Against communalism of the best-loser system - Lalit Mauritius

system. At the time the Constitution was drafted and promulgated it was not envisaged that some people
would be against the best loser system and that candidates at general elections would even refuse to
participate in lhe exercise of allocation. It was then believed that all Mauritians would be interested in
preserving the best loser system. However with the passage of time, many Mauritians have come to feel
that it is not necessary that they should be divided into different communities. The Constitution does not
cater for a situation where candidates wish to stand for election, but reject the best loser system. When the
Constitution was amended in 1983, paragraph 4(8) of the First Schedule was made to apply the 1972
official census for the exercise of the allocation of best loser seats. It was not deemed fit at that time to
abolish the best loser system. The fact that the exercise in the year 2000 will apply the figures of the 1972
Census creates a situation which may not reflect reality, but this cannot be an additional reason to oppose
the best loser system and for refusing to declare the community to which one belongs. The Constitution is
our Supreme law and we are compelled to obey it. In the recent case of Joomun v. Government of
Mauritius 2000 SCJ 234 the Supreme Court has held that Mauritians cannot be compelled to declare to
which community they belong in the Year 2000 census form. The Court is not in a position to go against
the provisions of the Constitution, but must apply them when they are clear and unambiguous.
The body of our Constitution does not refer to communities. It would appear that the First Schedule
comes as an addendum or as an afterthought to introduce the concept. Representations were made by
minorities to secure their fair and adequate representation in the Assembly (See the Mauritius
Constitutional Conference Report 1965 and an account of the setting up of the best loser system proposed
in the Stonehouse Report in the case of Ex p. Electoral Supervisory Commission and Ors 1991 MR 166).
Paragraph 3(4) of the First Schedule reads as follows
“For the purpose of this Schedule, the population of Mauritius shall be regarded as including a Hindu
community, a Muslim community and a Sino-Mauritian community, and every person who does not
appear, from his way of life, to belong to one or other of those 3 communities shall be regarded as
belonging to the General Population, which shall itself be regarded as a fourth community. “(underlining
is ours).
We note that neither in section 3 nor in section 16 of the Constitution, referring to fundamental rights and
protection from discriminalion, is the word “community” used. The relevant words used there are “race,
place of origin, colour, creed and caste”. Section 11 which addresses the freedom of conscience first uses
the word “community” in the context of “community with others”. It further uses the term “religious
community” in subsection (3). Now it has been contended that “community” in the Schedule means
community according to one's religion. I am not of the view that this is correct as a Sino-Mauritian may
be a Buddhist or a Christian (or a Mauritian whose ancestors are of Indian origin may be a Catholic).
Nowhere is it mentioned in the Schedule that “appropriate community” means the “religious community”
mentioned in Section 11 of the Constitution. There may be dozens of religious communities in Mauritius
but there are only 4 appropriate communities. What paragraph 3(4) of the Schedule purports to do is to
divide Mauritians into Communities only “for the purposes of this Schedule”.
The First Schedule does not say that the candidates who obtain the best loser seats must only represent the
interests of the community to which they belong when they sit in the Assembly.
Now since paragraph 3(4) of the First Schedule purports to divide the population into communities only
for the purposes of the Schedule, this restricts the task of the Judge in proceedings questioning the
correctness of the declaration relating to community to deciding this fact solely for the allocation for the
best loser seats and not for any other purpose.
After having made those preliminary remarks I shall attempt to carry out the exercise to see to which
community the Respondents belong. For the purposes of the First Schedule there are initially three
communities - Hindu, Muslim and Sino-Mauritian. Then there is a fourth community to which all other
Mauritians belong, if they do not appear from their way of life to belong to the first three communities.
The General Population is this fourth community and no reference at all is made to religion in this
context. The General Population becomes a residual category, which consists of all those whose way of
life shows that they do not belong to the first three communities.
Way of life may depend on a series of factors - the way one dresses, the food one eats, the religion one
practises, the music one listens to, the films one watches. External appearance and the name one bears are
also pointers as to the community to which one may belong. The expression “way of life” used in the
First Schedule has never been put to the test and some 33 years after the Constitution was drafted one
cannot escape the fact that a common way of Mauritian life has gradually and steadily developed in
Mauritius which cuts across communal barriers. This makes it still more difficult for a judge of the
Supreme Court, whose decision is not subject to appeal, to determine whether somebody belongs to a
particular community by looking at his way of life. The issue further arises as to how the judge can
determine the way of life of a citizen unless he becomes like Big Brother in H.G. Wells' novel 1984 and
watches how a citizen leads his private life. One may also change one's way of life from one election to
the other. Our attention was drawn to the fact that a way of life can also be dependent on class distinction,
for a rich Hindu and a rich Sino-Mauritian may have a similar way of life, depending on their financial
means, whereas a rich Hindu and a poor Hindu may lead altogether different ways of life. In the past the
criteria used to decide ethnical classification were the following -