Best Loser System – a protective measure for ethnic minorities

The confusion around the interpretation of the views of the Human Rights Committee which were adopted on 31st August 2012, in relation to communication No 1744/2007 submitted by Rezistans ek Alternativ, have prompted me in my capacity as a member of the United Nations Committee on the Elimination of Discrimination against Women and Chairperson of the Working Group on Communications under the Optional Protocol to CEDAW, to bring some clarification.
The Government of Mauritius has been found to be in violation of article 25 (b) of the Covenant on Civil and Political Rights and declared to be “under an obligation to provide the authors with an effective remedy, including compensation in the form of reimbursement of any legal expenses incurred in the litigation of the case, to update the 1972 census with regard to community affiliation and to reconsider whether the community based electoral system is still necessary. The State party is under an obligation to avoid similar violations in the future.”
Are the recommendations legally binding on the Government of Mauritius ?
Speculation is rife as to whether the Government will comply with the recommendations of the Human Rights Committee and whether the views are binding or not. The Government of Mauritius has 180 days from 31st August 2012 to submit information about the measures taken to give effect to the Committee's Views. It is worth recalling that the Government fully complied with the recommendations of the same Committee in 1981 in the case of Cziffra and 19 other women which concerned the right of alien men and women married to Mauritian nationals to the same residence status.
Mauritius has ratified an impressive raft of international human rights treaties. As a State Party to the Covenant on Civil and Political Rights (ICCPR) and its Optional Protocol since 12 December 1973, it has the legal obligation to fully implement all of its provisions. By ratifying the Optional Protocol, it has also recognized the competence of the Committee to receive and consider communications from individuals who claim to be victims of a violation of any of the rights set forth in the Covenant. It will be difficult for the Government of Mauritius not to pay due consideration to the views and recommendations of the Human Rights Committee. In any event, the matter will not be closed after 180 days as the Human Rights Committee will use its follow up procedure to pursue the matter with the Government for as long as it deems necessary. The pressure will intensify when other treaty bodies as well as the Human Rights Council will take up the matter with the Government during the review of its reports and the Universal Peer Review.
What is the fate of the “Best Loser System” ?
The Human Rights Committee has in no way challenged the legitimacy of the “Best Loser System”. Even the authors did not really challenge the “Best Loser System”. They challenged the obligation imposed on every candidate at any general election to declare “the community to which he belongs” and contend that their refusal to participate in a supplemental election system of the nomination of eight members (the “Best Loser System”) cannot democratically justify their exclusion from the main electoral process.
The recommendations of the Human Rights Committee certainly does not mean the natural death of the “best loser system”. According to principles of public international law, minorities are entitled to an additional set of rights based on the fact that they constitute a minority in relation to a majority. It is not uncommon for States to have special protective measures to ensure fair political representation for a minority group. The Convention against Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women contain explicit provisions for the adoption of special measures aimed to create equal conditions for all groups.
The Committee's request that the Government “reconsider whether the community based electoral system is still necessary” was certainly made in the light of the Government's submission to the Committee that “the current election system is being reviewed... and that the Prime Minister has stated that he considers the “Best Loser System” to have outlived its usefulness, even though it has served well.” The Committee which took note of the fact that the provision of the eight additional seats has not always been fulfilled and that in 1982, 1991 and 1995, only four out of the eight nominations could be made and in 2010, the mechanism could only fill seven seats, also recommended that the 1972 census with regard to community affiliation, be updated.
Way Forward ?
The electoral system has been under review for several years now. It will not be difficult for the Government to implement the recommendations of the Committee. In so far as the “Best Loser System” is concerned, it is time to concede that ethnic minorities in the country, generally are in favour of preserving it, in the absence of any alternative proposal to restore a balance between the respective positions of the various ethnic groups. Review must be geared towards the identification of an alternative system which will guarantee “all” ethnic minorities in the country, their fundamental human right to meaningful and effective political participation. A number of pertinent, albeit, politically “incorrect” questions must be addressed, such as do “all” ethnic minorities have a visible and representative voice of their own ?
In the absence of a concrete proposal from the Government, the stand of the Leader of the Opposition as well as that of Sir Aneerood Jugnauth is understandable and legitimate. They are voicing out the fears of different segments of the population. However, I am disappointed to note that they are both under the influence of colonial hangover and none of them have had the courage to affirm that the existing democratic infrastructure is inadequate for the political representation of “all” ethnic minorities. For example, as a member of an ethnic minority, namely a Tamilian, I find the “Best Loser System” which excludes Tamils, to be seriously flawed.
I congratulate “Rezistans ek Alternativ” for their victory before the Human Rights Committee and for providing a historic opportunity for a focused national debate on our electoral system.