18 June 2013

Two years and seven minutes ago

In June 2011 I spoke to the Venice Commission for seven minutes to try and persuade them that people with disabilities should have the right to vote. Yes, you read that correctly.

The Venice Commission is held in high regard by many. Affiliated to the Council of Europe, its role is to advise governments and parliaments on constitutional matters, including issues about constitutional courts, elections and so on. There are 57 members, one from each state of the Council of Europe, plus some North African States, Kazakhstan, Kyrgyzstan, Mexico, Peru and the US. It’s an odd mix of countries.

The Venice Commission invited me to address them because MDAC had raised concerns about an October 2010 document of theirs on the right to vote of people with disabilities. It said that, “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.” 

In February 2011 we sent a legal opinion asking the Venice Commission to change their document. Following this, the Maltese member proposed an alternative. It stated that a “court, in an individual decision, may consider that the lack of proper judgment of a [disabled] person may prevent him or her from exercising his or her right to vote or to stand for elections.” I think the square brackets means that one could remove the word “disabled” and therefore render the provision theoretically applicable to all – but that’s only a guess because no-one has explained the square brackets.

Neither of these proposals made any sense and we told the Venice Commission so. They replied inviting me to address them at their June meeting. We worked with the International Disability Alliance, the European Disability Forum and others on a statement, a copy of which I put on each member’s place around the huge table as soon as I arrived in the room. My task was to persuade the Venice Commission to dump their proposals and get behind the no-restrictions option (“This is a no brainer! What is it that they don’t understand?” I remember a colleague staff before I left for Venice).

The room inside Scuola Grande di San Giovanni Evangelista where the Venice Commission meets four times a year


“Mr Lewis, you have the floor!”

So on Saturday 18 June 2011, I addressed  the Venice Commission. I started by explaining the corrosive effects of an labelling someone as incapable:


“Huge damage is caused by stigma. For people with disabilities and their families, this includes loss of self esteem, shame and secrecy. Historically excluded from political discourse and therefore from the democratic process, people with disabilities have been isolated and segregated, their voices unheard and their autonomy and voting rights stripped away. Sometimes viewed as economically useless and abandoned by their families and communities, they are segregated in remote institutions where they are at increased risk of exploitation, violence and abuse. Disproportionately living at the edges of society, people with disabilities are truly ‘unequals’.”


I set out how the proposals failed to meet international human rights standards, which are of course a floor to stand on, not a ceiling to reach up to. In particular I referenced Article 29 of the UN Convention on the Rights of Persons with Disabilities, which sets out the right to vote and stand for election (no ifs or buts). I pointed out that inequality such as that perpetuated in the Venice Commission text was actually one of the reasons that the CRPD exists:


“One of the motivating factors behind the drafting of the Convention was a keen awareness that persons with disabilities could not exert pressure for change within the democratic system. They could not do so as they were directly locked out through disfranchisement and indirectly through inaccessible processes. Enhancing the voice of persons with disabilities in the political process was, and is, seen as just as important as securing other substantive rights. It remains the key to unlocking the invisibility of persons with disabilities at the policy level and throughout society more generally.”


I broached the possible reasons why the Venice Commission would want a judge have the power to strip someone of their right to vote:


“The hard truth is that democracies are – as Plato said, full of disorder. For example, 16% of Hungarian voters voted for the far-right and xenophobic Jobbik party in 2010. Do we remove these people who you may think lack ‘proper judgment’? Should we remove the right to vote from the 7,500 people who voted last year in the UK for the Monster Raving Loony Party? What is and what is not a ‘proper judgement’ is clearly nonsense, and reminds me of Winston Churchill who said that, ‘The best argument against democracy is a five minute conversation with the average voter.’ However uncomfortable we may be ultimately to live in a democracy is to value each vote equally, whatever we think about the voter.”


I looked up to a silent room full of stern faces. I continued by explaining that the issue is about trying to prevent the mad or incompetent vote, and that trying to do this was misplaced. The evidence about voting is that we all vote in a somewhat mad way (rather than the cognitive machine we imagine ourselves to be), and all of us are incompetent (do we ever have sufficient information to make an absolutely informed choice?). Having dealt with why a judge shouldn’t be given the power to strip someone of the right to vote, I tried to figure out how a judge would do this:


“A judge will sit in a court room with a potential voter, and the judge will reach a decision today that this person will not have the capacity to do what exactly? The judge will not know when the election will be, who the candidates will be, how the voter is going to be, what sort of supports she will have to help her understand the issues, what the major political issues will be, and which of these will be important for her. Think of how traumatic this process will be for the individual.”


