Tciasia 精神障碍者应有投票权－致印尼宪法法庭
Transforming Communities for Inclusion – Asia
Convenor (2014- ): Bapu Trust for Research on Mind & Discourse
www.baputrust.com, bt.admfin09@gmail.com 91-20-26441989
SUBMISSION TO THE CONSTITUTIONAL COURT, INDONESIA BY TCI ASIA TCI asia 致 印度尼西亚宪法法庭
我们TCI的印尼小伙伴Yeni请TCIasia帮忙，向他们的游说，让精神障碍者也与其他人一样有平等的投票、选举等政治权利。全面而有效的政治参与、市民权利和参与权对于一个国家的民主和治理进程是至关重要的，这里理应包含精神和社会心理障碍人士。
1. The Purpose of this Submission to the Constitutional Court of Indonesia, by TCI Asia, is to highlight the importance of political participation, citizenship rights, and the right to participate fully and effectively in all the democratic and governance processes of a country, for the full Inclusion of persons with mental and psychosocial disabilities.
About TCI Asia
2. TCI Asia (Transforming communities for Inclusion of persons with psychosocial disabilities, Asia) is an Asian Alliance of people with psycho-social disabilities, and cross disability supporters, with purpose of advocating the realization of the UNCRPD in the Asian region. It is a regional DPO, striving to enhance the pedagogy and practice of Article 19 (Living Independently and being include in Community) for Asia [1]. TCI Asia has membership in 15 countries, with over 120 members across the region. TCI Asia has fostered a global vision and thinking on Article 19 on Inclusion.
TCI Asia is convened by Bapu Trust[2], an organization of persons with psychosocial disabilities in India, with eminent track record of working nationally and regionally, on the fulfillment of all our human rights. The organization participated in the making of the UNCRPD, attended the AdHoc Committee meetings[3], and has valuable academic contributions to the pedagogy and practice of ‘Inclusion’ in Asian region through the TCI Asia forum. The Bapu Trust works at the grassroots since a decade, providing community based mental health and inclusion services in the low income communities of Pune, India since 2004.
The Right to Political Participation, a universal Right
3. The right to political participation, and voting rights ensures the full and effective participation of all people within a country, to citizenship, socioeconomic contributions and to nation building. A person excluded from citizenship by denial of political participation faces complete exclusion and faces a ‘civil death’. Entry into the arena of Development requires, as a first step, recognition as a person before the law of the land.
- Like other colonized countries of the Asian region, Indonesia, a post colonial state, has struggled with the issue of political participation since independence; And since then, Indonesia has ratified many important covenants, building an image as a progressive state. Women’s right to political participation in Indonesia reflects the struggles of women’s movement in other countries in the region, for example, India, to achieve right to adult franchise [4] [5]. Prisoners, and those incarcerated in other institutions, for example, vagrancy homes, have equally struggled to have their right to political participation, and recognition as a voting citizen respected in some parts of Asia, due to a historical baggage of institutionalization and ‘trans-institutionalization’ of persons rendered ‘non-persons’ before the law [6]. In India, for example, people with leprosy, the deaf-blind and persons with multiple disabilities, people who were notified by colonial rulers as ‘criminal tribes’, ‘paupers’, ‘vagrants’ and ‘renouncers’ faced higher risk of civil death, along with people deemed to be ‘of unsound mind’. Many of these colonial vestiges in law continue in perverted legal forms in modern law in India, depriving people of their status as legitimate citizens of their countries.
5. The International Covenant of Civil Political Rights (ICCPR, which Indonesia has ratified, is categorical in the right to political participation of citizens, as exemplified in Article 25.
*Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: *
*(a) To take part in the conduct of public affairs, directly or through freely chosen representatives; *
*(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; *
*(c) To have access, on general terms of equality, to public service in his country. *
6. It may be that State parties to the ICCPR did not consider ‘disability’ to be a prohibited ground of discrimination, as it is not expressly noted to be so in Article 2[7]. In fact, in the General Comment on Article 25, it was stated that “4. Any conditions which apply to the exercise of the rights protected by Article 25 should be based on objective and reasonable criteria… For example, established mental incapacity may be a ground for denying a person the right to vote or to hold office.”[8] Indeed, it is distinctions like these that denied the availability of all human rights for all persons that prompted the creation of the Convention on the Rights of Persons with Disabilities, which addresses the exclusion of persons with disabilities from the protection of established human rights, and also mandates specific State obligations towards respecting, protecting, and fulfilling those rights*. *
7. National jurisdictions have sometimes created exceptions to the rule of Universal Adult Franchise on the grounds of disability, particularly those relating to intellectual or psychosocial impairments. While other disability groups face challenges with regard to access to voting materials and ensuring the secrecy of ballots, worldwide, the current legal framework bars access to even enrolment as a voter. In many jurisdictions, de jure exclusion happens on account of legislations which bar persons who have been held, by a Court of Law, to be ‘of unsound mind’ from enrolling as voters. It has been the experience that though such disqualification requires a Court order, it results in de facto exclusion by authorities who believe that certain individuals, on account of actual or perceived impairment, are of ‘unsound mind’.
