Prisoners should be allowed to vote: HRF Submission on law change

Submission to the Law and Order Select Committee on the Electoral (Disqualification of Convicted Prisoners) Amendment Bill

  1. Introduction

 This submission is by the Human Rights Foundation of Aotearoa New Zealand (“the HRF” or “the Foundation”), a non-governmental organisation. The HRF was established in December 2001 to promote and defend human rights through research-based education and advocacy. We have made submissions on new laws with human rights implications. We also monitor the compliance and implementation of our international obligations in accordance with the requirements of the international conventions New Zealand has signed, and have prepared parallel reports for relevant United Nations treaty bodies to be considered alongside official reports – recent reports have been to the UN Committee against Torture, the Economic, Social and Cultural Rights Committee, and the Human Rights Committee. Though the primary focus of the Foundation is on human rights in New Zealand we recognise the universality of human rights and have an interest in the Pacific and beyond. We request the opportunity to make an oral submission to the Committee, preferably in Auckland. We understand that our submission may be made publicly available if submissions are requested under the Official Information Act 1982.

  1. Certificate of Attorney General

The Human Rights Foundation agrees with the conclusion of the Attorney General that the effect of the Bill, namely the creation of a blanket ban on voting by serving prisoners, would be contrary to the right to vote set out in the Bill of Rights Act and unjustified for the purposes of section 5 of the New Zealand Bill of Rights Act.

  1. Imprisonment as “Civil Death”

Prisoners lose the right to liberty and any right that requires liberty: they retain all other rights. The idea that imprisonment amounts to “civil death” and the end of the right to vote is inappropriate in an age of universal suffrage and freedom of expression: any amendment to the existing law should be to extend rather than reduce the franchise since all prisoners, whatever their sentence, have a legitimate right to engage in political discussion and decision-making. In the first place, prisoners may often be affected by measures introduced by Parliament and upon which politicians may stand for election: to say that they have no right to express their opinion through the ballot box is akin to taxation without any representation and fundamentally undemocratic. In this context, it should be remembered that voting is a right that can be lost only when it is necessary not a privilege that has to be earned. Secondly, as noted in New Zealand’s National Report for the United Nations Universal Periodic Review, “New Zealand has a tradition of promoting and protecting human rights both at home and overseas.” The report goes on to claim: “The idea that everyone deserves an equal opportunity in life – “a fair go” – is an important part of New Zealand’s national identity and approach to human rights on the international stage.” New Zealanders consider we should lead and/or be guided by international standards: this Bill announces New Zealand’s intention to ignore international standards and to breach the obligations it has undertaken by becoming a participant in the treaties that form international human rights law. Article 25 of the International Covenant on Civil and Political Rights provides that “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Art 2 [which includes a catch-all “other status” that arguably includes prisoners] and without unreasonable restrictions: … (b) to vote…”

  1. European Court of Human Rights

The Grand Chamber of the European Court of Human Rights, in the case of Hirst v UK (6 October 2005, appn 74025/01), considered the legality of the blanket ban on voting by all prisoners who happened to be serving prisoners on the date of the election in the UK. (This was under the right to vote in Article 3 of Protocol 1 to the European Convention on Human Rights, which provides for the “expression of the will of the people”, which implicitly gives a right to vote – see para 57.) The Court found that the UK was in breach of human rights standards: its reasoning, which as the foremost judicial body considering human rights matters is worthy of great weight, is as follows. First, it considered principles: “69. In this case, the Court would begin by underlining that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty … Any restrictions on … other rights require to be justified, although such justification may well be found in the considerations of security, in particular the prevention of crime and disorder, which inevitably flow from the circumstances of imprisonment …

  1. There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.
  1. This standard of tolerance does not prevent a democratic society from taking steps to protect itself against activities intended to destroy the rights or freedoms set forth in the Convention. Art 3 of Protocol No 1, which enshrines the individual’s capacity to influence the composition of the law-making power, does not therefore exclude that restrictions on electoral rights are imposed on an individual who has, for example, seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations … The severe measure of disenfranchisement must, however, not be undertaken lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. The Court notes in this regard the recommendation of the Venice Commission that the withdrawal of political rights should only be carried out by express judicial decision …. As in other contexts, an independent court, applying an adversarial procedure, provides a strong safeguard against arbitrariness.”

