Right to Vote / Take Part in Government

An election was held. After the election, it was contended that there had been irregularities in the voting process at various polling places, including ballot stuffing, early closure of polling stations, and intimidation. The Supreme Court of Sri Lanka held that the irregularities would have affected the result of the election and that there therefore should have been a re-poll at those polling stations. It said, “The right to a free, equal and secret ballot is an integral part of the citizen's freedom of expression, when he exercises that freedom through his right to vote . . . That right is an essential part of the freedom of expression recognized by Article 14(1)(a) of the Constitution, especially in view of Sri Lanka's obligations under Article 25 of the International Covenant on Civil and Political Rights and Article 27(15) of the Constitution . . . The citizen's right to vote includes the right to freely choose his representatives, through a genuine election which guarantees the free expression of the will of the electors: not just his own. Therefore not only is a citizen entitled himself to vote at a free, equal and secret poll, but he also has a right to a genuine election guaranteeing the free expression of the will of the entire electorate to which he belongs." The Court then held that because the respondent had not ensured a fair election process, and subsequently had not annulled the polling at stations with irregularities, the right of the petitioners under the Sri Lankan constitution had been infringed. However, as nearly two years had passed in the interim, the Court held that it would not be feasible to declare the results of the respective polling stations invalid nor to order a re-poll. It did, however, award the petitioners their costs, even though they had not asked for compensation.

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The person elected by resident voters to the Provincial Council subsequently resigned, creating a vacant seat on the Council. The government then selected a person who was not on the ballot at election time to fill the seat. This was challenged in the Sri Lankan Supreme Court, which ruled that such action was invalid. It also held that only people who had been on the ballot at election time could be selected to fill a vacant seat on the Provincial Council. The Court said, “What is involved is the right of the electorate to be represented by persons who have faced the voters and obtained their support . . . That is wholly consistent with Article 25 of the International Covenant on Economic, Social and Cultural Rights, which recognizes that every citizen shall have the right and the opportunity to take part in the conduct of public affairs, directly or through freely chosen representative.” (emphasis in original).

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The Supreme Court ruled in favor of allowing the participation of Ang Ladlad as a party list group representing the LGBT community in elections.

"Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that homosexual conduct violates public morality does not justify criminalizing same-sex conduct. European and United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality grounds, citing general privacy and equal protection provisions in foreign and international texts. To the extent that there is much to learn from other jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign authorities, while not formally binding on Philippine courts, may nevertheless have persuasive influence on the Court’s analysis . . .

In an age that has seen international law evolve geometrically in scope and promise, international human rights law, in particular, has grown dynamically in its attempt to bring about a more just and humane world order. For individuals and groups struggling with inadequate structural and governmental support, international human rights norms are particularly significant, and should be effectively enforced in domestic legal systems so that such norms may become actual, rather than ideal, standards of conduct. Our Decision today is fully in accord with our international obligations to protect and promote human rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right to electoral participation, enunciated in the UDHR and the ICCPR . . .

We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the Philippines’ international law obligations, the blanket invocation of international law is not the panacea for all social ills. We refer now to the petitioner’s invocation of the Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and Gender Identity), which petitioner declares to reflect binding principles of international law.At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice. Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of international law to ascertain their true status. We also hasten to add that not everything that society – or a certain segment of society – wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect of diluting real human rights, and is a result of the notion that if “wants” are couched in “rights” language, then they are no longer controversial. Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are – at best –de lege ferenda – and do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the “soft law” nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and respect for human rights, most of which amount to no more than well-meaning desires, without the support of either State practice or opinio juris. As a final note, we cannot help but observe that the social issues presented by this case are emotionally charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in opinion. This Court’s role is not to impose its own view of acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient enough to withstand vigorous debate."

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(Papua New Guinea ratified the ICCPR on July 21, 2008. (http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en) Since then, it has been cited at least once by the Supreme Court, in July 2010. Though the Papua New Guinea Supreme Court citation of international human rights norms as a whole is limited compared to countries in the region such as New Zealand and Fiji, it will be interesting to see if the recent ratification of the ICCPR leads to more ICCPR and human rights norms citations, as the July 2010 case would suggest.)

