Introduction

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There is general agreement that, 46 years after our Constitution along with its electoral system was bequeathed to us, it is time to review it.
The purpose of this Consultation Paper is to set out the outline of proposals for electoral reform but instead of inviting views yet again on all the proposals discussed so far, Government has decided to narrow down the issues in contention, make firm proposals and to seek views only on specific options where there is no broad agreement prior to introducing legislation, within a fixed time frame.


The electoral system
The electoral system of Mauritius was created in its current form at the time of Independence. It is, primarily, a multi-member cluster vote system whereby MPs are elected in accordance with the First-Past-the-Post System. Once the votes are counted, a unique mechanism called the Best Loser System is applied to seek to balance the votes with the numbers of electors from the four prescribed communities, in order that all the four communities are adequately represented without changing the
outcome of the election under the First-Past-the-Post System.


Reports and Commissions
There have been seven reports and commissions that have considered the electoral system of Mauritius. Three pre-date the Best Loser System while the other four have been written since 2000. What is common to each of the latter is the agreement on the need for reform while providing greater fairness in the outcomes of general elections without putting at risk stability and governability.
A modern, equitable electoral system


The fact that the issues set out in this Consultation Paper do not fully concur with any of the last four reports does not mean that these previous efforts have been wasted. On the contrary, it was important that the available alternative routes were explored, debated and considered exhaustively, and the nation owes their authors a considerable debt of gratitude.
Government believes that the issues set out in this Consultation Paper are intended to reflect not what is, in the abstract, the "ideal" electoral system but 5 rather Government's view as to what needs to be discussed in relation to electoral reform in Mauritius and what is likely to win consensus.


This document which is intended to be the precursor to legislation, if consensus can be reached, will be the first of several that will be published setting out Government's vision of renewing democracy and the Constitution of Mauritius. Other issues that need to be looked at include the funding of political parties. Government will publish its thinking on these issues in due course.
The evolutionary reform of our electoral system should not be the end of constitutional renewal. Government believes that there is a window of opportunity to modernise the Constitution of Mauritius further, and that it should be embraced.


This consultation document will first summarise in broad terms the historical context of the existing system and the significant steps taken so far on the road to reform. It is against this background that Government’s proposals and options must be seen and considered.


Furthermore, Mauritius has always striven to comply with its international obligations. Following the observations of the UNHRC and given the absence of a rationale for the existing constitutional provisions since the amendments of 1982, we must either resume gathering ethnic and community data as part of the official census or find a basis for reform.
There is general agreement that restarting the process of collecting ethnic data would be divisive and not conducive to nation building. Further, the Supreme Court has made clear that individuals cannot be compelled to declare to which community they belong to.


Government had clearly indicated, before the UNHRC observations, that it was for the modernisation of the electoral system which would include subsuming the existing requirements of the Best Loser System with a modern, more equitable electoral system that ensures fair representation of all, including women.
As will be seen, Government takes the view that there is already wide agreement on a great deal of the essential components of reform.
However, no electoral reform would be acceptable to Government if all the constituents of our rainbow nation were 6 not assured of fair representation in Parliament.
Origins of Universal Adult Suffrage in Mauritius and Pre-Independence Constitutional Developments


Chapter 1 explains the origins of universal suffrage in Mauritius, formal discussions in respect of which began at the London Conference in 1956. The Trustram Eve Electoral Boundary Commission of 1958 recommended elections should be held in forty single-member constituencies, with a rider that the "proper proportions" of the three main communities, deemed to exist in the population at that time, should be reflected in the number of seats in the Legislative Council either by election and/or the Governor's appoint-ments. These recommendations were implemented in 1959 for the first elections in Mauritius based on the principle of universal suffrage.


The Constitutional Commissioner
As Mauritius continued its steady march towards independence, Professor de Smith sought to find a substitute for the Governor's powers. This is dealt with in Chapter 2. In November 1964, the Commissioner made two alternative recommendations for an electoral system. Neither was implemented.


The Banwell Commission
Following further discussions at the 1965 Constitutional Conference in London, the Secretary of State proposed that a Commission should recommend an electoral system and constituency boundaries. That Commission was chaired by Sir George Harold Banwell and its report is discussed at Chapter 3. It reported on 22 February 1966 recommending two correctives to help deal with the questions of inducements to political parties to seek inter-communal support, the representation of all communities, and safeguards against severe under-representation. However, there was a wide rejection of the Banwell Commission's two correctives by the Labour Party, the Independent Forward Block and the “Comité d’Action Musulman”. After further consultations in place of those correctives, the Best Loser System was agreed upon in 1966.
Independence


That set the conditions for the historic general election of 7 August 1967, following which Mauritius became independent. Those electoral principles 7 forged in the 1950s and 1960s were used for nine further elections since 1967.
However, in 1982, the new Government decided that there would be no more gathering of ethnic data in the official census. It is clear that from that time, the Best Loser System, which depends for its effectiveness on accurate data concerning the proportions of each "constitutional community", was existing on borrowed time. As the recent decision of the UNHRC has shown, the rationale of such a system can only logically be sustained with an up-to-date picture of the composition of the population of Mauritius.