In short, the Court accepted that there are circumstances in which a person who commits crime may properly be deprived of the right to vote, but the context of this must be the need for broadmindedness and tolerance that is the mark of a democratic society and individual consideration of the case of the individual prisoner. The Court then considered the application of the principles to the facts of the case (which involved a life-sentence prisoner). It accepted that there might be a legitimate aim of providing an incentive to citizen-like conduct (para 74), but found that the blanket ban was not proportionate: this was because it affected a significant number of people (some 48,000 people) and included “a wide range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity” (para 77). In summary, the UK Act is: … a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Art 3 of Protocol No 1.” In reaching this conclusion, the Court was aware that there were several countries in Europe that had blanket bans, and so there was no international consensus. The Court has established that human rights standards impose a consensus that blanket bans on all prisoners voting are unlawful in international law. The Attorney-General’s careful analysis rests on a similar reasoning: it is to be commended. The position adopted by Hon Lianne Dalziel, MP in expressing the opposition to the Bill at Second Reading was similarly appropriate. Rehabilitation There is a further point, which also raises a human rights issue. A significant aim of incarceration is to provide prisoners with access to rehabilitative assistance: the purpose of this is to allow them to be integrated as valuable members of society. This is reflected in Article 10.3 of the ICCPR which provides that imprisonment “shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”. To introduce a measure that provides that no prisoner has any democratic right to have a say in what happens in society runs contrary to this purpose. In this regard, we endorse the view of Hone Harawira, MP, on the Second Reading that it sends the wrong message to “people who are already isolated from our society, who are already alienated from everyday life” because it reveals that “we do not care about those who have fallen by the wayside”. The effect of the passage of the Bill will inevitably be that the matter will be drawn to the attention of the Human Rights Committee of the United Nations. New Zealand will have to announce to the United Nations that, despite having ratified the ICCPR and despite having passed the New Zealand Bill of Rights Act for the express purpose of giving further effect to its international obligations, it has decided to renege on those obligations. This is not a circumstance in which there can be a derogation from the ICCPR (since there is no public emergency threatening the life of the nation for the purposes of Art 4 ICCPR). In short, New Zealand will have to announce that it has taken action that breaches human rights when it has no good reason to have done so. This is both embarrassing and, from the point of view of a nation that relies on trade and tourism, potentially debilitating: it is entirely possible that there will be a significant number of people in advanced nations who will exercise their consumer choice against New Zealand on the basis that it is a nation content to breach human rights. Submission Prepared by Committee Member Kris Gledhill   Peter Hosking Executive Director Human Rights Foundation of Aotearoa New Zealand 11 June 2010

Climate change is a matter of human rights, agrees UN

ClimateChangeTalks

By Sébastien Duyck in Geneva

 

Last Thursday the Human Rights Council sent a strong signal to the ongoing climate negotiations by adopting by consensus a new resolution on climate change and human rights.  

The resolution, championed by Bangladesh and the Philippines, emphasizes the importance of addressing the adverse consequences of climate change for the human rights of all, and in particular of those most vulnerable.

It also stresses the importance of enhanced action and cooperation on adaptation.

Additionally, the resolution calls for the Council to consider next spring how climate change adversely impacts the efforts of states to promote and protect the right of everyone to the highest standards of physical and mental health.

The document also mandates the Office of the High Commissioner for Human Rights to prepare, together with relevant international organizations, a report on the subject.

Comment: Human rights focus can strengthen climate deal 

Whereas attempts to adopt a similar resolution failed last year, Bangladesh and the Philippines managed to secure very broad support for the resolution this year, as over 100 states – developed and developing alike – accepted to co-sponsor the resolution.

And while it is the fourth resolution adopted by the Human Rights Council on the matter, the implications of this adoption five months before the Paris climate conference should not be underestimated.

When introducing the draft resolution to the Council, Ambassador Shameem Ahsan (Bangladesh) emphasized the importance of the adoption of a resolution on this topic this year.

“The timeliness of this resolution cannot but be stressed as the world witnesses growing climatic vulnerability while walking on developing a robust and legally-binding outcome this December in Paris”, he said.

Bluffer’s guide: UN climate talks and the Paris deal

The resolution includes several references to the provisions of the UN Framework Convention and Climate Change and to a decision adopted in 2010 under the aegis of the UNFCCC, and welcomes the upcoming Paris climate conference.

The adoption of this resolution by consensus might thus inform the ongoing climate process.

