International Law

Allowing inmates to vote gives them role in society

By John Hirst

Leader

The question is no longer whether prisoners should have the right to vote while paying their debt to society, but whether that right should be restricted. A blanket ban on prisoner voting was recently struck down as unconstitutional in the High Court. The government sensibly decided to respect the court's decision rather than lodge an appeal. The judge, however, stopped short of ruling against any restrictions, saying it was up to lawmakers to justify them. The government yesterday launched a consultation to gauge community opinion.

The loss of liberty to pay a debt to society does not mean loss of human rights under the Basic Law and the Hong Kong Bill of Rights. The Basic Law guarantees permanent residents the right to vote, without exception. But a law passed long ago by the Legislative Council makes a blanket exception for prisoners. Hong Kong has followed the traditional view in Britain - that civil rights forfeited by a prisoner should include the vote. This is an aspect of crime and punishment that now divides public opinion. The consultation document acknowledges there are conflicting views on whether a prisoner should keep the right to vote regardless of the crime committed - except for election-related or bribery offences. Many people feel the law should still disqualify serious criminals.

Ironically, each camp is taking a different route to the same objective. Supporters of a right to vote without restriction say it will make prisoners more civic-minded and connected to the community through engagement in current affairs. Opponents argue that restrictions on serious criminals voting will give incentives to those sentenced for lesser crimes to adhere to the norms of citizenship and thereby enhance civic responsibility and respect for the law. One option put forward is to disenfranchise serious criminals by reference to length of sentence. Imprisonment for, say, 10 years or more would involve the loss of the right to vote. This is an arbitrary measure that would preserve the right to vote of someone jailed for, say, eight years - a hefty sentence.

The government should find support for an option that strikes a balance between the two camps: depriving long-serving prisoners of the right to vote at first, but restoring it a few years before their release. Importantly, remissions of sentence for good behaviour could be taken into account, meaning the right to vote would be restored sooner. This is still arbitrary, but would be in step with the development of human-rights law in other democratic societies.

There will still be some who feel strongly that people sent to jail should forfeit a fundamental political right enjoyed by free men and women. They should consider a point raised by Mr Justice Andrew Cheung-Kui-nung in striking down the voting ban. Custodial sentences are a last resort for lesser offences. Courts also have non-custodial alternatives, such as community service orders and fines. But there are people denied an alternative to jail because of poverty or personal circumstances, such as the lack of a stable family background and a good work record or a job. Disenfranchising people in this way cannot be right. It is an example of arbitrariness that has little to do with the aim of a voting ban.

The government, rightly, does not favour giving judges the power to suspend a prisoner's right to vote, as on the mainland, not least because of the political neutrality and independence of the judiciary. The consultation should pave the way for a more sophisticated approach that does not irrevocably sever a prisoner's link with the community to which he or she will one day return.

Full post as published by prisonlawinsideout on February 10, 2009 (boomark / email).