More flexibility needed on votes for prisoners

More flexibility needed on votes for prisoners

LEADER: South China Morning Post

Dec 09, 2008

The Basic Law guarantees the right to vote to permanent residents of Hong Kong, without exception. But a law passed by the Legislative Council has long denied the vote to those in jail, again without exception. Such a blanket deprivation of prisoners' civil rights is also out of step with development of human-rights law in many democratic societies. For years the government has resisted pressure to review the policy. Now it has little choice. Yesterday, Mr Justice Andrew Cheung Kui-nung ruled in the High Court that convicted prisoners have the constitutional right to register as voters and vote. Blanket disenfranchisement could not be justified. The government is considering its next step. It should introduce a more flexible, less arbitrary approach.

Legislator Leung Kwok-hung and two Stanley Prison inmates had sought a judicial review of the long-standing policy, arguing that it was unconstitutional and a denial of the right to register as a voter.

Prisoners' right to vote has long been debated in democratic societies. In Hong Kong, the traditional view in Britain has prevailed - that civil rights forfeited by anyone sent to jail should include the right to have a say in how society is governed while they are detained. However, the European Court of Human rights has ruled that Britain's blanket ban violates the European Convention on Human Rights. And the UN human rights committee has said that the arbitrary loss of the vote may not comply with a UN human rights covenant. Supporters of a vote for prisoners point out that it helps rehabilitation and keeps them in touch with society.

Mr Justice Cheung found that blanket disenfranchisement gave rise to a number of anomalies because it failed to take into account the nature and gravity of the offence and the sentence - as well as the culpability and individual circumstances of the prisoner. If the aim of restricting voting rights were to prevent crime, encourage good citizenship and respect for the law, these were relevant considerations, he said. But with a number of sentencing options, whether a person was jailed for a short time or longer could turn on his personal background and other factors, and have little connection to the stated aim of denying the right to vote. The policy was therefore arbitrary, said the judge.

Disenfranchisement need not be arbitrary. On the mainland, for example, judges have the power to suspend a prisoner's political rights. Judges in France and Spain can impose loss of voting rights as an extra penalty. In Australia, prisoners serving sentences of less than three years retain the right to vote. The Hong Kong government can appeal to a higher court in a bid to uphold the constitutionality of the ordinance. But introducing a more sophisticated and less sweeping approach, after public consultation, would be a better way forward.

Comment: Believe me, judge, you don't want to go down the consultation route because that is the route our corrupt government is taking. All other business is getting dealt with democratically, as normal, and yet with prisoners votes so far the government has stalled it for 3 years. Jack Straw should hang his head in shame instead of prancing about dressed up like a pantomime dame at the state opening of Parliament.