The European Commission for Democracy through Law, better known as the Venice Commission, is the Council of Europe's advisory body on constitutional matters. It is composed of “independent experts who have achieved eminence through their experience in democratic institutions or by their contribution to the enhancement of law and political science”. The 57 countries of the Venice Commission come from primarily three global regions: the European region consists of all Council of Europe member states plus Kyrgyzstan (with Kazakhstan and the Holy See as observers); in the Middle East and North Africa region, Algeria, Israel, Morocco, Tunisia are members, and in the Americas, Brazil, Chile, Mexico and Peru are members (with Argentina, Canada, Uruguay and USA as observers). In addition, the Republic of Korea is a member and Japan is an observer. Belarus is associate member and the European Commission, South Africa and the Palestinian National Authority have special co-operation status similar to that of the observers.
The current “Interpretative Declaration to the Code of Good Practice in Electoral Matters on the participation of people with disabilities in elections”, (October 2010) states that “No person with a disability can be excluded from the right to vote or to stand for election on the basis of her/his physical and/or mental disability unless the deprivation of the right to vote and to be elected is imposed by an individual decision of a court of law because of proven mental disability.” This is statement is internally inconsistent and amounts to nonsense. NGOs pointed this out and the Venice Commission agreed to re-visit its document. The Venice Commission will debate and decide on a new version at their December 2011 session or thereafter.
On 14 October 2011, the Venice Commission will issue a revised “interpretive declaration” on the right to vote of people with disabilities. There is a serious risk that this document will say that a local judge should be able to strip the right to vote from some people with disabilities. This is a dangerous proposal which undercuts notions of equality, democracy and the rule of law, and you can influence the process. See the TAKE ACTION section, above!
Although its “interpretive declarations” do not carry the weight of law, the Venice Commission has a strong reputation, and many governments listen to its advice. It is important that the Venice Commission issues a document which supports universal suffrage for people with disabilities. If this does not happen, national governments will have an excuse to strip the right to vote from people with disabilities. A lot is at stake.
Adopted in 2006 by the UN General Assembly, the Convention on the Rights of Persons with Disabilities (CRPD) sets out the right to exercise legal capacity by stating that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” (Article 12(2)). The phrase “all aspects of life” must, by definition, include voting. The CRPD sets out the right to vote, requiring governments to “ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected” (Article 29(a). No exceptions are listed.
The Council of Europe’s Disability Action Plan 2006-2015 states that “[p]articipation in political and public life [...] and democratic processes is essential for the development and maintenance of democratic societies. People with disabilities should have the opportunity to influence the destiny of their communities. It is therefore important that people with disabilities be able to exercise their right to vote and participate in political and public activities.” (para. 1.3.) The document goes on to state that “[t]he participation of all citizens in political and public life and the democratic process is essential for the development of democratic societies. Society needs to reflect the diversity of its citizens and benefit from their varied experience and knowledge. It is therefore important that people with disabilities can exercise their rights to vote and to participate in such activities” (para. 1.3.)
The Commissioner for Human Rights of the Council of Europe issued a statement on 22 March 2011 entitled “Persons with disabilities must not be denied the right to vote”. The statement points out that “[t]here are of course those who – because of their disability – have difficulties in fully exercising their human rights. In these situations society should offer assistance to make it possible for the individual to exercise them, including to take part in political life. The Convention [on the Rights of Persons with Disabilities] places an obligation on governments to ensure that such assistance is provided if needed, including in exercising the right to vote. There is a huge difference between this approach and just depriving someone of their rights.”
The European Convention on Human Rights sets out the right to vote in Article 3 of Protocol No. 1. In the case of Kiss v. Hungary, the European Court of Human Rights found a violation on the basis that the applicant's legal capacity had been restricted and as an automatic result he had been denied his right to vote.
Of historic note is General Comment 25 of the UN Human Rights Committee (1996), which says that the right to vote “may not be suspended or excluded except on grounds which are established by law and which are objective and reasonable. For example, established mental incapacity may be a ground for denying a person the right to vote or to hold office.“ This general comment was adopted in 1996, well before the CRPD which was adopted in 2006, and had the Human Rights Committee had the benefit of the CRPD text back then it would likely have not given the example of “mental incapacity”. In addition, a treaty body general comment carries much less weight than the CRPD, which is a legally binding international treaty which was adopted unanimously by the UN General Assembly. Furthermore, it is sloppy legal reasoning: the document does not explain how “mental incapacity” is either objectively reliable, or reasonable in terms of pursuing a valid public policy goal.
Having the legally-recognised opportunity to have your say in who should form a government and who should represent you is one of the most basic hallmarks of democracy. People have fought and died to secure the right to vote. The struggle for universal suffrage has been won by African American people in the USA. It has been won by women in many countries. For people with psycho-social disabilities (users and survivors of psychiatry, people with mental health problems) and for people with intellectual disabilities (learning disabilities, developmental disabilities) as well as those with degenerative diseases of ageing or acquired brain injuries, the situation can be very different. Many laws worldwide ensure that they are excluded from democratic processes, and many of these laws are connected to laws which deprive people of legal capacity, so that people are not merely prohibited from voting, but not allowed to decide where and with whom to live, to work, to associate, how to spend their own money, and take health and daily care decisions.
Being denied the right to vote means that politicians are less likely to take seriously the disenfranchised person’s concerns. This explains the relative invisibility in politics and policies of people with psycho-social disabilities and people with intellectual disabilities in many countries.
Nowhere in its documents does the Venice Commission set out the reasons for seeking to restrict the right to vote of people with disabilities. MDAC believes that there are two driving forces behind the proposals. It should be noted that not all of the Venice Commission members hold these views.
The Venice Commission proposes that judges in each country should assess whether a person with a disability has the “proper judgment” to vote, so that judges could deny the vote to someone with disabilities who does not pass the test. The Venice Commission does not define “proper judgment” and does not set out what the test would look like. Nor does it explain why it thinks this the proper judgment test is a good arrangement. This contravenes international human rights law and is utterly unfeasible. It contravenes Article 29 of the UN Convention on the Rights of Persons with Disabilities (CRPD) which allows for no exceptions. It constitutes indirect disability-based discrimination (prohibited in Article 5 of the CRPD) as the “proper judgment” test will only apply to people identified as having intellectual or psycho-social disabilities. As Thomas Hammarberg, Council of Europe Commissioner for Human Rights, pointed out in March 2011, “there is no room for procedures in which judges or medical practitioners would assess the voting competence of a person and then give a green light—or not.” Why should we allow a judge to remove the vote of a woman with Down syndrome because the judge does not believe that she understands politics, when we do not allow a judge to ask similar questions to potential voters without disabilities?
The “proper judgment” test is a slippery slope. People with a label of a disability today, who tomorrow? The test is liable to political decisions by a judge: one person’s proper judgment is another person’s improper judgment. A right-wing judge may exclude a member of the communist party as lacking proper judgment. A left-leaning judge may wish to exclude the vote of a life-long conservative. Living in a democracy means that we value each vote equally: whatever we feel about the voter. Judges should not play a filtering role. The “proper judgment” test is flawed not only if judges act in bad faith; even if judges act in good faith, they are being asked to do something they cannot and should not do.
The “proper judgment” is unfeasible simply because there is no test which would meet even basic standards of objectivity. Jack’s rationality is Jill’s irrationality. Jane’s being influenced by a party political advertisement is John’s manipulation. Justine’s level of understanding politics may be sufficient for her to decide on one candidate over the other, but insufficient for Johan to make his choice.
In many countries people convicted of criminal offences are stripped of their right to vote.