A criticial evaluation of the bill on electoral reform

L’Express (Port Louis, Mauritius)

OPINION
March 17, 2005

Rama Sithanen
Port Louis

Government has submitted proposals to amend the Constitution so as to
modify the electoral system.

The two objects of the Bill are to introduce a very small dose of
proportionality to the voting system and to provide for a minimum of
7 women to be represented in a Parliament of 80 Mps. This first paper
critically appraises the Bill while the second one will offer a
compromise pathway to move the process forward provided the political
will exists and rational thinking prevails.

The four problems of our FPTP electoral system are known.It often
produces a huge disproportionality between votes polled and seats
obtained by parties.In 1987,the MMM captured 35 % of seats with 48.1
% of votes while the MSM/LP/PMSD took 65 % of seats with 49.9 % of
votes.A difference of only 1.8 % in votes produced a huge gap of 30 %
in seats.At times it amplifies this unfairness when one alliance
obtains 100 % of seats with around 55 % of votes,thus leaving no
representation at all to another party with 40 % of votes.This is the
famous 60-0.There is also the likelihood of a party winning more
votes losing the election. Fortunately it has not happened in
Mauritius.It occurred twice in New Zealand which had the same FPTP
system as us.This provoked outrage and instability.As a result,the
electoral formula was changed and New Zealand today has a mixed
system. However we had two near misses in 1967 and 1987 when winners
could have become losers.Finally,women are severely underrepresented.
with only 5.7 % of female MPs in Parliament

There are two lethal flaws,eight major defects and two technical
problems with the proposals contained in the Bill.

Major defects

1. The low number of PR Mps

Sachs,Ahnee and Tendon reached the conclusion that there is need for
30 PR Mps if the objective of reform is to introduce an element of
fairness in the system, as they were tasked to keep the 70 FPTP
seats.The split would be 70 % FPTP and 30 % PR seats.In Germany and
Russia it is 50/50 between the two components of the mixed system.In
New Zealand which has changed from FPTP to a mixed formula,the share
of PR Mps is around 45 %.Lesotho recently switched from FPTP to a
mixed system and it has 66.6 % FPTP and 33.3 % PR seats. The 14 PR
seats out of a total of 80,as proposed by Govt, will account for only
17.5 % of seats. As it is a very low percentage,its effect will be
very marginal and will hardly affect the degree of unfairness of the
system. It means that a party with 45 % of the votes could end up
with only 6 seats out of 80 or 7.5 % of all seats while one with 51 %
could end up with 92.5 % of seats. In 1995, the MSM would have
obtained only 3 seats with 20 % of the votes.While 3 is certainly
better than nothing, it is a far cry from what anybody would consider
a fair and a just system.This anomaly arises also because of the
method chosen to allot the 14 seats.

2. The unfairness of the parallel method

Govt proposes to attribute the 14 PR seats on a parallel basis.There
are broadly two ways of alloting PR seats.The parallel mode
distributes PR seats regardless of what happens in elections at the
constituency level.As a result the party which has most Mps at the
FPTP mode also takes the lion share of PR seats.This leads to a
widening of the difference in seats between the winner and the second
party.In 1995,with the FPTP,the LP/MMM alliance had a 60 seat margin
over the MSM.With the proposed system, the gap, instead of narrowing,
would have risen to 66 seats.How can this be fair ? It is so unfair
that it is not used in advanced democracies like Germany, New
Zealand, Italy, Wales and Scotland.Instead,they employ the
compensatory mode which corrects partially for the unfairness in the
results at the constituency level.Sachs and Collendavelloo have
recommended the compensatory mode to apportion the PR seats and have
categorically rejected the parallel system. Lesotho,a SADC
country,which recently evolved from FPTP to a mixed system,also has a
compensatory formula.The difference between the two modes is
huge.With the parallel mode,the MSM would have won only 3 seats or
3.7 % of all seats while polling 20 % of the votes in 1995. A
compensatory formula would have given 14 #to the MSM.It is
fairer.This is why the parallel system is called ‘panadol to cure
cancer’. The combination of a low number of PR seats and its
attribution by a parallel mode will hardly make any difference to the
degree of unfairness of the current system. Evaluating 30 PR seats
along a parallel mode, Sachs concluded that ‘it is precisely the
smallness of its impact that reduces its attractions for present
purposes’.And now Govt is suggesting 14 PR seats!

