Landmark ruling quashes ban on inmate voting
Peter Brieger and Phyllis Tsang
A judge has quashed the city's ban on prisoner voting in a landmark decision that paves the way for thousands of inmates to cast ballots in future elections.
Officials had never justified the 'arbitrary' ban so it breached prisoners' constitutional rights, Mr Justice Andrew Cheung Kui-nung wrote in his 89-page ruling.
The law, which bucked a global trend towards inmate voting, did not take into account the severity of a crime or length of sentence, the judge noted. There was also no evidence that depriving inmates of voting rights would help prevent crime or foster 'citizen-like' conduct among convicted prisoners, an argument the Court of First Instance judge described as 'indefensible'.
The prohibition also effectively barred remand prisoners - who had yet to go on trial - from voting in elections because they did not have access to polling booths, the ruling said.
'Plainly, the burden is on the government to justify any restriction,' Mr Justice Cheung wrote. 'The government has not stated clearly, if at all, what the legitimate aims of the [voting] provisions under challenge are. Arrangements should be made to enable prisoners to vote on election day.'
The next election to which such arrangements could apply is the district council poll in 2011 followed by the Legislative Council in 2012.
Yesterday's decision came months after two inmates at Stanley Prison - including serial armed robber Simon Chan Kin-sum - challenged the voting laws as unconstitutional. Chan, 32, who threatened to blow up a string of banks in the mid-1990s, and robber Choi Chuen-sun, 45, are serving 12- and 41/2-year sentences respectively. Both are expected to be released in 2010.
Legislator 'Long Hair' Leung Kwok-hung, who also petitioned for a judicial review of the law, argued that he and his political rivals would be denied the right to seek support from all voters if the ban was upheld.
The government said it was carefully studying the judgment and would consider the way forward, including whether to lodge an appeal. It would consult the public on prisoners' voting arrangements and amend the electoral legislation accordingly if it decides to follow the judgment. The Correctional Services Department also said it was studying the ruling.
Mr Justice Cheung stopped short of ruling that Hong Kong was barred from placing restrictions on prisoner voting. But he said lawmakers must hammer out limits that withstood scrutiny.
'That is the task of the legislature and executive,' he wrote. 'Nobody has suggested it is an easy task.'
The key to any new rules would be proving that restrictions had a 'legitimate aim', said Eric Cheung Tat-ming, a University of Hong Kong law professor.
Internationally, prisoner voting rights vary. Canada and some European nations allow inmates to vote, Japan bans the practice and Australia has a partial ban that links voting rights to an inmate's sentence.