Climate negotiators are indeed contemplating whether to refer explicitly in the Paris agreement to the importance of integrating human rights to all climate-related actions.

Additionally, they are considering how to acknowledge the circumstances of the countries must vulnerable to climate change.

The resolution does not make any specific suggestions with regards to the outcomes of the Paris conference, but some countries expressed concerns about risks that the human rights council might, in the words of the US Representative to the Human Rights Council David Sullivan, “intrude on expert climate change negotiations taking place elsewhere.”

 

Legitimacy

These concerns highlight the political difficulties associated with ensuring coherence between two international legal frameworks and the importance for states to consider the linkages between their human rights obligations and the ongoing climate negotiations.

The “Geneva Pledge on Human Rights in Climate Action” constitutes one ongoing effort to address these difficulties.

Launched in February under the leadership of Costa Rica, the pledge constitutes a voluntary commitment by signatory states to strengthen expertise on the interplay between human rights in climate change. 20 countries have signed the Pledge so far.

The fact that the Human Rights Council has now acknowledged this initiative in last week’s resolution will contribute to increase the legitimacy and visibility of the pledge, potentially prompting more states to join these efforts.

Cecilia Rebong, Permanent Representative of the Philippines to the UN, commented that: “the adoption of this resolution by consensus brings out a message, loud and clear, that the UN Human Rights Council has one voice in addressing the adverse impacts of climate change”.

The coming months will tell us whether this unity can be replicated in the context of the ongoing climate talks as negotiators will decide whether the Paris climate agreement can contribute to addressing climate change while promoting human rights.

 

Sébastien Duyck is a researcher at the Arctic Centre with a specific focus on environmental governance and human rights. Follow him on twitter @duycks

– See more at: http://www.rtcc.org/2015/07/06/climate-change-is-a-matter-of-human-rights-agrees-un/#sthash.yvzumJ7r.dpuf

#WagePeaceNZ ‘Sunday Selfies Send Minister a Message’

Double Refugee Quota

See here the open letter sent by WagePeaceNZ to the Minister of Immigration on doubling the refugee quotas, detaining asylum seekers etc:

 

Re: #WagePeaceNZ ‘Sunday Selfies Send Minister a Message’Dear Minister Woodhouse,

 

We haven’t met yet, but I hope that will change in the future. I am a columnist by trade, but am wearing a different hat today.

Just a couple of weeks ago, I began an initiative called #WagePeaceNZ. Initially, I began it as a reaction to the government’s call for troop deployment in Iraq. When I heard our Prime Minister passionately arguing for his colleagues to ‘get on the right side’, I was most struck by what wasn’t said. No one considered what seemed to me a wholly constructive, equally moral alternative, one that is humane, far more measurable, and yes, even potentially cheaper than putting Kiwi lives on the line again for this war; New Zealand could double its refugee quota and support. As a small nation, New Zealand could build the lives that war destroys instead and—well, simply put, wage peace.

Regardless of how any Kiwi feels about NZ’s troop deployment, one thing has been incredibly clear to me, we haven’t contributed nearly enough on the world stage for refugees. When you will be reviewing our refugee quota next year, you will certainly be cognisant that our own refugee quota hasn’t budged in almost three decades now, even though our population numbers have grown by 39%. Indeed, our asylum arrivals have shriveled too. Today, we get anywhere from half to five times less asylum seekers than we did before 9-11 when airplane interdiction ramped up dramatically, stopping potential arrivals from ever boarding a plane. Even if we doubled our quota—at the very least, we’d only move from 87th in the world to 78th for the total number of refugees and asylum seekers we host, not terribly impressive for a country with our per capita income.

What all these numbers really mean is that as we’ve grown as a nation over the last 28 years, our real contribution to saving refugee lives has shrunk.

But #WagePeaceNZ isn’t only about quotas. I began the initiative to raise awareness on all asylum and refugee issues in NZ, a sector that is, frankly, quite tiny in this country, relative to the rest of the world. My personal frustration is that the few folks still able to work in the field are so stretched, there is no room for education, media or advocacy to Kiwis who aren’t familiar with the issues at hand. I’m hoping #WagePeaceNZ can help change that.

