Elections

The holding of elections is regulated by article 25(b). The provision addresses both the rights of voters and candidates, as well as the manner in which elections are to be conducted is order to secure ‘the free expression of the will of the electors’.

The right to vote From a citizen’s perspective, participation in the electoral process is guaranteed by the right to vote and to be elected, which must be established by domestic law.140The right to vote is not an absolute right and the Committee has taken the approach that limitation may be acceptable so long as no distinction is made between citizens on the grounds mentioned in article 2(1),141 and that no unreasonable restrictions are imposed.142a s already indicated, article 25 only permits objective and reasonable restrictions to be placed upon the rights within the text. it has been ruled that it is acceptable to set a minimum age limit

139 Bwalya v Zambia, Communication 314/1988, UN Doc CCPR/C/48/D/314/1988 (1993), para 6.6.

140 General Comment 25, above n 86, para 7.

141 Namely, without distinction such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

142 General Comment 25, above n 86, para 6. See, for example, Debreczeny v The Netherlands, Communication 500/1992, UN Doc CCPR/C/53/D/500/1992 (1995); and GorEjBiS-CDO iPnubklaisvhiCnga:meeBroookonAc,aadebmoicveConll5ec,tpioanra(E5BS.C6O.host) - printed on 3/11/2014 5:52 PM via UTICA

for the right to vote or hold office, but that it would be unreasonable to restrict the right to vote on the ground of physical disability or to impose literacy, educational or property requirements. The Committee has also commented that membership of political parties should not be a condition of eligibility to vote, nor a ground of disqualification.143if conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote (discussed further below).144

a s with various other provisions in the Covenant, the right to vote imposes a positive duty upon the State to guarantee its enjoyment. The Committee has expanded upon this principle, saying:

States must take effective measures to ensure that all persons entitled to vote are able to exercise that right. Where registration of voters is required, it should be facilitated and obstacles to such registration should not be imposed. if residence requirements apply to registration, they must be reasonable, and should not be imposed in such a way as to exclude the homeless from the right to vote. a ny abusive interference with registration or voting as well as intimidation or coercion of voters should be prohibited by penal laws and those laws should be strictly enforced. Voter education and registration campaigns are necessary to ensure the effective exercise of article 25 rights by an informed community.

The Human Rights Committee has gone further to say that States parties must also take steps to overcome specific difficulties that citizens may face in the exercise of their voting rights, such as illiteracy, language barriers, poverty, or impediments to freedom of movement which prevent persons entitled to vote from exercising their rights effectively.145it has suggested, by way of example, that information and materials about voting should be available in minority languages and that methods such as photographs and symbols should be adopted to ensure that illiterate voters have adequate information on which to base their choice.

Prisoners’ right to vote The coming into force of the iCCPR and its Optional Protocol has seen, in a number of instances, the introduction of amending legislation to provide the right to vote to those imprisoned within States parties. in Canada, for example, the National a ssembly of Quebec adopted several amendments to the Quebec Election a ct in order to bring the legislation into conformity with the provisions of article 25. The amendments established, inter alia, the right of every inmate to vote in general elections in Quebec and added special provisions relating to voting procedures for inmates. a rticle 64 of the a ct provided in particular that

143 General Comment 25, above n 86, para 10.

144 ibid, para 14.

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‘to allow inmates to exercise their right to vote, the Director General of Elections may make any agreement he considers expedient with the warden of any house of detention established under an a ct of Parliament of Canada or of the l egislature’. This provision came into question in CF v Canada. in view of upcoming general provincial elections in Quebec, the Director General of Elections of Quebec, on 11 March 1981, concluded an agreement with representatives of the wardens of the provincial detention centre of Quebec concerning the voting of the detainees of provincial detention centres. To enable such voting to occur, a similar agreement was required between the Solicitor General of Canada, as head of the federal penitentiary system, and the appropriate provincial authorities. The Solicitor General of Canada determined, however, not to conclude such an administrative agreement, the effect of which precluded detainees in federal penitentiaries from voting in general provincial elections. He argued that that matter required further study.

