David Clendon

National’s constitutional quagmire

by David Clendon

The High Court has ruled that the courts can look at whether prisoners should be allowed to vote.

‘Jailhouse lawyer’ Arthur Taylor took up the issue of prisoners’ voting rights and wanted a declaration that the current law, which bans all prisoners from voting, was inconsistent with the Bill of Rights Act (BORA).  However, the Government sought to block this by arguing that the Courts cannot make such a ruling as this was a legislative matter.

This ruling, denying the government’s application, has now left open the possibility of a constitutional problem where courts make declarations against Acts that were passed properly but might contravene human rights in New Zealand.

The Government should never have passed the Electoral (Disqualification of Sentenced Prisoners) Amendment Act in the first place and must now immediately repeal this provision before it creates further constitutional tension between Parliament and the judiciary.

The Act itself was passed under dubious circumstances at best.  Firstly, this being a voting matter, it should have gone to the Justice and Electoral Committee or the Electoral Legislation Committee. However, the Bill went to the Law and Order Committee where the National Party chair denied a request from opposition parties to allow the Ministry of Justice to advise the Committee.  And out of the 53 submissions made to the Select Committee only 2 were in favour – and one of the two was from the proponent of the Bill himself, National MP Paul Quinn.

Voting is a fundamental right to a person and any issue of disenfranchisement should not be taken lightly.  I have seen a lot of emotive arguments stating that a person who goes to jail deserves to have their voting rights taken away.  However, if a person is sent to jail, they are already being punished for their crime.  To take away another fundamental right is additional punishment – for which there is no real justification.  A person should not be punished doubly for one crime. A blanket denial of voting rights is a further step towards alienating people from society, when our focus should be on rehabilitation and reintegrating people into society.

We now have two classes of prisoners in our system- those convicted before the Act who can vote and those convicted after who cannot vote.  The disenfranchisement of prisoners in the United Kingdom has been ruled against by the highest human rights court, the European Court of Human Rights. New Zealand’s law is equally in violation.

National needs to now undo the damage it has done and immediately repeal the Act so that we are affording all of our citizens the most fundamental right.

Published in human rights | Justice & Democracy | Society & Culture by David Clendon on Wed, July 16th, 2014   

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