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DISABILITY-RESEARCH  September 2011

DISABILITY-RESEARCH September 2011

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Subject:

Please join the Save the Vote Campaign and help to protect disabled people's fundamental rights

From:

Anna Lawson <[log in to unmask]>

Reply-To:

Anna Lawson <[log in to unmask]>

Date:

Sun, 11 Sep 2011 23:56:05 +0100

Content-Type:

text/plain

Parts/Attachments:

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text/plain (196 lines)

Details of this campaign (co-ordinated by the Mental Disability Centre, Budapest) and the ways you can help are set out below. Further information is available at
www.savethevote.info

and
www.facebook.com/savethevote


TAKE ACTION


There are lots of ways you can take action to save the vote!


•       sign            the save the vote petition at
www.savethevote.info/sign

•       send            an email to the Venice Commission
www.savethevote.info/send

•       help            to organise a rally/demo/event in your neighbourhood
[log in to unmask]

•       like            our page on facebook
www.facebook.com/savethevote

•       download        the banner for your website or social networking page
www.savethevote.info/download

•       mail            a postcard to the Secretary General of the Council of Europe

•       wear    the pin – MDAC being a non-profit organisation with no commercial activities, we cannot sell the pins, but will send you five as a thank you present if you send a donation of 20 EUR or more!

•       become  a save the vote supporter. We need your financial assistance to continue this campaign at the Venice Commission – and afterwards to work at national levels to abolish laws restricting the right to vote of people with disabilities. www.savethevote.info/donate

•       write           an opinion piece in your local newspaper – for advice you can reach us at
[log in to unmask]

•       suggest how we could develop the campaign
www.savethevote.info/campaign






FREQUENTLY ASKED QUESTIONS





What is the Venice Commission?
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.

What is the Venice Commission proposing?
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 14-15 October 2011 session.

How can I save the vote?
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!

Is the Venice Commission’s opinion important?
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 government will have an excuse to strip the right to vote from people with disabilities. A lot is at stake.

How does international human rights law protect the right to vote of people with disabilities?
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. 3.1.1).

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.

Why is the right to vote so important?
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.

If people are denied the right to vote they have less political influence - politicians are less likely to take seriously the concerns of disenfranchised people. This explains the relative invisibility in politics and policies of people with psycho-social disabilities and people with intellectual disabilities in many countries.

Why does the Venice Commission want to limit the right to vote for people with disabilities?
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.

1.      Unacknowledged Prejudice. Historically, laws restricting the right to vote of particular groups of people – whether they be women or African Americans, and whether those restrictions are accomplished through the courts, through laws or through informal means – have been the result of stereotypes and animus towards group members. The proposal to restrict the right to vote of persons with intellectual disabilities and psycho-social disabilities is no different. Sadly, many people in society still hold the view that people with disabilities are either mad or incompetent, and that such people (“they”) are qualitatively different from rational people (“us”). Consistent with these notions, the Venice Commission’s current proposal treats people with disabilities as potential pollutants, and the judge as a filter, to make sure that mad and incompetent voters do not pollute the democratic environment. These notions are based on deeply-held prejudices which are outdated, empirically disproven, violate international human rights law and are deeply offensive. Allowing the proposal to move forward will not only improperly disenfranchise persons with disabilities, but, by sanctioning it, will serve to promote stigma and prejudice associated with disability.

2.      Mistaken concerns about fraud.  Some Venice Commission members have said that denying the right to vote to people with disabilities will cut down on election fraud.  Voting fraud is a legitimate concern, but such denials are likely to increase – not decrease – fraud. Evidence of voting fraud targeting persons with disabilities is minimal and largely anecdotal. Indeed, the Venice Commission is unable to point to any study indicating that voters with disabilities are more likely to be targets of election fraud than voters without disabilities. More importantly, allowing third parties to determine who is allowed and who is prohibited from voting invites fraud. It would be all too easy for evaluators to deem incompetent those whom the evaluator believes will vote in a manner or for a candidate or party of whom the evaluator disapproves. Indeed, such improper disenfranchisement would be likely even if evaluators acted in good faith. This is because no one has yet been able to create a mechanism for assessing voting capacity that does not ask the voter to reveal certain types of voting preferences. If the Venice Commission truly wishes to reduce fraud, it should focus not on selectively disenfranchising citizens, but on cracking down on known forms of fraud.  And if it wishes to ensure that all citizens are able to exercise sound judgment in making voting decisions, it should focus on making election processes more accessible and readily understandable to all voters.

