Bars to balloting
The famous first world war French prime minister Georges Clemenceau is supposed to have said that he who is not a radical when he is young has no heart, and he who is not a conservative when he is old has no head. I know I must be growing old when I find myself questioning a decision of the Hong Kong courts extending protection for human rights. However, the decision in question, about voting rights for prisoners, is liable to send a misleading message to those who do not scrutinise its details.
The law challenged in last week's case provided that no prisoner was allowed to register to vote, including prisoners released on parole. The government did not provide any justification for this sweeping law. It was therefore right for the court to strike down the law, as it is a well-established legal principle that the government must provide a justification for restricting constitutional rights, such as the right to vote.
However, the court's reasoning seems to go beyond this. It quotes, apparently with approval, a statement in a Canadian decision that 'the argument that only those who respect the law should participate in the political process is a variant of the age-old unworthiness rationale for denying the vote'. The Canadian decision rejected as old-fashioned the idea that prisoners as a class forfeited the right to vote because of the antisocial actions that had led to them being imprisoned; it compared opposition to prisoners' voting to the historic opposition to letting women vote.
That reasoning overlooks a fundamental and obvious difference. Apart from the special cases of miscarriages of justice and of unjust laws, someone convicted by the courts has committed an antisocial act, which the law punishes. In the case of the two applicants in last week's case, their convictions were for the serious offence of robbery. I believe it is wrong in principle for serious criminals serving long prison sentences to have the right to help, by their votes, to choose our rulers.
The theory of universal and equal suffrage is that each vote matters and that, when it comes to election time, every person's vote is equal. A labourer, a housewife and a tycoon each have an equally legitimate interest in choosing a government that will best represent their interests. However, a prisoner convicted of a serious crime does not have the same legitimate interest. If one accepts Rousseau's theory that government is a social contract between the governing and the governed, the convicted robber has broken his side of that contract. He does not have a legitimate right to help choose a government which, he hopes, will be lenient to robbers and give top priority to relaxing their prison conditions.
In England, the Isle of Wight is a constituency with a large prison population. If all its prisoners were allowed to vote, and voted the same way, they could sometimes swing the election in that seat. This seems like a perversion of the democratic process.
However, Britain does not allow prisoners to vote, although its blanket prohibition has recently been criticised by the European Court of Human Rights, and is under review. Australia allows prisoners to vote if they are serving sentences of less than six months. This is a defensible distinction which recognises the fundamental importance of the right to vote, while still denying it to those whose crimes are seriously antisocial.
The Hong Kong court also found that there was a positive duty on the prison authorities to make arrangements to enable prisoners to exercise the right to vote. However, it seems extreme to require the prison authorities to work with the Election Commission to arrange polling stations in every prison, when there are many other situations in which registered voters are unable to vote but are not assisted by the government.
Those who are out of the city on election day - studying or working abroad, say - cannot vote by post, as Hong Kong has no provision for postal voting, unlike most democracies. To fail to protect law-abiding citizens' right to vote while making special voting arrangements for murderers and drug traffickers cannot be right.
The court decision should be the start of a debate about which prisoners should be allowed to vote. It is not a justification for a general extension of the right to vote to all prisoners.
Paul Harris is a senior counsel and was founding chairman of Human Rights Monitor
