CHAPTER 3: THE BANWELL COMMISSION

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Following the publication of Professor de Smith's report, the final questions surrounding Independence were debated at the Constitutional Conference on Mauritius that took place in London in September 1965.

A brief prepared for the Secretary of State for the Colonies in view of the meeting scheduled for September 16th, officials advised:
The main issue to be decided at the Conference is the future status of Mauritius independence with safeguard for minorities or some form of association… Though the Mauritius Labour Party led by Sir Seewoosagur Ramgoolam, the largest single party, is pressing for independence and maintains that this has the support of the majority of the inhabitants of Mauritius, solid evidence for this support has so far not been produced and the Parti Mauricien have put forward a strong case for believing that there might not be a majority for independence if the point were put impartially to the test.

The Secretary of State could say whereas the Labour Party have argued that they have a mandate for independence, he has been faced at the Conference with insistent statements that the majority of the people are against independence. On the evidence of the views of the various parties it would certainly be difficult for the British Government to conclude that the reverse was in fact the case. Have the Labour Party any concrete evidence to suggest that a majority do support independence?
It is clear that even at that stage it was by no means a foregone conclusion that Mauritius should become independent.
The main opposition party, the Parti Mauricien was opposed to independence and wanted a form of “association” with the UK.
At a meeting with members of the Parti Mauricien in the afternoon of 9 September, the British delegation drew attention to the fact that “such an arrangement (i.e association) might not prove acceptable to the United Nations and might cause unrest in Mauritius if, as might be the case, certain African nationalists decided to demand that 21

Mauritius should be granted inde-pendence.
The Parti Mauricien argued that inde-pendence would cause greater unrest than "Association".
One major issue at the 1965 conference was how the future constitutional status of the country should be decided.
During the debate over whether the future constitutional status should be decided by referendum or by a general election, Hon J Koenig argued:
A general election would give a distorted result because of the large number of votes "wasted" on independent candidates and three-cornered fights. Winning candidates in different constituencies would be returned with differing majorities. Moreover it was beyond the means of the Parti Mauricien to provide a candidate in each constituency.
However the Labour Party was opposed to a referendum which would be very divisive and instead argued that the future constitutional status should be decided through a general election.
In a brief prepared for the Secretary of State for the meeting scheduled for September 15th, the Secretary was advised as follows:
The Secretary of State could also refer to the need for a referendum and could ask the Labour Party why, given that this would be a thoroughly democratic procedure likely to satisfy opinion in Britain and in the world at large, they resist it?

Although universal adult suffrage for persons over the age of 21 was first introduced in Mauritius at the general elections held in 1959, Sir S Ramgoolam had already proposed at the 1965 constitutional conference that the voting age should be reduced to 18. However this was opposed by the then Governor, Sir John Rennie.
“The Mauritius Labour Party wanted independence within the Commonwealth, a Governor-General, a Parliament elected by universal suffrage of persons aged eighteen and over in twenty multimember constituencies which would return three members each, and adequate safeguards for minority groups”.
(Statement by Sir Seewoosagur Ramgoolam at meeting held on 8 September 1965). 22

At its meeting of 9 September the Secretary of State asked Sir S Ramgoolam about his party's proposals to lower the voting age to 18, pointing out that this might be regarded as a means of increasing the Labour Party vote. Sir S Ramgoolam said that his party put forward this proposal because it thought that youth, which was maturing earlier today, should take its responsibility in society, and the reduction in the voting age should help to integrate society more quickly, Sir John Rennie felt that such a proposal was dangerous in that it would bring politics into the schools….
(Record of the meeting of 9 September 1965).
It was only in 1975 that Sir S Ramgoolam managed to get through the Mauritius Legislative Assembly, a constitutional amendment that enabled the country to have universal suffrage for all persons aged 18 and over.
Recommendation for a Commission
At the 1965 Constitutional Conference, the Rt Hon Mr Greenwood concluded that a Commission should be appointed to make recommendations on:

(i) the electoral system and the method of allocating seats in the
legislature most appropriate for Mauritius; and
(ii) the boundaries of electoral cons-tituencies.23
23 Mauritius, Report of the Banwell Commission on the Electoral System (London, HMSO, 1966) Colonial No 362, p 3
24 Mauritius, Report of the Banwell Commission on the Electoral System (London, HMSO, 1966) Colonial No 362 at [1]
Guiding principles
The Commission was to be guided by the following principles:
(a) the system should be based primarily on multi-member constituencies;
(b) voters should be registered on a common roll, there should be no communal electoral rolls;
(c) the system should give the main sections of the population an oppor-tunity of securing fair representation of their interests, if necessary by the reservation of seats;
(d) no encouragement should be afforded to the multiplication of small parties;
(e) there should be no provision for the nomination of members to seats in the legislature; and
(f) provision should be made for the representation of Rodrigues.24 23

