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Panel on Best Loser System

22.02.2006

The Institute of Social Development and Peace, together with two other organisations: the Institute for Democracy and Electoral Assistance and IDEA organised a series of workshops on ‘Electoral Reforms - Moving towards Inclusive Democracy' on Friday and Saturday last week. Delegates from Southern African countries, members of political parties, District Council and Municipalities, associations and university students in Mauritius participated in the workshop.

A delegate of Lalit, Ram Seegobin participated in this workshop. Another Lalit member, Rajni Lallah was invited to speak in a panel on the Best Loser system on Saturday. Other panel speakers were Jean-Claude Bibi, Yousouf Mohammed and Ashok Subron. The debate was chaired by ex-President Cassam Uteem. The ensuing debate was lively.

We publish Rajni Lallah's presentation in the panel.

In favour of electoral reform to de-communalise the Best Loser system
The communal Best Loser system has been opposed and challenged consistently ever since its inception. It has been opposed for many, many reasons. We, in Lalit, have opposed it consistently.

We oppose it because of the way in which it transforms every candidate in a general election into a ‘communal' candidate. You would have thought that a person stands for election in a general election to represent the people in her/his constituency. You would have thought that a candidate stands (or should stand) on the basis of a political programme for her/his party. The communal Best Loser system imposes on every candidate that he or she writes on her/his nomination paper, one of the four supposed ‘communities' he or she supposedly belongs to. In filling in this part of the Nomination Paper, every candidate knows that because of the communal Best Loser system, he or she may become a representative not of the people in his/her constituency, but of one supposed ‘community'.

Not only is this a horrific communal exercise, it is also a perversion of democracy right from the very day a candidates fills in his/her nomination paper.

We, in Lalit, oppose the communal Best Loser system because of the way in which every single elected candidate, every single Member of the National Assembly is transformed from a ‘Representatives of the People' into a ‘Representative of a supposed ‘Community'. What in fact happens under the best loser system is that once the election is over, the counting of votes finished, the result proclaimed, the celebrations over, the Electoral Commission takes out all the nomination papers of elected and nearly elected candidates, and looks at the supposed ‘community' inscribed on every one of them. Such and such a number in community (a), such and such in community (b), such and such in community (c) and such and such in community (d). Puts it into four little neat piles. The Electoral Commission has to do this because this is part of the method of calculation for the purposes of deciding which supposed community needs a ‘best loser'.

The effect of this piece of institutionalised communalism on the National Assembly, and on the whole political process itself is catastrophic. The communal Best Loser system provides the legal cushion for members of traditional political parties to try and legitimise their links with communalo-political lobbies that they use for political leverage. These communalo-political lobbies are more often controlled by sections of the capitalist class, or those who want to climb into the capitalist class, who are looking for some State backing, State favours, privileges, to get there. The Best Loser system gives impulsion to these unhealthy lobbies, giving them inflated political significance.

This piece of institutionalised communalism has also a reverse-effect - instead of ‘reassuring' those supposed communities it is supposed to reassure, it fuels communal dynamics. Its logic - stemming from the First Schedule of the Constitution - pervades traditional parties, perverting the philosophy of ‘majority' rule - meaning a majority of people, of electors - a political concept, into a communal one, into supposed ‘majority community' rule. Just as political, democratic votes get transformed into communal votes by the Electoral Commission's exercise to determine Best Losers. This is the diabolical logic which brings on communal statements like ‘the Prime Minister should be from community x'.

I'd like to make a bracket here to say that the electoral system here is such that citizens vote for 3 candidates to represent their constituency, 21 constituencies in all. No-one technically votes for a ‘Prime Minister'. During the electoral campaign, most people get to know who might be ‘Prime Minister' because he is on a poster stuck on the wall somewhere. Once the election is over, and MP's have been elected, there is no election of Ministers by members of the National Assembly and no election of a Prime Minister by Ministers. The President calls in the person who it ‘appears' to him is best able to command a majority in the National Assembly (presumably, he also has to look at the posters on the wall to know who to appoint) and this is how we get a Prime Minister.

This absence of clear democratic procedure re-enforces the communal Best Loser logic.

This terrible logic extends far and wide, to the nomination of Ministers, of State appointees and it is given a veil of legitimacy through the communal Best Loser system.

We, in Lalit oppose the communal best loser system because it imposes auto-communal classification on everyone in the country just as it was imposed during the reign of the abhorred apartheid regime South Africa. And as in apartheid South Africa, classification depends on a supposed specific ‘way of life'.

There has been so much opposition to this kind of communal branding, that in 1983, the government had to do away with it altogether. Since 1972, no-one has had to classify themselves in this terrible way. Yet the calculations for the nomination of Best Losers is based on having every citizen classify ourselves as being in a, b c, or d ‘community'. For the Electoral Commission to know whether such and such a community is underrepresented. So the best loser calculations are still based on the 1972 census - a census of the population 33 years ago. Everyone who is less than 33 years old has never been branded in this way.

And the concept of ‘community' itself is an ideological construct - not a fact. An idea constructed, and re-constructed day in day out for it to exist. And it is one that changes over time, with events, with the balance of class forces at any given time. The Best Loser system keeps up stuck in time. Stuck in the ideological construction of supposed ‘community' in colonial times.

