Reclaiming the right to vote: Voting and mental disabilities in Australia and Japan

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Myles Charles
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1 Reclaiming the right to vote: Voting and mental disabilities in Australia and Japan Trevor Ryan (University of Canberra) 12th ANJeL Japanese Law Conference Cairns, 16 May 2014

2 Nagoya Takumi Case Japanese citizen, down syndrome, consistently voted in elections until an order of adult guardianship by a Japanese family court in 2007 application to the Tokyo District Court for a declaration that s 11(1)(a) of Public Office Electoral Act that disqualified her from voting as a 'person subject to a guardianship order is unconstitutional Held (14 March 2013): unconstitutional

3 Japanese Government s Argument 1. provision within legitimate bounds of legislative discretion rational to use a guardianship order as a criterion of disqualification to vote to achieve rational legislative purpose of guaranteeing fairness of elections a person normally lacking the ability to understand the reason of things (jiri o benshiki suru) through a mental disability =indicates a lack of the requisite ability to form a personal view on the suitability of candidates 2. impracticable to evaluate before each election whether each individual has capacity to vote 3. risk of votes being made under the direction of a third party (coercion or fraud)

4 Decision Overseas Voting Case (2005) 58(7) Minshu 587 S Ct held unconstitutional Public Office Electoral Act provisions that limited the vote of Japanese expatriates to the proportional voting blocs only for elections for both houses of the Diet test: Constitution includes explicit commitments to popular sovereignty, representative government, and universal suffrage, including express antidiscrimination rights both generally and specifically in exercising the vote =central importance of the vote =in principle, departures from universal franchise for adults are unconstitutional unless it can be demonstrated that there are 'unavoidable circumstances' In this case, would need to show in practice impossible or extremely difficult to guarantee the fairness of an election without s 11 disqualification But (1) guardianship not a suitable/logical standard to use for disqualification from voting (2) other practicable means of determining who should be disqualified on the basis of capacity to vote

5 (1) guardianship not a suitable/logical standard to use for disqualification from voting Civil Code presumes that capacity may fluctuate s 7 of the Civil Code uses the term normally (rather than constantly ) lacking capacity adult ward does not require the consent of a guardian to marry, acknowledge a child, or create a will in practice, family court makes no assessment about the specific capacity of the person to exercise a right to vote: overwhelming emphasis is on capacity to manage financial affairs as assessed by a physician =limited/fluctuating capacity by no means rendered them unsuitable as members of a democratic state in which sovereignty is held by a selfgoverning populace and should therefore should have a voice in Japan's governance through voting rights domestic and international developments (eg CRPD) provide context to evolving conceptual underpinnings of the new adult guardianship system: respect for autonomy, normalisation, and a commitment to make use of remaining faculties = reformed adult guardianship system is no longer capable of operating as a yardstick for the decision-specific capacity required to vote

6 (2) other practicable means of determining who should be disqualified on the basis of capacity to vote alternative measures: Australia, some US states have mechanisms for disqualification on the basis of incapacity to vote independent from adult guardianship evidence did not indicate that the frequency of informal or coerced votes significant enough to endanger the fairness of any election or even affect the outcome speculated that considerable number of voters in Japan lack capacity (given the prevalence of dementia and other mental disabilities in the community)

ADULT GUARDIANSHIP QUESTIONNAIRE A. INFORMATION ABOUT THE ALLEGED INCAPACITATED PERSON:

ADULT GUARDIANSHIP QUESTIONNAIRE A. INFORMATION ABOUT THE ALLEGED INCAPACITATED PERSON: 1. Full name 2. Age 3. Date of birth 4. Address 5. Primary Spoken Language 6. Description of Alleged Incapacity and