What’s wrong with the “proper judgment” test for voting?
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 a person 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 the proper judgment test is a good arrangement. This approach contravenes international human rights law and is utterly infeasible. 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 by 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” test is infeasible 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.

Is disenfranchising people with disabilities similar to disenfranchising criminals?
In many countries people convicted of criminal offences are stripped of their right to vote. MDAC’s view is that this is unjust and unnecessary, undercuts the notion of rehabilitation where people who have committed crimes are encouraged to rejoin the community and pursue responsibilities on an equal basis with others, and allows politicians to ignore the needs and welfare of those guilty of crimes in general, and prisoners in particular. That being said, laws which disenfranchise people who have committed criminal offences may pursue legitimate aims of preventing crime, punishing offenders and enhancing civil responsibility and respect for the rule of law. No such legitimate aims apply to people with disabilities – they have not committed crimes or otherwise forfeited their rights as citizens.

Who is involved in this campaign?

Save the vote is a campaign which any NGO or individual can sign up to. It is coordinated by the Mental Disability Advocacy Center in Budapest, Hungary with an initial financial donation from the Open Society Foundations.

International non-governmental organisational partners include

Down Syndrome International     www.ds-int.org
International Disability Alliance       www.internationaldisabilityalliance.org
European Network of (ex-)Users and Survivors of Psychiatry  www.enusp.org
Human Rights Watch      www.hrw.org
European Disability Forum       www.edf-feph.org
European Down Syndrome Association      www.edsa.info
Inclusion Europe        www.inclusion-europe.org
Inclusion International www.inclusion-international.org
International Foundation for Electoral Systems  www.ifes.org
Mental Disability Advocacy Center       www.mdac.info
Mental Health Europe                                    www.mhe-sme.org
Open Society Foundations        www.soros.org


Academic partners include

Centre for Disability Law and Policy, National University of Ireland, Galway
        www.nuigalway.ie/cdlp
Centre for Disability Studies, University of Leeds      www.leeds.ac.uk/disability-studies



Add your name or organisation to the save the vote at www.savethevote.info/join. By doing so you pledge that you or your organisation fully supports the right to political participation for all persons with disabilities, without exception, for those who have met the legal age and citizenship requirements in any given jurisdiction.



TIMELINE



21 October 2010
The Venice Commission issues its “Interpretative Declaration to the Code of Good Practice in Electoral Matters on the participation of people with disabilities in elections”, CDL(2011)041.   Paragraph 2 states: “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.”

November 2010
The “Committee of Experts on the Participation of People with Disabilities in Political and Public life” (an intergovernmental experts’ committee of the Council of Europe) suggests that the Venice Commission change its Interpretive Declaration to: “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.”

25 February 2011
MDAC sends its Legal Opinion  on the Interpretive Declaration to the president of the Venice Commission and formally asks the Venice Commission to reconsider its position.

22 March 2011
Thomas Hammarberg (the European Commissioner of Human Rights) issues a statement  which speaks directly to the Venice Commission’s proposals, stating that the “principle of universal suffrage is not consistently applied. Persons with mental health problems or intellectual disabilities are denied voting rights, in most cases as a consequence of having had their ‘legal capacity’ restricted or removed”. Hammarberg states that the UN Convention on the Rights of Persons with Disabilities “leaves 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. As we do not test that capability for someone without disabilities, this would amount to blatant discrimination.” Explaining how people with disabilities who may need assistance could be supported to exercise their human rights, Hammarberg states that “society should offer assistance to make it possible for the individual to exercise them, including to take part in political life. The Convention 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.”



12 April 2011
The Venice Commission replies to MDAC, explaining that it will reconsider its Interpretive Declaration at its April 2011 meeting, and offers a fresh proposal of paragraph 2: “Universal suffrage is a fundamental principle of the European Electoral Heritage. People with disabilities may not be discriminated against in this regard. Nevertheless, court, in an individual decision, may consider that the lack of proper judgment of a disabled person may prevent him or her from exercising his or her right to vote or to stand for elections.” MDAC comment: this proposal fails to comply with international law as it allows a judge to strip the right to vote of a person with disability. See What’s wrong with the “proper judgment” test for voting? question in the FAQ.

