Hong Kong ruling on prisoner voting rights is part of the modern liberal trend

Hong Kong ruling on prisoner voting rights is part of the modern liberal trend

11:20 AM ET

Pui-yin Lo [Deputy Chairman, Special Committee on Constitutional Affairs and Human Rights, Hong Kong Bar Association]: "The judgment of Mr. Justice Andrew Cheung of the Hong Kong Court of First Instance on December 8, 2008, held that:

"the disenfranchisement provisions relating to voting and registration contravene the right to vote constitutionally guaranteed under article 26 of the Basic Law of the Hong Kong Special Administrative Region and article 21 of the Hong Kong Bill of Rights, so far as they affect prisoners (and those convicted persons who have been sentenced to...imprisonment, and who have not served the sentences or received a free pardon)"

It was not unexpected. The court was assisted in reaching the ruling by jurisprudence on the same topic of the top national courts in Australia, Canada and South Africa, as well as the European Court of Human Rights. Reference was also made to the modern trend towards more liberal treatment of prisoners in terms of voting rights noted in the ACLU's 2006 analysis of "felony disenfranchisement" of various jurisdictions around the globe.

Given that the sweeping disenfranchisement provisions in Hong Kong cover a significant portion of the prison population that are serving a term of imprisonment of 6 months or less, and disable a person's right to vote so long as she is serving a term of imprisonment on election day - taking no account of the expected date of release of a prisoner - cannot be justified under the proportionality test for determining whether they constitute an unreasonable restriction to the important political right of voting. The position of persons remanded in custody pending trial is even more clear: Their right to vote is not affected by the disenfranchisement provisions, but they cannot exercise their right because of lack of access to a polling booth.

The sad fact coming out of this judgment is that it disclosed inertia on the part of executive authorities, the statutory Electoral Affairs Commission that oversees elections, as well as the legislature in addressing the topic, even though electoral legislation in Hong Kong had been frequently amended in the last few decades to take account of the development of the political system. It will take strategic litigation by prisoners assisted by NGOs as well as publicly funded legal aid to put the topic squarely on the policy agenda.

The Hong Kong Government has indicated that the process of legislative amendments in light of this judgment will begin in early 2009 with a consultation document. This move is in the right direction, but it is hoped that the process will not get mired in political debates and implementation detail arguments."

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