by Charles O'Mahony
The Committee of Ministers of the Council of Europe last week adopted a Recommendation that seeks to increase the participation of persons with disabilities in political and public life at all levels − local, regional, national and international. The Recommendation is available here. Between 80 – 100 million persons with disabilities live in the 47 Member States of the Council of Europe. The Council of Europe noted that persons with disabilities often do not take part in the decision-making process as they face legal, physical, and societal barriers to participating. Through this Recommendation the Committee of Ministers seek to challenge this exclusion. The Recommendation aims to remove barriers and create conditions for active citizenship, without discrimination, for all and in all life settings. The Recommendation stresses that all persons with disabilities are entitled to express their views and should not be deprived of their right to vote or stand for election on the basis of disability.
This is a very progressive statement from the Committee of Ministers and goes some way towards countering the repressive position of the European Commission for Democracy Through Law (the Venice Commission) regarding the eligibility of persons with intellectual disability to stand for election and vote. The Venice Commission in its“Interpretative Declaration to the Code of Good Practice In Electoral Matters on the Participation of People with Disabilities in Elections” stated:
“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.”
The purpose of the Venice Commission’s Interpretative Declaration was to clarify the Code of Good Practice in Electoral Matters (2002) in respect of the political participation rights of persons with disabilities. Part 1.1 of the 2002 code deals with rules and exceptions. It provides that provision may be made for depriving individuals of their right to vote and to be elected. However, this can only be done subject to a number of conditions. These conditions include that the depravation has to be provided for by law; the proportionality principle is observed and that the conditions for depriving individuals of the right to stand for election may be less strict than that for disenfranchising them. Part 1.1 also provides that the “… deprivation must be based on mental incapacity or a criminal conviction for a serious offence [and] … the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law.”
Since the Venice Commission adopted the Code of Good Practice in Electoral Matters (2002) there has been a significant rethinking about disability. The UN Convention on the Rights of Persons with Disabilities has reconceptualised disability as a human rights issue and through Article 12 of the CRPD (equal recognition before the law) has affirmed that persons with disabilities are entitled to make decisions on an equal basis with others and have those decisions respected. Article 12 rejects the status approach to assessing legal capacity, which has restricted the decision-making of persons with disabilities on the basis that they have a disability. The position adopted by the Venice Commission in 2002 is wholly inconsistent with international human rights law as articulated by the CRPD. Throughout the text of the CRPD there is a focus on empowering persons with disabilities and to ensure that they are no longer excluded from participating at all levels and in all spheres of life whether they be political, social or cultural. This is clearly seen in Article 3 in the Convention’s general principles where there is a focus on full and effective participation and inclusion in society and equality of opportunity. This is also clearly evident from Article 29, which sets out the obligations on State Parties to the CRPD in relation to ensuring the participation in political and public life of persons with disabilities.
This shift in thinking about the political participation and inclusion of persons with disabilities is somewhat reflected in the Venice Commission’s “Interpretative Declaration to the Code of Good Practice In Electoral Matters on the Participation of People with Disabilities in Elections” (2010). It stated “people with disabilities should … be able to exercise their right to vote and participate in political and public life as elected representatives on an equal basis with other citizens. The participation of all citizens in political and public life and the democratic process is essential for the development of democratic societies.” However, its statement that persons with physical and or mental disability can be excluded from the right to vote or stand for election if the restriction is imposed by a court of law is altogether inconsistent with international human rights law and current thinking. It is urgent that the Venice Commission refines its position to ensure that persons with disabilities can exercise core civil and political rights on an equal basis with others.
MDAC in conjunction with its partners are spearing a campaign to challenge the Venice Commission’s position – you can sign an online petition see here.
the right to vote; CRPD; MDAC; Committee of Ministers; Disability; exclusion; Council of Europe