Appointment
The Commission was formally appointed on 30 December 1965 by the Rt Hon The Earl of Longford PC, Secretary of State for the Colonies. The Commission consisted of the Chairman, Sir George Harold Banwell, Mr TG Randall CBE, Professor CH Leys and Mr Seller as the Secretary of the Commission. Mr Seller arrived in Mauritius on 28 December 1965 and the members followed on 3 January 1966. Professor Leys visited Rodrigues whilst the Chairman and Mr Randall toured Mauritius. During January there was a wide-ranging consultation process, both public hearings and private talks were held with the main political parties and other interested persons. The Banwell Commission reported on 22 February 1966.

Vital issue of Independence
It was very important for the Commission to have regard to the fact that any electoral system it would propose would be used for a general election, in which the vital issue of Independence or some form of association with the United Kingdom was bound to play a central role. One of the main objectives of the Banwell Commission was to devise an electoral system that reduced the communal divides and risks of community marginalisation. In this regard the Commission concluded that, no electoral system for Mauritius can of itself prevent or eliminate the tendency to communal politics. An electoral system — such as communal electoral registers — may certainly aggravate such a tendency; but none is capable of reversing it. The best that can be hoped for is that the electoral system will allow political leaders and voters to organise on non-communal lines, and offer as much encouragement as possible to them to do so.25
25 Mauritius, Report of the Banwell Commission on the Electoral System (London, HMSO, 1966) Colonial No 362 at [16]

The central problem
The central problem, in the view of the Banwell Commission, lay in the apparent conflict between two of the principles by which it was to be guided. Under the then existing system of single-member constituencies, the candidate having the largest number of votes was elected. The Commission noted the tendency of that system to over-represent the party securing the largest share of the vote, and to under-represent other parties. However, if the constituencies became multi-member constituencies, the tendency to over- and under- 24

representation might considerably increase.26
26 Mauritius, Report of the Banwell Commission on the Electoral System (London, HMSO, 1966) Colonial No 362 at [18]
27 Mauritius, Report of the Banwell Commission on the Electoral System (London, HMSO, 1966) Colonial No 362 at [21]
The Commission considered the balance between fair representation and the desire for a system based on multi-member constituencies rests upon giving a party which based itself purely on the support of a minority section of the population and that got more than 25% of the vote, then it should not get less than 25% of the seats. Then it could rely on the entrenched provisions of the Constitution to “remove the vast fears aroused by the possible under-representation of minority parties”. If such a party aspired to become a majority party, then it would need to appeal to the other sections of the population, were it to succeed in doing this, it will not necessarily be under-represented.27
On this key issue the Commission summed up by saying,
“the fundamental character of the electoral system should as far as possible not prejudge the issue of whether parties will seek and find support across
community lines by assuming that they will not; but it must try to provide some insurance against the failure of the parties to do so, by removing the fear that the electoral system will so magnify the power of majorities as to jeopardise entrenched constitutional rights”.28
28 Mauritius, Report of the Banwell Commission on the Electoral System (London, HMSO, 1966) Colonial No 362 at [22]
Plainly with the prospect of inde-pendence in view, it would have been undesirable for any part of the population to have felt that its political aspirations were being frustrated. On the other hand, the Commission stated, "We do not, however, think that legitimate aspirations should include a mathe-matically exact representation of communal groups in the Assembly, still less one secured by reservation."


Three further criteria
The Commission listed three further criteria that it considered an electoral system ought to satisfy:

(a) the system of voting should be simple, and close to that to which the electors have been accustomed;

(b) the method of allocating seats should also be easy to understand; and

(c) the constituencies adopted should
25
give no reasonable grounds for any feeling that electoral prospects have been adversely or favourably affected by the way in which the boundaries are drawn.29

29 Mauritius, Report of the Banwell Commission on the Electoral System (London, HMSO, 1966) Colonial No 362 at [28]
30 Mauritius, Report of the Banwell Commission on the Electoral System (London, HMSO, 1966) Colonial No 362 at [29]
Alternative voting systems
Five major alternative voting systems were considered, namely the single transferrable vote, party-list proportional representation, limited vote, multi-member constituencies with election by simple majority and various possible mixed systems.30

