Wednesday, November 10, 2010

Challenging prisoner disenfranchisement

In my earlier post, I suggested that the passage of Paul Quinn's Electoral (Disqualification of Sentenced Prisoners) Amendment Bill should result in a complaint to the UN Human Rights Committee under the First Optional Protocol to the ICCPR. So how would someone do this?

Firstly, a complainant would need to demonstrate that a right affirmed in the International Covenant on Civil and Political Rights has been violated. That bit is easy. Article 25 of the ICCPR requires that every citizen shall have the right and the opportunity to vote. The HRC has previously held, in a general comment on the right to vote, that the right to vote can only be denied on objective and reasonable grounds, and that

If conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence.
This suggests that a blanket ban on voting by everyone in prison would not be considered proportionate or reasonable - an interpretation upheld in court cases over the issue in Europe and Canada.

The real barrier is administrative. In order for a complaint to be admissible, the complainant must have exhausted all domestic remedies. The HRC notes in its FAQ on the complaint system that

This usually includes pursuing your claim through the local court system, and you should be aware that mere doubts about the effectiveness of such action do not, in the committees' view, dispense with this requirement.
Which means that while section 4 of the BORA effectively rules out any remedy through the courts, a challenge would have to go through the process anyway, and likely appeal it all the way to the Supreme Court, in order for the HRC to accept a complaint.

This would cost a fortune, but the real problem is that that takes time - so much time that the sort of prisoner whose challenge would be most effective, someone imprisoned for a very short period of time around an election, would have been released by the time the appeals process was complete. Meaning that appeals and/or any complaint could be dismissed because the point was effectively moot.

This is what the government is relying on: a judicial process so long and expensive that it effectively insulates them from international scrutiny of a serious human rights violation. And that is a serious failing of both our courts, and the international human rights system.