Thediscussion and evaluation in the article written by Susan Easton generally moreinclined towards the arguments provided in the case of Hirst v UK whichspecifically addressing the issue of whether the disenfranchisement of prisonervoting in the United Kingdom is appropriate or not. It is highly important forus to note and consider that every single policy, action and especiallypunishment made by the government should be in accordance to the objective ofthe action and consistent with the moral judgment of the society. This is toensure not only that the objective of the action is achieved and fulfilled butalso to prevent any space for abuse of power and excessive use of force fromthe government.
Allowing government doing something without a relevantjustified objective and ways is actually allowing them to do whatever they maythink necessary even it is not. Susan Easton had reminds and bring back thearguments in favour and against the disenfranchisement of prisoner voting byHirst and the UK government in the European Court of Human Rights (ECHR).TheUK government justify their action on the ban of prisoner voting mainly basedon their belief that it is consistent with the objective of the punishmentwhich is intended to prevent crime, to punish the related offences, to enhancecivic responsibility and to promote respect for the law.1The government also believe that this punishment is proportionate to theintended objective of the punishment as it has exceptions to specific offences.
The government argued that the right to vote is not absolute and it is up tothe government on deciding and determining the limit to this right.2Hirst,on the other hand, directly engaging to the primary argument of the governmentby saying that the disenfranchisement is inconsistent with the intendedobjectives and there were no evidence to prove that it bears relation to eachother. Even if it is a punishment to the prisoner, it is not proportionate asit does not relate or depends to the seriousness of the offences committed. Itis also an arbitrary punishment as it is determined by the date of theconviction and whether or not it is parallel to the date of election is held.3The disenfranchisement, according to Hirst, is not accordance with theintention of enhancing civic responsibility as it alienated prisoners from thesociety.
Hirst in the end argued that the particular punishment used is notproperly justified based on the intended objectives but merely because of themoral judgment that prisoner is unworthy to vote.4Eastonthen brought judgment by the grand chamber in this case. It is worth to notethat grand chamber explicitly stated the measurement used to reach theirdecision upon the case which is that every punishment that is conducted by thegovernment must proportionate to the intended objectives, and must maintain tothe electoral procedure.
The grand chamber states that the general automaticban by the UK government is not acceptable but court acknowledge that thegovernment should be given the limit.5The grand chamber, also, states that the intended objectives by UK governmentis legitimate and valid as it is not set specifically in the article 3 ofprotocol no. 1, but the measures taken is irrational and unjustified to thoseaims.6The court also include limited guidelines as to how the punishment should beconducted, which are must be prescribed by law, cannot be a blanket ban, andmust restricted towards major crimes.
7Theapproaches and opinions taken by Easton have a lot in common with the opinionsby Richard L.Lippke in his article “The Disenfranchisement of Felons”. In thisarticle, Lippke brought his analysis to justify the disenfranchisement ofprisoner voting to two type of reasons, which are those that independent of thestated intended aims and that are directly related towards the intended aims. Underthe first type of reasons, it is believed that the government entitled tospecify any punishment to prisoners and that the government chosedisenfranchisement of prisoner voting because felons show contempt to the rulesof civil society, allowing prisoners to vote is allowing them to have say indetermining who execute the law and also that disenfranchisement is appropriatefor crime that bear the same characteristics with it; electoral offences8.Lippke stated that on the argument of prisoner show contempt to civil society,society were built with mutual benefit but the prisoners are unwilling toburdened the responsibilities by committing crimes and so society have theright to deprive the right received by the prisoners; the right to vote.9 Lippkethen questioned the argument as being very confusing because it may be truethat by committing certain crime, the felons show contempt to certain conceptin civil society but there is no clear relation why the right to vote is thethat should be taken from them.
10As an example given, robbers may show contempt to the property law but nottowards democracy or electorate.Onthe next argument on this reason, Lippke stated that it was not plausible becauseit was generally known that it is impossible for prisoners to be elected, atleast at the time they were prisoned. Assuming that even if they were allowedto vote and that they would have some degree of influence in determining thenext administration body, and assuming that they would vote those who invite opennesstowards criminal, this elector obviously would not be elected by generalmajority. This argument is rejected. Theonly plausible reason in this argument is that disenfranchisement should beallowed for those who have committed the electoral offence.11This reason is consistent with the first one as its punishment is proportionateto the nature of the crime they committed.