Recommendations
The Commission recommended that there should be multi-member block voting on a First-Past-the-Post system for three members in each of the new 20 constituencies, each of which would be created by combining two of the existing constituencies, and one further constituency with two members only in Rodrigues.
Electors would be required to cast all three of their votes so as to make it less easy for the supporter of a particular party to give his support only to the
candidate or candidates of his party who happen to be drawn from his own community.31
31 Mauritius, Report of the Banwell Commission on the Electoral System (London, HMSO, 1966) Colonial No 362 at [39]
32 Mauritius, Report of the Banwell Commission on the Electoral System (London, HMSO, 1966) Colonial No 362 at [42]
In order to deal with the questions of inducements to all political parties to seek inter-communal support, the repre-sentation of smaller communities, and safeguards against severe under-representation, the Banwell Commission recommended two correctives.


The constant corrective
A “constant corrective” consisting of five further seats in the Assembly was intended to deal with the first two questions.32 Each of the seats would in turn be filled by the “best loser”, being the one whose party and community were, as a result of the poll, least well represented in relation to his party’s share of the total vote cast and his community’s share of the total population. The calculations necessary to allocate the additional five seats were recommended to take place at the close of the poll by the Electoral Commissioner. It was thought “undesirable” to require candidates to declare their communities at the time of 26

nomination.33 Any dispute was to be resolved by requiring the candidate to make a solemn affirmation. It was thought that there would only need to be a limited number of these additional seats to benefit under-represented parties and communities, but the number of additional seats was large enough to encourage any party to seek support outside the geographical areas on the strength of a single community.
33 Mauritius, Report of the Banwell Commission on the Electoral System (London, HMSO, 1966) Colonial No 362 at [43]
34 Mauritius, Report of the Banwell Commission on the Electoral System (London, HMSO, 1966) Colonial No 362 at [45]
The Commission was clear that the “constant corrective” did not and should not promise complete proportionality. It is one thing for a party to, “seek inter-communal support by the assiduous fostering of separatism” and quite another “to seek that basis of support by campaigning on issues which transcend community interests”.34
So as to abide by the principle not to encourage a multiplication of small parties, the Commission recommended the “constant corrective” apply only to parties with at least 10% of the vote and which returned at least one member. So as to discourage parties that do not
sponsor candidates from all communities, each corrective seat would be allocated to the party entitled to it, only if that party had a defeated candidate of the community, which was entitled to that seat.35 Given the lack of a direct mandate from the electorate for those members who obtained a seat through the constant corrective, vacancies caused by the death or resignation of such members should be filled by lot drawn by the Speaker from the names of qualified people from the same community as the member who is to be replaced.36
35 Mauritius, Report of the Banwell Commission on the Electoral System (London, HMSO, 1966) Colonial No 362 at [47]
36 Mauritius, Report of the Banwell Commission on the Electoral System (London, HMSO, 1966) Colonial No 362 at [51]
Appendix D to the Commission’s report provides a hypothetical example of how the “constant corrective” would operate. As a reminder of the different circums-tances in which the Commission was reporting, the example is based on 200,000 total votes out of a population of 681,619.

Variable corrective
To allay the fears of under-representation by a minority party which draws its support from the minorities – the Com-mission proposed yet another corrective – 27

“the variable corrective”, that if a party acquired more than 25% of the vote but less than 25% of the seats, even after any adjustment by virtue of the “constant corrective”, that party should be allocated further seats to its “best losers”, regardless of community, so as to increase its representation to the nearest whole number exceeding 25% enabling it thereby to block constitutional amendments.37
37 Mauritius, Report of the Banwell Commission on the Electoral System (London, HMSO, 1966) Colonial No 362 at [50]
38 Report of the Constitutional Commissioner, November 1964, Sessional Paper No. 2 of 1965 of the Mauritius Legislative Assembly at [30]
39 Mauritius, Report of the Banwell Commission on the Electoral System (London, HMSO, 1966) Colonial No 362 at [53] – [56]
Rodrigues
Contrary to the view of Professor de Smith,38 the Commission saw no alternative to recommending Rodrigues be represented by elected members of the Assembly on the same basis as in mainland Mauritius. Accordingly the Commission recommended that Rodrigues become a single constituency electing two members to the Assembly, with the inhabitants of St Brandon and Agalega perhaps being represented by the members for Rodrigues.39