Yesterday you may have noticed a slew of homemade signs and selfies land in your email box from NZ MP’s, shopkeepers, barbers, kids, teddy bears, dogs—yes, even sock puppets. It was the NZ response to a global initiative to call out Australia on what I feel is its disastrous choice of trying to sell off its human rights obligations to poorer nations. Sadly, it’s working. The cost of refugee imprisonment has been huge, in every sense. Australia has now strapped itself into spending billions of dollars to ship families, against their will, to third countries. It has significantly damaged its international reputation. But most importantly, it has made itself part of the problem. The great irony is, the country that says it wants to stop human trafficking has now become traffickers in human lives themselves.

A report just submitted to the UN has concluded Australia has contravened the Conventions on Torture, a sad indictment indeed. There have been deaths, beatings, physical and sexual abuse of women and children, all detailed in Australia’s own internal reports. Today, children are still imprisoned, something no Kiwi would support in this country, I feel sure.

Here is the core of my frustration: New Zealand has remained absolutely silent on this. In fact, what’s more worrying, in 2013, when our Prime Minister finished his Queenstown meeting with Julia Guillard, he seemed to welcome the idea that NZ had been invited to send any future boat arrivals to the prison camps on Manus and Nauru too.

I feel quite strongly that no Kiwi would welcome that prospect. I once questioned you in a forum on this and your response was this was ‘unlikely’. As I was limited in my questioning, I never learned if your response was because, indeed, New Zealand has never had a boatload of asylum seekers arrive—at least in modern history.

Kindly clarify your response, as ‘unlikely’ is far from what our Prime Minister calls getting ‘on the right side on this issue, the simple moral imperative that is at stake here.

My question stands: will you and the Prime Minister state publicly that New Zealand will have no part in future offshore detention of boat arrivals?

Further, will you and the Prime Minister—at the very least—ask Australia to meet their obligations under the Conventions on Torture, to stop imprisoning children, and to stop this unprecedented regional push to sell human lives to nations who need the money they offer?

I fervently believe this is the honourable response Kiwis endorse. In just two days of effort, I got 13 MPs (two now retired) to send me their selfies, plus a damned encouraging response from folks sending them into the new #WagePeaceNZ Facebook page, now only a few weeks old. I also run a sister initiative called, #WeAreBetterThanThat, began in reaction to the government initiating refugee detention in New Zealand in 2012, so many came from there as well. For me, that’s an encouraging start. I posted just a few dozen, as it was the Cricket finals and didn’t want to drown folks. Please note, readers started reporting that their photos bounced back—perhaps the larger photos files filled your in-box—you may want to clear it? I attach the album links here, https://www.facebook.com/WeAreBetterThanThat/photos_stream or here, https://www.facebook.com/wagepeacenz/photos_stream

I hope we can work together on this in the coming year. We may not agree on some elements of the issue, but I want to believe that there can be a meeting place that starts with compassion. New Zealand’s silence has been deafening. I truly hope you will consider changing that.

Regards,

Tracey Barnett

#WagePeaceNZ https://www.facebook.com/wagepeacenz

#WeAreBetterThanThat https://www.facebook.com/WeAreBetterThanThat

 

A Tale of Terror from RightsInfo

 

Secrecy and torture have played leading roles in the war on terror.  They were also centre stage in the drama that surrounded the UK government’s attempts to deport the radical Muslim cleric, Abu Qatada, to his home country, Jordan.

In 1994, Abu Qatada fled to London, with his wife and five children.  He was granted asylum because he had been tortured.  During the time he was living in Britain, as well as earning a reputation as a ‘hate preacher’ and ‘extremely dangerous man’, he was sentenced to life imprisonment in Jordan, in his absence, for terrorist activities.  That conviction was based on evidence obtained by torture. He was never charged with a crime in the UK, but between 1994 and 2013, there was much heated argument about whether the UK government could deport him back to Jordan.  If deported to Jordan, he claimed he would be tortured again.  Because the Human Rights Act protects people from the real risk of torture, the government couldn’t  deport him.  This was true even though a special immigration court found ‘he was heavily involved in terrorist activities’. The UK  Home Secretary travelled to Jordan to get them to agree, in writing, that they would not torture him.  But there was another barrier.  In 2012, the European Court of Human Rights said that he would face an unfair trial in Jordan because the court would use evidence obtained by previous torture.

The final outcome?  In 2013, Abu Qatada left the UK after Jordan signed a treaty promising not to use evidence obtained by torture against him.  He was finally freed by the Jordanian authorities in 2014, because the prosecution against him for terrorist activities was not proven.