Canada argued before the Committee that this decision did not constitute an unreasonable restriction upon prisoners’ rights under article 25(b) because of the substantial administrative problems involved in enabling inmates in federal penitentiaries to vote in general elections; and for the reason that it was not unreasonable to withhold the right to vote in general elections from people who have engaged in criminal misconduct sufficiently serious to justify their detention in a federal penitentiary.146On procedural issues, the Committee determined that the latter communication was inadmissible for failure to pursue domestic remedies.147Canada subsequently advised the Committee, however, that pursuant to a decision of the Federal Court of Canada in December 1985 in the case Levesque v Attorney-General of Canada, the right of penitentiary prisoners in Quebec to vote in provincial elections was upheld and an order made requiring the Federal Minister of Justice and the Solicitor General to make the necessary arrangements to put this into effect.148

The right to vote for citizens abroad The question of whether such a right exists was raised in Colchúin v Ireland. The author, ordinarily resident in a ustralia, was unable to vote in elections for the irish Parliament, for the Presidency and in referenda, by operation of the Electoral a ct (ireland). The a ct limited registration as an elector to those ordinarily resident in an irish constituency. The author argued that this was inconsistent with article 25 of the Covenant, which guarantees the right to vote to ‘every citizen’. in contrast, ireland argued that in order to qualify as a victim of a violation of article 25, an individual must be a citizen of the country, as well as being within its territory and subject to the jurisdiction of a State party. The communication was ultimately dismissed on the basis that

146 CF v Canada, Communication 113/1981, UN Doc CCPR/C/24/D/113/1981 (1985), para 8. See also Gorji-Dinka v Cameroon, above n 5, para 5.6.

147 ibid, para 10.

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the author was not a ‘victim’ as required under the Optional Protocol, since the author’s communication challenged his inability to participate in certain elections in the abstract.149Regrettably, the Committee made no comment on the substance of either position expressed by the author or State.

The conduct of elections To ensure the accountability of representatives for the exercise of legislative and executive powers vested in them, elections are required to be genuine and periodic. Elections must be held at intervals that are not unduly long and which ensure that the authority of government continues to be based on ‘the free expression of the will of electors’ (as expressed within article 25(b)).150 This means that elections must be conducted by universal and equal suffrage, and held by secret ballot. The Committee has said that an independent electoral authority to achieve the stated aims should supervise the conduct of elections and of candidacy to stand for elections.151

Because elections must be held by secret ballot, States are required to take measures to guarantee the requirement of the secrecy of the vote during elections, including absentee voting, where such a system exists. This implies that voters should be protected from any form of coercion or compulsion to disclose how they intend to vote or how they voted, and from any unlawful or arbitrary interference with the voting process. The security of ballot boxes must be guaranteed and votes should be counted, the Committee has said, in the presence of the candidates or their agents. There should be independent scrutiny of the voting and counting process and access to judicial review or other equivalent process so that electors have confidence in the security of the ballot and the counting of votes. l ikewise, assistance provided to the disabled, blind or illiterate should be independent. Electors should be fully informed of these guarantees.152 it would seem, from the wording of article 25(b), that there is no further prescription upon the voting and vote-counting procedures for elections. The issue of whether automated vote- counting was in breach of article 25(b) was raised in Clippel v Belgium. Belgium argued that the Covenant neither prescribed nor prohibited any specific voting system and the substance of the communication was ultimately unresolved since it was declared inadmissible through a failure by the author to exhaust local remedies.153

149 Colchúin v Ireland, Communication 1038/2001, UN Doc CCPR/C/77/ D/1038/2001 (2003), para 6.3.

150 General Comment 25, above n 86, para 9.

151 ibid, para 20; and Sinitsin v Belarus, Communication 1047/2002, UN Doc CCPR/ C/88/D/1047/2002 (2006), para 7.3.

152 ibid.

