Blog: BLS - Mauritius will not be bullied by an unfair and biased UN Human Rights Commission

In defiance of the rules and regulations and in bad faith, the candidates of the political party Rezistans ek Alternativ, with premeditation, refused to select the General Population residual category upon registration at general elections in the knowledge that their candidacies would be rejected in order to afford the party the opportunity to mount an infectious campaign against the reforming Best Loser System (BLS) and against the government.

What the Mauritian Constitution says

General election First Past the Post (FPTP) results return 62 elected candidates for Mauritius (60) and Rodrigues (2). Because the FPTP system creates anomalies in favour of the majority community, the Best Loser System is a reforming system which allows the nomination of up to 8 unelected candidates with the most votes from minority communities so that the Mauritian Parliament more or less reflects the components of the population, hence the expression « Community Representation », which does not mean that the candidate will only represent his/her community.

For this reform to work, the Mauritian Constitution identifies 3 communities by their « way of life » : Hindus, Muslims and Sino-Mauritian. However, the candidate who does not wish to identify his community is classified as part of the « General Population », which is a residual category and which, for administrative purposes,  « shall be regarded as a fourth community » to which the way of life test does not apply. Hence, the Constitution does not force the candidate to identity his (her) community as we know it.

Bad faith of ‘Rezistans ek Alternativ’

However, the problem lies at registration of the candidate where a candidate who does not wish to identify his community (Hindu, Muslim or Sino-Mauritian) is required to select General Population, failing which his candidacy will be rejected as per Regulation 12(5) of the 1968 National Assembly Regulations. Although this may seem quite straight forward, a political party defined against the BLS system sees in it an ‘opportunity’ to argue that its candidates are ‘forced’ to select their communities, alleging that General Population is a community in the same vein as the 3 above-mentioned communities, which is not the case.

Upon registration for the 3rd July 2005 general elections, in defiance of the rules and regulations, in bad faith and with pre-meditation, the political party Rezistans ek Alternativ ‘instructed’ its candidates not to identify themselves either under the said three communities (by way of life), or under the residual category of General Population (where way of life does not apply) in the knowledge their candidacies would be rejected so that the party could mount an infectious campaign against the BLS system and the government.

As expected, their nominations were rejected on 30th May 2005 for non-compliance with the 1968 Regulations, upon which they swiftly applied to the Supreme Court which, on 10th June 2005, declared that those Regulations were unconstitutional and ordered their names to be entered as eligible candidates, but all failed to get elected at the 3rd July 2005 general elections nor were they eligible under BLS.

In the meantime, as a result of Judge Balancy’s 10th June 2005 decision in Narrain v Electoral Commissioner (2005) in favour of Rezistans ek Alternativ, the Electoral Commissioner applied to the Courts for directions in Electoral Supervisory Commission v Attorney General (2005). The Full Bench of the Supreme Court reversed Judge Balancy’s decision on 10th November 2005 holding that candidates who fail to declare their appurtenances to any of the 3+1 communities on the nomination papers would invalidate their candidacies. Although Rezistans ek Alternativ was not party to the case, it challenged this decision by way of « Tierce Opposition » procedure, but the Courts dismissed it on 7th September 2006 since the applicants could not show that they had suffered prejudice. However, the Courts stated that Rezistans ek Alternativ could apply for leave to appeal to the Privy Council against the 10th November 2005 ruling, which it did on 25th September 2006. But on 14th March 2007, leave of appeal to the Privy Council was refused on the ground that the 7th Sept 06 judgement did not concern any provisions of the Constitution.
 
UN’s interference in the internal affairs of Mauritius

In 2007, Rezistans ek Alternativ had also referred the matter to the UN Human Rights Commission alleging that their civil and political rights were infringed upon when their candidacies were rejected after they refused to select the relevant ‘community’ on the nomination forms. There are hundreds of millions, if not billions, of application forms around the world which are rejected because they have not been properly completed. Surely, this is not a matter for the UN. The UN is not a court of law and has no power to substitute itself for the Mauritian courts. Any protocols signed by the Mauritian government could not have undermined the jurisdiction of the Courts in favour of the UN in Geneva.

In its ‘judgement’, the UN Human Rights Committee displays very poor understanding of the provisions in the Mauritian Constitution relating to the 3 + 1 communities. For example, it gives credence to the allegation that the Rezistans ek Alternativ candidates were « unable to categorise themselves in the prescribed compartments, i.e. as belonging either to the Hindu, Muslim, Sino-Mauritian or General Population community » (p.4, 2.4), when it is clear that the General Population residual category was created just for that purpose and where the « way of life » test does not apply. Moreover, the UNHR Committee accepts Rezistans ek Alternativ contentions that « they were equally unaware of the criteria “way of life” that would qualify them to be or not to be in the “General Population” community » (p.4, 2.4) and that a person’s « way of life » is allegedly « the basis of the four-fold classification » (p.5, 3.2) when they know fully well that the “way of life” test does not apply to the residual category. The whole of the UNHR Committee Report is based on those fallacies.