I ended my speech by pointing out that disability is only really lined up after race and gender – very similar reasons (competence, trust, they can swing the election!) were used to restrict women from voting.


“Worldwide, women and others have fought prejudices to secure their right to vote. If their struggle for universal suffrage tells us one thing, it is that we should count the vote of every person rather than exclude those belonging to a certain group. What hangs in the balance in this room is nothing smaller than the promise of democracy.”



The chair had assembled a little working group in the morning and come up with what they called a “compromise text” which in actual fact was what we wanted, so wasn’t a compromise more than an agreement with the NGOs. He thought his compromise text would be voted in without much debate. He was wrong.

After my speech the polite silence broke, and several hands shot up and there were murmurs around the huge table. Several members grabbed the microphone in opposition to what I had said. One said he had felt “manipulated by Mr Lewis’s intervention” (I took this as a massive complement). The Dutch member said that he was horrified that the Venice Commission should recommend that governments should have a system where people who lack “voting competence” could not be excluded from voting. He didn’t say what he meant by “voting competence”, which I found particularly unhelpful. All the more surprising that the Dutch member should say this, given that the Netherlands has no restrictions on people with disabilities from voting.

The Chair of the session “did the math” and decided not proceed to a vote. He postponed the decision until the next meeting in October and closed the session and declared a coffee break. I left the room in shock. Several members came up to me discreetly saying well done and all that, and encouraging us to keep this on the agenda.

I stepped out on the streets of Venice. It was boiling. I walked until I was out of sight from the building and ducked into a café. I took off my jacket and tie. I ordered a double gin cappuccino. What the hell had just happened? Why is there such vicious opposition to the concept of voting equality? What’s the hidden agendas? What am I not understanding?

I had no idea then, but now I think the answer is simple, and that is deeply-held stigma against people with mental health diagnoses and people with intellectual disabilities.


Fuelled up

I reported back to our NGO partners. They were enraged as I was. Thanks to an injection of emergency funds from the Open Society Foundations, and in collaboration with other NGOs, we mounted a vigorous online and offline campaign (see www.savethevote.info for details), targeting various UN bodies (New York and Geneva), the European Parliament (Brussels), the Council of Europe (Strasbourg) and the human dimension meeting of the Organization for the Security and Cooperation in Europe (Warsaw). With Human Rights Watch we sent a letter to each of the Venice Commission members and substitutes (an intern spent a month digging out all of their contact details, the Council of Europe having refused to give us the data). 

The Venice Commission was supposed to consider the issue at their October meeting, but without explanation, the item did not appear on the agenda. WHAT? We couldn’t believe it.

In parallel we had been working with an expert committee of the Council of Europe who had been drafting their own document. In November the Committee of Ministers (the Council of Europe’s highest political body) issued a recommendation, which fully supported universal suffrage of people with disabilities. We breathed a sigh of relief, because we thought that some of the furious Venice Commission members may have contacted their governments and persuaded them not to vote for the recommendation.

The tension mounted on 3 December – World Day of People with Disabilities – with none other than the UN High Commissioner for Human Rights adding the pressure on the Venice Commission, by stating that “[t]he right to political participation and to have a voice in decision-making is one that has been in the spotlight this year around the world.” The subtext being that one organisation has also been in the spotlight!

The Venice Commission were cornered. Had they done nothing their credibility as constitutional law experts would have been seriously brought into question. Somewhat inevitably at their December meeting they adopted a revised document, which stated that “Universal suffrage is a fundamental principle of the European Electoral Heritage. People with disabilities may not be discriminated against in this regard, in conformity with Article 29 of the Convention of the United Nations on the Rights of Persons with Disabilities and the caselaw of the European Court of Human Rights.” I was not invited to that meeting. I would have loved to have been a fly on the wall.

So the Venice Commission capitulated. We declared the “Save the Vote!” campaign a success. Causation is always tricky when describing human rights impact. Often times we think, “Ok, we did ABC activities, and then there were XYZ results, but how do we know if our activities caused the results… perhaps the results would have happened anyway?!” This time causation was clear. The actions of many dozens of people in various international, European, American and Canadian NGOs had paid off. It was a huge victory for all of us.

This is the story of the fight we had at the international level, against a body which is supposed to be pro human rights. You can imagine what the hurdles are at the domestic level in Albania, in Moldova, in Hungary – in all countries where law still denies the right to vote from people with disabilities, or those under guardianship. We need funds to enable us to create change at the local level. One person, one vote. One credit card, one donation