Friday, September 06, 2013

Exhausting their domestic remedies

Back in 2010, in a petty "get tough on crime" move, National banned prisoners from voting. Even National's own stooge Attorney-General, Chris Finlayson, was forced to admit that the ban contravened the Bill of Rights Act. And now some prisoners are taking him at his word and are seeking to overturn the ban in court.

They won't succeed. Section 4 of the BORA makes it clear that inconsistent laws cannot be overturned. But success in New Zealand courts is not the goal. Instead, the prisoners are establishing that they have exhausted domestic remedies before starting the real challenge, before the UN Human Rights Committee under the First Optional Protocol to the ICCPR. Given other international rulings and the government's own admission that the law violates the right to vote, they will win that challenge. The question then is whether the New Zealand government will obey its international obligations and change the law, or defy them in the name of grubbing a few more "tough on crime" votes.