The Supreme Court of Papua New Guinea decided on an issue concerning the Organic Law on the Integrity of Political Parties and Candidates (OLIPPAC), a law which put restrictions on elected officials switching parties, ostensibly to avoid a “musical chairs” of political party membership. Under OLIPPAC, a candidate could not be endorsed by more than one political party, and after the election, the elected official had to remain a member of his or her chosen political party for a given amount of time. He or she would then be subject to investigation if he or she did switch. Thus, there was concern that this would force elected officials to go along with the party and become yes men or women, lacking freedom to vote their conscience rather than with their party, and also the freedom to switch parties when they felt that their own views had become convergent with those of the party.

The Supreme Court of Papua New Guinea called this a “draconian” law. “A person’s right to hold political beliefs and to enjoy that right individually or in association with likeminded persons, ought not be restricted or prohibited in any democracy. This right, amongst other human rights, is recognised as an inherent and unalienable right under the International Bill of Human Rights (1978) and the United Nations International Covenant on Civil and Political Rights (1966), both of which PNG has ratified.” The Court then struck down the relevant provisions of OLIPPAC. The Court seemed to do so mostly on grounds that OLIPPAC was unconstitutional, but nevertheless, the ICCPR was cited for support.

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(In Malaysia, the uppermost court is the Federal Court, followed by the Court of Appeal, then the High Court.)

Suhakam, Malaysia's national human rights commission, had issued a press statement expressing concern over the government's arrest of seven activists on April 11, 2001. The activists had been critical of the government's prosecution of former Deputy Prime Minister Anwar Ibrahim, who had fallen out of favor with then-Prime Minister Mahathir Muhammad. The government had used the Internal Security Act (ISA) to detain the protestors. Suhakam accounced that it would recommend that the government repeal the ISA or amend it.

In its opinion, the High Court criticized Suhakam's statement as ''an unlawful interference with the lawful exercise of discretion of the detaining authority.'' The High Court said that any given court was ''confined in its duty of ascertaining what the law is and a corresponding application of it . . . [A court] cannot afford, nor should it afford itself, the luxury of going beyond that. Confusing the law as it is with what it can or should or ought to be in the area of the law as in this case will only give false hopes to the detainees and their understandably distraught loved ones.''

In so holding, the High Court took a narrow view of the role of courts in reviewing executive actions. Thus, international standards, under this view, could be interpreted narrowly as well, including human rights standards. The High Court also noted that the Universal Declaration of Human Rights allowed for human rights limitations in the interest of public order. Thus, under this view, Suhakam could not complain about ISA restrictions of human rights.

In so doing, the High Court tried to localize international human rights law and bring into the government's view of how human rights law should be implemented. Here, the High Court had interpreted the Universal Declaration of Human Rights through the Human Rights Commission of Malaysia Act. It had then interpreted the HRCMA through the Constitution, which eschewed greater restrictions on human rights than the Universal Declaration of Human Rights. The High Court's opinion indicated that courts were to fit international human rights law into domestic law standards, essentially reducing the applicability of international human rights law.

The detainees had applied for habeas corpus. The High Court rejected the application.

The case was appealed to the highest court of Malaysia, the Federal Court. The Federal Court, in a ''schizophrenic'' decision, held that the detention by the government was mala fide (the only basis on which a court may review an ISA detention order) because it was used for ''intelligence gathering'' and ''unconnected with national security.'' However, the Federal Court did not order the prisoners released, as their detention was made under a subsequent ministerial order not the subject of the prisoners' habeas corpus application. Also, the Federal Court held that the HRCMA provided only ''an invitation to look at the 1948 Declaration if one was disposed to do so.'' Thus, the Federal Court had maneuvered itself and manipulated the HRCMA's wording to preserve Malaysia's own domestic law, at the expense of international human rights law. This case illustrates how Malaysian courts see Suhakam as a possible harbinger of unwelcome international norms.

(found in ''Situating Suhakam: Human Rights Debates and Malaysia's National Human Rights Commission'' by Amanda Whiting, Stanford Journal of International Law, Winter 2003, Volume 39, Number 1, pp. 84-88)

Two people who had lived in the villages of the New Territories of Hong Kong all their lives could not prove that their ancestors had been in Hong Kong since before 1898. Such proof was necessary for them to be considered members of the indigenous community. Since this could not be proved, the two either could not vote and/or could not stand as candidates in certain elections, even though the relevant law had been amended in 1988 to rectify this shortcoming. There were also sex discrimination issues present, as the relevant law especially disfavored women. The Court of Final Appeal cited the ICCPR and held that these civic restrictions were not reasonable, and therefore inconsistent with the Bill of Rights.

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