LALIT Open Letter on 'Blok 104' Case before the Privy Council

21.11.2011

LALIT
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lalitmail@intnet.mu - www.lalitmauritius.org



Dear ..... ..... .....


In LALIT, we ask you, as a thinking person to read the 5 short paragraphs in italics below, and to try to work out in your own head what is going on. It’s not that difficult:
In the Law Courts, Blok 104 brings a legal case against the Electoral Commissioner before the 2010 general elections, on the grounds that electoral officers refused, under the National Assembly Elections Regulations, to accept their Nomination Papers because they have not filled in a so-called “community”. In their affidavits, Blok 104 people swear under oath that their legal challenge in no way affects the communal Best Loser System, which will go ahead, they promise, as before. All they want, they argue in Court, is the democratic right to stand as candidate.

Meanwhile, at the same time but in public, outside of the Courtroom, Blok 104 leaders campaign on a different, contradictory narrative. The story outside the Courtroom is that their case is, in fact, against the Best Loser System, itself. This is the narrative everyone knows. If Blok 104 wins, the Best Loser System will be totally unworkable and will disappear. It’s only a matter of time. “A golden page” in history, no less, will be turned. (In order to be so gullible as to believe this narrative, you have to be ignorant of one fact: that when Rezistans did win its 2005 Balancy judgment, the Best Loser System continued, business-as-usual. Or you have to forget this fact. One or the other.)

Anyway, returning to 2010, the Supreme Court rejects the Blok 104 case. Blok 104 appeals to the Privy Council. Their lawyers assure the Law Lords that the Best Loser System will go ahead unimpeded if they win. And the Blok 104 argues something else bizarre. That it is the Queen’s Law Lords who should be the ones to decide this matter, a matter which concerns the political set-up in our country, a country that is not only independent, but now also a Republic. This would not be bizarre if it came from Gaetan Duval’s PMSD years back, but it is strange hearing this line of argument today.

Before the Privy Council, it is the Mauritian State that argues that, since Mauritius is a Republic, it is its own elected representatives that should take this kind of decision. The Electoral Commissioner also, obviously, defends his electoral officers against the legal attack.

Then outside the Courts, in public, the Blok 104 leaders criticize the State for spending tax-payers money to defend its officers. Blok 104 leaders also say the State is spending money to defend the Best Loser System, which Blok 104 had, in any case, said, in their affidavit, would continue intact, so it should not be any concern of theirs, if you believe what they say under oath. They rejoice - even in the Third Millennium - that the Law Lords say that the Queen’s Privy Council should be hearing this type of case.

In LALIT, our question is, What is all this? What is the need for this kind of intellectual turpitude? Is this mere childishness, as Bérenger calls it? Or is it downright political fraud? How come so many very bright members of the intelligentsia cannot see through such a blatant con-trick? Or do they believe it somehow plays into the hands of the MMM, which they covertly support? The MMM has always claimed that “the Best Loser System will disappear by itself,” a line which seems to be the only way to reconcile the two contradictory narratives of the Rezistans discourse. So maybe it is that. One thing is clear. Paul Bérenger has publicly said he has no objection whatsoever to candidates having this right, so long as the Best Loser System stays intact. Which is curiously exactly what the legal case states it will do. Not surprisingly, the politician most in favour of the Best Loser System, Barrister Yousouf Mohamed, as soon as he had absorbed the Balancy judgment, announced that he sees no reason to object to the Rezistans project. What the Blok 104 seeks, in effect, is for Electoral Officers to accommodate a fifth community (a more general population) for those people who do not want to be in any of the other four, while the Best Loser System just continues as before. Curiously, Navin Ramgoolam has also stated that he has no objection to the Blok 104 demand either. So, maybe with the Prime Minister and Opposition Leader in harmony, that will be the political outcome. But where does this tactic get us in the struggle against communalism? Or even against the Best Loser System?

So, let us look at the issues historically. If we aim to confront communalist ideology, we have to do it honestly.

The background
From the year 1994 onwards, LALIT intensified its campaign against communalism - in the face of the deterioration of the social situation at the time of the two education Select Committees into Oriental languages and reserved places. Our campaign was already gaining momentum and then, together with other organizations, our militants set up the Movement Against Communalism. Together we developed two key analyses, published by MAC in booklets, that challenged communalism head-on:

1. An attack against racist and communalist ideology itself, based on the theoretical and practical exposure of both its dangers and its masking of the need for political opposition to exploitation itself.

2. A frontal attack against the institutionalized communalism of the anachronistic Best Loser System. This system demands the classification of candidates and of the electorate, supposing that the former, ex post facto, represent the latter on a communal basis. This means that every single MP gets a communal classification, once elected, as well as the Best Loser nominees.

