COMMITTEE ON THE RIGHTS OF PERSONS WITH DISABILITIES HOLDS DAY OF GENERAL DISCUSSION ON RIGHT TO EQUAL RECOGNITION BEFORE THE LAW
The Committee on the Rights of Persons with Disabilities today held a day of general discussion on Article 12 of the Convention on the Rights of Persons with Disabilities on the right to equal recognition before the law. After listening to introductory statements on this issue, the Committee broke into two Working Groups which focused on the legal contents of the right to equal recognition before the law; and on the practical measures necessary to implement the obligation to promote the right to equal recognition before the law.
Mohammed Al-Tarawneh, Chairperson of the Committee, said that it was an unfortunate historical circumstance that persons with disabilities had had little legal recourse around the world. Basic rights had been subjugated in the past, and in some places continued to be today, for persons with disabilities. They had also witnessed the effects of inequality before the law, and had recognized its unacceptability. Article 12 gave clear indication of the direction in which they had to go; it guaranteed equal recognition to all before the law. Courts had a responsibility to exercise meaningful guardianship. Even in the case of court appointed intermediaries, there had to be a mechanism of oversight to ensure that assisting parties were working solely in the interests of those assisted.
Ibrahim Salama, Chief, Human Rights Treaty Branch, Office of the High Commissioner for Human Rights, said that Article 12 had the potential to provide many opportunities in meaningful change for persons with disabilities to reach equality of all persons before the law. The goals of the Convention would not be nearly as comprehensive without the assurances of a fair trial. One issue was that of supported decision making vs. substitutive decision making in courts. In the case of mental disability, under what circumstances would it be acceptable to make decisions on behalf of an individual through guardianship, ombudsmen or other relevant services, and how should these services be conducted? Another question had to do with the so-called “insanity defense.”
Amita Dhanda, Consultant on Article 12 of the Convention, Office of the High Commissioner for Human Rights, said that Article 12 was at the heart of the Convention. People with intellectual and psychosocial disabilities had been, in a large part, at the forefront of negotiations when Article 12 was drafted. Article 12 had been formulated totally accepting the vision of inclusions for all; including people with sensory, physical, intellectual and psychosocial disabilities. Article 12 spoke to the entire human community. There was no question or misunderstanding on the provisions of Article 12. What needed to be worked through was how to ensure its implementation.
In Working Group I, Committee Experts, civil society representatives and representatives of States parties addressed the issues of people who experienced madness or mental disorder and their right to decide for themselves. Another issue discussed was the need to make a difference between persons that posed a danger to others and persons who posed a danger to themselves. Speakers also discussed the topic of legal capacity and on what basis legal capacity had been removed from certain people.
In Working Group II, Committee Experts, civil society representatives and representatives of States parties addressed the importance of conducting information and awareness-raising campaigns; the need for a change in the way the prison systems were working; the abolishment of measures of “tutelle” or guardianship; the right to decision making for people with mental and psychosocial disabilities; and support and supported-decision-making relationships and safeguards to prevent abuse of support.
Mr. Al-Tarawneh, the Chairperson of the Committee, in closing remarks, said that the Committee had decided not to make any recommendations on the topics they had discussed today at this time and that today’s discussion had given them food for thought as far as the content and scope of the application of Article 12 was concerned. They would carefully study the comments and recommendations that had been made, in particular the suggestion for the formulation and adoption of a general comment on Article 12 and the comments related to the issue of legal capacity. They had witnessed today that the debate on Article 12 had taken root in the minds of the international community.
On Thursday, 22 October, the Committee will continue to discuss ways and means of expediting its work and its draft rules of procedure. The Committee is scheduled to close its second session on Friday, 23 October 2009.
Opening Statements
MOHAMMED AL-TARAWNEH, Chairperson of the Committee, in opening remarks, said that it was an unfortunate historical circumstance that persons with disabilities had had little legal recourse around the world. Basic rights had been subjugated in the past, and in some places continued to be today, for persons with disabilities. The forms of discrimination facing them encompassed nearly all spheres of influence in their lives, spanning from communication and architecture, to transport and the rules and policies that stifled inherent potential. They had also witnessed the effects of inequality before the law, and had recognized its unacceptability.
There were many parts of the Convention which did not lend themselves to interpretation, and which were intended to provide explicit models for the treatment of persons with disabilities, said Mr. Al-Tarawneh. Article 12 gave clear indication of the direction in which they had to go; it guaranteed equal recognition to all before the law, it assured that all individuals should be recognized as persons before the court, and in all forms of interaction with the court. For those persons with certain forms of disability who were not able to exercise their capacity on their own, the Convention required that States provided appropriate measures to individuals to support them in the realization of their capacity to act.
