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“In regard to mere differentiation the constitutional state is
expected to act in a rational manner. It should not regulate
in an arbitrary manner or manifest ‘naked preferences’
that serve no legitimate governmental purpose, for that
would be inconsistent with the rule of law and the
fundamental premises of a constitutional state. The purpose
of this aspect of equality is, therefore, to ensure that the
state is bound to function in a rational manner.”
b) The next question is whether the differentiation amounts to
unfair discrimination: This entails a two-stage enquiry:
i) Firstly, does the differentiation amount to ‘discrimination’? The
answer has to be “YES” – objectively, the differentiation is based on grounds which
have the potential to impair the fundamental human dignity of persons, or to affect
them adversely in a comparably serious manner. To disallow a class of citizens from
exercising their right to vote just because those citizens are outside the country for
different reasons than other classes of citizens also outside of the country, cannot be
anything but “discrimination”.
ii) Is it ‘unfair discrimination’? Again the answer has to be in the
affirmative. The discrimination amounts to favouritism of, most prominently,
employees of the Government. They also need not even comply with the procedural
requirements of notice. The discrimination impacts directly on the applicant’s right to
vote, which is a fundamental right guaranteed by the Constitution, and to which the
Electoral Act should give effect.
iii)Secondly, it has to be determined whether the provision can be justified under the
iv) limitation clause. It cannot, although the right to vote may be limited by law of
v) general application, that law must meet the requirements of reasonableness and
vi) justifiability set out in section 36 of the Constitution. (Paras [22] and [23] of
August). Section 36 calls for a proportionality analysis in which the question
ultimately "is one of degree to be assessed in the concrete legislative
and social setting of the measure, paying due regard to the
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