CHAPTER 2: REPORT OF THE CONSTITUTIONAL COMMISSIONER

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Terms of reference
Professor de Smith was appointed Constitutional Commissioner in 1961. The Professor was invited by the Rt Hon Duncan Sandys, Secretary of State for the Colonies, to visit Mauritius in 1964 with the following terms of reference, "Having regard to the conclusions of the 1961 constitutional review talks, especially paragraphs 4, 12 and 13 of the Communiqué of July 8, 1961, and to subsequent constitutional developments in Mauritius, to examine in greater detail, in consultation with Government of Mauritius, the constitutional require-ments of the broad conclusion of the talks and to consider particular constitutional matters which did not come within their scope."12 Paragraph 4 of the 1961 Communiqué said that during, "the period between the next two General Elections, or what has been called the second stage, if all goes well and if it seems generally desirable, Mauritius should be able to move towards full internal self-
12 Report of the Constitutional Commissioner, November 1964, Sessional Paper No. 2 of 1965 of the Mauritius Legislative Assembly at [1]
government."13 Paragraphs 12 and 13 of the 1961 Communiqué respectively referred to the need to give further study to setting up a "Council of State" or a "High Powered Tribunal" and to consideration of whether a visit by the Constitutional Commissioner might be valuable.14

Visit to Mauritius
The Constitutional Commissioner visited Mauritius between 20 July and 10 August 1964 with the purposes of meeting the Governor and political leaders, becoming more fully conversant with the local political situation and to give him the opportunity of suggesting lines of constitutional development that might not otherwise have been considered.15 The final report followed in November 1964.
Constitutional hurdles to independence
The de Smith report deals with the constitutional hurdles which the
13 Report of the Constitutional Commissioner, November 1964, Sessional Paper No. 2 of 1965 of the Mauritius Legislative Assembly at [2]
14 Report of the Constitutional Commissioner, November 1964, Sessional Paper No. 2 of 1965 of the Mauritius Legislative Assembly at [3]
15 Report of the Constitutional Commissioner, November 1964, Sessional Paper No. 2 of 1965 of the Mauritius Legislative Assembly at [1], [4]


CHAPTER 2: REPORT OF THE CONSTITUTIONAL COMMISSIONER
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Constitutional Commissioner believed had to be surmounted before the longer-term alternatives of independence or some form of association with Britain could be considered.
In essence, Professor de Smith's report sought to find a substitute for the Governor's powers in the event of Mauritius becoming independent. The Governor's powers, particularly that of appointment to the Legislative Assembly, were used for the overriding purpose of reconciling the conflicting interests of communities in Mauritius, in respect of which there were two fundamentally different approaches. One was to provide constitutional and other safeguards for communities identified as such, whilst the other was to make boundary and electoral arrangements whereby political groups and individuals could reasonably hope to secure adequate political and other safeguards without being legally identified as part of a community. Professor de Smith came down strongly in favour of the latter approach, favouring an attempt to secure the development of Mauritius into a single nation where any divisions amongst sections of the population were softened with the hope that in time they would disappear.


Options for reform
Many different options for electoral reform were proposed and considered against the background of a general dissatisfaction in Mauritius with the single-member constituency system introduced in 1958. Those options included multi-member constituencies and communal electoral rolls.16


Communalism in politics
Professor de Smith was himself trenchant about the effect of communalism in politics,
“Some of the proponents of communal representation sought to show that this would discourage communalism and strengthen tendencies to vote along party lines; others conceded that it would encourage communalism but asserted that communalism was in any event an ineluctable fact of life in Mauritius. My own belief is that the immediate effect of the introduction of communal representation in any form would be to intensify communalism by endowing it with the accolade of legitimacy, that candidates in an electoral campaign would experience irresistible temptations to appeal to the narrower communal
16 Report of the Constitutional Commissioner, November 1964, Sessional Paper No. 2 of 1965 of the Mauritius Legislative Assembly at [17] –[19]
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prejudices, that there would be increasing demands for communal representation in other walks of private life, and that the long-term effects would be deleterious both to the minorities which now think of it as a safeguard and to the general welfare of the island”.17


Implications of a corrective
De Smith noted that the extant system of Governor's nominations would have to be superseded on the attainment of full internal self-government. Although there was strong opposition in many quarters to communal electoral rolls, there was not the same level of opposition to a corrective to the main elections that would reserve for the main sections of the population a number of seats proportionate to their strength in the population as a whole.18 Nonetheless the report presciently identifies some of the implications of such a corrective, each candidate would have to proclaim his communal affiliation when he was nominated, so that a communal score-sheet would be available for the allocation of seats. Some might well find this a distasteful procedure, and in any event
17 Report of the Constitutional Commissioner, November 1964, Sessional Paper No. 2 of 1965 of the Mauritius Legislative Assembly at [19]
18 Report of the Constitutional Commissioner, November 1964, Sessional Paper No. 2 of 1965 of the Mauritius Legislative Assembly at [20]
one would expect it to inject a new element of communalism into the campaign. I imagine, moreover, that it would be difficult to agree upon the constitutional definitions of a Hindu and a member of the General Population.19
A guarantee to the main communities of a fixed proportion of elected members of the legislature could be regarded in the then extant social and political climate in Mauritius as the least of evils, but Professor de Smith believed it to be, an evil nonetheless, and one which may seriously inhibit the growth of national consciousness over the years. Because I view with misgivings the prospect of a constitutional consecration of commu-nities, I have looked for alternative methods of representation which will afford reasonable opportunities to minorities without encouraging communal attitudes in public life.20


Alternative electoral systems
Professor de Smith put forward two alternative electoral systems to replace
19 Report of the Constitutional Commissioner, November 1964, Sessional Paper No. 2 of 1965 of the Mauritius Legislative Assembly at [25]
20 Report of the Constitutional Commissioner, November 1964, Sessional Paper No. 2 of 1965 of the Mauritius Legislative Assembly at [27]
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the extant electoral arrangements. These were:
(i) 20 three-member constituencies with each voter to have three votes, which he is obliged to cast for three candidates. There would be up to three members nominated by the Governor as representatives of special interests, which were not adequately represented by elected members. Ten members would be elected simultaneously at an island-wide election, where each elector would have six votes, in order to give minorities a better opportunity of securing representation. Each voter would be obliged to cast all his votes in the island-wide election and up to three of those might be used for any given individual candidate.21
(ii) 20 two-member constituencies. Each voter would have two votes, which he must cast for two candidates. Up to three members would be nominated by the Governor. 16 members would be elected in 4 four-member constituencies formed by grouping the other constituencies in fives, with the party list system of proportional representation. The intention behind this proposal was to
21 Report of the Constitutional Commissioner, November 1964, Sessional Paper No. 2 of 1965 of the Mauritius Legislative Assembly at [28(a)]
give a rather better opportunity to significant minority parties.22
22 Report of the Constitutional Commissioner, November 1964, Sessional Paper No. 2 of 1965 of the Mauritius Legislative Assembly at [28(b)]