Prisoners’ voting rights

In Australia, we do not have a Bill of Rights and so there is no constitutional right to vote: but the Constitution does affect the matter indirectly by requiring senators or members to be ‘directly chosen by the people’. To be valid, legislation providing for electoral qualifications must accord with that. What also bears on the constitutional issue is the fundamental premise that we are a representative democracy.

It was these latter considerations which led the High Court in 2007 to strike down a ‘Howard’ Electoral Act amendment which would have deprived all convicted persons serving a term of imprisonment for any offence and for whatever period, of their right to vote.

But the Court did not rule that conviction and imprisonment for an offence could never in any circumstances constitute grounds for depriving a prisoner of his/her right to vote.

It rejected the ‘blanket’ denial of voting rights in the legislation; that is the absence on its face of any rational linkage between offences for which imprisonment had been imposed and denial to the offender of his/her civic right of voting. There may however be a;

“serious offending” [which represents] such form of civic irresponsiblity that it is appropriate for Parliament to accompany the offender’s physical separation from society with a denial  of the right to participate in the law-making process.”

There thus must be some rational connection between the offences, the term of imprisonment imposed and the maximum penalty, on the one hand, and the withdrawal of the right to vote on the other.

Accordingly, and upon these grounds, the Court in the 2007 case which I have referred to expressly upheld the validity of previous legislation which required a term of imprisonment of three years or more for voting rights to be lost.

Before commenting on this, I should mention UK and Canadian decisions. These involve of course the Convention and Charter of Human Rights.

It appears that, before 2005, UK legislation disenfranchised all convicted prisoners. The European Court of Human Rights held this automatic ban on all convicted prisoners to be arbitrary and in violation of Article 3 of Protocol 1 of the Convention. But the application of the Convention voting right is not unqualified: it is qualified by the ‘proportionality principle’; ie “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. This qualification to the application of the right will only permit its minimum impairment. In the UK case ofHirst, the European Court held by a majority that although deprival of the right to vote of those “who had breached the basic rules of society to have a say in what the rules should be during the duration of their imprisonment” was legitimate, the UK law before the Court was too arbitrary to be justified and breached the principle of proportionality.

In 1993, in Canada, the Supreme Court held on similar grounds and by similar reasoning that a blanket ban on prisoners regardless of the length of sentence violated the Charter. The Canadian Act was subsequently amended in the light of this so as to deny the right of voting to inmates serving two years or more. But the Supreme Court, dividing 5 to 4, again held the legislation violated the Charter.

Thus the reasoning in all three jurisdictions is similar and denial of voting rights on the ground of imprisonment is not absolutely prohibited.

I think it unlikely even in the case of the Convention countries, or Canada, prisoners would ever be vested with an absolute right to vote by virtue of the Convention, Charter or, in Australia,  by constitutional interpretation.

Nevertheless, the ‘right to vote guarantee’ in Europe and Canada mandates a less restrictive regime than the constitution in Australia. This is because the only way in which the guarantee is qualified in Convention countries is by virtue of the proportionality principle and the proportionality principle is subject to a ‘minimum impairment’ of the right’ limitation. That is, proportionality allows qualification of the voting right guarantee but only to the minimum necessary. This is not of course applicable to Australia.

I do not know what has happened regarding the issue in the UK since 2005. The government foreshadowed public consultation after the Hirst decision. I unsuccessfully googled to find out.

There is one further general comment on the law I would add which is important in explaining the Australian position and, I suspect, the UK – and that is the long history of voting restrictions on convicted persons. It seemed to have become linked with the grounds for disqualifying members of  parliament who committed an offence. At all events the point is evident in the following passage in the High Court judgement:

“Given the 19th century colonial history, the development in the 1890’s of the drafts of the constitution, the common assumptions at the time, and the use of the length of sentence as a criteron of culpability, it cannot be said .. such a system is necessarily inconsistent, incompatible or disproportionate in the relevant sense …. etc.”

Generally, I am very much opposed to the notion of subjecting rights to the performance of responsibilities.

