The Right to Vote for COVID-19 Positive Voters

When a group of citizens collectively elects its representatives, it affirms the notion that we govern ourselves by free choice

We all know what this ink on our index finger mean - voting is your right

When the battle for the ballot began last week, various political parties colourfully decorated the streets with their campaign posters and party flags. A large number of candidates showed up in the race to form the new government last Saturday, and as Malaysians, it is our duty to vote.

The number of voters significantly increased to a whopping 21 million as opposed to the previous 6 million voters due to the recent constitutional amendment (1). Voting is not an act of “personal interest”, but a collective act of “public interest” as it is a right granted by the Federal Constitution. When a group of citizens collectively elects its representatives, it affirms the notion that we govern ourselves by free choice. An individual’s right to vote ties that person to our social order, even if that person chooses not to exercise that right. Notable judges have emphasised on the need to vote and to quote Justice Black, “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 (2)

In Malaysia, a voter must fulfil the qualifications as  provided under Article 119 of the Federal Constitution in order to cast their vote. A citizen is not eligible to vote if he is a person of unsound mind on the qualifying date; serving a sentence of imprisonment on the qualifying date; or before the qualifying date, he was convicted in any part of the Commonwealth of an offence and was sentenced to death or imprisonment exceeding twelve months and has not on the qualifying date served out his sentence. It should be noted that being infected by an infectious disease does not preclude someone from exercising their right to vote.

During the 15th General Election, those who were infected by COVID-19 during the day of election were allowed to vote. This caused mixed reactions as some people were concerned about the potential harm of allowing people who were infected with the virus to vote since it is a contagious disease. Nevertheless, it must be noted that the government took several aspects into consideration before allowing COVID-19 patients to vote.

Every approach taken by the government in curbing the spread of the virus has often supported the notion brought by the concept of utilitarianism which is a concept under the study of jurisprudence. Based on utilitarianism, a person should make decisions that provide the best result for the majority of people. The father of utilitarianism, Jeremy Bentham, came up with the principle of choosing pleasure over pain. Utilitarianism works on the concept of outweighing all outcomes and promoting the most favourable outcome after taking all aspects into consideration.

Applying the same concept to the present situation, it can be said that allowing COVID-19 patients to vote produces more benefits and a better outcome compared to denying their rights to vote.

There have been debates over which right is more important, be it the rights of the citizens to vote despite being infected with the coronavirus or the rights of those under the high-risk groups from being more prone to getting infected. People may be worried about the higher risk of getting infected as this might cause a new cluster. Those who are affected by COVID-19 still have the right and liberty to vote. Liberty highlights an individual’s right and the acts that he can do for himself without being prevented by the law, or, in other words, he is free of the possibility of legal interference by others. Meanwhile, right is an interest recognised and protected by the rule of law. Thus, it is vital for a person to be given the right to vote as preventing them from doing so is equivalent to denying their right to vote.

Some argued that those who were infected to vote via post. It must be noted that postal voting for COVID-19 patients was not a feasible idea as the deadline to register for postal voting ended few weeks prior to the day of election. Therefore, they were only left with the option of physically casting their votes. In order to reduce the risk of being infected, the Election Commission was given the responsibility to ensure that the SOP for the General Election was strictly adhered to at all times.

The Ministry of Health also made a statement that there will be no special lanes for COVID-19 positive voters, concluding that this is the best option for voters considering the available resources and limitations. Nevertheless, based on the SOP outlined, COVID-19 positive voters were required to wear face masks at all times and distance themselves at polling stations. They were also barred from using e-hailing services to polling stations to prevent the spread of the virus. The use of face masks was strongly encouraged as it is an effective way to curb the spread of the virus. We must bear in mind that before a new approach is taken, the state government will consider various aspects, including but not limited to looking at it from a political, economic or social context. Therefore, it can be said that the decision of allowing COVID-19 patients to vote is in the interest of the state and is the right approach in having a fair and just election.

**The facts and views expressed are solely that of the author/authors and do not necessarily reflect that of the editorial board


1 Hadi Azmi. Joseph Sipalan. 2022. Malaysian Election 2022. This Week In Asia. This
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2 Wesberry v Sanders 376 US 1 (1964)