Against communalism of the best-loser system - Lalit Mauritius

EXCERPTS ON THE BEST LOSER SYSTEM
FROM THE SACHS REPORT
Mr. Albie Sachs chaired the “Commission on Constitutional and Electoral Reform
2001/02”, and in his Report he made the following references to the Best Loser
System. Although Lalit does not agree with many of the assumptions and proposals
made by Mr. Sachs, we do think it worth putting on record what he had to say about the
Best Loser System:
“No issue before us aroused more intense comment. The great majority of deponents criticized the BLS
[Best Loser System] vehemently. They pointed out that it formally introduced elements of communalism
into the Constitution and violated the very essence of developing Mauritian citizenship; that it was based
on four communities identified nearly forty years ago on an arbitrary basis which no underlying presentday
sociological rationale; that calculations for the appointment of BLS were based on 1972 figures
which were completely out of date; that results in individual cases have turned out to be irrational and
paradoxical.” (...)
“The degree of correction to community balance which the BLS provides accordingly tends to be
tangential rather than substantive. A second significant development since the introduction of BLS has
been the upsurge of a strong pan-Mauritius political consciousness which has reflected itself in the
elimination from the census of any reference to community, religion or ethnicity. By being based fairly
and squarely on community and religious identification, the BLS finds itself isolated and stranded as an
uncomfortable relic of an earlier era. The degree of reassurance it provides is more of a symbolical and
emotional nature than a practical one. Such comfort as it offers comes at the price of it appearing as odd
and anachronistic to the very security it was designed to offer. It carries with it the real danger of
marginalizing from the rest of society those identified with it so that what started off as intended to be a
protection could end up becoming an impediment.” (...)
“It will be noted that international human rights law does not give minority groups the right to receive
special treatment in terms of laws concerning the enjoyment of citizenship. Outside of the sphere of
affirmative action, there has been a general move away from electoral arrangements based upon direct
representation of groups in the legislature. In South Africa, with its intense and historically created
minority concerns, the electoral system is completely free of overt references to race or ethnicity.
Minority concerns were met by having an entrenched Bill of Rights that gave extensive recognition to the
principles mentioned above. These were reinforced by sunset clauses guaranteeing political powersharing
of parties (not races) for a limited period. A considerable degree of federalism also helped allay
fears. None of these measures expressly invoked race or ethnicity. On the other hand, there are some
consociational states, such as Belgium, where the creation of language zones has been foundational to the
structure of government and the exercise of rights. In Singapore the electoral system has been constructed
in such a way as to require a certain communal balance. We are unaware, however, of any country where
after the results of a non-ethnic poll are declared, ethnic considerations are introduced to top-up the
representation of communities considered to be under-represented.” (...)
“There can be no doubt that not only can the BLS not claim support from international human rights
principles, its continued existence jars severely against the general spirit of the Mauritian Constitution.
The Constitution enshrines political rights in a manner that does not refer to community or religion. It
goes much further, however. It structures itself around an electoral system designed expressly to
encourage the creation of parties that draw their support from voters belonging to all communities. The
evidence we received made it clear that in practice the parties pay careful attention to producing balanced
tickets so as to appeal to voters from all communities. This reflects itself in the diversity of members
chosen through the bloc-of-three system.” (...)
“It is the opinion of the Commission that the BLS has outlived its original purpose and in fact is
increasingly becoming counter-productive.”