Disclaimer: The views and opinions expressed by the author(s) do not represent the official position of Barbados TODAY.
by Rico J. Yearwood
Literally a month after Barbados transitioned to Republican status, and at the dawn of 2022, the Electoral and Boundaries Commission (EBC) formally confirmed that COVID-19-positive patients, who make up the Barbadian electorate, will be unable to exercise their constitutional franchise at the next general election, which is slated for January 19th, 2022. But does that formal confirmation render the EBC blameworthy for this democratically unjustifiable state of affairs? An answer to this question necessitates an examination of the functions and legal boundaries of the EBC.
The EBC’s functions and boundaries
The EBC was established by and under the Barbados Constitution, and it is therefore a constitutional body.
Section 41C of the Constitution provides that the EBC shall be independent and shall not be subject to the direction or control of any person or authority when it is discharging its constitutional functions.
This means that not even the Prime Minister or the Government could intermeddle in the decisions and decisional processes of the EBC.
Under the same section 41C, the EBC’s overarching function is to direct and supervise the registration of electors and the conduct of electoral affairs in Barbados and any matters incidental thereto.
With such a sweeping mandate, this begs the question – what precluded the EBC from putting special provisions in place for COVID-19-positive electors so that they would be able to cast their votes on polling day? In short, the EBC’s authority in this context is constricted by certain legislative requirements.
What are some of these requirements? First, pursuant to sections 3-6 of the Emergency Management (COVID-19) Order, 2020, electors who are COVID-19 positive will be required to quarantine or will have to remain in isolation stations.
Second, section 39 of the Representation of the People Act (ROPA) effectively makes it mandatory for electors to vote in person at designated polling stations.
The conjoint effect of these two requirements raises the conundrum – if a COVID-19-positive elector is required to quarantine or isolate, how can they vote in person at a designated polling station? One may hasten to suggest that polling stations could have been set up specifically for COVID-19-positive electors at Harrison’s Point or other isolation facilities. That way the COVID-19-positive electors could have voted and isolated simultaneously.
However, whilst this may be logistically possible for the EBC, there is a third legislative requirement that would put a spoke in the EBC’s wheel.
Section 6 of the ROPA dictates that an elector is disentitled from voting in a constituency unless he/she is qualified to be an elector for that constituency and unless the elector is registered in the register of electors for that constituency.
Contextually, therefore, as it stands, it is legally impossible for the EBC to create a polling station at Harrison’s Point or other isolation facilities to allow COVID-19-positive electors to vote, since not all of those COVID-19-positive electors will be qualified or registered to vote in the constituencies in which the isolation facilities are located.
Essentially, the EBC could not have enabled or facilitated voting for COVID-19-positive electors without overstepping its boundaries by flouting either the COVID-19 Order or the ROPA, or both.
Therefore, while it is easy to castigate the EBC for making the announcement, the EBC should not be blamed for the disenfranchisement of COVID-19-positive electors.
The EBC’s hands were truly shackled. That is the regrettable reality.
Who is deserving of blame?
Having established that the EBC is not to be blamed, this raises the question – who is deserving of the culpability? Seasoned Attorney-at-law Lynette Eastmond and Law Lecturer Dr. Ronnie Yearwood both hit the nail directly on its head when they recently intimated that this is wholly the Government of Barbados’ fault.
However, I will go further and say that it is specifically the fault of the Prime Minister (PM).
Under section 61(2) of the Constitution, the PM is accorded power to unilaterally call a general election before it is constitutionally due.
Incidentally, only the PM can exercise this power. PM Mottley resolved to exercise this power and called what is being described as a ‘snap election’. When this constitutional power is exercised by the PM, Parliament must dissolve with immediate effect, which means that all parliamentary seats automatically become vacant.
However, only the PM’s Cabinet can amend the COVID- 19 Order, and only Parliament can amend the ROPA, and these are the two pieces of legislation that are preventing the EBC from allowing COVID-19-positive electors from voting on polling day.
What PM Mottley failed and neglected to do before she called the snap election was to ensure that the COVID-19 Order and the ROPA were duly amended to allow COVID- 19-positive electors to vote at the next general election. If PM Mottley had done this, the EBC’s hands would not have been legally tied.
Furthermore, an argument can be made that the failure to amend the ROPA to allow COVID-19-positive electors to vote makes the ROPA unconstitutional.
This argument could be fortified by section 42(2)(b) of the Constitution, which states that “[a]ny law providing for the election of members of the House of Assembly shall, in particular, contain provisions designed to ensure that as far as practicable any person qualified to vote…has a reasonable opportunity of voting.”
It certainly is practicable to allow COVID-19-positive electors to vote in Barbados amidst a pandemic, which has been in existence for almost two years now. During the pandemic, COVID-19-positive electors were allowed to vote in multiple countries, including Jamaica and the United States of America.
There is absolutely no cogent reason why our relevant legislation could not have been amended to allow for the same in Barbados. As a matter of fact, prior to the presidential election in America, the Centers for Disease Control and Prevention (CDC) stated on its website that “[v]oters have the right to vote, regardless of whether they are sick or in quarantine.”
We cannot be picking and choosing when to follow the science and medical expertise for political expedience.
Exercise common sense
The PM’s decision to call a snap election without ensuring that COVID-19-positive electors could exercise their democratic franchise was improvident, impulsive and self-serving.
The critical question left is, can the PM remedy this unfortunate situation? The answer is ‘Yes’.
Under section 61(5) of the Constitution, if Parliament has been dissolved, the PM can advise the President that Parliament should be reconvened if an emergency arises of such a nature that, in the opinion of the PM, it is necessary for the two Houses of Parliament or either of them to be summoned before the next general election.
To my mind, apart from the fact that we are already in a state of emergency because of the pandemic, the possible disenfranchisement of COVID-19-positive electors is so grave that it could constitute an emergency of such a nature that should cause the PM to advise the
President that Parliament should be reconvened to address this problem.
The right to vote is the backbone of any constitutional democracy. Without this right, we would not even have a democracy. To deprive COVID-19-positive electors of their right to vote, when it is reasonably possible for them to safely exercise it, is to debilitate our democracy and democratic principles.
The PM is always quick to implore others to exercise common sense, and she fervently advocates for putting people over politics. I now implore the PM to exercise common sense by exercising her power under section 61(5) of the Constitution so that this dire situation can be addressed.
If the PM refuses or fails to exercise this power, it will speak volumes.
It would simply mean that this time it will be politics over people. Is this how we want to usher in 2022 for Barbados, the new Republic? PM Mottley, the ball is now in your court!
Rico J. Yearwood is a social activist, the Head of the Public Law Department at CARICOM Attorneysat-Law and a co-host of the award-winning CARICOM Public Law Podcast.
