The Removal of the Right to Vote - Term Paper Example

Shirley McDonagh Public Law work Unit LAW004 The removal of the right to vote in the case of some convicted prisoners can be a proportionate and proper response following conviction and imprisonment...’ The right to vote, as innate freedom in the exercise of our civil liberties, is a sensitive political construct that any judicial and legislative actions affecting such right will impact to peoples’ way of life.1 This is because for some, exercising the right to suffrage will either lead political power’s loss or gain; credit representation or marginalization; and evoke humanizing feeling or dehumanizing effect. Others thought that this is a fundamental right to express a person’s participation and submission to social contract. But this, as a universal right, is not without limitations. Nations all over the world legislated policies that constitutionally guarantee the right of suffrage but also bar its exercise when a person is convicted of a crime. In United States, the Supreme Court argued that those penalized for lifetime imprisonment, are maybe disenfranchised for failing to exercise their right to vote, but that remain part of the punitive measures. 2 Karlan (2002), like other advocate, contend that “lifetime disenfranchisement as a punishment is extremely disproportionate to the offenses for which it often imposed.” 3 To some extent, this view was reverberated in the controversial case Hirst v UK 20054, where a felon raised a question of law in the international court and assailed that UK’s electoral policy is in conflict to international human rights standards and to universally adopted principles for total rehabilitation or reformation of felons. 5 1. Hirst: Rising for his rights Hirst6 was penalized for lifetime imprisonment in 1980 for the commission of manslaughter based on medical evidences presented for adjudication. His tariff expired in 1994 but he remained in detention because the Parole Board considered him dangerous. Barred to vote under Representation of the People Act 1983 as a felon, he challenged the law based on Human Rights Act 1998 and argued that the provision prohibiting him to exercise his right to suffrage is contrary to European Convention on Human Rights. However, at the Divisional Court in 2001, Lord Justice Kennedy7 decided that prisoners forfeited the right to participate in political affairs for his country because “removal from society means removal from the privileges of society”. 8 Such incarceration and subsequent depravity of practicing his civil rights, particularly the right to vote, is also practiced in Europe, western countries and in other democratic Asian nations. In UK, this policy take its historic root from Section 4 of the Representation of the People Act 1969 that was substantially inspired by Forfeiture Act 1870, a law that impose “civic death” for convicted criminals. 9 True, the International Covenant on Civil and Political Rights (ICCPR) stipulated the protection of every citizen for opportunity regardless of distinction and to participate in the conduct of public affairs including election. But on the same context, the populace is also legally protected for security, an inherent right for self- preservation from harm and against dangerous and convicted criminals. This indeed demand advocates to imperatively balance the appreciation of rights. For while prisoners, deprived of liberty, are treated humanely with his inherent dignity as a person, but his other civil rights are temporarily curtailed with the intent of rehabilitating and reforming him from grievous offense until he will be mainstream back to the society after completing his sentence.” 10 Inside the penology’s confines, a felon may require expert therapy to diagnose his problems and needs, inclusive of psychological, spiritual and medical aspects while in the process of reformation. 11 Clearly, it is the intent of the state to penalize a convicted felon by suspending some of his civil rights to reform him but legal luminaries maintained that such must be “commensurate to the period of sentence based on offence committed.” 12 These are just minimum measures of social control to ensure that the rest of the citizens can enjoy freedom from crimes and that the intents to genuinely preserve political liberty of the country be extolled against criminals considered misfit to join in the affairs of the state. 2. Re-appreciating UK’s legal system UK’s legal system is based on three sources: indigenous laws, case-laws or decisions rendered by court and the legislations made by the parliament. 