8. Following the adoption and ratification of the UNCRPD, many countries are reviewing their laws and policies, to bring about compliance. As the CRPD is a newer treaty and the General Comment No. 25 for ICCPR was issued before the CRPD, the CRPD states the correct legal position on contemporary human rights law. Countries which have not even ratified the UNCRPD, such as the US, continue to set new standards and raising the bar on political participation[9] taking the insights of the UNCRPD.
9. Article 29 of the UNCRPD reinstates the unconditional right to political participation that it must be guaranteed to persons with disabilities on equal basis with others. To realize this right with regard to State elections, certain State obligations must be adhered to, including ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use; ensuring that persons with disabilities can vote through secret ballot and without intimidation; protecting the right of persons with disabilities to stand for elections and to be voted for, and to hold office with the support required; and ensuring the free expression of will of persons with disabilities as voters, including, when requested and when necessary, allowing for assistance in voting by a person of their own choice.
10. As a political right, Article 29 is to be immediately realized and not progressively. Also, Article 5 of the Convention places upon States the immediate obligation to prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. In order to promote equality and eliminate discrimination, States Parties shall ensure that reasonable accommodation is provided.
11. The implications for the full realization of Article 29 for States Parties can be seen from the analysis of the Concluding Observations issued by the UNCRPD Monitoring Committee [Annexure A]. A large majority of the Countries which have been engaged with so far have been advised amendments of laws which prevent persons with disabilities, particularly psychosocial and intellectual disabilities, from voting, or standing for elections. These observations have also been accompanied by strong observations on the need to make voting processes accessible to all persons with disabilities.
12. A case which had come to the CRPD Committee through the Optional Protocol from Hungary, involving five individuals under guardianship that were denied the right to vote, drew observations from the Committee that “Article 29 does not foresee any reasonable restriction, nor does it allow any exception for any group of persons with disabilities. Therefore, an exclusion of the right to vote on the basis of a perceived, or actual psychosocial or intellectual disability, including a restriction pursuant to an individualized assessment, constitutes discrimination on the basis of disability, within the meaning of Article 2 of the Convention.”[10]
13. State parties are taking remedial measures. The Council of Europe, in their Disability Action Plan 2006-2015, had ‘Participation in Political and Public Life’ as its first Action Line. For this, ‘specific actions’ by member states required States to “[e]nsure that no person with a disability is excluded from the right to vote or to stand for election on the basis of her/his disability”. Countries like Canada, South Africa, Netherlands have successfully removed all discrimination on the basis of disability from enrolment as voters.
14. Importantly, in the Sustainable Development Goals, the political inclusion of all persons with disabilities has found specific mention in Goal 10: Reducing Inequalities. In the Goal 10 targets, there is the aim to “(b)y 2030, empower and promote the social, economic and political inclusion of all, irrespective of age, sex, disability, race, ethnicity, origin, religion or economic or other status”; and also to “(e)nsure equal opportunity and reduce inequalities of outcome, including by eliminating discriminatory laws, policies and practices and promoting appropriate legislation, policies and action in this regard.”
15. It is sincerely hoped that the Indonesian Government adopts this progressive approach to ensuring the rights of persons with disabilities and preventing their disenfranchisement. Empowering persons with disabilities as voters is a means to ensure that prospective Governments cater to their needs and aspirations in policy making, and are held accountable for their duty to make the right real with respect to persons with disabilities. Further, opening the doors to citizenship for any group, including the group of persons with disabilities, is strengthening the human capital of the nation.