‘Responsibilities’ are very comprehensively imposed upon us by the criminal law – and not just the criminal law – but the civil law which defines the ‘responsibilities’ we owe to our neighbours. Rights have been separately identified and given force by the law because they are needed to protect the individual from power – the power of the state.

An independent regime of responsibilities will have the effect – if not the design – of allowing the executive to be satisfied that a ‘responsibilty’ has been complied with before some executve discretion or power is exercised in favour of a person to which he or she would otherwise have been entitled. The ‘responsibilities’ are unlikely to be specific legal duties because that would overlap with the criminal law. Such a regime is likely to fall upon minorities who are more likely to have to satisfy the executive of compliance with some generally expressed responsibility. [It would, in effect be the reverse of what we have out here. Australia is a party to the International Covenant on Civil and Political Rights but has not enacted it into law. Nevertheless, the High Court has held that the rights in the Covenant must be taken into account in the exercise of any executive power].

The position is to some extent different were the ‘responsibility’ is an identified criminal offence and the disabling consequence of a conviction is general and relevant eg. driving under the influence and licence to drive etc.

In the case of prisoners voting rights it may be justifiable to disqualify an offender convicted of treason from engaging in the law-making process but the problem is that only history and the difficulty of finding any other criterion justifies length of the term as the test for denying the vote. After all, three years would cover persons imprisoned for non-intentional offences like manslaughter.

Published in: on January 19, 2011 at 11:11 am  Leave a Comment  

Amnesty International — Saghal

It is evident both from the Hitchens article and other material that there was more to the Amnesty/Saghal affair than her reaction to a single occasion at which Begg was present and to which she objected.

One issue, which I regard as separate from the charge made by her against Amnesty, is that of the suspension itself. Rushdie and others all join in condemning Amnesty for ‘suspending’ her. Regardless of the fact that the ‘suspension’ is denied by Amnesty, I cannot regard it as in itself an unjustified step for an employer to take or that it is in some way inconsistent with the organization’s belief in freedom of expression. She went public with complaints against the organization which was employing her. I do not believe any organization should be expected to accept the continued employment of the employee in those circumstances. She could of course leave and proceed to make public her criticisms of the organization.


Published in: on March 13, 2010 at 2:41 pm  Leave a Comment  
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China — Human Rights — Western criticism

In an article in The Wall Street Journal, 29th Jan 2010, Ian Buruma makes some observations about Chinese attitudes to human rights which are not in themselves themselves original but are pungently put and present the dilemma. Criticism of China’s appalling human rights record collides with Chinese nationalism and thus  only exacerbates an antagonism to human rights, which, as a concept, does not belong to the Chinese  tradition.

Thought control, in terms of imposing an official orthodoxy, is a very old tradition. The official glue that has long been applied to hold Chinese authority together is a kind of state dogma, loosely known as Confucianism, which is moral as well as political, stessing obedience to authority. … instilling the belief that obedience to authority is not just a way to keep order, but an essential part of being Chinese….the most common ideology since the 1990’s is a defensive nationalism, disseminated through museums, entertainment and school textbooks.

All Chinese school children are indoctrinated with the idea that China was humiliated for centuries and that support of the Chinese state is the only way for China to regain its greatness and never be humiliated again. That is why foreign criticism of Chinese politics, or Chinese infringements of human rights, is denounced by government officials as an attack on Chinese culture, as an attempt to ‘denigrate China’. And Chinese who agree with these foreign criticisms are treated not as dissidents but as traitors.

Published in: on March 13, 2010 at 10:58 am  Leave a Comment  
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Amnesty and Political Violence: The Case of Nelson Mandela

This post is a sequel to my response to Christopher Hitchens’ recent criticisms of Amnesty International.

Amnesty inevitably faces difficult choices about whom it associates with. During the Cold War, campaigns for the release of political prisoners held by right-wing governments in Greece, Spain, Portugal, Argentina and Chile could, almost inevitably, involve Amnesty sharing a platform with Communists. Care needed to be taken. If an Amnesty representative were just one among numerous extreme left wing politicians, Amnesty would lose its claim of political neutrality: if, though, it eschewed association with political groups or bodies altogether, it would be ineffectual.