Again, if this argument were to beused to the United Kingdom, the current ban which is blanket ban still does notparallel to this concept as it narrowed down only to electoral offence and notto all other offences. Whatis more important to consider is on the second part of the arguments by Lippke.He specifically discussed the relation between disenfranchisement as punishmentwith the intended objectives stated by the government which are crimereduction, retribution and rehabilitation12. Lippke explixitlystated his doubt on the crime reduction argument. He comparesdisenfranchisement with incarceration. He argued that incarceration whichdenies more rights than enfranchisement such as the freedom of movement and theright to associate with anybody whom one pleases which practiced daily, stillcannot fully functioning on reducing serious crime and so there is no justifiedreason as why should we believe that disenfranchisement would do so.13Assuming that even if we live in society that concerned heavily with electionand democracy which highly doubtful, society are not aware with this punishmentas it usually does not stated in the court during their conviction.
Inthe second argument which justifies disenfranchisement for retributivism, thatthe punishment were conducted to restore equal distribution of benefits andburdens by the law towards the society. The issue raised by Lippke is whyspecifically disenfranchisement were used as the punishment while there are someother ways of punishing them. He quoted Jeremy Waldron saying that under thisprinciple, penal sanctions should be arranged so that the convicted prisonerspossesses all or at least some of the characteristics that made the offensewrong.14Under this argument, only those who commit electoral offence should be punishedand the question of why others who committed other types of offences should bepunished remains unjustified and unanswered.15Inthe rehabilitative argument, Lippke discussed over whether harsh punishment iseffective in giving rightful teaching to the prisoners.
16It is highly believe that incarceration as form of hard punishment cannot byitself effect reform in serious offenders though to certain degree, it providesthe prisoners opportunities to reflect reasons why they were there in the firstplace. Lippke argued that disenfranchisement is plausible if society or theprisoners feel the sting of exclusion from the ranks of equal democraticparticipation.17But he also argued that allowing prisoners to vote may give them incentives toparticipate in society and further take serious interest in theresponsibilities towards society. Thefirst part of arguments brought by Lippke were not discussed by Eastonspecifically but she mentioned that these kind of reasons should not be used tojustify government’s action. Easton stated that punishment by the governmentare only justified if it fulfills the intended objectives which fully discussedin the second part of the arguments. Both authors take serious considerationsin the arguments relating to the intended reasons as whether it is consistentor not but yet both authors agree that blanket ban or general disenfranchisementis not justified and not reasonable at all. It is only justified and plausibleif government were to use the punishment against those who committed electoraloffence. Contradictedwith Lippke and Easton, Manfredi fully agreed with the disenfranchisement ofprisoner voting by the government.
In his influential article “Judicial Reviewand Criminal Disenfranchisement in the United States and Canada”, he explicitlystated that there is a principled argument as to why the disenfranchisement ofprisoner voting is justified and legitimate for government to enforce it.Inthe beginning of his article, he discussed about the conflicting decisionsbetween Canada supreme court and the United States supreme court on the sameissue, the disenfranchisement. The United States supreme court held that thedisenfranchisement of prisoner voting is legitimate and that any decision takenby the state or the parliament should be respected by court as long as it doesnot contradict directly with the constitution.18This was categorised by Manfredi as aligned with interpretivist nature whichuphold that judges nullification only legitimate when statute contradictspecifically to constitutional provision.19Canada, on the other hand, held that the disenfranchisement of prisoner votingis not legitimate as it violated the Canadian Charter of Rights and Freedom.20 Canadahas been categorised by Manfredi as having the non-interpretivist ideologywhich recognise judicial sector as a creative task of identifying and applyingnovel rights.
21Canada, based on the current judgment on Sauve is consistent with both types ofnon-interpretivism which one acknowledge judicial creativity in reviewing theprocess of decision-making and not the substantive choices while the otherextreme one which recognized adjudications as value-oriented judicial activismon the basis that courts is the only legitimate body to determine it because itdeals regularly with fundamental policy-making problems. But both of thesetypes of judicial review; interpretivist and non-interpretivist seems cannotenhance the capacity of court to exercise moral reasoning. Neitherinterpretivism nor noninterpretivism promotes moral reasoning as one promotes avoidanceand another promotes will over judgment22.
