The great bar-coded ID saga has finally ended. Kortbroek and Tony got a klap. And we can all (if we have our bar-coded ID) go and vote on June 2. The lawyers made a fortune and political parties have been taught that disputes of a political nature are best dealt with politically and not legally.
In many quarters that would have been the reaction to last week’s decision of the Constitutional Court. It was my own view – the editorial in this newspaper notwithstanding – until I read the judgments. Now I am not so sure.
The majority judgment was written by Judge Zac Yacoob. All members of the court signed on to it, save for Judge Kate O’Regan.
It begins by defining the issue as whether the applicable provisions of the Electoral Act constituted an infringement of the right to vote. Judge Yacoob acknowledges the fundamental importance of the right to vote, but states that such a right cannot be seen in isolation. It requires that elections be organised and that proper arrangements be made for the exercising of the right to vote. The right to vote must be seen in this context. The issue before the court was whether the legislative arrangement that a bar-coded ID was needed in order to vote constituted an obstacle or real impediment to that right.
Judge Yacoob then laid out his test to ascertain whether the arrangements were of such a nature. Parliament must determine the means by which the right to vote is to be exercised. That does not leave Parliament free of constraints. There must be a rational relationship between the chosen scheme and the achievement of a legitimate government purpose. To successfully attack a measure such as the bar-coded ID provision, an applicant must show the absence of a legitimate government purpose or the absence of a rational relationship between such purpose and the chosen scheme.
So much for the first part of the majority’s test. The second part concerns the time when the lack of rational relationship must be shown to exist. Judge Yacoob’s answer is: at the time Parliament passed the measure. Applied to the facts of this case, so long as Parliament took the decision with sufficient assurance that the bar-coded ID could be provided, later developments, even the blundering incompetence of the Department of Home Affairs, were not relevant.
On the basis of this test and the facts as presented, Judge Yacoob found that the system had not infringed the right to vote. When the legislation had been passed, home affairs had assured Parliament that it could do the job. Of the five million people who were without the ID, according to the Human Sciences Research Council report replied on by the parties, 2,5-million had no form of ID. In their case, even without the requirement of the bar-coded ID they could not vote. A system of temporary documents could assist the balance of voters. Hence the measure rationally designed to achieve a fair and free election did not arbitrarily remove anyone’s right to vote – certainly not if tested at the time the law was passed.
Judge O’Regan was the only dissenter. The test for a right as fundamental as the right to vote could not possibly be the rational relationship between measure and purpose. The court must look at the purpose of the statutory measure in relation to its effect, and then ask whether the measure was reasonable.
Applied to this case, Parliament would have known that there was a large backlog of citizens without the bar-coded ID when it considered passing the Electoral Act. By adopting the requirement that all voters had to have such a document, it added 2,5-million people on to the list of those needing documents; that is, people who had IDs but not bar-coded ones.
Was it reasonable to conclude that the benefits for a free and fair election of insisting that the 2,5-million should have bar-coded IDs outweighed all dangers, particularly that of denying these people the vote?
On the evidence of backlogs at the time and the Herculean task of processing bar-coded IDs, Judge O’Regan said no. To that extent the new law infringed the right to vote.
One is tempted to say that this is an unusual case, that the majority took an acceptably pragmatic approach to the matter as well as to the role of courts in these issues. But Judge O’Regan’s approach creates a nagging doubt. It shows up the majority as being prepared to be exceedingly deferential to Parliament on the right to vote.
What happens, as is likely, when the court is asked to test drastic erosions of the Bill of Rights which are passed in the name of curbing crime – all because the police are incompetent? In insisting on careful scrutiny of important rights, Judge O’Regan has made a most important contribution to our constitutional law.