A more serious question arose when Amnesty International refused to act on behalf of a prisoner of conscience because they had engaged in or advocated violence.

The case of Nelson Mandela at the time of the Rivonia trial (1964) was a great test for Amnesty.


Published in: on February 28, 2010 at 4:08 pm  Comments (2)  
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Christopher Hitchens’ Criticism of Amnesty International

In an article on ‘Slate’ on the 15th February 2010, Christopher Hitchens accuses Amnesty International of suffering a crisis of conscience. The allegation arises out of the refusal of a staff member to appear on the same platform as Moazzem Begg – and her consequent dismissal. The accusation is that Begg is “Britain’s most famous supporter of the Taliban” and that he is a member of an organization, Cage Prisoners, which includes a number of members who have ‘spoken in defense of jihad’ and, inferentially, that it supports jihad. He refers to the statement by the Amnesty officer ‘dismissed’ (the dismissal itself is in issue – Amnesty has since stated she has not been dismissed), that “Cage Prisoners goes way beyond being a prisoners rights organization”. No facts are advanced in support of this statement.

My knowledge of the facts is incomplete and I am thus not able to make a definitive comment on Hitchens’ allegations. I have, however, heard Begg speak and have received, on line, the regular Bulletins published by Cage Prisoners.

Begg’s address was confined strictly to conditions experienced during his detention in Guantanamo Bay and the treatment of Guantanamo Bay prisoners.

Cage Prisoners Bulletins have been directed to campaigning for prisoners in Guantanamo Bay and against aspects of the United Kingdom’s Counter Terrorism laws.

Neither has, in the four years I have received communications from them, advocated or expressed support for jihad, terrorism or the like.

Of course, Cage Prisoners may be a ‘front’ organization. But if that is what Hitchens is suggesting, it is, I think, a matter of serious criticism that his article fails to mention the activities of Begg and Cage Prisoners on behalf of Guantanamo prisoners, which on the face of the matter, appear to be their ‘core’ activities. Perhaps the explanation is that Hitchens has a fundamental lack of sympathy for those who, like Begg, were detained by the Bush Administration in Guantanamo and are critics, sometimes vehement critics, of the American Administration.

Amnesty does have unavoidable difficulties with regard to whom it supports and with whom it associates. I refer to these in an another post: Amnesty and Political Violence: The Case of Nelson Mandela.

[Note: Without descending into detail, Begg, a British subject, was an early release at the instance of, Lord Goldsmith, the UK Attorney General, in circumstances which indicated that there was no case of terrorism etc. in Afghanistan, with which he could be charged.]

Published in: on February 28, 2010 at 1:02 pm  Leave a Comment  

China’s response to Clinton and Gates weighs in on Google

In an editorial in the People’s Daily, Beijing, Wang Xiaoyang criticised the Clinton speech on internet freedom:-

(a) He said the unrest in Iran occurred because of on-line warfare launched by America via Youtube video nd Twitter microblogging; and

(b) questioned whether the Clinton view meant “obscenity and activities promoting terrorism would be allowed on the Net in the United States”.

It has been  reported that US diplomats had sought to reach out to the Chinese public by briefing bloggers in China. Nevertheless, the way ‘the wind is blowing’ may have been indicated in the State Department statement that whilst it recognized that China had a different position with repect to restricting information but the United States believed that the Chinese position was “inconsistent with the information environment and prerequisites of the 21st century”. No mention was made to the right to freedom of expression nor to the universality of that right.


Published in: on January 30, 2010 at 4:28 pm  Comments (1)  
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Liu Xiaobo

Liu Xiabao is presently facing a 15 year jail term. Liu’s charged with subversion – he was involved in initiating China’s Charter 08, based upon Charter 77 in Czechoslovakia. China’s Charter 08 is open and does not in any way call for the overthrow of the state but simply seeks respect for human rights.

Read more about Liu Xiaobo’s trial here.

Published in: on December 24, 2009 at 11:57 pm  Comments (1)