13 The indigenous laws14 are often considered the common practices sourced from customs, beliefs, traditions and culture of its people. Case-laws, on the other hand, are everyday decisions rendered by court on cases in accordance to parliament’s legislated policy and on adhered principles on civil and political rights. The legislation of laws in UK thrived in the 17th century and like other states the ministers are vested with rights to amend, ratify or scrap policies to make laws fit to the sensitive and fluid social construct and national circumstances. 15 UK’s election laws emanate from the confluence of these sources— from culture of people who consensually agree on their representations and political fate; from statutes where provisions are stipulated to define laws, e.g. the electoral mechanism in the exercise of suffrage; and case-laws used as basis in determining election-related cases, such as the ‘assertion of a convicted felon to register and exercise his right to vote despite provisions that barred him due to his incarceration.’ 16 At a juncture, these are however not the only sources of policies that the court can adhere in resolving legal disputes or question. In cases where complainant felt dissatisfied to decisions rendered by the hierarchy of justices, he may bring the issue to international courts, in accordance to legal procedures, to question the national law’s incompatibility with international covenants or standards. On the other hand, UK as a nation and a sovereign state, also subscribed to international laws, policies and conventions that promote, uphold and adhere fundamental rights and principles of humanity. All international covenants legislated, approved and ratified by the states, like the European countries (including that of United Nations), became part of the laws of the land. 17 Take for instance the European Convention on Human Rights (ECHR), otherwise known as Convention for the Protection of Human Rights and Fundamental Freedoms in Europe, which was crafted in 1950 and became effective in1953. All Council of Europe member states are privy to such convention and are expected to have ratified the convention as part of the laws of their respective country. 18 As a procedural requisite, countries are also mandated to recognize the role of European Court of Human Rights that will hear and adjudicate cases to fully enforce this convention. Those national whose right appeared violated in their respective country, after duly exhausting all legal remedies, may bring the issue to European Court of Human Rights for adjudication19; to seek redress of grievance after laying the proof of violations; and obliging member states to enforce laws mentioned in the convention, including garnishing of compensation to damages done. Because of this, the European Convention is considered as an instrument that accords the highest protection to individuals. 20 It can also adjudicate cases against other state parties although this power isn’t often use. It is in this context that Hirst wishes to avail of legal remedies to exercise his right to vote. 3. Raising the question again This brings back the questions: Has decision rendered in Hirst v UK 2005 changed UK’s electoral laws on this point? Does it also mean that UK court can no longer simply take European Court of Human Rights decisions into consideration, but are effectively bound by them? For the first question, ‘no.’ It has not changed the law in UK that prohibit prisoners from voting. For the second question, UK can consider decisions of European Court of Human Rights and, as a party to the convention, is bound by rendered decision of the Council. To substantiate this, its but proper to review the Interim Resolution CM/ResDH(2009)160 or the Execution of the judgment of the European Court of Human Rights on the case of Hirst against the United Kingdom No. 2. Under Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, the Ministers contend that “the general, automatic and indiscriminate restriction on the right of convicted prisoners in custody to vote fell outside any acceptable margin of appreciation and was incompatible with Article 3 of Protocol No. 1 to the Convention.” 21 The decision further stated that in the “present case, the blanket restriction applied automatically to all prisoners, irrespective of the length of their sentence, the nature or gravity of their offence and their individual circumstances.” 22 The court also pointed that there is no evidence portraying that the Parliament assessed “the proportionality of a blanket ban on the right of a convicted prisoner to vote” 23 as stipulated in Representation of the People Act 1983 Section 3.” It also pressured United Kingdom authorities “to commit to undertake a two-stage transparent consultation process” to pro-actively enforce measures and decisions of the Court as well as to rapidly carry out legislation of policies (in May 2008). 