MAC organized a Charter and petitions, including Musicians against Communalism and Sportspeople Against Communalism. We also held a powerful Convention against Communalism at the Plaza. One of the strategic aims of the movement was to mount support for the eventual replacement of the Best Loser System, as part of a more general overhauling of the electoral system itself.

But even before 1994, LALIT had already, since 1983 challenged the Best Loser System and its communalism, by participating in demonstrations, and by actions like choosing which of the four so-called communities to fill in for Nomination Papers by a drawing of lots in front of the press. We had also in 1983 run a nation-wide campaign called ‘Pa pu dir’ against the gathering of Census information on peoples’ religion, and from then onwards we campaigned against State subsidies on religion.

So LALIT has, from 1976 to 2011, run an ongoing, consistent campaign, which is aimed at building up the will, the political will, for an electoral reform that includes doing away with institutionalized communalism in the Constitution, and thus contributes to decreasing the negative effects of communalism on the democratic process. LALIT has been the only party that has over all these years actively opposed the Best Loser System. And opposition to the Best Loser System grew and grew from 1983 onwards, as a result of this political work.

In the 2000 general elections, when we for a third time drew lots so as to fill in our Nomination Papers, this procedure was challenged by Yousouf Mohamed in the Supreme Court, which in its judgment called on the Legislature to deal with the system politicall y as part of its planned electoral reform (Parvez Currimkhan v. Tin How Lew Chin & Ors). Meanwhile, the Court classified all LALIT’s candidates (and Nouvo Lizour’s) as “General Population”.

Soon after, LALIT published its seminal article “Deconstructing community’.

Despite all LALIT candidates having been classified in the 2000 elections as “general population” by Justice Seetulsing, in 2005 we chose again to draw lots so as to participate in the general election campaign on vital economic issues, while also challenging the Best Loser System. In this same year, LALIT drew up a “Charter” against communalism and published a 240-page book, outlining the political advances already made against the Best Loser System. The book, now sold-out and only available in lending libraries, has remained a classic reference. There is no other analysis as broad or as deep. By then, we could list, from pages 13 to 22 of our book, all the individuals, organizations, and social forces whom we had won over to being in favour of doing away with the present Best Loser System. This list included Electoral Commissioners, a President of the Electoral Supervisory Commission, lawyers, editors and academics. The Sachs Commission, as a direct result of LALIT’s slow build-up of political will, was able to call for it to be done away with, despite its terms of reference specifically excluding the Best Loser System. So, the political pressure was on.

LALIT has always avoided getting this vital political struggle stranded in the judiciary. It puts struggle on hold. It makes people dependent on judges, who are not even elected officers, thus re-enforcing elitism. And in the case of the Privy Council, the judges are part of the State apparatus of an occupying power, to boot.

However, as we have seen, there have in the past few years been other political forces that have chosen to take this judiciary route, in particular Rezistans & Alternativ.

They have chosen to challenge the Electoral Officers, who turned down their Nomination Papers,in Court. The challenge was specifically not against the Best Loser System, as their lawyer Rex Stephen has made clear. The challenge even includes undertakings that it will not impede the Best Loser System in any way. In 2005, Justice Balancy decided, “That’s fine,” you can stand. He forced the Returning Officers to accept the Nomination Papers. That was when Paul Bérenger was Prime Minister. Of course, we all know very well that the Best Loser System continued as though nothing had happened. Calling this a “victory” is a trick. All the judgment meant, in truth, was that there was a “niche” for conscientious objectors, while the system was re-stabilized, and continued just the same as before, as indeed the Rezistans affidavits promised the Courts it would. The communalism that LALIT, and so many others, oppose continued bel et bien. Right in front of everybody’s eyes.

But “intox” is a strange thing. People who want to believe the fairy tale that this constituted a challenge to the Best Loser System and to communalism, continue to believe it. Somehow, the bluff does not get called, even when, it is exposed. Even when the best loser system continues after the “victory”!

Maybe this is laziness. You do not have to do anything; you just sit and wait for the Courts. Or maybe it was because the “victory” did not last long. After the 2005 Elections, the Electoral Supervisory Commission called on the Full Bench of the Supreme Court to decide the issue. The full bench reversed Balancy. Instead of finally turning to the political field, Rezistans decided to further plough along the judiciary road. First, they put a case before the UN Human Rights Committee. The case has been postponed and re-postponed, and is still there. As L’Express put it, “Anne, ma soeur Anne” , “Tini labuzi ruz!” Then, in 2010, they ploughed further on the judiciary route. Instead of 11 people, now with 104. The fact that the first “victory” had left the Best Loser System cozily in place, business as usual, did not have any effect on the strategy. For Rezistans, too, it was business as usual, with its two contradictory discourses, one in private in Court, the other in public in the Press.