153 Clippel v Belgium, Communication 1082/2002, UN Doc CCPR/C/77/D/1082/2002 (20E0B3SC)O, pPuabrlais6hi.3ng. : eBook Academic Collection (EBSCOhost) - printed on 3/11/2014 5:52 PM via UTICA

Voters should be able to form opinions independently, free of violence or threat of violence, compulsion, inducement or manipulative interference of any kind.154 The Committee has expressed that the principle of one person, one vote must apply to elections and that the vote of one elector should be equal to the vote of another. a lso, the drawing of electoral boundaries and the method of allocating votes should not distort the distribution of voters or discriminate against any group and should not exclude or unreasonably restrict the right of citizens to choose their representatives freely.155The drawing up of electoral regions was considered in Mátyus v Slovakia, where the Committee said:156

a s regards the question whether article 25 of the Covenant was violated, the Committee notes that the Constitutional Court of the State party held that by drawing election districts for the same municipal council with substantial differences between the number of inhabitants per elected representative, despite the election law which required those voting districts to be proportional to the number of inhabitants, the equality of election rights required by the State party’s constitution was violated. in the light of this pronouncement, based on a constitutional clause similar to the requirement of equality in article 25 of the Covenant, and in the absence of any reference by the State party to factors that might explain the differences in the number of inhabitants or registered voters per elected representative in different parts of Rožòava, the Committee is of the opinion that the State party violated the author’s rights under article 25 of the Covenant.

Standing for office a s for all other aspects of article 25, the right to stand for office may be the subject of reasonable limitations. The Committee has found that it is unreasonable to require candidates to be members of parties or specific parties. in contrast, it has said that requiring candidates to have a minimum number of supporters is not unreasonable, so long as this requirement is not so burdensome as to act as a barrier to candidacy.157

Proficiency in the official language of the State has been implicitly accepted as being a permissible condition. in Ignatane v Latvia, the author was a teacher in Riga. in 1993, she had appeared before a certification board (a panel of five experts) to take a l atvian language test and was subsequently awarded a language aptitude certificate stating that she had level 3 proficiency (the highest level). in 1997, she stood for local elections as a candidate of the Movement of Social Justice and Equal Rights in l atvia list. Prior to the elections, she was struck off the list by decision of the Riga Election Commission, on the basis of an opinion issued

154 General Comment 25, above n 86, para 19.

155 ibid, para 21.

156 Mátyus v Slovakia, Communication 923/2000, UN Doc CCPR/C/75/D/923/2000 (2002), para 9.2.

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by the State l anguage Board that she did not have the required proficiency in the official language. The Committee placed emphasis on the fact that five experts had assessed the first examination, in 1993, whereas the 1997 review was conducted in an ad hoc manner and assessed by a single individual. The annulment of the author’s candidacy was therefore not found to be based on objective criteria and thereby incompatible with the State party’s obligations under article 25 of the Covenant.158

Conditions relating to nomination dates, fees or deposits should also be reasonable and not discriminatory. Where elective offices are seen as incompatible with tenure of specific positions, such as judicial, military or public service, measures to avoid any conflicts of interest should not unduly limit the right to stand for political office. l aws based on objective and reasonable criteria and incorporating fair procedures should establish any grounds for the removal of elected office holders.159Restrictions on the right to be elected to a municipal council were regulated, in Debreczeny v The Netherlands, by law and based on the electee’s professional appointment by or subordination to the municipal authority. The Netherlands explained that these restrictions were invoked to guarantee the democratic decision-making process by avoiding conflicts of interest. in such circumstances, the Committee considered that the restrictions were reasonable and compatible with the purpose of the law. in the context of the communication before it, the Committee observed that the author was at the time of his election to the council of Dantumadeel serving as a police officer in the national police force, and was in that role accountable to the mayor of Dantumadeel. The Committee thus agreed that a conflict of interest could arise and that the application of the restrictions to the author did not constitute a violation of article 25 of the Covenant.160

Of significance, and going to the very substance of the right, candidacy may not be restricted on the basis of political opinion.161 This must, of course, be tempered by the prohibition under article 5(1) from acting in a manner aimed at the destruction of any of the rights and freedoms recognized in the Covenant. Reasonable limitations on campaign expenditure may be justified where this is necessary to ensure that the free choice of voters is not undermined or the democratic process distorted by disproportionate expenditure on behalf of any candidate or party.162

158 Ignatane v Latvia, Communication 884/1999, UN Doc CCPR/C/72/D/884/1999 (2001), para 7.4.

159 General Comment 25, above n 86, para 16.

160 Debreczeny v The Netherlands, above n 142, para 9.3.

161 General Comment 25, above n 86, para 17. See, for example, Gorji-Dinka v Cameroon, above n 5, para 5.6.

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