13 May 2011
A fresh proposal from the Belgian CAHPAH-PPL Delegate, supported by the CAHPAH Bureau reads, “Universal suffrage is a fundamental principle of the European electoral heritage. A person can only be excluded from exercising his/her right to vote or from standing for election on the basis of an individual decision given by an independent and impartial tribunal, under national legislation, based on objective and reasonable arguments and never solely on the basis of a situation of disability.” MDAC comment: this proposal fails to comply with international law as it allows a judge to strip the right to vote of a person with disability.

1 June 2011
A fresh suggestion is made by the Maltese member of the Venice Commission (in document CDL(2011)041), with a revised paragraph 2: “Universal suffrage is a fundamental principle of the European Electoral Heritage. People with disabilities may not be discriminated against in this regard. Nevertheless, a court, in an individual decision, may consider that the lack of proper judgment of a [disabled] person may prevent him or her from exercising his or her right to vote or to stand for elections.” MDAC comment: this proposal fails to comply with international law as it allows a judge to strip the right to vote of a person with disability. It does not matter whether the word “disabled” is included or not, as this is in a document entitled “Interpretative Declaration to the Code of Good Practice in Electoral Matters on the Participation of People with Disabilities in Elections” so it is obvious that it concerns only people with disabilities, and any restrictions would amount to disability-based discrimination.

15 June 2011
The European Disability Forum and the Mental Disability Advocacy Center hold a public discussion on the right to vote , in Venice, Italy. Prior to the event MDAC asked the president of the Venice Commission to invite all Venice Commission members. This did not happen. MDAC invited those members it was in contact with, and one member – the Slovenian member – kindly attended in his personal capacity. Other attendees included representatives from the International Disability Forum, Inclusion Europe, the British Royal College of Psychiatrists, the Centre for Human Rights at the University of Padua, and the Italian Mental Health Association.

18 June 2011
The Venice Commission holds its debate on the right to vote of people with disabilities. A statement by international NGOs  is handed out to each member. The Italian, Slovenian, Italian and Hungarian members of the Venice Commission draft a “compromise solution” at 9am, 18 June 2011 which states that paragraph 2 of the Interpretive Declaration should be replaced by: “Universal suffrage is a fundamental principle of the European Electoral Heritage. People with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. States should ensure that persons with disabilities can effectively and fully participate in public and political life on an equal basis with other citizens.” Oliver Lewis, MDAC Executive Director, gives a speech  to the plenary session of the Venice Commission, urging members to support the compromise text. A debate follows, with several Venice Commission members saying that they should support the compromise text, but several saying they should not support it, one saying that people who lack “voting competence” should not be allowed to vote. The chairman of the session decides not to put this to a vote, and it is decided to postpone the decision to the next session, 14-15 October 2011.


CAMPAIGN EVENTS


8 September 2011
A side event was held at 6.30pm in Conference room 4 at the UN headquarters in New York, during the Conference of States Parties to the UN Convention on the Rights of Persons with Disabilities.

13 September 2011
The save the vote campaign was introduced to delegates at ENIL’s Freedom Drive Conference, Strasbourg.

20 September 2011
At the session of the UN Committee on the Rights of Persons with Disabilities, NGO representatives will alert Committee members to the Venice Commission’s proposals, and ask them to intervene directly by sending a letter. Read MDAC’s parallel report (in Spanish  and English ) on this issue.

26 Sept – 7 Oct 2011
MDAC will hold a side event at the Human Dimension Meeting  of the Organization of Security and Cooperation in Europe (OSCE), the region’s premier election-monitoring organisation.

10 October 2011
MDAC and Doughty Street Chambers, London, will hold an evening seminar in central London to discuss the Venice Commission’s proposals and raise awareness in the British media.

14-15 October 2011
The Venice Commission meets in session in Venice, Italy. Among the agenda items is to decide on its “Interpretative Declaration to the Code of Good Practice in Electoral Matters on the Participation of People with Disabilities in Elections”.


To add your event to this list, or for more information on the save the vote campaign, please contact Gábor Halmai (MDAC Advocacy Officer) at [log in to unmask] or [log in to unmask]

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