Bitter controversy
The Banwell Commission’s proposals attracted bitter controversy, with some quarters attacking the Imperial conviction that Mauritian voters were beholden only to communal affiliation, which would stifle the creation of a single Mauritian identity.40
40 D Sutton, “The Political Consecration of Community in Mauritius, 1948-68” (2007) 35 The Journal of Imperial and Commonwealth History 239, 256
The Leader of the Labour Party, Sir S Ramgoolam said “the Banwell Commission had devised an algebraical formula known as the constant corrective and as if that was not enough, we have been assured that the funeral is complete with a variable corrective”.
He described the proposals of the Commission as “a diabolical and Machiavellian innovation” and “a political rape of democracy”.
The Leader of the IFB, Mr Bissoondoyal said “The Commissioners have thought that they can write a revised version of ‘Alice in Wonderland’”.
Mr A R Mohamed, Leader of the CAM said the two correctives were a disguised way to introduce full proportional repre- 28

sentation in order that a majority party becomes a minority party.
Mr Guy Forget, Deputy Leader of the Labour Party was also critical of the two correctives which were based on erroneous conclusions because of wrong interpretations on which party repre-sented the “minorities”. In fact, he argued that we did not need the correctives.
Thus the parties represented in Government of Mauritius rejected the Banwell Commission’s two proposals that would supposedly protect the interests of minority communities and parties. The constant corrective carried the real risk that the outcome of a general election might be overturned by the result of the allocation in the name of communal proportionality.41 It meant that the majority party could never receive a best loser seat. The variable corrective simply awarded a party seats it had not been able to win in the election, regardless of community, so as to form a blocking minority for any proposed constitutional amendment and would have required the total number of seats in the Assembly to be expanded.
41 S Mozaffar, “Negotiating Independence in Mauritius” (2005) 10 International Negotiation 263, 285
The Rt Hon Mr John Stonehouse
Following the rejection of the Banwell recommendations by the Labour Party, the CAM and the IFB, the Secretary of State sent the Parliamentary Under-Secretary for the Colonies, the Rt Hon Mr John Stonehouse, to Mauritius. After detailed discussions with the leaders of all the main parties, he returned to London to discuss the possible options, with Professor de Smith who had studied the intricacies of our electoral system as Commissioner. Finally an agreement was reached over a proposal that dropped the variable corrective and radically revised the constant corrective.
Two important changes were made to the Banwell recommendations so that party alliances, as well as parties, would be permitted to qualify for the "best loser" seats and there would be no requirement for a minimum result in the constituency elections to qualify for the additional seats.42 This consensus ultimately led to the Best Loser System currently in place in Schedule 1 of the Constitution.
42 HC Deb Vol 731 Col 93w (7 July 1966); Mr Frederick-Lee
The Best Loser System that was originally enacted did not include the Rt Hon 29

Mr Stonehouse's recommendation that if no best loser belonging to the most appropriate community (in the case of the first four seats) or to the most appropriate community and party or party alliance (in the case of the remaining four seats) were available for any particular best loser seat, then the seat would be allocated (in the case of the first four seats) to the best loser of the community next most appropriate or in the case of the remaining four seats, to the best loser of that community and party or party alliance next most appropriate.43
43 Ex parte Electoral Supervisory Commission (1991) MR 166
The constitutional amendment introduced by Act 48 of 1991 amended the procedure in so far as the second four seats are concerned so that those seats may still be allocated to the most successful party even if there is no unreturned candidate of the appropriate community available, so as not to disturb the result of the election.
Mauritius and the society of nations
As a result, the present electoral system of 20 three-member constituencies, and a two-member constituency for Rodrigues, with eight best loser seats was accepted by all parties in Mauritius. It was on these
principles that the historic general election took place on 7 August 1967, giving Government the mandate to make Mauritius independent, the Independence Party (LP, CAM & IFB) having obtained 54.13% of the votes and 39 seats while the PMSD obtained 43.99% of the votes and 23 seats.
The 8 seats of Best Loser System, which came into play for the first time, resulted in equal distribution between the two protagonists, i.e.:
4 for the Independence Party, and
4 for the PMSD.
On 12 March 1968 the Constitution came into force.44 "Thus", observed Professor de Smith, "was Mauritius to move forward into the society of nations".45
44 Section 4(1) of the Mauritius Independence Order 1968. See also the Mauritius Independence Act 1968 (UK)
45 De Smith, Mauritius Constitutionalism in a Modern Society (1968) 31 MLR 601, 610