The most recent impetus for change arises out of the commitments made this new century, by both major political parties, to reform. This Government has repeatedly stated the need to find an evolutionary solution that will withstand the twin tests of stability and fair representation without explicit ethnic labelling.


The Sachs Commission
Chapter 4 deals with the Sachs Commission of 2001/2002, which was intended to redress the imbalances caused by the First-Past-the-Post system that were thought to be only inadequately compensated for by the Best Loser System. The recommendation was for 30 additional proportional representation seats to be chosen on the basis of lists provided by parties receiving 10% or more of the national vote. The Commission suggested a process of reform in respect of the Best Loser System.


The 2002 Select Committee
Chapter 5 leads on to the 2002 Select Committee that sought to advance the electoral reform recommendations made by the Sachs Commission. Recommen-dations for implementation were made, albeit one member of the Committee put forward another formula for the allocation of additional seats. However, that other formula would not have rebalanced the National Assembly seats in line with the votes cast.
After much debate, even though the two parties in Government, the MMM and the MSM had the required majority no Bill was presented as there was no agreement between them.


The Carcassonne Report
Chapter 6 summarises the Carcassonne Report of December 2011. The drastic reform recommended by the Report was for the abolition of the First-Past-the-Post altogether while subsuming the Best Loser 8 system and the creation of new constituencies that would elect members on the basis of proportional repre-sentation. This was rejected outright by the main political parties.


The Sithanen Report
At Chapter 7, Dr Sithanen's report gives a uniquely Mauritian perspective on the subject of electoral reform from the point of view of not only an expert political scientist but also from a formerly practising senior politician of immense experience. He considered that the Carcassonne Report recommendations risked throwing the baby out with the bathwater – a conclusion that Government endorsed. As an alternative to the Best Loser System, the January 2012 "Sithanen Report" proposes a formula to elect a further 20 "list-tier" MPs on the basis of the votes of unreturned candidates. As this Consultation Paper explains, Government substantially accepts Dr Sithanen's reasoning and approach, with some modification, as a basis for moving forward.


The Best Loser System
An integral part of the electoral system in Mauritius, the Best Loser System, is summarised in Chapter 8. In parallel with the recommendations for reform of the system made by the Sachs Commission, Carcassonne Report and Sithanen Report, the Supreme Court, The Judicial Committee of the Privy Council and the United Nations Human Rights Committee have clearly articulated the need for reform, as set out in that Chapter. In 1991 the Supreme Court expressed concern that the Best Loser System was based on a 1972 census; something the Human Rights Committee concluded was "arbitrary" in 2012.
As recognised by the Judicial Committee of the Privy Council, it is plainly better to decide these issues as a result of political debate and, if necessary, constitutional reform than through the courts. Such a political solution can only be reached through a "national dialogue" taking into consideration all of the work done so far and the voices of all components of the Mauritian nation.


The need for reform
It is in this spirit that reform of the system is outlined at Chapter 9. In the decades since independence Mauritius has changed beyond recognition. It has developed political institutions and systems that have proved themselves able to a very great degree to ensure the representation of interests of all sections 9 of society in Parliament. The system is by no means perfect but has reached a level of maturity that compels the recognition that ethnic considerations can no longer find a place in the electoral process.


Recommendations for informed debate on reform
From the privileged position of now being able to look back at all the thoughts and views expressed on reform, a modified version of Dr Sithanen's proposal is set out in Chapter 10. By subsuming the Best Loser System, it would create at least 16 additional seats to be allocated according to closed party lists or an alternative formulae using the "unreturned votes elect" formula, and with provision to ensure that candidates of both genders are encouraged. The political parties will have responsibility and the electoral incentive, to facilitate diversity on the party lists.


Consultation process and propositions
In Chapter 10, this Paper sets out final propositions where there is broad agreement. It also spells out, with appropriate analysis, issues which require further discussion. Government consequently the views of stakeholders on the outstanding issues that need to be resolved. Annex A sets out some detailed provisions in respect of the consultation process.
Underpinning Government's recom-mendations is the modernization of the electoral system to ensure that it continues to provide stable, responsive and fairly representative government in line with the evolution and aspirations of our nation. The process towards reform has been a long and considered one. But we cannot achieve our vision for change without unifying faith in a single Mauritian identity that is becoming ever stronger. We must grasp the historic opportunity to make this ambitious reform a reality.