3. Appointing PR Mps from among Best Losers

In theory,there are two ways of returning PR MPs.These are the Party
list and the Best Loser system.However the Best Loser system is so
poor and so dangerous that there is no country in the world that uses
it to return PR Mps.Yet this is precisely what Govt is
proposing.Simply unthinkable.All countries use Party lists. From
Germany to New Zealand,from Wales to Scotland, from Italy to Lesotho,
from Hungary to Bolivia, from Japan to Venezuela. Even countries with
low democratic credentials like Mexico, Russia, Armenia,Ukraine and
Macedonia use party list. Surely all of them cannot be wrong. It
would be an unmitigated disaster to return PR Mps through a Best
Loser system in a plural and multi faith country like Mauritius.Sachs
has well articulated this danger when he states ‘its capacity to
impact negatively on innnerparty relationship,its propensity to
intensify communal tensions and .its unacceptable potential for
destabilisation of national unity’

A Best loser system will provoke bitter intra party infighting during
elections as candidates from the same party will use
communal,casteist,racial,religious and other below the belt arguments
against their own colleagues.This is patently against party interests
and social cohesion.If fairly homogenous countries like Germany and
New Zealand refuse to use Best loser system to return PR MPs,one
wonders how a plural society like ours can even contemplate such an
eventuality.Already social cohesion is weak,fragile and vulnerable.
Incentivising and rewarding ethnic,communal and racial electioneering
is tantamount to pouring fuel on fire.This must be the height of
irresponsibility.

4. Very unfair to women

The proposal is extremely unfair to women on four counts. First, it
guarantees only 7 seats out of 80 to women. For a cohort that
accounts for 51 % of the population,a representation of 8.75 % is
hardly a favour. If anything, it is insulting. Second, the Bill is
eloquently silent on the 62 constituency seats.Women will thus have
only a given share of 17.5 % ( 14 seats out of 80) of the total
seats; however there is nothing for them in 77.5 % of the seats ( 62
FPTP seats out of 80). Simply amazing.Third they can only enter
Parliament if they lose the elections, thus carrying the stigma of
being second best Mps.This is dreadful,especially when better and
simpler avenues exist for women to become MPs. Fourth, these very few
women will have to fight it out vehemently, if not viciously, on the
basis of race, ethnicity, caste and religion to have a chance to be a
Best Loser since only the most successful unreturned women candidates
would be the lucky ones.

5. Winners could become losers

Surprisingly,there is a major flaw at clause 10 of the Bill
concerning the method to return the 4 ‘communal’ best losers.In the
current system, there are two sets of four best losers.The first set
of four seats is attributed to the four most successful unreturned
candidates hailing from underrepresented communities,regardless of
parties while the second set of four seats corrects for any party
imbalance that could have been caused by the appointment of the first
set of four Best Losers.Thus if the first set of four seats is
attributed to the second most successful party, the second set of
four seats should be awarded to the most successful party so as not
to change the election results. The second set of 4 Best losers acts
as a guarantee that the will of the people cannot be changed and that
winners cannot become losers after the allotment of the 8 Best Loser
seats.

Surprisingly,the Bill proposes to abolish the second set of 4 Best
Losers while retaining the first set of four seats. According to
clause 10,the 4 ‘communal’ best loser seats will be allocated to the
most successful unreturned candidates belonging to the appropriate
community, regardless of parties.By eliminating the second set of
four best loers, the Govt is opening the door for a winner to become
a loser,following the allocation of these 4 seats. Consider a tight
race with one party taking 32 seats and another 30.If each is
entitled to 7 PR seats out of the 14,that would give a tally of 39
against 37. The winner still has a majority of 2 seats. However as
the four Best Loser seats are attributed to underrepresented
communities irrespective of political parties,the second most
successful party may take all 4 seats.Thus it would have 41 seats
against 39 for the actual winner. A winner has been transformed into
a loser.This is totally unacceptable.There is a similar problem with
clause 11 (b) in case a vacancy arises. Here also a winner could
become a loser. It is precisely to avoid such anomaly that we have
two sets of 4 Best Losers.This is the problem when people with little
knowledge in electoral system try to design reform without heeding
the advice of experts in the field.

6. A very complicated system

Electoral experts argue that one of the most important features of an
electoral system is its simplicity,its familiarity and its ease of
understanding.The new proposal must be one of the most complicated
electoral systems in the world. Already few people understand how the
Best Loser system works in practice. Often the Electoral Commission
has had to ask for a ruling from the Supreme Court to award some Best
Loser seats.Now we will have three types of best losers.One for
women,one for men and women and one for ethnic underrepresentation.
Extremely complicated,especially when simpler formulae exist and have
been recommended by electoral specialists.

