schedule to the Constitution that imposes an obligation on a candidate to declare to which of the four communities he/she belongs, namely Hindu, Muslim, Sino-Mauritian and General Population, according to his/her way of life.

It was the submission of the applicants that the criterion of a person’s “way of life”, which is the basis of the four-fold classification of the State party’s population is not only vague and undetermined but is also totally unacceptable in a democratic political system. The applicants claimed therefore that both paragraphn 12.5 of the National Assembly Elections Regulations and paragraph 3.1 of the First Schedule to the Constitution violated Article 25 of International Covenant on Civil and Political Rights (the Covenant).

Article 25 of the Covenant reads:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

Article 2 of the Covenant reads:

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

The applicants also argued that the above provisions (paragraph 12.5 of the National Assembly Elections Regulations 1968 and paragraph 3.1 of the First Schedule to the Constitution) were discriminatory against them in violation of Article 26 of the Covenant that reads:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The Committee does not make a clear pronouncement on whether a census based on community would be repugnant to the Covenant. The Committee takes note of the vagueness of the way of life criterion. It asks the question “whether the mandatory requirement to declare a candidate’s community affiliation is based on objective, reasonable criteria, which are neither arbitrary nor discriminatory.” The Committee observes that community affiliation has not been the subject of a census since 1972 and concluded that Mauritius had not provided an adequate justification in this regard.

The Committee does not express any view on the appropriate form of a State party’s or any other electoral system. It then holds that “the continued maintenance of the requirement of mandatory classification of a candidate for general elections without the corresponding updated figures of the community affiliation of the population in general, would appear to be arbitrary and therefore violates article 25 (b) of the Covenant.” The Committee then enjoins Mauritius to “update the 1972 census with regard to community affiliation and to reconsider whether the community based electoral system is still necessary. The State party is under an obligation to avoid similar violations in the future.”

That last statement of future violations is not clear. On the one hand the Committee is asking Mauritius to update the 1972 census and to consider whether a community based electoral system is still necessary. When the Committee refers to avoidance of future similar violations, does it mean regularly updating the census so as to make it more clear to a potential candidate to pick his/her appropriate community or whether the community based electoral system should be changed?

It would appear that the crux of the decision of the Committee’s decision is that the 1972 census should be updated. The Committee states that it is not for it to comment on the electoral system of Mauritius and then talks about future violations. It seems that the Committee simply ignores the present electoral system that provides for the appointment of Best Losers based both on community affiliation and party allegiance. If a government does not have the weighted majority or if the people of Mauritius do not want the abolition of the community based Best Loser system, how would the Committee approach the issue then?

While the Committee is perfectly mandated to determine whether a State Party is compliant with the Covenant, it should also be mindful of the sovereignty of a State party and of the will of the people of that country. The Committee has given Mauritius 180 days to inform it about the measures that would be taken to give effect to its views. Does the Committee really believe that in that short period of time it would be possible either to organize a census or to take action to review a community based electoral system?

As far as the electoral system is concerned, discussions have been taking place since 2000 under the MMM-MSM government which had a weighted majority to bring about changes but at the end the two partners in government agreed to disagree. The present government does not have the weighted majority to amend the Constitution and the Opposition is not willing to do away with the Best Loser system which is community based. What will the Committee do? How will it deal with the internal issue Mauritius is facing because the issue of the electoral system is not so much a community-based system as a reflection of the realities of the Mauritian society?

A few individuals cannot change that paradigm overnight when experts have been struggling to bring in amendments for years. We should not see more in that decision of the Committee than what it says. It simply enjoins Mauritius to update the 1972 census. The rest belongs to the realm of speculation, propaganda and populism.

* Published in print edition on 14 September 2012