**Statement Endorsed by **
- Bapu Trust for Research on Mind & Discourse, Pune, India
Annexure I Article 29 (a) UNCRPD MONITORING COMMITTEE CONCLUDING OBSERVATIONS
| Text of Convention | State Party | Concluding Observations |
|---|---|---|
| States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake: |
| (a) To ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons withdisabilities to vote and be elected, inter alia, by: | |||
| Cook Island | The Committee recommends that the State party repeal provisions of the Electoral Act 2004 to ensure that all persons with disabilities, irrespective of their disability, can vote in private at polling stations, and stand for election. | ||
| Czech Republic | The Committee recommends that the State party amend the relevant laws so that all persons with disabilities can enjoy the right to vote and stand for election regardless of guardianship or other regimes. | ||
| Germany | The Committee recommends that the State party repeal all laws and regulations that deprive persons with disabilities of the right to vote, reduce barriers and put in place appropriate support mechanisms. | ||
| Mongolia | The Committee recommends the State party repeal legal provisions which deny or restrict the right to vote based on disability and develop appropriate legal measures to ensure persons with disabilities can fully participate in elections and public life as citizens, voters and/or candidates. | ||
| Turkmenistan | The Committee recommends that the State party make sure that all restrictions of the right to vote of persons with disabilities are removed, immediately by restoring the right to vote for persons deprived of legal capacity and by providing full accessibility and information in relation to their right to vote. | ||
| Denmark | The Committee recommends that the State party amend the relevant laws, including the Parliamentary Elections Act and other laws governing municipal, regional and European Parliament elections, so that all persons with disabilities can enjoy the right to vote and stand for election regardless of guardianship or other regimes. | ||
| Republic of Korea | It also recommends that the State party repeal provisions denying the right to vote and stand for elections and provide the right to vote and stand for elections regardless of type of disability. | ||
| Mexico | The Committee is concerned that persons with intellectual and psychosocial disabilities are denied the right to vote and that voting procedures, facilities and materials are not accessible. The Committee urges the State party to amend the Federal Code of Electoral Institutions and Procedures to give all persons with disabilities the right to vote. | ||
| Azerbaijan | The Committee urges the State party to remove restrictions and immediately restore the right to vote for persons deprived of legal capacity | ||
| Costa Rica | The Committee recommends that the State party immediately restore the right to vote of persons with intellectual or psychosocial disabilities. It further calls for the right to vote to be recognized to all persons with disabilities, including those who require more extensive assistance, ensuring that procedures, facilities and materials are appropriate, accessible and easy to understand and use. | ||
| Australia | The Committee recommends that the State party enacts legislation restoring the presumption of the capacity of persons with disabilities to vote and exercise choice; and to ensure that all aspects of voting in an election are made accessible to all citizens with a disability. | ||
| El Salvador | The Committee regrets that the Electoral Code prevents persons with psychosocial or intellectual impairments from exercising their right to run for municipal office. The Committee notes with concern that there are no mechanisms in place to ensure that persons with disabilities can vote in secret and that measures to ensure the accessibility of polling centres are inadequate. |
60. The Committee recommends that the State party repeal the provisions limiting the right to vote of persons with disabilities and adopt measures to ensure that such persons can run for public office. The Committee encourages the State party to increase opportunities for the political and social participation of organizations of persons with disabilities. | | | Paraguay | The Committee recommends that the State party repeal the provisions restricting the right of persons with disabilities of any kind to vote and that, in consultation with disabled persons’ organizations, it adopt measures to guarantee the right of universal, secret suffrage. | | | Argentina | Review the Electoral Code and introduce the necessary amendments to bring it into line with the standards set forth in the Convention, particularly with respect to legal capacity and the exercise of the right to vote on an equal basis;
(b) Pursue its efforts to ensure that institutionalized persons with disabilities have access to the polls by, for example, devising and implementing a national plan for ensuring that people are able to exercise their right to participation in political life | | | China | The Committee is concerned with article 26 of the Election Law, which excludes citizens with intellectual and psychosocial impairments from the voting process.
The Committee recommends the state party to revise article 26 of the Election Law to ensure that all persons with disabilities have the right to vote on an equal basis with others. | | | Hungary | The Committee recommends that all relevant legislation be reviewed to ensure that all persons with disabilities regardless of their impairment, legal status or place of residence have a right to vote, and that they can participate in political and public life on an equal basis with others. | | | Peru | The Committee recommends that the State party
(a) Restore voting rights to all people with disabilities who are excluded from the national voter registry, including people with disabilities subject to judicial interdiction;
(b) Reach out to vulnerable individuals and protect people with disabilities from such violations in the future, including through relevant training.