We, in Lalit, have consistently opposed the Best Loser system. We put up candidates for the general elections in 1983, 1987, 2000 and 2005. In all these general elections, what we have consistently done is to make 4 little wooden cubes (one of our members is very good at making them), write community a, b, c and d on each cube, put them all in a bag. Each candidate picks one from the bag, and that is how we know what community to write on our nomination paper.

We do this because when we stand as candidates in elections, it is to represent our political programme, a programme which addresses working people, women, youth, whatever community they might have been classified in the 1972 census.

In the year 2000, we did what we usually did for general elections: pick our ‘community' out of a bag. And someone challenged this in the Supreme Court - he said our names did not tally with the ‘community' that was inscribed. He was defended in Court by a gentleman sitting at this table: Mr. Yousouf Mohammed.

So we all went to Court. The judge, Judge Seetulsing said in his judgment that he would have to become like a Big Brother in the 1984 novel and watch how a citizen leads his private life to be able to classify people into the relevant community.

He also admitted ‘One cannot escape the fact that a common way of Mauritian life has gradually and steadily developed in Mauritius which cuts across communal barriers.' And even went on to state ‘Our attention was drawn to the fact that a way of life can also be dependent on class distinction...' recognising that if a fundamental difference exists between people, it is the difference between the way of life of the rich and the poor.

Judge Seetulsing concluded his judgment with an appeal: ‘We understand that a project of electoral reform is on the cards and hope that these defects would be remedied in the near future.'

The Berenger-Jugnauth government formed after the 2000 general elections set up a Commission on Constitutional and Electoral reform' chaired by Albie Sachs. But on the question of the Best Loser system, this Commission was flawed from the very outset. Albie Sachs was given a ‘brief' by the MMM party in power. This ‘brief' was attached to the official terms of reference of the Commission. Mr Sachs was told that the Commission must not advise the removal of the Best Loser system. ‘Do not touch', it said. So even though the Sachs Commission did manage to broach the issue somewhat, with a barge-pole, the brief was very clear. So this is why whilst the Commission did comment on the Best Loser system - they could not avoid it because as the report says: ‘No issue before us aroused more intense comment'. Few people at the time knew about Mr Sachs little brief, and he says the great majority of deponents criticised the Best Loser system ‘vehemently'. And though the Commission was very critical of the Best Loser system in its report, the Commission did not recommend anything in accordance with what was asked of them by the Berenger-Jugnauth government. This is why I say that the Sachs report was flawed from the very outset.

Then the Berenger-Jugnauth came up with another idea in 2005. They came up with a Bill to maintain the Best Loser system and to extend it to a few women as well. A ludicrous Bill and it got shelved very quickly.

Then came the 2005 general elections.

We in Lalit, put up 32 candidates, almost half, women candidates, and drew lots to obtain the name of the community which we would put on our nomination paper.

Rezistans ek Alternativ put up 11 candidates and refused to inscribe a community on their nomination paper and their candidates were disqualified. They went to Supreme Court. Judge Balancy ruled that they should be reinstated as candidates. In doing so, his judgement in effect created a fifth ‘community' of ‘unclassified objectors' leaving the communal Best Loser system intact.

The first comment made by the previous Prime Minister Berenger was: ‘Oh good, now the Best Loser system can die a natural death'. A curious comment. As if the Best Loser system was not a law, part of the First Schedule of the Constitution, that needed to be voted out by the National Assembly for it to die.

Rezistans ek Alternativ candidates did not get enough votes to affect Best Loser calculations. But the Electoral Commission went to Court, because the judgement had created a precedent which could in future affect Best Loser calculations. This time the case was heard by a full bench of three judges of the Supreme Court.

The full bench judgment ruled that the Balancy judgement was wrongly decided. They ruled that section 47 (2) (d) of the Constitution put the First Schedule on the same footing as fundamental rights in the Constitution, which means it would need three quarter votes of the National Assembly to change it.

So we are back to square 1. With three Supreme Court judgements referring to how unrealistic, how unworkable the Best Loser system is. With a Supreme Court judgement calling on the National Assembly to bring on electoral reform to remedy this situation. With the Sachs report, brief or no brief, indicating that the great majority of people want the communal Best Loser system out.

We, in Lalit, are pushing for electoral reform where the Best Loser system is transformed into a non-communal Best Loser system. Where people of each and every constituency, including Rodrigues, elect 3 representatives, accountable to people of that Constituency. Which would bring the number of elected representatives to 63. Then we propose 12 non-communal Best Losers. Parties can select 12 names from their list of candidates in the election. Each party gets a chance to get ‘additional members' named in a specific order already submitted by the party. This means that each party determines its own priorities, instead of the state imposing a communal priority on every party. If a party wants more women in the National Assembly, or wants rural/urban balance, or wants more workers represented, it can choose this basis for Best Loser selection. A party can still choose to continue to make communal decisions, but then it takes its own responsibility. In this way, a degree of proportional representation is introduced.
And as soon as the Nominations are done, or within x hours, the National Assembly votes for Ministers, and immediately after, the Cabinet votes for a Prime Minister.

Ex-President Cassam Uteem quoted the Constitution during the debate to clarify how a Prime Minister is appointed: ‘ 59 (3) The President, acting in his own deliberate judgment, shall appoint as Prime Minister the member of the Assembly who appears to him best able to command the support of the majority of the members of the Assembly,‘.