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Voting by Imprisoned Persons Bill – 2nd Reading Debate
2009-06-24 Mr. President The right to vote is one of the most fundamental civil and political rights. Article 25 of the International Covenant on Civil and Political Rights (ICCPR) provides: “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.” Article 25 of the ICCPR is incorporated into the Hong Kong Bill of Rights Ordinance, Article 21, and is guaranteed by Article 39 of the Basic Law. Up to now, imprisoned persons in Hong Kong are deprived of their right to vote under our domestic law. Detained persons, though not so deprived by law, are so deprived in practice. In a Judgment last year, the Court has declared that provisions which purport to deprive prisoners of the right to vote are unconstitutional. No cogent reasons having been given by the Administration for the deprivation, they are of necessity ‘unreasonable restrictions’ upon the fundamental right to vote. The responsibility falls upon the Government to rectify the situation by introducing appropriate legislative amendments and putting in place the administrative measures to allow prisoners to vote. This afternoon, we are seeing to it that the first half is enacted. After this is accomplished, this House will go on to ensure that the remaining half follows expeditiously and effectively. In the consultation preceding the bill before this House, the Administration posed several options, from giving the vote to all imprisoned persons, to maintaining the deprivation for certain categories. I have no doubt that the former is the best and wisest, since virtually any criterion whereby prisoners are separated into those who should, from those who should not, have their rights restricted, are likely to be open to challenge. Indeed, I could discern no cogent reason in the consultation paper itself, for such selective deprivation. I support giving all prisoners the right to vote on the additional ground of rehabilitation. It is now widely acknowledged that the aim of imprisonment is rehabilitation, and central to rehabilitation is the sense of connectivity: of being a part of the community of belonging to the community; and deriving support from that community; and accepting one’s responsibility towards that community in sharing common concerns and aspirations. This, I submit, is an important point to make, as I go on to argue. The bill before us is not perfect; time is of the essence to give prisoners their right to vote. But it is incumbent upon Government as well as members to correct such flaws as we are able without delaying the bill. One of these is in the provisions relating to the address appropriate to a prisoner when he is registered as a voter. The circumstances of imprisoned persons vary. They serve different terms of imprisonment. They may or may not have a home they can return to after they are discharged. They may be imprisoned for life. They may or may not have families or connections outside prison. Especially in the case of life prisoners, many of them may have retained no relationship with their last residences which have long since been occupied by other people. Their prison has become their adopted and only home. They have settled down to make for themselves a meaningful existence. At any rate, there is no other place they can more meaningfully call ‘home’. This sense of being settled where they are is undoubtedly beneficial to their prison life. Yet under the bill, a prisoner is not treated like a human being but just a technical problem to be given a technical solution. If the Government decide that he does not have a home in Hong Kong outside the prison, then his address is ‘deemed’ to be either the last dwelling place in Hong Kong which he had resided in and which constituted his sole or main home, or, if that cannot be established, then the last recorded address for his I.D. Card. In no case is he allowed to give his prison address for voter registration. This is most unreasonable. For one thing, it is entirely artificial to use his last home address or his I.D. address even though he no longer has any connection with it, and it is now the address of someone totally unknown to him. For another, it is inconsistent with the principle of voter registration for the rest of the electorate. Under section 28 of the Legislative Council Ordinance, you can only be registered under the address which is in fact your ‘only or principal residence’, and that must be a dwelling place in Hong Kong at which you live and is your ‘sole or main home ‘. It cannot be his last home address, or the address last registered for his I.D., Card that is no longer current. The Government acknowledges that while ordinarily and under existing law, a prison does not qualify as ‘home’, whether ‘home’ can include a prison for the purpose of the voter registration of a prisoner is entirely a matter of policy. The Government’s explanation was that, as a matter of policy, it is undesirable to allow a prisoner to be registered as a voter under his prison address because the prisoner has no real interest in the constituency of the prison. But he may have been even less real interest in a district with which he no longer has any connection. Then, the Government argues that only long term prisoners should be allowed to given their prison address for voter registration, and it is hard to decide where to draw the line how long the term of imprisonment should be to qualify as ‘long term’. My answer to that is, there can be no possible dispute that this should at least apply to a person serving a life sentence. The total number of ‘lifers’ in Hong Kong is 274. The Government’s final concern, that prisoner votes should not be allowed to upset the balance in a constituency, would be unwarranted. Accordingly, I shall be moving an amendment at the Committee Stage to allow a prisoner serving a life sentence to give the address of the prison in which he is serving his sentence as his address for the purpose of voter registration. It reflects reality, and follows the same principle for the rest of the electorate under the Ordinance. In my submission, the law gives effect to policy, and policy should be governed by principle. In the context of the exercise of the right to vote, the applicable principle must be Article 25 of the ICCPR, and that is, the voting system must be designed so that the vote of an individual can most fully and directly express the individual’s will and his free choice. It is the voter’s free expression that counts, not administrative convenience, or the Government’s fear that the will of certain groups of voters may dominate the interests of a particular constituency. Of course, the freedom of a prisoner is necessarily restricted, but he should be treated equally as other voters insofar as possible. If he maintains a home outside prison, then that can be his address. If he has not, and prison has become his only home for the rest of his life unless he is released earlier, then that must be accepted to be his home. I believe that this is logical and reasonable, and minimizes the flaw in the present bill. I understand that in a consultation with prisoners, there is clear and substantial support that they should be able to register as voters with their prison address. Their wish should not be just ignored. I will appeal to members to support my CSA. Mr. President, the enactment of this bill is an important step in rectifying a violation of human rights in the present electoral law of the HKSAR, but there are more, and even more fundamental violations which cry out to be rectified. I refer, of course, to functional constituencies maintained by all these Ordinances. They violate Article 25 of the ICCPR no less than the deprivation of a prisoners’ right to vote. After today, when the bill before us shall have been passed, we would indeed be worse off than imprisoned persons. The Government has acted promptly with respect to prisoners’ right to vote. It must not shirk from its duty of implementing our rights to universal suffrage. Thank you, Mr. President. |
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