7. Very high eligibility threshold

Even if one understands the absolute need in a multi faith country to
discourage single issue political formations,many electoral experts
would argue that a 10 % threshold to be eligible for PR seats is on
the very high side. It will penalise many parties.The international
trend is around 4 % to 5 % of national votes,even in plural
societies. My simulations show that a 5 % national limit would still
discourage openly communal parties.

8. Inconsistency with no threshold for a Best Loser seat

The rationale for a very high 10 % threshold to have a PR seat is to
make it difficult, if not impossible, for openly communal parties to
enter Parliament and to encourage broad church formations.Yet there
is no such deterrent to become eligible for a Best Loser seat. As a
result we could have a ridiculous situation where a national party
with 9,99 % of vote is denied one PR seat while a communal one with
less than 1 % of vote could obtain a Best Loser seat.This is totally
unfair.In 1995, Beeharry, a Muslim from a single issue party,was
awarded a Best Loser seat even if his party won a very insignificant
percentage of national vote. Soodhun, a Muslim from a mainstream
party,was denied one seat while his party,the MSM, polled 20 per cent
of the national vote.To add insult to injury,Beeharry garnered only
4405 votes while Soodhun collected 7416 votes (68 % more ). How can
we accept such unfairness, especially when the solution to avoid such
anomalies is very simple ?

Lethal flaws

1. Reject what experts propose and propose what experts reject

Any electoral specialist would be deeply shocked by the contents of
the Bill. They are fundamentally flawed,completely opposite to best
international practices,totally contrary to what electoral experts
have recommended in the Sachs report, very wide apart from the
proposals of the Select Committee and wholly antagonistic to what an
eminent world constitutionalist and electoral expert has recently
advised on this very Bill. Assume someone has a heart problem.He
consults a world known cardiologist who diagnoses the ailment.Not
only does the heart specialist prescribe the right medication but he
also informs the patient of the worst remedy for the disease. However
the patient decides to consult someone who is not even a nursing
officer and the latter recommends exactly what the eminent doctor has
thoroughly rejected.Yet the patient accepts it.

Government set up an Independent Commission chaired by Albie Sachs to
make proposals on the best way to cure the defects of the FPTP
system.It also appointed a Select Committee to that effect.Not only
has the Sachs Commission proposed the best formula (the famous Model
C),but it has also categorically rejected what it considers to be the
worst solution ( Model A).What is surprising is that Govt rejects
what the experts have recommended and endorses a solution that is
worse than the one turned down by the specialists.Sachs and
Collendavelloo have unreservedly thrown out the proposal to have 30
PR Mps along a parallel mode,appointed from among best losers. They
have given very robust reasons to support their recommendations.Yet
the proposal of Govt is to have 14 PR Mps along a parallel formula
,returned from among best losers.Simply amazing.

2. Include discriminatory practice in the Constitution

Sections 3 and 16 of the Constitution prohibit discrimination on many
grounds,including sex.Under the pretext of positive
discrimination,the proposal will include discrimination on the basis
of gender in our Constitution.This is a violation of the fundamental
clauses of our Constitution and represents a very dangerous
precedent.The more so as there is no need to tinker with the Supreme
law of the Land if we follow best international practice to ensure
better political representation of women. In countries like South
Africa,Germany,Norway, Italy, Sweden,Denmark, Mozambique,
Argentina,Bolivia,to name a few, political parties provide for gender
fairness.Gender discrimination does not feature in the Constitution.
Sachs,one of the best Constitutionalists in Africa,concluded that

“we endorse the view that the major responsibility for correcting the
massive gender imbalance rests with the parties’.

Technical problems

1. Wrong formula to compute PR seats

The formula at 5 (3) (c) of the Bill to determine the number of
proportionately elected members per party is not in line with best
international practice.The share of votes cast in favour of a party
must be divided not by the total number of valid votes cast at the
election but by the total number of valid votes minus the votes of
parties not eligible to PR seats (those which have not polled at
least 10 %). Assume Party A polls 50 % of votes and Party B 35 % and
there is no other party with 10 % of votes.The share of Party A in
the 14 PR seats is not 50 % but 55.5 % ( 50 % of 90 %).The
denominator has to be adjusted.This is how it happens in most
countries. Otherwise it is impossible to allocate all 14 PR seats.

2.Which formula to allot PR seats

The Bill is silent on which mathematical formula will be used to
attribute the 14 PR seats. There are two broad formulae.The highest
average and the largest remainder methods.One has the feeling that
the D’Hondt formula would be used.It is the least proportional as it
favours the largest party as opposed to St Lague which is neutral
between large and other parties.Other countries use the Hare or the
Droop formula.The exact mathematical formula should be clearly spelt
out to avoid any confusion later on.