19th April 2004
On March 30th, the European Court of Human Rights ruled that denying prisoners the right to vote contravened the European Convention on Human Rights. In doing so, the court struck down a UK law that denies serving prisoners the right to exercise their franchise in national elections, writes Rick Lines
This is a good decision for all of us.
The court upheld the principle that voting is a fundamental right of citizenship in a constitutional democracy, not a privilege existing at the discretion of an individual government or minister. In doing so, it has also refuted the main arguments put forward by opponents of prisoner voting rights.
It is often argued that disenfranchisement is a legitimate part of a person's punishment. The court did not accept this, noting that the loss of one's vote forms no part of the sentencing process in criminal cases, and citing a dearth of evidence that removing voting rights either deters crime or increases rehabilitation.
Opponents of voting rights also argue that prisoner disenfranchisement is a fair and proportional sanction.
The court disagreed, finding it arbitrary because it affects citizens more or less severely depending on when they are in prison.
A person serving one week for a petty conviction, for example, would lose their right to vote if incarcerated on election day, while a person sentenced to 3 to 4 years for a more serious crime might not if their sentence fell between elections.
Governments have argued that this is a policy matter best left to the discretion of elected officials. In reply, the ruling referenced a decision of the Canadian Supreme Court, which concluded that since this question involves stripping categories of citizens of their most fundamental democratic right, it is exactly the kind of question that demands careful judicial oversight.
The question now is how will the Irish Government respond?
Prisoner voting is the norm in most of Europe. Ireland is one of only a small handful of European countries denying incarcerated citizens their vote.
The Minister for Justice, Mr McDowell, has said this is not based on a prohibition in law, but rather because the State chooses not to provide prisoners with the means to vote come election day.
As he stated in response to a recent parliamentary question from the Sinn Féin TD, Aengus Ó Snodaigh: "The Supreme Court . . . has held that the State is under no constitutional obligation to facilitate prisoners in the exercise of that franchise." In light of the European Court's decision, such statements are at best an exercise in political sleight-of-hand.
The State cannot legitimately claim they don't deny imprisoned citizens the right to vote when they will not provide them with the mechanism to exercise that right. As it stands now, people in prison are literally locked out of the polls by the stroke of a minister's pen. Therefore the fundamental denial of rights is the same in effect.
Mr McDowell says he will consult the Attorney General and the Minister for the Environment, Heritage and Local Government on the implications of the court's judgment. They should act quickly and democratically to ensure that provisions are in place to enable imprisoned citizens to exercise their right to vote on June 11th.
As stated by the Canadian Supreme Court, and cited in the European Court's ruling: "The legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote." Permitting "elected representatives to disenfranchise a segment of the population finds no place in a democracy built upon principles of inclusiveness, equality, and citizen participation," it added.
Ensuring imprisoned citizens can exercise their right to vote is no threat to democracy. It is in fact essential to democracy.
Rick Lines is Executive Director of the Irish Penal Reform Trust
© The Irish Times