Democracy

a rticle 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected, and the right to participate in the public administration of one’s country. These are rights that go to the heart of democratic society and it appears that the drafters of article 25 may have taken the view that the enjoyment of human rights is dependent upon the existence of a democratic government based on the consent of the people. in part, this might be viewed as a troubling and slightly paternalistic approach: an approach that tends to undermine, rather than respect, the different bases of political governorship. For a document that repeatedly advocates tolerance, this is a slightly puzzling attitude. Having said this, it is plain that the Committee has taken a robust approach to the application of article 25. in its General Comment 25, it said:131

Whatever form of constitution or government is in force, the Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects.

it should be noted that, other than articles 13 and 25, the rights contained in the iCCPR are guaranteed to all persons within a State party’s territory. in contrast, article 13 applies to aliens alone, concerning expulsion procedures, and article 25 only to citizens of the State. Within the latter category, it is clear that no distinctions are permitted between citizens in the enjoyment of these rights on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. in Aumeeruddy-Cziffra v Mauritius for example, although no substantive application of article 25 was made, the Committee did observe that restrictions established by law in various areas may prevent the practical exercise of rights under article 25 if, for example, such interference with opportunity infringed the principle of sexual equality.132

130 Kimouche v Algeria, Communication 1328/2004, UN Doc CCPR/C/90/ D/1328/2004 (2007), paras 7.8–7.9.

131 General Comment 25, above n 86, para 1.

132 Aumeeruddy-Cziffra v Mauritius, Communication 35/1978, UN Doc CCPR/ C/1E2B/SDCO/3Pu5b/l1is9h7in8g (:19eB8o1ok),Apcaadreami9c .C2o(lcl)e2ct.ion (EBSCOhost) - printed on 3/11/2014 5:52 PM via UTICA

a lthough the Committee has not addressed the issue within any communication, it has commented that distinctions between those who are entitled to citizenship by birth and those who acquire it by naturalization may raise questions of compatibility with article 25.133

Limitations

a lthough article 25 does not contain a specific limitations clause, as a number of other provisions within the Covenant do, it does say that the rights within it are to be enjoyed by every citizen ‘without unreasonable restrictions’. No further guidance is provided within the text as to what might or might not constitute reasonable restrictions, although the Committee has commented:134

a ny conditions which apply to the exercise of the rights protected by article 25 should be based on objective and reasonable criteria. For example, it may be reasonable to require a higher age for election or appointment to particular offices than for exercising the right to vote, which should be available to every adult citizen. The exercise of these rights by citizens 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.

l imiting electoral rights on the basis of criminal convictions was a justification claimed by Uruguay in Touron v Uruguay. The author’s husband was convicted of subversive association and consequently barred from taking part in the conduct of public affairs and from being elected for a period of 15 years. The Committee noted that, under the legislation of many countries, criminal offenders might be deprived of certain political rights. it emphasized, however, that article 25 of the Covenant permits only reasonable restrictions and found that the 15-year ban was not reasonable.135

133 General Comment 25, above n 86, para 3.

134 ibid, para 4. See also Sohn v Republic of Korea, Communication 518/1992, UN Doc CCPR/C/54/D/518/1992 (1995), para 10.4; Crippa, Masson and Zimmermann v France, Communications 993–5/2001, UN Doc CCPR/C/85/D/993-995/2001 (2005), para 6.13; and Solís v Peru, Communication 1016/2001, UN Doc CCPR/C/86/D/1016/2001 (2006), para 6.3.

135 Touron v Uruguay, Communication 32/1978, UN Doc CCPR/C/12/D/32/1978 (1981), para 11. See also Altesor v Uruguay, Communication 10/1977, UN Doc CCPR/ C/15/D/10/1977 (1982), para 15; and Silva v Uruguay, Communication 34/1978, UN Doc CCEPBRSC/OCP/u1b2li/sDhi/n3g4:/1e9Bo7o8k (A1ca9d8em1i)c, Cpoallreact9i.on (EBSCOhost) - printed on 3/11/2014 5:52 PM via UTICA

Participation in the Conduct of Public Affairs

The conduct of public affairs, participation in which is secured under article 25(a), is a broad concept which relates to the exercise of political power, in particular the exercise of legislative, executive and administrative powers. a rticle 25(a) provides citizens with the opportunity to take part in all aspects of public administration, as well as the formulation and implementation of policy at international, national, regional and local levels. The Human Rights Committee has commented that the constitution and other laws of member States should establish the allocation of powers and the means by which individual citizens may exercise their right to participate in the conduct of public affairs.136

The scope of the right under subparagraph (a) was considered in Marshall v Canada, where the Committee took the view that the right is to be interpreted in the framework of the legal and constitutional system of States parties, which provide for the modalities of such participation. The Committee expanded on this approach:137

it must be beyond dispute that the conduct of public affairs in a democratic State is the task of representatives of the people, elected for that purpose, and public officials appointed in accordance with the law. invariably, the conduct of public affairs affects the interest of large segments of the population or even the population as a whole, while in other instances it affects more directly the interest of more specific groups of society. a lthough prior consultations, such as public hearings or consultations with the most interested groups may often be envisaged by law or have evolved as public policy in the conduct of public affairs, article 25(a) of the Covenant cannot be understood as meaning that any directly affected group, large or small, has the unconditional right to choose the modalities of participation in the conduct of public affairs. That, in fact, would be an extrapolation of the right to direct participation by the citizens, far beyond the scope of article 25(a).

The authors in that communication had sought, unsuccessfully, to be invited to attend constitutional conferences as representatives of the Mikmaq people. Notwithstanding the right of every citizen to take part in the conduct of public affairs without discrimination and without unreasonable restrictions, the Committee concluded that Canada’s failure to invite representatives of the Mikmaq tribal society to the constitutional conferences on aboriginal matters did not infringe the right under article 25(a) of the authors or other members of the Mikmaq tribal society.138

136 General Comment 25, above n 86, para 5.

137 Marshall v Canada, Communication 205/1986, UN Doc CCPR/C/43/D/205/1986 (1991), para 5.5.

E1BS3C8O Pubilbiisdhi,npga:raeB6oo.k Academic Collection (EBSCOhost) - printed on 3/11/2014 5:52 PM via UTICA

Bwalya v Zambia concerned facts impacting upon both subparagraphs (a) and (b). The author ran for a parliamentary seat in the constituency of Chifubu, Zambia. He complained that the authorities prevented him from properly preparing his candidacy and from participating in the electoral campaign and that, in retaliation for the dissemination of his opinions and his activism, the authorities subjected him to threats and intimidation. in January 1986 he was dismissed from his employment. The Ndola City Council subsequently expelled him and his family from their home, while the payment of his father’s pension was suspended indefinitely. The author claimed that, as a political activist and former prisoner of conscience, he was placed under strict surveillance by the authorities, and continued to be subjected to restrictions on his freedom of movement, including being denied a passport. The Committee was satisfied that violation of articles 12 (freedom of movement) and 19 (political expression) had occurred. a s to the alleged violation of article 25 of the Covenant, the Committee accepted that the author had been prevented from participating in a general election campaign as well as from preparing his candidacy for the party. This was considered as amounting to an unreasonable restriction on the author’s right to take part in the conduct of public affairs. The Committee expressed that restrictions on political activity outside the only recognized political party amounted to an unreasonable restriction upon the right to participate in the conduct of public affairs.139

Date: 2015-02-28; view: 1094

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