(c) Guarantee the right to vote of people with disabilities in institutions, by ensuring that they are physically permitted to go to assigned polling stations and have the support required to do so, or to permit alternative options. | | | Spain | The Committee recommends that all relevant legislation be reviewed to ensure that all persons with disabilities, regardless of their impairment, legal status or place of residence, have the right to vote and participate in public life on an equal basis with others. The Committee requests the State party to amend article 3 of Organic Act 5/1985, which allows the denial of the right to vote based on individualized decisions taken by a judge. The amendment should ensure that all persons with disabilities have the right to vote. | | | Tunisia | The Committee recommends the urgent adoption of legislative measures to ensure that persons with disabilities, including persons who are currently under guardianship or trusteeship, can exercise their right to vote and participate in public life, on an equal basis with others. | | (i) Ensuring that voting procedures, facilities and materials are
| appropriate, accessible and easy to understand and use | |||
| Cook Island | The Committee further recommends to ensure persons with disabilities access to polling booths, supply tools and instruments such as Braille voting sheets, make the ballot papers available to persons with disabilities with accessible technology, have available sign language interpreters so that persons with disabilities can vote in all elections; independently and secretly and if needed with a support person of their own choice. | ||
| Croatia | The Committee recommends that measures be taken to make the electoral process fully accessible to all persons with disabilities. | ||
| Czech Republic | It also recommends that the State party ensure, through legislative and other measures, the accessibility of ballots and election materials, and of polling stations. | ||
| Republic of Korea | The Committee recommends that the State party step up its efforts to ensure that voting is fully accessible to all persons, irrespective of disability, and that voting information is provided in all accessible formats. | ||
| Azerbaijan | The Committee urges the State party to … improve its efforts to ensure that voting is fully accessible to all persons, irrespective of disability, and that voting information is provided in all accessible formats. | ||
| Austria | The Committee commends the State party for its upholding of article 29 of the Convention by allowing all persons to vote including persons with intellectual and/or psychosocial disabilities. However, it does appear that many polling booths are not fully accessible to persons with disabilities. |
49. The Committee recommends that more work be done to ensure that voting is fully accessible to all persons, irrespective of disability, and that voting information is provided in all accessible formats. | | (ii) Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate;
| (iii) Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice; | |||
| Croatia | The Committee recommends that measures be taken to… facilitate participation of persons with disabilities in representative and executive bodies. | ||
| New Zealand | The Committee recommends that the State party consider the introduction of accessible electronic voting to enable persons with disabilities to cast their votes in a truly secret manner. | ||
| Denmark | It also recommends that the State party ensure, through legislative and other measures, the accessibility of ballots and election materials, and of polling stations, and that it ensure that freely chosen, adequate and necessary assistance is provided in order to facilitate voting by all persons. | ||
| Azerbaijan | It further recommends the State party to take specific measures to promote the participation of persons with disabilities in elected bodies. In this regard, the State party should provide information in its next periodic report on the representation of persons with disabilities in all elected and appointed bodies of the State party. |
[1] This submission draws from the consultative processes done between 2012-2015 of TCI Asia. We are grateful to all member participants, allies, partners, stakeholders and sponsors for the support and contribution.
[2] www.baputrust.com
[3] As a member of the World Network of Users and Survivors of Psychiatry, Denmark.
[4] Tri Inaya Zahra, “The Implementation of CEDAW related to women’s quota in Indonesian Parliament”; Also refer https://www.hrw.org/news/2009/10/15/women-are-entitled-equal-decision-making-roles, accessed on 21-04-2011 for women’s suffrage rights in North Africa and the Middle East.
[5] Indonesia ratified the ICCPR by Act Number 11 2005. In 1958, Indonesia had ratified the Convention on the Political Rights of Women.
[6] The practice of moving persons from one custodial institution to another, usually a process filled with many human rights violations.
[7] Which includes race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or “other status”.
[8] Human Rights Committee, General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25) (1996) (CCPR/C/21/Rev.1/Add.7), available at http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/d0b7f023e8d6d9898025651e004bc0eb?Opendocument.
[9] Recently, a US Governor in the state of Virginia, restored the voting rights of 200,000 ‘convicted felons’, hailed as a new standard in political participation. See https://www.hrw.org/news/2016/04/22/dispatches-virginia-governor-restores-voting-rights-convicted-felons
[10] Communication No. 4/2011 ZsoltBujdosó and five others versus Hungary