Who has proper judgment to vote?

Oliver Lewis
15 June 2011


Last week Belize became the 101st country to ratify the UN Convention on the Rights of Persons with Disabilities—the formative international document focused on ensuring that people living with a disability are not treated as second-class citizens. Among United Nations human rights treaties, this one is relatively popular and since its adoption in 2006 there has been a significant change in rhetoric – if not attitudes – on disability and social inclusion within the international community. Nonetheless, a willingness to acknowledge and laud these rights on paper is not matched in practice where things are too often alarmingly different.

One of the motivating factors behind the drafting of the UN Disability Convention was a keen awareness that persons with disabilities could not exert pressure for change within the democratic system. They could not do so as they were directly locked out through disfranchisement and indirectly through inaccessible processes. Enhancing the voice of persons with disabilities in the political process was, and is, seen as just as important as securing other more substantive rights. It remains the key to unlocking the invisibility of persons with disabilities at the policy level and throughout society more generally.

In many countries, people with disabilities are not only excluded from political discourse, but viewed as economically useless and abandoned by their families and communities.  Consequently segregated in remote institutions they are often at increased risk of exploitation, violence, and abuse. People with mental health or intellectual/learning disabilities are the target of laws which routinely strip them of their legal capacity and place them under guardianship. This status is akin to civil death, as the right to vote in local and national elections is also removed. In many European Union countries people in this status are also not allowed to vote in European parliamentary elections, such disenfranchisement silently contributing to the EU’s democratic deficit.

Despite the promise of the UN Disability Convention, the situation for voters with disabilities in Europe is set to worsen significantly. On 16 June 2011 the Venice Commission – a constitutional law think tank composed of senior jurists from European and other countries – is anticipated to adopt a proposal which may result in the right to vote being stripped from yet more adult citizens with disabilities. Their proposal reads, “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”. Although the Venice Commission’s proposal will not be legally binding, it carries significant weight and deserves scrutiny.

The proposal flies in the face of the UN Disability Convention, which sets out the right to public and political participation in some detail, including the right to vote and stand for election. These rights apply to everyone with disabilities: people with mental health issues or intellectual disabilities, people deprived or restricted of legal capacity, and those requiring more intensive support. The Venice Commission unconvincingly claims that its “proper judgment” test does not constitute disability-based discrimination, which it agrees would breach the UN Disability Convention.

The flaw of this claim is obvious: only people with actual or perceived mental or cognitive disabilities will be tested in the first place. Thomas Hammarberg, the Council of Europe’s Commissioner for Human Rights, is also unconvinced of the Venice Commission’s proposal. He has recently stated that 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.” If applied only to people with disabilities any test would, Hammarberg says, constitute “blatant discrimination”. My view is that the only way that the Venice Commission can claim that their test does not constitute disability-based discrimination is for them to advise governments to administer the test to people with disabilities and all other potential voters. Perhaps unsurprisingly this is not being considered.

In essence, the Venice Commission’s understanding of disability crystallizes on deficit. When disability is viewed through this lens, the role of a judge is to regulate the level of pollution in the democratic environment by preventing votes from irrational and incompetent disabled people. As well as being deeply offensive, the Venice Commission’s worldview misses the point about political choices. A voter’s priorities in matters of politics are often intuitive and felt. Why would we allow a judge to prevent a racist vote on the basis that such a voter lacks “proper judgment”? In democracies we value each vote equally, irrespective of what we think about the voter.

Worldwide, women and others have famously fought prejudices to secure their right to vote. Their struggle for universal suffrage surely tells us that it is better to count the vote of every person rather than exclude those belonging to a certain group. The Venice Commission’s unifocal view of disability is a stark reminder that even organisations mandated to promote democracy and the rule of law harbour deeply-held prejudices.

On 16 June the Venice Commission should abandon its proposal to entrench the invisibility of citizens with disabilities. Anything less would surely demonstrate a lack of proper judgement. Send your views directly to the Venice Commission venice@coe.int, and please copy mdac@mdac.org.

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