Against communalism of the best-loser system - Lalit Mauritius

Pennia Tabernacle Church) and that in view of the fact that they do not consider themselves to belong to
the Hindu, Muslim and Sino-Mauritian communities they have declared on their nomination paper that
they belong to the General Population. After they were heard, Counsel for the Applicant withdrew his
application in respect of those Respondents.
The question remains open, however, whether any of these Respondents would still be entitled to a best
loser seat, if ever this possibility arises, as a member of the General Population, when this may be
contested by another member of the General Population. One Respondent stated that some members of
the General Population could be “plis (more) population générale” than others. Historically Tamils have
been considered to be part of the Hindu community whereas the Respondents claim to belong to what
they call the Tamil race. The second question is whether it is too late for any member of the General
Population to contest the declaration, as this should have been done within 7 days of nomination day.
Another difficulty which arises is that in the 1972 census Tamils have been included among Hindus while
for the purposes of benefiting from the allocation of best loser seats for the 2000 elections the candidates
of the Tamil Council have declared that they belong to the General Population.
As for Respondent No. 26, he was absent on the day of the hearing. Being given that he is also an atheist
because he made a declaration in his affidavit, I do not find it necessary to order any correction relating to
his community, but again this may be contested if ever he becomes entitled to a best loser seat. I note that
not all the candidates of the Tamil Council party may be Tamils.
I shall now deal with the case of the remaining Respondents (who shall be called the Respondents).
The Respondents, who are members of the political parties Lalit and Nouvo Lizour, have not filed
affidavits. They have not deponed and have not submitted themselves to cross-examination. Counsel for
the Applicant moved that they be called on their personal answers. Applying rule 36 of the new Rules of
Court (Act No. 15 of 2000) I granted the motion. It is a matter of regret that these Respondents have
chosen to take shelter behind objections of a procedural and evidential nature instead of joining issue with
Applicant and defending a cause they claim to believe in, being given that they are opponents of the best
loser system and do not subscribe to the division of Mauritians into communities. First they objected to
being called on their personal answers, then they refused to give their consent to the Director of Statistics
disclosing the religion they have declared they practice on their census form submitted recently. They
also wanted the Returning Officers to be made parties to the case and stated that the applicant's affidavit
disclosed no case. These last 2 objections were overruled by me.
Those who were called on their personal answers by the Applicant (Respondents Nos. 3, 4, 5,
6,10,12,13,14,16,17,18) have stated that they are not interested in being allocated best loser seats, should
they be entitled to the same. The other Respondents were absent at the proceedings. The 2 political parties
have even sent a letter to the Electoral Supervisory Commission to that effect. The same Respondents
have also explained that it is after a drawing of lots that they have made the declaration as to community,
on their nomination paper. They have further explained that they do not believe in the division into
different communities mentioned in paragraph 3(4) of the First Schedule or that they do not know what
are the specificities of each community. Many thought themselves to be citizens of the Republic of
Mauritius and belonging to the Mauritian Community.
However laudable may be the motive of these Respondents who sincerely believe in the existence of a
single community in Mauritius, the exercise of drawing of lots which they have carried out is not proper
in the light of the provisions of the First Schedule. Thus they have explicitly admitted the fact that they
have not made truthful declarations as to their community. For example, Respondent No. 4 in her
declaration stated that she belongs to the Muslim Community because the members of her party had
decided that their declaration would depend on the drawing of lots. In Court she would not say that she in
fact belongs to the Muslim Community.
Although they have written letters to the effect that their candidates are not interested in being allocated
best loser seats, the Electoral Supervisory Commission has not agreed that the 2 parties will not be
considered for such allocation, should the candidates be entitled lo the same. The Commission will carry
out the exercise as spelt out in the First Schedule and it will be up to the candidates lo decide what stand
they will adopt.
Consequently, in spite of the stand taken by lhe Respondents my task still consists in checking the
correctness of the declaration made by the Respondents and in coming to a conclusion as regards their
community. Before doing so, I shall make some preliminary remarks on issues which have been
canvassed during the hearing.
The Respondents have admitted that they have not declared to which community they belong, but have
carried out an exercise of drawing of lots to show their objection to the provisions of the Constitution.
They have declared that they belong to an “appropriate community” under the First Schedule only to be
able to participate in the elections. A qualified person cannot be prevented from participating in the
elections as a candidate if he fulfils all the conditions prescribed. This right is guaranteed within the fabric
of a democratic society. Had the Respondents refused to make a declaration as to community, their
nomination paper would not have been valid. But they have made a declaration and this is being
challenged.
Paragraph 3(2) of the First Schedule seems to cater primarily for situations where candidates would make
false declarations relating to their community most probably to derive an advantage from the best loser