Upon Independence in 1968, Mauritius developed a form of governance based on the Westminster model that was deliberately structured in a modified "consociational" fashion.83
83 D Brautigam, “Institutions, Economic Reform, and Democratic Consolidation in Mauritius” (1997) 30 Comparative Politics 45, 53. See also "Consociational Democracy" in A Lijphart, Thinking about Democracy: Power Sharing and Majority Rule in Theory and Practice (2008, Routledge, Oxford) at 25.
84 Sir Gaëtan Duval v. François (1982) MR 84
Tempering the effect of communal considerations
The Best Loser System was to operate as a reassurance and safety valve to correct any imbalances in respect of fairness and adequate representation of all communities. As the Supreme Court has noted, "The purpose [of the Best Loser System] was to temper as far as possible the deleterious effect which the acceptance of communal con-siderations was bound to have on stable government and on the political and social life of this country. Its purpose was also to weaken the inhibitions which acceptance of these con-siderations was bound to produce on nation building in a country which aspired to be sovereign."84
62 of the possible 70 members of the National Assembly are elected in constituency polls.85 The remaining eight seats are dealt with pursuant to Best Loser System. Paragraph 5(1) of the First Schedule of the Constitution states,
85 Section 31(2) of the Constitution of Mauritius states, “The Assembly shall consist of persons elected in accordance with Schedule I to this Constitution, which makes provision for the election of seventy members.” Paragraph 1(1) of the First Schedule sets out that, “There shall be sixty-two seats in the Assembly for members representing constituencies and accordingly each constituency shall return three members to the Assembly in such manner as may be prescribed, except Rodrigues, which shall so return two members.”
In order to ensure a fair and adequate representation of each community, there shall be eight seats in the Assembly, additional to the sixty-two seats for members representing constituencies, which shall so far as is possible be allocated to persons (of any) belonging to parties who have stood as candidates for election as members at the general election but have not been returned as members to represent constituencies. The
reference to "belonging to parties" has been interpreted as preventing inde- 46
pendent candidates from benefiting under the Best Loser System.86
86 Roussetty v. Electoral Supervisory Commissioner and Director of Public Prosecutions (1982) MR 208. See also Electoral Supervisory Commission v. The Honourable Attorney-General (2005) MR 43 at 49.
87 Paragraphs 3(1) and 3(3) of the First Schedule of the Constitution.
For the purposes of working the Best Loser System, every candidate for election at any general election is required to declare which community he or she belongs to, albeit such a declaration will not be stated on any ballot paper.87 Regulation 12(4)(c) of the National Assembly Elections Regulations 1968 requires every candidate to make and subscribe on his or her nomination a declaration as to which of the four communities he or she belongs, which in turn is reflected in paragraph 5 of Part II of the model nomination form appended to the 1968 Regulations which reads, "I hereby declare that I am a member of the ………. community within the meaning of paragraph 3(4) of Schedule 1 to the Constitution."
Paragraph 3(4) of the First Schedule to the Constitution states that the population of Mauritius is 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 three communities is regarded as belonging to the General Population, which is itself regarded as a fourth community. If the candidate fails to make the declaration, the nomination paper submitted to the Returning Officer will be invalidated.88
88 In Devianand Narrain and others v. The Electoral Commissioner and others (2005) SCJ 159 Balancy J ordered the Returning Officers to accept eleven individuals’ nomination forms, despite them not having made the declaration as to which community they belonged to. Given the very few votes the individuals obtained in the election, their inclusion did not affect and was not relevant to the allocation of the best loser seats in the 2005 general election. In the end, Balancy J was overruled by the judgment of the Supreme Court in Electoral Supervisory Commission v. The Honourable Attorney-General (2005) MR 42 where it was held that it was mandatory for a prospective general election candidate to declare and indicate in writing which community he or she belongs to.
The process of allocation
The process of allocation has been clearly explained by Dr Sithanen. The electoral system of Mauritius provides for the appointment of eight best losers to mitigate communal under-representation in Parliament. To ensure that the allotment of these Best Loser seats do not alter the results from the twenty 47
constituencies, they are divided into two sets of four seats each as follows:
• the first four Best Loser seats go to appropriate (under-represented) com-munities irrespective of party, provided the candidates belong to a party;
• the second set of four seats are then distributed on the basis of both appropriate party and under-represented communities with a view to redressing any imbalance caused by the allocation of the first four seats.
The emphasis in the attribution of the second set of four seats is on the party and then on the appropriate community. This two-tiered allotment of Best Loser seats guarantees that the will of the people is not frustrated by the distribution of the eight supplementary seats and that a losing party is not transformed into a winner. Under normal circumstances, the winning party is guaranteed to have at least 4 of the eight Best Loser seats.
A constitutional amendment was made in 1992 to ensure that a party restores the balance in respect of the second set of four seats, irrespective of community, should candidates from the appropriate (under-represented) community be un-available. As a result of this amendment, two Hindus, Ramdass and Yeerigadoo, were appointed Best Loser MPs in the 2000 elections for the MSM/MMM alliance even if Hindus were not statistically under-represented. They were chosen as there was no candidate from either the Muslim or the General Population or the Chinese community to appoint with a view to restoring the balance. All GP and Chinese candidates of the MSM/MMM alliance were elected while the two defeated Muslim candidates from that alliance were already appointed Best Losers. Had it not been for the 1992 amendment, the two Hindus would not have been designated Best Losers, as was the case in the 1991 elections when the three losing candidates of the MSM/MMM alliance, all Hindus, did not enter Parliament as Best Losers.
How Best Loser seats are alloted?
For the purpose of designating Best Losers, the Mauritian population is divided into the following four communities: Hindu, Muslim, Chinese and General Population. All candidates standing for elections have to declare the community they belong to. The statistics used to measure under-representation are those of the population census of 1972. 48
The first four seats are distributed to the ‘most successful unreturned’ candidates from the appropriate community, irrespective of party. The number of persons in each group from the 1972 survey is divided into the number of elected MPs from that community plus one. The community with the highest quotient is entitled to the first Best Loser seat. The defeated candidate from that community having polled the highest percentage of votes gets the seat. The exercise is repeated until the first set of four seats is distributed, while adjusting for the Best Loser seat already won by an under-represented community before alloting the next one.
To ensure that the allocation of these seats does not reverse the choice of the electorate, the second set of four Best Loser seats corrects for any imbalance caused by the distribution of the first four. Thus, the party of the under-represented community is also taken into account in the allotment of these four seats. For instance, if none of the first four seats has gone to the party that has won the elections, the formula guarantees that it obtains the remaining four seats so as to restore the balance as it was prior to the appointment of Best Losers.
Allotment of Best Losers (1967 elections)
Appointment of Best Losers
Ethnicity Name % votes Party
1st GP Bussier 48.85 PMSD
2nd GP Maingard 48.38 PMSD
3rd GP Balancy 46.3 IP
4th GP Rima 45.72 PMSD
5th GP Forget 45.2 IP
6th GP François 43.45 IP
7th Muslim Mohamed 47.98 IP
8th Hindu Narainen 48.55 PMSD