Enough commentators were hood-winked, so Rezistans could once again pretend they were attacking the Best Loser System, while swearing under oath that they were not.

A party called Kolektif pu enn Nouvo Konstitisyon later cobbled together with others as “Blok 104”, was set up for this. Sometimes they claim 104 members, sometimes 93, sometimes 105. It is a broad coalition including Rezistans, Jack Bizlall’s MPM, the Mauritius Commercial Bank number 2 boss who is also on the Board of La Sentinel’s press empire, Yvan Martial a past editor of L’Express, as well as some artists and young people who are often unaware of the content of the affidavits sworn in their names. So, anyway, Blok 104 once again takes the Returning Officers to Court, once again swearing under oath in the most abject terms, that they are not in any way interfering with the Best Loser System. They lose in the Supreme Court, and this time go further down the judiciary road, to the Law Lords of the Privy Council. And now, in 2011, they are still waiting for judgment. Six years of Waiting for Judges. The very titles of the people making them “tini labuzi ruz” this time, give a picture of where their strategy has brought them: Lord Walker of Gestingthorpe, Lady Hale of Richmond, Lord Clarke of Stone-cum-Ebony and Sir Terence Ethertone. Blok 104 spokespersons will tell us two things, depending on tactics:

1. They are seeking no more from the Courts than a fundamental democratic right (to stand as a candidate), which is why they are happy to submit to these Imperial powers. They are not in any way going to upset the Best Loser System.

2. They are challenging the very foundation of the Best Loser System, and challenging communalism. Why they should ask Lord Walker of Gestingthorpe, Lady Hale of Richmond Lord Clarke of Stone-cum-Ebony and Sir Terence Etherton to do this for them, is not clear.

If Blok 104 win, the Best Loser System continues as usual. It will have been stabilized. There will, effectively, be five communities. A path will have even been traced for Grégoire’s demand for a new community.

If Blok 104 lose, they say they will do exactly the same thing again next general election, this time with 6,200 people. They will do this in the knowledge that commentators will, no doubt, continue to cover-up their double talk, if, that is, Blok 104 can find some new judiciary route. Some of the Blok 104 will be demoralized if they manage to see through all the bluffs. Others will no doubt continue what has already for six years been no more than a diversion from the real political work needed.

We in LALIT believe that we must also, at all costs, avoid a counter-reaction from communal forces who are in favour of the Best Loser System, or from others who benefit indirectly from it. This is what is obviously at risk if the political comprehension, clarity and mobilization amongst political activists is not sufficient to defend the electoral reforms that are necessary so as to dismantle the Best Loser System. The content of the political challenge to the Best Loser system must be clear and understood, not just blindly supported. The various plaints from 2005 onwards at the Supreme Court, the UN Human Rights Committee and the Judicial Committee of the Privy Council have been remarkably inaccessible to the broad public. This opacity may partly explain why such a level of conceptual confusion has persisted over six whole years. If everyone in the public had access to the exact nature of the plaints, journalists would, in turn, have been more hesitant about exposing their own shoddy reporting. It is quite remarkable that these plaints are not published widely in the media, even when money has been raised amongst members of this very the public.

What we in LALIT know to be necessary is a serious challenge to communalist ideology. This must be done politically. And it of course implies the building up of not just blind political will, but the development of an open, common understanding of all the issues, and in particular of the link between mere tactics, like the effects of bizarre undertakings made during such cases, and the strategy to decrease communalism.

In LALIT, we call on you to help mobilize people so as to confront real live communalism and racism by understanding its material history and confronting it by an ideological challenge. It is also time to seriously challenge the myth that promoting “patriotism”, or “Mauritianism”, or “nationalism” or “swearing as a Mauritian” does anything at all to confront communalism. “Patriotism” is just another broader form of “communalism”. It offers cowards a way out of standing up against exploitation itself head-on.

The way communalism is confronted is by exposing the exploitation and domination that it masks and helps perpetuate, and by mobilizing people by their class, mobilizing them against the classes that benefit from this exploitation and domination.

Victory for the people in the fight against exploitation comes only from clear thinking, and honest political strategies. There is no quick fix. There is no short cut. Judges cannot do our political work for us. Nor can confused tactics and degenerate strategies get us very far; they risk holding the oppressed people back, confusing the very people who should be gaining in clarity. We are in times of crisis, times when not only is suffering increasing for millions of people in the world, but when opportunities for change are ripe.

And, of course, broad electoral reform, that is to say democratization of the electoral process, including the doing away with the Best Loser System, needs to be one our strategic aims in such times. Any group of people, however small, wanting to discuss LALIT's Electoral Reform proposals, prepared in open consultations, is free to contact us. This is part of our ongoing work.

Yours sincerely,

Alain Ah-Vee and Rajni Lallah, for LALIT 11 November, 2011