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Legal Capacity to Vote? – The Human Rights of Persons with Disabilities in 2019 Elections

Corporate News


11 Apr 2019

Poland, the Philippines, Denmark, Thailand, Malta, India, Finland, Romania, Indonesia, Lithuania, Spain, Croatia. What do these countries have in common? Apart from all being ASEM Partners, these countries are united by the fact that in 2019, they will be holding presidential, parliamentary, or general elections.

However, many citizens of these countries who are living with disabilities, including those with psychosocial disabilities, will not be allowed to vote. This is because these citizens have been deprived of their legal capacity.

The 16th Informal ASEM Seminar on Human Rights was held in Beijing, China, from 8-10 November 2016. The theme of the seminar was Persons with “Disabilities and Human Rights” and it was attended by civil society and government representatives of the 51 ASEM Partner countries.

Participants of the Seminar came together to discuss the barriers that prevent persons with disabilities from fully participating in political, cultural, and economic life. What can be done to remove these barriers? What policy changes need to be made?

The first key recommendation of the Seminar directly addressed this issue:

  1. 1.1.States must respect the principle of participation and must meaningfully include persons with disabilities in political decision-making and policy-framing processes.

1.1.a.   They must recognise that all persons with disabilities, including those with intellectual and psychosocial disabilities, have their own individual will and preferences that must be respected;

1.1.b.   New technologies and accessible media formats must be provided to ensure that all voters can make informed and independent voting decisions.    

As a “principle of participation”, having legal capacity and the right to vote is very important for the individual. A 6 March 2009 article by Health Europa argues that legal capacity is “an inherent right that everybody has, it is the formal ability to hold and to exercise rights and duties”.

In addition to considering the implications for individuals, the Seminar participants also considered the impact of traditional legal capacity laws on democracy as a whole. Participants argued that the ability to participate is an “essential element of every democratic society”.

Since 2016, many States have respected the recommendations made at the Seminar and made policy changes which facilitate greater inclusion of persons with disabilities in decision making processes. For example, in November 2016, the Indonesian Constitutional Court determined that citizens with intellectual or psychosocial disabilities have the right to register to vote. Another example is the work of the Chief Electoral Commissioner for the Electoral Commission of India, who is working to make elections more accessible by providing “ramps, tactile signages, wheel chairs, priority in voting, volunteers, accessible parking, voter facilitation centres, accessible voter awareness material and accessible websites”, etc..

Meanwhile in Europe, as noted by Health Europa, Belgium, the Czech Republic, Croatia, Denmark, Spain and Slovakia have either “softened or removed restrictions on the right to vote in the European Parliament elections for people deprived of legal capacity”. While all of these changes are to be celebrated, they often do not go far enough to restore the right to vote of persons deprived of their legal capacity, and many other countries are yet to make any progress at all.

Health Europa draws attention to the fact that approximately 500,000 Europeans living with disabilities will still not be able to vote in the upcoming European Parliament elections. This is because, as revealed in a February 2019 EU Agency for Fundamental Rights (FRA) report, 18 EU Member States still prevent people deprived of legal capacity from voting in the European Parliament elections.

In the face of such widespread limitations placed on persons with disabilities, that exist across Asia and Europe, seminar participants argued for both a policy shift and a framework shift. The “individual choice” of persons with disabilities should be prioritised, and alternatives to “traditional guardianship” and legal capacity laws should be found.

Disability advocates around the world are also calling for an urgent shift. Mental Health Europe argues that reforms should support persons with disabilities, including psychosocial disabilities as they exercise their rights. Such changes should include “lifting legal and administrative barriers to political participation, increasing awareness of the right to political participation of persons with disabilities, making voting procedures, facilities and election materials more accessible and expanding opportunities for participation in political life.” In Asia, a similar shift is starting to occur but with a bottom-up approach: AGENDA, the General Election Network for Disability Access, is working to support disabled persons’ organizations and election-focused civil society organizations to better advocate for change.

While all of these changes may not make it in time for the upcoming 2019 elections in Asia and Europe, a genuine policy and framework shift on the right of persons with disabilities to participate in political life is clearly long overdue.

About the author

Rebecca FRANKUM comes to the Asia-Europe Foundation from New Zealand, where she is currently finishing her Masters in European Union Studies. Rebecca is particularly interested in researching and writing about human rights, media and democracy, and the Asia-Pacific region.

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