Courts had a responsibility to exercise meaningful guardianship. Even in the case of court appointed intermediaries, there had to be a mechanism of oversight to ensure that assisting parties were working solely in the interests of those assisted. Safeguards had to be put in place to check against personal or financial interest which might interfere with the interests of the person receiving assistance. Achieving these standards for intermediary support would require regulation and training, said Mr. Al-Tarawneh.
Some of the more difficult circumstances would be regarding situations where determining the will of persons with extreme mental disability was not directly possible. Where did one place the line of authority for third party intermediaries in such cases? How much interpretative flexibility should they be given and how could this be legislated? One should also be mindful of the need for objectivity between allowing justice to be realized and recognizing the realities of severe mental disabilities, said Mr. Al-Tarawneh. When persons were deemed dangerous to themselves, support given had to be of an extraordinarily professional, educated, and specialized type.
While not directly concerning Article 12, they should also be mindful of declarations when they were made by State parties upon becoming signatories to the Convention. As an example, the United Kingdom claimed that the rights to equal treatment and employment should not apply to any form of military service. However, this declaration avoided acknowledging the spectrum of tasks one could perform in military service. When legal equality in all areas of life was their goal, they should be extremely wary of such reservations, said Mr. Al-Tarawneh.
The goal of the Convention was not solely about abstract rights, but instead about the capacity for people to act, said Mr. Al-Tarawneh. Rights of persons with disabilities had been established before, but the true test of a right was whether or not it was applied in practice.
IBRAHIM SALAMA, Chief, Human Rights Treaty Branch, Office of the High Commissioner for Human Rights, in an opening statement, said that today they would be examining two issues, both around the topic of equal recognition before the law. He expected that through their discussions, as better and more solidified understanding of these issues would be reached, that they would make progress in understanding the required actions for the implementation of Article 12.
Article 12 had the potential to provide many opportunities in meaningful change for persons with disabilities to reach equality of all persons before the law, said Mr. Salama. The goals of the Convention would not be nearly as comprehensive without the assurances of a fair trial. There were many interesting questions that were raised by Article 12.
One issue was that of supported decision making vs. substitutive decision making in courts, said Mr. Salama. In the case of mental disability, under what circumstances would it be acceptable to make decisions on behalf of an individual through guardianship, ombudsmen or other relevant services, and how should these services be conducted?
While Article 12 did not specifically mention the use of support for persons with disabilities in legal proceedings, it did ask that States use appropriate measures to provide access by persons with disabilities to the support they might require in exercising their legal capacity, said Mr. Salama. It might be that supported decision making could be applied to the vast majority of cases, but that perhaps a small percentage would not be able to use this kind of assistance.
Another question had to do with the so-called “insanity defense”. Should courts recognize that in certain situations, some forms of disability could amount to the non-accountability for crimes? There were those who argued that this type of defense should be abolished in courts, given the recognition of the capacity to act. But it was not entirely clear what should be done in cases of criminality where the perpetrator experienced a genuine loss of self volition? The balance lay perhaps somewhere in the process of determining what constituted loss of faculty, said Mr. Salama.
All these questions had important significance for the interpretation of Article 12 and the ways in which the Convention would be implemented. It was through the principles of inclusion and integration that Article 12 derived its meaning, and it was through them that they would find its best application, said Mr. Salama.
AMITA DHANDA, Consultant on Article 12 of the Convention, Office of the High Commissioner for Human Rights, said that Article 12 was at the heart of the Convention. It was important to look closely at it if one wanted to be serious about addressing the issue of exclusion. People with intellectual and psychosocial disabilities had been, in a large part, at the forefront of negotiations when Article 12 was drafted. Article 12 had been formulated totally accepting the vision of inclusions for all; including people with sensory, physical, intellectual and psychosocial disabilities. It was extremely appropriate that the Committee had taken this Article as the first it had wished to look closely at.
Ms. Dhanda also spoke about the Office of the High Commissioner for Human Rights Handbook on Legal Capacity project. This document would highlight the existing discrimination in existing laws and elaborate on Article 12 obligations. It would assist countries in planning for law reform, policy and programme. Article 12 spoke to the entire human community. There was no question or misunderstanding on the provisions of Article 12. What needed to be worked through was how to ensure its implementation.
Ms. Dhanda then presented two examples of law reforms projects that had taken place in India and Hungary - two countries who had been among the first to ratify the Convention.
Summary of Working Group I Discussions
Working Group I focused upon the contents of the right to equal recognition before the law, in particular – but not exclusively – on the following issues: construction of legal capacity; identity and agency; universal legal capacity; reservations to Article 12; and the scope of the right to equal recognition before the law and its linkage with other rights.
