CHAPTER 4: THE SACHS COMMISSION

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Over thirty years after independence, the Alliance between the Mouvement Militant Mauricien (MMM) and Mouvement Socialiste Militant (MSM), which won the 2000 general election, gave a commitment in its electoral manifesto, in the light of the fact that there existed widespread agreement in public opinion and amongst the main political parties that the electoral system should be reformed, to implement some form of proportional representation.46 However, by the time the general elections were called in 2005, that promise remained unfulfilled.
46 Report of the Commission on Constitutional and Electoral Reform 2001/02 at [9]


Composition of the Commission
The Government of Mauritius established the Commission as an independent body to help consolidate and advance constitutional democracy in Mauritius. The Commission was chaired by Mr Justice Albie Sachs, a judge of the Constitutional Court of South Africa. Messrs BB Tandon, Election Commissioner of India, and Robert Ahnee, a former
Judge of the Supreme Court of Mauritius, were members of the Commission.


The Commission’s remit
The Sachs Commission considered various reforms to both the Constitution and electoral system and recommended the introduction of a dose of proportional representation.
Introducing proportionality into the system
The purpose of introducing propor-tionality into the system was to correct what were regarded as imbalances created by the First-Past-the-Post system that were only marginally compensated for by the Best Loser System. Five models were considered.


PR Model C
Ultimately the Sachs Commission preferred its "PR Model C", which limited the number of additional proportional representation seats to 30 members chosen on the basis of lists provided by parties receiving at least 10% of the national vote. The objective of the proposed lists would be to introduce a measure of compensation in the outcome 31 of elections so as to make the final total of seats held by the different parties reflect more accurately the support that the parties received in the country at large.

The Sachs Commission mooted the possibility that there could be requirements binding on all parties, or internal party statutes, to ensure that the party lists provide adequate gender balance and, "help establish an appropriately balanced and repre-sentative 'rainbow' character for the party slate that ends up in Parliament." Indeed there was widespread support for establishing mechanisms that will subsume the Best Loser System and further its underlying affirmative objectives without perpetuating its anachronistic and divisive aspects.47
47 Report of the Commission on Constitutional and Electoral Reform 2001/02 at [50]

The fate of the Best Loser System
One of the questions repeatedly raised with the Commission was what would happen to the Best Loser System if proportional representation were to be introduced. The Sachs Commission made it plain that it did not regard it as central to the introduction of proportional representation that the Best Loser System be either retained or abolished: the case
for proportional representation was regarded as overwhelming and not to be jeopardised by the controversy over the Best Loser System.48
48 Report of the Commission on Constitutional and Electoral Reform 2001/02 at [60]
In a succinct summary of the views expressed about the Best Loser System, the Sachs Commission stated,
No issue before us aroused more intense comment. The great majority of deponents criticized the BLS 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 with no underlying present-day 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 defenders of the BLS, far fewer in number, for the most part said they did not like BLS in principle but were reluctant to abolish it because it had become integrated into Mauritian electoral practice and provided 32 a degree of reassurance that was meaningful to one or more communities.
Only one group of deponents supported BLS without reservation, though they too acknowledged that it presented difficulties.49
49 Report of the Commission on Constitutional and Electoral Reform 2001/02 at [61]
50 Report of the Commission on Constitutional and Electoral Reform 2001/02 at [63] – [64]
The Sachs Commission noted that the main argument in favour of keeping the system with all its manifest defects is simply not to rock the boat. Over the 40 years since independence, the system has achieved a symbolic significance, which is considered in some quarters to be an integral part of the compact that led to independence. The system demonstrates a constitutional concern for certain communities.50
The Sachs Report went on to describe the Best Loser System as “a unique and novel electoral device that increasingly divided Mauritians and baffled visitors to the country. It went on to repeat the warning that Professor de Smith had given in 1964 and quoted in this document at pages 18 and 19. 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”.
The Sachs Commission concluded that a process should be established that would within an agreed framework of principles "find ways and means of assimilating the BLS into the new dispensation without prejudicing the status of the community or communities concerned and without keeping alive features which are widely considered to be anachronistic and offensive". 51
51 Report of the Commission on Constitutional and Electoral Reform 2001/02 at [70]


Importance of block voting
The Commission found that in practice it is the multi-member block voting that has encouraged parties to straddle political and community divides, since parties are less likely to succeed in the diverse nation of Mauritius by fielding three candidates from the same community in each constituency as opposed to putting 33 forward a balanced ticket that is more appealing to voters. It is the result of this multi-member block voting that no community is left out and the Best Loser System, which was always meant be a correctional instrument to be applied after the seats were distributed pursuant to the primary vote, is reduced to a tangential measure. The report described the Best Loser System as, "isolated and stranded as an uncomfortable relic of an earlier era"52 instituted before the development of a strong pan-Mauritius political sentiment.
52 Report of the Commission on Constitutional and Electoral Reform 2001/02 at [65]
It should also be pointed out that when the Best Loser System was introduced, it was meant to be a “temporary solution” to last for 3 elections. Yet it has continued to live on after 10 elections !


Impact of human rights law
Drawing specifically on the Chairperson's experience as a constitutional judge in South Africa, the Sachs Commission 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, in contradistinction to affirmative action to overcome the effects of past
discrimination: "State generosity for language, cultural or religious groups reduces rather than enhances their claims for special and particularised treatment in the political system".53
53 Report of the Commission on Constitutional and Electoral Reform 2001/02 at [68]
54 Report of the Commission on Constitutional and Electoral Reform 2001/02 at [66] – [67]
Internationally there is a general move away from electoral arrangements based upon direct representation of groups in the legislature. As one of several comparative examples, as the Sachs Commission pointed out, “despite South Africa's intense and historic minority group concerns, the electoral system is completely free of an express reference to race or ethnicity”. The Best Loser System jars even by reference to the Constitution of Mauritius itself, since the Constitution enshrines political rights in a manner not referable to race, religion or community.54


Reform of the Best Loser System
The Sachs Commission's opinion was that the Best Loser System, "has outlived its original purpose and in fact is increasingly becoming counter-productive". The report recommended that the Best Loser System should be subsumed into the other recommended changes to the Constitution to be accompanied by a 34 process of explanation and negotiation with those who might feel that their rights are being diminished.55
55 Report of the Commission on Constitutional and Electoral Reform 2001/02 at [69] 35