The Covid-19 Pandemic has plunged us into unchartered waters in many ways. No less is this made manifest than the conduct of General Elections during the pandemic. With over 334 new positive Covid-19 patients within the week of August 16, 2020, along with the death toll now tallied at 19, citizens have legitimate concerns for their safety, health and well-being, even while they exercise their franchise on Election Day. There have been questions raised as to whether Covid-19 patients ought to be excluded from voting, due to public health concerns. The answer to this issue is by no means easy and this article grapples with certain considerations that ought to be borne in mind.
The right to vote is sacrosanct and is the bedrock of any democracy. The right to vote is enshrined in our Constitution, set out in section 13(3)(m) the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 (“Charter of Rights”):
“(3) The rights and freedoms …are as follows-
(m) the right of every citizen of Jamaica¬ –
…
(ii) who is so registered, to vote in free and fair elections.”
Such a right is not to be lightly disturbed by the State.
In the decision of Jamaican Bar Association v the Attorney General & Anor [2020] JMCA Civ. 37, the Court of Appeal recently reminded us that no right is absolute, as reflected in the Charter of Rights itself. Section 13 (2) provides (among other things) for the guarantee of the rights and freedoms of the Charter of Rights and that no organ of the State may take any action which abrogates, abridges or infringes those rights, save only as may be demonstrably justified in a free and democratic society¬. Accordingly, the right to vote is not absolute, but if any citizen, including Covid-19 patients, is to be excluded from exercising their right, such an action must be able to meet the requirements of the Constitution. The learned McDonald-Bishop JA in the said case stated a timely word:
“Any abrogation, abridgment or infringement, to be upheld as constitutional, must be demonstrably justified in a free and democratic society. It is, therefore, not for the aggrieved individual to show lack of justification but for the state to demonstrate justification, which ought to be measured and tested by reference to the enduring values and essential principles necessary to the survival of a free and democratic society.”
The State accordingly has a heavy burden to show that the restriction of the right to vote is justified. Her Ladyship noted that it may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance.
A law which restricts the right to vote may not be unconstitutional, if it is demonstrably justifiable in a free and democratic society. How is it determined whether a restriction is demonstrably justifiable? The criteria to be satisfied is succinctly summarized in an earlier Court of Appeal decision in Al-Tec Inc. Ltd. v Hogan & Others [2019] JMCA Civ. 9, namely:
“(1) there must be a sufficiently important objective in making the restriction;
(2) the measures used must be carefully designed to achieve that objective and must be rationally connected to that objective;
(3) the means used should be the least drastic so that it impairs as little as [reasonably] possible, the protected rights or freedoms;
(4) the effect should not be disproportionate; and
(5) the interests of society must be balanced against those of individuals and groups.”
Her Ladyship McDonald-Bishop in the Jamaican Bar Association Case noted that this test attracts a high standard of proof. Her Ladyship warned that the more severe the restrictions upon a right, the more important the objective must be, if the restrictive measure is to be reasonable and demonstrably justified in a free and democratic society. She further highlighted that whether the test is satisfied will vary depending on the circumstances and in each case, the Court will be required to balance the interests of society with those of individuals and groups.
There is no doubt that Covid-19 is a highly contagious and very dangerous disease, which can have severe consequences upon the citizenry at large in various ways. The overriding objective must be, at the very least, to slow the spread of the virus among the population and to contain the disease. The current scientific evidence suggests that the virus affects disproportionately the elderly and persons with pre-existing medical conditions. In limiting the right to vote, decision makers may consider the following restrictive measures to guard against public health risks and to balance the interests of society, and in so doing, take into account the scientific evidence, advice and expertise from public health specialists:
a) persons who have tested positive for Covid-19 within the last 14 days may be precluded from voting;
b) persons who are symptomatic (but have not yet tested positive), including those who have been in direct contact with a confirmed Covid-19 case, may also be prohibited from visiting a polling station to cast their ballots;
c) recovered Covid-19 patients should be permitted to vote;
d) persons awaiting test results, who are in home quarantine and self-isolation (but are not displaying flu-like symptoms) should be permitted to vote with the appropriate precautions implemented, including mask wearing, handwashing and physical distancing; and lastly
e) persons who may be under stay at home orders, such as the elderly citizens and those with pre-existing conditions, should also allowed to cast their ballots.
Of course, if challenged, it will be for the Supreme Court to determine whether the ends justified the means and it will be the duty of the State “to show, by evidence, that no reasonable alternative means of achieving the same objective with less impact on Charter rights was available to it at the time the measures were introduced”: per the Jamaican Bar Association Case.
The Court will therefore carefully scrutinize any actions of our decision makers, to determine whether they have unduly excluded persons from exercising their franchise to vote, without sufficient legal justification. At the end of the day, it must be remembered that the right to vote is precious and a means of preserving civil rights.
Disclaimer: This article is not meant to provide legal advice. To obtain legal advice specific to your circumstances, please retain the services of an Attorney-at-Law.
Trudy-Ann Dixon Frith is an Attorney-at-Law and Partner at the law firm of Messrs DunnCox, 48 Duke Street, Kingston. She may be contacted at trudy-ann.dixon-frith@dunncox.com.