The moral of the story?  Human rights, including the right to a fair trial, are for everyone.  Even suspected terrorists. Perhaps especially them.

This story is a short summary of a legal judgment. You can read the full judgment here
Media Coverage of this story

New Human Rights Report a Wake-up Call

The latest human rights report should be a wake-up call, says Peter Hosking, HRF Chairperson. “It highlights how much we are falling behind in our human rights performance in comparison with the international community, but I suspect we will just slumber on”, he says.

“We are very smug about human rights in this country and this latest report is quite correct, that we strut our human rights record claim on the international stage – for example, in the bid for a seat on the security council, our human rights credentials were to the forefront. Unfortunately, like our clean green image, the reality is very different.

An example of inaction by government is its reaction to the Universal Periodic Review. This is a four yearly stocktake of the human rights situation here by the UN. The stocktake took place last February (2104) – 155 recommendations were made to New Zealand, of which the government accepted 121. However, it has does nothing to implement these recommendations – it has no action plan, no budget and all the government websites have gone completely silent on UPR since last year.

The new report has a number of recommendations, many of which reflect recommendations made by HRF-led coalitions to the UN last year.

Read the report here:

Recommendations:

Institutional Mechanisms

 The Justice and Electoral Select Committee be re-designated as the Justice, Electoral and Human Rights Select Committee and given responsibility for oversight of New Zealand’s human rights treaty commitments.

 The New Zealand Bill of Rights (NZBORA) reporting mechanism is amended to require section 7 vets by the Attorney General to be directly considered by the new select committee. Section 7 vets should apply to bills at their third reading and Supplementary Order Papers and the Attorney General should not be required to vote in favour of legislation that is inconsistent with the NZBORA.

 The Māori Affairs Select Committee takes responsibility for developing indicators to monitor human rights treaty recommendations relating to Māori and reports to the Justice and Electoral Select Committee and to Parliament on their realisation.

 The Ministry of Justice becomes the co-ordinating Ministry to ensure consistency of all New Zealand government reports to treaty bodies and to provide a national archive of all treaty body information that is freely accessible to civil society and individuals.

Legislation

 New Zealand lifts the reservations relating to inciting racial disharmony in International Covenant on Civil and Political Rights (ICCPR); age mixing in prisons in both ICCPR and Convention on the Rights of the Child (CRC), and the reservations in both the ICCPR and International Covenant on Economic Social and Cultural Rights (ICESCR) on collective bargaining and trade unions.

 New Zealand ratifies the Optional Protocols to ICESCR and Convention on the Rights of Persons with Disabilities (CRPD) to comply with international commitments and to ensure that individuals have a remedy for the abuse of executive power.

 New Zealand urgently repeals the Public Health and Disability Act to reinstate the jurisdiction of the New Zealand Human Rights Commission and Human Rights Review Tribunal for all New Zealanders.

 A comprehensive review is undertaken of the Human Rights Act 1993 that covers the incorporation of the principle of equality, the appointments process, independence, the status and functions of Commissioners and resourcing.

Policy

 New Zealand pro-actively nominates candidates for the United Nations Human Rights Council, the Human Rights Committee, treaty body committees and special procedures, and institutes a cross party mechanism on UN representation.

 

Kris Gledhill book launch: Human Rights Acts: The Mechanisms Compared

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Join us in celebrating the launch of Kris Gledhill’s new book:

HUMAN RIGHTS ACTS: THE MECHANISMS COMPARED

  •  Date: Tuesday 31 March
  • Time: 5.30-7pm
  • Venue: Law Student Centre, Level 2, Building 810, 1-10 Short Street
  • Wine and canapés will be served to celebrate.
  • RSVP: Khylee Quince – k.quince@auckland.ac.nz by Monday 30th March

The aim of this book is to consider the jurisprudence that has developed in these various jurisdictions relating to these mechanics for the promotion of human rights. Relevant case law from countries that have a constitutional approach, such as Canada, South Africa and the United States, is also featured. Chapters cover such matters as the choice between a constitutional and non-constitutional bill of rights, the different approaches adopted as to how legislators are alerted to possible breaches of fundamental rights as Bills progress, the extent of the interpretive obligation, the consequences of failing to reach a rights-compliant interpretation, the remedies available in litigation and any alternatives to litigation.

The book is aimed at practitioners and also at academics and policy makers.

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