The Geneva-based UNHR Committee even gave the Mauritian government a 180-day deadline and went to the extent of saying that the Mauritian government should pay the costs of Rezistans ek Alternativ when the party deliberately and with premeditation engineered the rejection of the nomination of its candidates after they wilfully refused to abide by the regulations. On the contrary, Rezistans ek Alternativ should pay the costs incurred by government since those come from public funds. The government has a duty to seek an order for costs against them.

Moreover, in its report, the UNHR Committee displays a total misunderstanding, if not ignorance not only of the internal requirements of Mauritius but also of the letter and spirit of its laws, including the reforming BLS system. Instead of attempting to interfere in the internal affairs of Mauritius,  the UN would do better to report on the human rights abuses, including the abuses of their civil and political rights, affecting Palestinians, Diego Garcians, Iraqis, Afghans, Maoris, Aborigines, Native Americans, African-Americans, Black South-Africans, Algerians, Moroccans, Libyans, Syrians, Saudis, Yemenis, Bahrainis, Kashmiris, Myanmaris, unborn babies because they are identified as females, and much much more around the world, and give the relevant countries 180 days deadlines.

Why do the Geneva-based UNHR Committee not ‘deliver’ similar ‘judgements’ on the Equal Opportunities legislations in Europe which practice positive discrimination in favour of people of a particular skin colour but pertaining only to a specific religion, or in favour of people with specific sexual and transsexual orientations, or on the racist referenda held in Switzerland to target one particular community, by denying the civil and political rights of others?

Conclusion

The UNHR Commission’s utter failure to deal with and even its complicity in human rights abuses around the world is well documented. Mauritius will not be bullied by an unfair and biased UNHR Commission, with all its double-standards, simply because Mauritius is a small nation striving for fairness in its political system by ensuring adequate political representation for its multicultural nation.

Although the UNHR Committee’s Report only affects the compulsory declaration of the candidate’s ‘community’ amongst the 3+1 rather than attacking the BLS, it is clear that Rezistans ek Alternativ is abusing the process of the courts to achieve political changes to get rid of the BLS in which campaign the UNHR Commission is giving them a helping hand. There is a maxim of law which says that the law is deaf to politics. Before the 5th May 2010 general elections, the Rezistans ek Alternativ candidates’ nominations were again invalidated because they refused to choose any of the 3+1 communities. They applied to the Courts in Dany Sylvie Marie & others. v. The Electoral Commissioner (2010), and Judge Mungly-Gulbul refused their application on 26 April 2010. Because the Mauritian Constitution provides that « the determination of the Judge shall not be subject to appeal », the applicants bypassed the Mauritian Courts and applied directly to the Privy Council for special leave of appeal. On 20th December 2011, the Law Lords rejected their application on the ground that they had no jurisdiction.

Even though this case is also referred to in the 31st August 2012 UNHR Committee Report, it conveniently and dishonestly leaves out the political ploy of Rezisans ek Alternativ as well as the very pertinent comments made by the Law Lords in their judgement. The Law Lords clearly stated that those were « political issues » and advised the applicants to challenge the Mauritian Constitution in the Mauritian Courts. They also stated that « The true complaint that the applicants have is that the best loser system is wrong in principle and should be abolished » and « that the debate is a political debate and that there is no basis for mounting a legal challenge to the system » (p.17 of judgement).

However, the Mauritian government should be criticised for having left the candidate registration loophole open for so long for troublemakers to exploit as per their political schemes. Rezistans ek Alternativ clearly acted in bad faith. If a candidate does not wish to identify his/her community, it is normal that that candidate should be automatically classified as Other (call it General Population or Residue or anything else) and excluded for selection under BLS, without the candidate being ‘compelled’ to select General Population if he does not wish to be identified under the 3 communities, that is, Hindu, Muslim or Sino-Mauritian. This is what Rezistans ek Alternative is exploiting in order to attempt to destroy the BLS. This is what they are after, and they should do so at their own risk and peril and at their own costs, which they have to reimburse the government too. This has nothing to do with the United Nations HR Committee. Rather than seizing the opportunity to create social unrest in Mauritius, it should be more concerned with the return of Diego Garcians to their homeland, the Chagos Archipelago, stolen from Mauritius under their complicit gaze.

cc. Hon. PM Dr Navin Ramgoolam, Mauritius
    Hon. President Kailash Purryag, Mauritius
    UN Human Rights Commissioner, Palais Wilson, 52 rue des Pâquis, CH-1201 Geneva, Switzerland.
    Email : InfoDesk@ohchr.org, Press-Info@ohchr.org