4. Laws and Dialogue As UK is challenge to review its electoral policy, specifically the provision that ban penalized persons to exercise his right to suffrage, it is perceived wise that authorities must transparently24 present the suggested measures to public discourse and to come up with stakeholders’ consensual understanding of the case at hand whilst taking into serious considerations all rights, intentions25 and interests that will be affected by legislative measures relating to electoral rights viz-a-viz the claim of prisoners to exercise their civil rights to vote. ------------------------------------- Endnotes ¹ James A. Gardner. Liberty, Community and the Constitutional Structure of Political Influence: A Reconsideration of the Right to Vote. University of Pennsylvania Law Review. Published by: The University of Pennsylvania Law Review. Vol. 145, No. 4 (Apr., 1997), pp. 893-985 2 Karlan, Pamela S. Ballots and Bullets: The Exceptional History of the Right to Vote. Stanford Law School, Public Law Research Paper No. 45. 2002. Available at SSRN: http://ssrn.com/abstract=354702 or doi:10.2139/ssrn.354702 3 Ibid. 4 European Court of Human Rights. Judgement of CASE OF HIRST v. THE UNITED KINGDOM (NO. 2) (Application no. 74025/01). Strasbourg. 6 October 2005 URL: http://www.bailii.org/eu/cases/ECHR/2005/681.html Cite as: [2005] ECHR 681, 42 EHRR 41, (2006) 42 EHRR 41 5 Ibid... 6Ibid.. 7 Ibid... 8 Ibid.. 9 Ibid.. 10Cressey, Donald R.Contradictory Theories in Correctional Group Theraphy Programs. 18 Fed. Probation. University of California, Los Angeles. 1954 p 20. 11 Ibid... 12 European Court of Human Rights. op.cit. 13 UK Law Online. Three Sources of the Legal System. Center for Criminal Justice Studies: A Hamlyn Trust. University of Leeds. 1998. UK Law Online. http://www.leeds.ac.uk/law/hamlyn/ 14 Ibid.. 15 Ibid.. 14 Committee of Ministers .Interim Resolution CM/ResDH(2009)1601. Hirst against the United Kingdom No. 2 Execution of the judgment of the European Court of Human Rights, (Application No. 74025/01, Grand Chamber judgment of 06/10/2005). Adopted by the on at the 1072nd meeting of the Ministers’ Deputies. 3 December 2009 http://www.bailii.org/eu/cases/ECHR/2009/2260.html. February 27, 2011. 15 Ibid. 16 Ibid. 17 Ibid. 18 Ibid. 19 Ibid. 20 Ibid. 21 Ibid. 22 Ibid. 23 Ibid. 24 Setiya, K. forthcoming: ‘Knowledge of intention’. Essays on Anscombes Intention, ed. A. Ford, J. Hornsby and F. Stoutland. Cambridge, MA: Harvard University Press. 2005 25 Peter Geach. Intention, freedom and predictability. Royal Institute of Philosophy Supplement, 2000. 46, pp 73-81 doi:10.1017/S1358246100010389 Bibliography James A. Gardner. Liberty, Community and the Constitutional Structure of Political Influence: A Reconsideration of the Right to Vote. University of Pennsylvania Law Review. Published by: The University of Pennsylvania Law Review. Vol. 145, No. 4 (Apr., 1997), pp. 893-985 Karlan, Pamela S. Ballots and Bullets: The Exceptional History of the Right to Vote. Stanford Law School, Public Law Research Paper No. 45. 2002. Available at SSRN: http://ssrn.com/abstract=354702 or doi:10.2139/ssrn.354702 European Court of Human Rights. Judgement of CASE OF HIRST v. THE UNITED KINGDOM (NO. 2) (Application no. 74025/01). Strasbourg. 6 October 2005 URL: http://www.bailii.org/eu/cases/ECHR/2005/681.html. Cite as: [2005] ECHR 681, 42 EHRR 41, (2006) 42 EHRR 41 Cressey, Donald R.Contradictory Theories in Correctional Group Theraphy Programs. 18 Fed. Probation. University of California, Los Angeles. 1954 p 20. 13 UK Law Online. Three Sources of the Legal System. Center for Criminal Justice Studies: A Hamlyn Trust. University of Leeds. 1998. UK Law Online. http://www.leeds.ac.uk/law/hamlyn/ Committee of Ministers .Interim Resolution CM/ResDH(2009)1601. Hirst against the United Kingdom No. 2 Execution of the judgment of the European Court of Human Rights, (Application No. 74025/01, Grand Chamber judgment of 06/10/2005). Adopted by the on at the 1072nd meeting of the Ministers’ Deputies. 3 December 2009 http://www.bailii.org/eu/cases/ECHR/2009/2260.html. February 27, 2011. Setiya, K. forthcoming: ‘Knowledge of intention’. Essays on Anscombes Intention, ed. A. Ford, J. Hornsby and F. Stoutland. Cambridge, MA: Harvard University Press. 2005. Peter Geach. Intention, freedom and predictability. Royal Institute of Philosophy Supplement, 2000. 46, pp 73-81 doi:10.1017/S1358246100010389 Read More