Esther Perreira, a PNC supporter, filed an election petition in 1998, challenging the validity of the 1997 elections on several grounds, one of which was that the elections were unlawfully conducted. It was argued that the provision made in Election Laws (Amendment) Act 1997, which was supported unanimously in the National Assembly, that a voter must produce a voter identification card to be able to vote, was unconstitutional because it added a qualification to vote which was not countenanced by the constitution.
On 16 January 2001 Justice Claudette Singh (as she then was), now Chair of the Elections Commission, ruled that the requirement for a voter identification card was ultra vires articles 59 and 159 of the Constitution and, therefore, the elections were null and void. Justice Singh said: “…the constitutional right to vote would be denied to any person who did not produce such a card.” Justice Singh further noted that “with the introduction of the voter identification card, a person may be registered and still not be entitled to vote.”
The decision of the Elections Commission on 29 October last, reportedly supported by the Chair, that unless some 28,000 persons, who were registered to vote in the past, uplift their identification cards from registration offices within a 21-day period of which they would be notified, their names would be deleted from the voters’ list, called the Official List of Electors (OLE), but will remain on the National Register of Registrants (NRR). These cards have not been uplifted, in some cases, since 2008. The same issue faced the previous Elections Commission. The then Chair, Dr. Steve Surujballi, had supported the view that since the identification card was not a requirement to vote, the names must remain on the voters’ list. That decision has now been reversed.
This recent decision not only adds a qualification to vote, namely, that persons must be in possession of their identification cards, or uplift them, or they become ineligible to vote by the removal of their names from the voters’ list, but it flies in the face of the decision of the Chief Justice that a name cannot be deleted from the voters’ list unless such deletion is provided for by law. The Chief Justice said in relation to the proposed deletion of names from the voters’ list of persons who were not at their recorded addresses: “….no right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic are illusory if the right to vote is undermined….it becomes clear then, that any prohibition, restriction, or limitation on the right to vote must be viewed with a close and critical eye since any such encroachment would be a bar to that voter’s right to have a voice in the elections of his representatives in government.”
There is no law in existence which permits the deletion of names from the voters’ list on the ground of the failure of the persons to uplift their identification cards. The voters’ list or Official List of Electors (OLE) is defined by section 4(3) of the Election Laws (Amendment) Act. It is a long and complicated section but essentially it provides that the OLE for a polling division consists of the Preliminary Voters List as amended under sections 15(6), 8, 7, and regulation 9 of the National Registration Act. None of these provisions allow the removal or deletion of names of persons from the voters’ list (OLE) on the ground that those persons have not uplifted their identification cards. Regulation 26 of the National Registration Regulations permits the Registration Officer to cancel the registration of any person for specified reasons, none of which includes the failure to have or to uplift an identification card.
The ghost of Esther Perreira has hovered over elections since 2001, and now more then ever. In view of the reasoning of Justice Singh and Chief Justice George, it seems rather reckless for the Elections Commission to embark on a patently unlawful project of removing names form the voters’ list because the persons have not uplifted their identification cards in total violation of the Esther Perreira and Christopher Ram cases.
The court has rejected in the Ram case the attempt of the Elections Commission to delete from the voters’ list the names of persons are who not at their recorded addresses. The subsequent decision of the Elections Commission that persons must present themselves to registration offices with their identification cards to prove their existence or suffer the deletion of their names from the voters’ list, was abandoned after an outcry.
These flawed decisions, and the current one, suggest that the Elections Commission is bent on reducing the voters’ list, whether the method is unlawful or not. The implementation of this decision and continuation of this trend will wreck any prospects of an acceptable election process and the acceptability of the election results.
2 Justice Claudette Singh in her oral presentation concluded that the elections were “vitiated” although her written judgeent simply declares
3 It also necessitated a rapidly introduced Constitutional amendment to protect the legality of the use of ID Cards for the 2001 elections.