Setback for Democracy：Tsai Administration Deprives Prisoner Voting Rights
China Times Editorial, December 1, 2023
The 2024 presidential election is approaching, and a prisoner in Taipei sued to vote in the election. While the Taipei High Administrative Court ruled that the Taoyuan City Election Commission should set up a polling station in the prison or other suitable methods for him to vote, the Supreme Administrative Court overruled that decision, citing technical issues related to ensuring a secret ballot. This decision has eliminated the opportunity for incarcerated individuals, like Lin, to vote in presidential elections. The ruling Democratic Progressive Party (DPP) is criticized for not addressing this issue despite being in power for over seven years, which once again highlights the democratic regression mentality of the DPP administration and its lack of determination for judicial reform.
The issue of prisoners’ voting rights indeed faces many execution challenges. In recent years, civil reform groups have tirelessly advocated and held numerous seminars for this cause, yet the Ministry of Justice, the Central Election Commission (CEC), and the DPP administration have remained indifferent, leaving those voices of advocacy to become mere rhetoric. The DPP holds high the banner of judicial reform while ignoring the voting rights of incarcerated individuals.
The judge in the Taipei High Administrative Court, in ruling on a provisional injunction application, cited examples from various countries that have set up polling stations in prisons or implemented remote voting methods to safeguard the voting rights of prisoners.
Viewing the prisoner's plea from a constitutional perspective, the judge emphasized that the constitutional protection of the right to vote is one of the fundamental political rights of the people in a democratic country. Prisoners are citizens in custody, and although their personal, residential, and freedom of movement rights are restricted during incarceration, other basic civil rights remain constitutionally protected. The judge also argued that setting up polling stations in prisons complies with the regulations of the Election and Recall Act, and since the law does not distinguish between the identities of voters, excluding prisoners would be equivalent to depriving them of their right to vote, violating the principle of equality.
The ruling by the Taipei High Administrative Court is the first case in the country to rule that prisoners are allowed to vote, and it will immediately impact the 2024 presidential election. However, the Ministry of Justice and the CEC have been shifting blame, with the CEC choosing to appeal. Chairman Lee Chin-yung of the CEC expressed frustration, highlighting the challenges of deciding whether to set up polling stations inside or outside the guarded areas of prisons.
The CEC seems unwilling to make efforts to provide more opportunities for prisoners to participate in democratic politics. Instead, they are trying to set up barriers everywhere, hindering the people from exercising their rights to referendums and voting, seemingly to ensure the DPP's continued governance and avoid interference from these voices of public opinion. In essence, the CEC's willingness to bear the stigma of administrative inaction is solely motivated by its goal to consolidate political power.
The CEC’s appeal led to the inmate’s request being rejected by the Supreme Administrative Court. The judge argued that since elections should adopt an anonymous and secret voting method, allowing the establishment of a polling station in Taipei Prison with only one voter, Mr. Lin, would violate the principle of secret voting. Even if a case where other prisoners from the same household or election workers, as well as residents from the same residential area, were allowed to vote together were allowed, this would still pose an issue. Lin chose to utilize a provisional injunction maintaining a temporary status quo in his suit, if he were to eventually lose the case, distinguishing his ballot from the others would be difficult, potentially impacting the election results.
According to Article 129 of the Constitution, elections should be conducted by a general, equal, direct, and anonymous voting method. The Supreme Administrative Court cleverly resolved the crisis faced by the CEC by using the following reasons to justify its ruling. It deemed the technical issue of setting up a polling station for just one inmate to be equivalent to an open ballot. It further stated that according to the law, people do not have the right to request election authorities to set up polling stations in restricted and closed places such as prisons. By temporarily allowing Lin's request, the significant damage to the public interest caused by such an action that could affect the election results far outweighed the damage of not passing the inmate’s application.
If the Supreme Administrative Court could consider practices from various countries at a constitutional level, it would not simply obstruct the opportunity for prisoners to participate in democratic elections due to the technicality of being unable to maintain secret voting. This move could eliminate the motivation for the CEC to make efforts to amend laws or implement improvements, further diminishing the possibility of prisoners’ voting rights and remote voting.
Remote voting should be a solution, as enabling prisoners to vote while incarcerated could be considered a breakthrough in implementing remote voting. It all depends on whether the CEC is willing to execute it. One prisoner's application represents thousands of incarcerated individuals who are unable to vote. If the CEC were to agree, it is believed that the Supreme Administrative Court's concern about the inability to maintain secret voting would not be a problem.
President and Grand Justice Hsu Tzong-li of Judicial Yuan previously submitted a concurring opinion in Interpretation No. 755 of the Grand Justices, stating that prisoners are merely "citizens in prison uniforms" and not "abandoned citizens" outside the fundamental rights of the Constitution, and that "protecting the basic rights of prisoners also protects social security." Unfortunately, in this constitutional debate on the voting rights of prisoners, we did not hear the voice of Hsu. If this case can be brought to the Constitutional Court for review in the future, prisoners may not be excluded from the next presidential election.
From: https://www.chinatimes.com/opinion/20231201004097-262101