The United Kingdom has to decide its adjudication position as leaning moretowards interpretivism or noninterpretivism but recent judgment in Hirst can bea concrete evidence that United Kingdom is a noninterpretivism but a moderateone.Onthe second part of Manfredi’s analysis, he described the nature of prisonervoting disenfranchisement that made it legitimate for government to apply itand this were associated with liberalcitizenship and rationale for punishment.23Classical theorists like Aristotle believes that capacity for moral virtue wasa prerequisite for the right to participate in political deliberation anddecision-making and under this belief, there were some classes of individualsthat are not included in citizenship such as children, laborers and slaves. Butthe liberal principles of universal citizenship reflects that there should beno natural stumbling block to citizenship. Manfredi then argued that anyrestrictions imposed for voting must first satisfy two conditions.
First,restrictions cannot be in a positive form such that they had prove themselvesdeserve it.24The second condition is that the restriction must be universal that they couldbe impose to any citizen. Under these two conditions, the disenfranchisementsatisfy both because the disenfranchisement does not require citizen to provethemselves worthy to vote and it even indicate the non existence of civicvirtue of the individuals to vote.25The disenfranchisement also pass the second condition as it generally excludeall prisoners without discriminating the races or gender. Manfredi also arguedthat the disenfranchisement is not permanent and recognized the capacity andcapability for prisoner to recover and restore their civic virtue and votelater on.Anothersupporting argument brought by Manfredi to justify the disenfranchisement ofprisoner voting is the one that associate with liberal conception of civicvirtue.
This argument suggest that any punishment conducted to criminal notsimply to prevent future criminal but also to show society’s rejection anddisapproval of their wrongful conduct26.This argument also entails indirectly that citizenship comes with duties andresponsibilities and those who lack of these should be suspended of their rightto vote.Theopinions brought by Manfredi can be said as contradict with Lippke and Eastonbecause the perspective brought by each of the authors. Easton try to analyseand judge the current decision based on the intended legitimate aim by thegovernment and use it as the highest indicator to determine whether thedisenfranchisement is legitimate or not while Manfredi approached the questionby understanding the nature of the punishment as whether government has theright to decide over it or not. It is highly important to note that thediscussion of Manfredi, Easton and Lippke can be quite different because theywere referring to different cases happened in various different countries;United Kingdom, United States and Canada but this has brought a much broaderperspective. Manfredi also brought a useful analysis when he categorised twotypes of judicial activity which are interpretivist and noninterpretivist andit may be useful for the United Kingdom to solve the issue by determining whichsystem they are in.
There were also a useful suggestions by Canada supremecourt that they would prefer to leave each prisoner for the court to judge eachcase-by-case basis so that they can deal with it separately and prevent anyspace for generalization in punishment. But this argument can only be used ifthere is a complete protocol or procedure as to how judges should do this orelse it would be excessive discretionary on judge’s side. I think thatarguments by Lippke and Easton is much more legitimate compared to Manfredibecause they were referring to the intended aims. If government were allowed todo something without referring to the legitimate intended aims, it would probablymuch easier leading to abuse of power by government. 1 S. Easton, Electing TheElectorate: The Problem Of Prisoner Disenfranchisement (2006) 443 Modern LawReview2 S. Easton (n 1), 4453 S. Easton (n 1) 4464 Ibid.
5 S. Easton (n 1) 4476 Ibid.7 Ibid.8 Richard L. Lippke, ‘TheDisenfranchisement Of Felons’ (2001) 553 Law And Philosophy9 Richard L. Lippke (n 8)56110 Ibid.
11 Richard L. Lippke (n 8)56212 Richard L. Lippke (n 8)56813 Ibid.14 Richard L. Lippke (n 8) 57115 Richard L.
Lippke (n 8)57216 Richard L. Lippke (n 8)57317 Richard L. Lippke (n 8)57418 Christopher P. Manfredi,’Judicial Review And Criminal Disenfranchisement In The United States AndCanada’ (1998) 277 The Review Of Politics19 Christopher P. Manfredi (n18) 28420 Canada Elections Act,R.S.
C. 1985, c. E-2, s. 51(e).
Section 3 of the Charter declares that “everycitizen of Canada has the right to vote in an election of members of the Houseof Commons or of a legislative assembly and to be qualified for membershiptherein.”21 Christopher P. Manfredi (n18) 28422 Christopher P. Manfredi (n18) 28923 Christopher P.
Manfredi (n18) 29224 Christopher P. Manfredi (n18) 29725 Ibid.26 Christopher P. Manfredi (n18) 299