Electoral laws could be “vulnerable” in the event of a legal review

A local constitutional law expert is contending that COVID-19 positive Barbadians who are being prevented from voting during the existing pandemic may have a legitimate cause for the High Court to suspend the January 19 general election.

Senior counsel Garth Patterson, who has practised constitutional law all of his 35 years in the legal profession, also warned that the courts may find it necessary to undertake a judicial review of the government’s decision to dissolve Parliament and call the election in the current COVID-19 climate.

Patterson, Senior Partner in Lex Caribbean, Attorneys-at-law, went even further to caution that the very electoral laws, may also be “vulnerable” to constitutional challenge in the present circumstances.

Days ago, a firestorm of controversy was ignited in Barbados following public pronouncements by Chairman of the Electoral and Boundaries Commission (EBC) Leslie Haynes, QC, regarding the right of persons who have tested positive for the virus to vote in the upcoming poll.

Haynes had said: “If you have tested positive for the COVID-19 virus and are in isolation or in quarantine, you cannot vote.”

But today, Patterson countered saying, “A qualified elector who is being prevented from voting because of the COVID-19 infection may have a legitimate basis for complaining to a court that, in all the circumstances, his right to vote has been unlawfully infringed.”

The Queen’s Counsel pointed out that the Caribbean Court of Justice – this country’s final appellate tribunal – has held that every person or institution in Barbados functions under the Barbados Constitution, being the supreme law of the land, and is duty-bound to act rationally, reasonably and fairly.

“The Government’s decision to dissolve Parliament and to hold elections during a pandemic may be amenable to judicial review, provided that the voter can establish that, by doing so, the Government breached its constitutional duty of rational and reasonable decision-making and/or contravened the substance or policy of any applicable law or constitutional provision,” he declared.

“No Government can freely ignore the law, and the right to vote is enshrined in the Representation of the People Act (ROPA), which the Constitution mandates must make provision for every qualified voter to have a reasonable opportunity of voting in a general election.

“This includes every otherwise qualified COVID-positive voter. To the extent that the existing electoral law fails to make adequate provision for voting other than by in-person voting at a polling station (e.g. voting by mail) during the pandemic, the law itself may also be vulnerable to constitutional challenge,” the senior counsel added.

“A court in these circumstances has jurisdiction to stop the elections from proceeding,” Patterson argued.

He said that while it is illegal to break home isolation or quarantine without the expressed authority of the Chief Medical Officer,  no exception has been carved out for persons exercising their right to vote.

The lawyer contended that the government and the EBC have therefore not addressed a fundamental issue before them.

“The EBC and the Government have failed to address the more fundamental question, whether the conduct of general elections during a state of emergency that has been declared as a result of a global pandemic is either prudent or lawful.

“There are understandable concerns that a significant segment of the electorate, consisting of persons who are in isolation or quarantine as a result of COVID-19 virus, will be disenfranchised through no fault of their own. The legality of the elections called under these conditions has also been questioned, and appropriately so,” he stated.

The senior partner submitted that although the right to vote is not one of the fundamental rights enshrined in the Constitution, it is nevertheless guaranteed by the provisions of the ROPA.

He cited Section 42(2)(b) of the Constitution which states that any 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 so doing.

Patterson argued that the ROPA is such a law.

“And, on the face of it, complies with the requirements of section 42 insofar as it makes provision designed to facilitate voting by qualified electors,” he pointed out.

However, in the context of a global pandemic and an existing state of emergency, he questioned whether the spirit of the Constitution was being observed or if all qualified electors are being afforded, as far as practicable, a reasonable opportunity of voting?

“Since the existence of a state of emergency was expressly identified in the ROPA as one of the bases on which the elections might be postponed, it is reasonable to assume that Parliament considered that the existence of a state of emergency could be inimical to the electors’ right to vote and could deprive electors of a reasonable opportunity of voting.

“It, therefore, begs the question: ‘was the calling of elections during a state of emergency contrary to the ROPA and the Constitution?’  I am satisfied that the Constitution is not engaged, since Section 42 does not, itself, confer the right to vote, but merely specifies the mandatory requirements to be included in any applicable electoral law.

“However, it is certainly arguable that the calling of elections during a state of emergency runs against the grain of Section 37, and probably contravenes Section 6, of the ROPA, especially where it will foreseeably result in the widescale disenfranchisement of qualified electors.

“If, by law, the declaration of a state of emergency after the election writ is issued would justify the postponement of elections, then it stands to reason that no right-thinking Government should call elections in the middle of an extant state of emergency, unless constitutionally required to do so,” the constitutional law expert argued. emmanueljoseph@barbadostoday.bb