MONSUR CHOUDHURY, Committee Member and Chairperson of the Working Group I, said that if one looked at the history of law, it had become the guide to give justice to people and to ensure equality since the roman period. Around 80 per cent of people with disabilities lived in the developing world where they were often deprived of their rights. Sharing his personal experience, he said that he had been visually impaired since he was seven years old and had been the first person with a disability to obtain a Masters degree from his University. In spite of his qualifications he had been denied the right to employment.
In the ensuing discussion, Committee Experts welcomed the fact that the Committee had decided to hold its first day of general discussion on Article 12 of the Convention; it was indeed at the heart of the Convention. Persons with disabilities needed to have proper regulations and had to be given the same attention as women and children and other vulnerable groups were getting before the law.
A civil society representative presented the current efforts in Hungary to bring the legislation in-line with the Convention. Other civil society representatives addressed the issue of people who experienced madness or mental disorder and their right to decide for themselves. In this regard, supported decision making should not be looked at as a diminished legal capacity, it was rather a way for people to get the proper understanding of matters in order to take a well-informed decision. Another issue that was touched upon was the question of where the own responsibility of a person lay when someone took decisions for them. By doing so, their responsibility was being taken away. Another issue discussed was the need to make a difference between persons that posed a danger to others and persons who posed a danger to themselves.
Another civil society representative said that the first question one needed to ask was on what basis legal capacity had been removed from people. What were the basic assumptions in the law that had made such a decision justifiable? Legal capacity was the right to enter into a legal relationship with another party. It was understood that one needed to understand fully the implications of such a relationship to be legally capable. Turning to contract law, in order to sign an agreement of mutual intention people needed to be able to express their intentions. This was fundamentally discriminatory for people with certain mental disabilities, as they could be able to understand the world if someone explained it to them in a certain manner. They were able to take decisions and one should expand these legal criteria to achieve a paradigm shift.
Another speaker said that one also needed to look at who decided whether or not someone posed a danger to others or to oneself. Further, they should not start using too specific categories in their discussions today, such as “severe mental disorder” and address the issues at hand in general for disabled people.
Summary of Working Group II Discussions
Working Group II focused on the challenges of the normative incorporation of the right to equal recognition before the law; the challenges of the effective implementation of the obligations arising under Article 12; implementation of the state obligation to take appropriate measures to provide access by persons with disabilities to the support they might require in exercising their legal capacity; practical measures to implement state obligations to ensure disabled people the right to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit; and the role of the independent and impartial review authority under Article 12 and other possible safeguards.
In introductory remarks, Committee Experts highlighted the fact that when trying to talk about Article 12, they were trying to find the universal principles that underpinned human rights. They had to look at all the systems protecting human rights and how to make them a reality for persons with disabilities. The concept they were looking at was that of cross-cutting rights. They had to lift the barriers that prevented persons with disabilities from enjoying their rights.
In the ensuing discussion, a civil society representative highlighted the importance of conducting information and awareness-raising campaigns. As they were moving to a new paradigm with regard to the rights of persons with disabilities, they had to win the hearts of the public. He also called for a change in the way the prison systems were working. Deprivation of freedom should not prevent people from enjoying their rights, such as the right for treatment for persons with disabilities. The concept and measures of “tutelle” or guardianship should be abolished. The speaker also highlighted measures taken in France in the framework of a solidarity campaign. The world had succeeded in overcoming racism and discrimination on the grounds of sexual orientation and they had seen progress with regard to discrimination against people with cancer and AIDS, but there was still discrimination against people with mental health problems.
Another civil society representative said that when one talked about communication with and decision making for people with mental and psychosocial disabilities, these were often compared to persons that were unconscious or in a coma. However, there could always be a certain level of communication with people with mental and psychosocial disabilities, such as the use of metaphorical phrases. Communication was a two-way process and the lack of communication was not due to a disability but was a mutual failure and could not be blamed on the person with a disability. Also, accessible communication for people with mental and psychosocial disabilities meant having a non-threatening manner when communicating with a person.
Another speaker said that no person should be prohibited from exercising legal capacity, i.e. making decisions and performing legal acts, because of a disability. Also, compulsory medical treatment of an intrusive and irreversible nature might constitute torture or ill-treatment and any laws permitting such treatments to be done without the consent of persons with disabilities had to be abolished. On support and supported-decision-making relationships, the speaker said that all supporters had an obligation to respect the rights and will of the person with disabilities. Safeguards to prevent abuse of support also had to be aimed at providing remedies against abuse.
One civil society representative said that the right for persons to make decisions in their lives had to be upheld. Such decisions included health care decisions, financial and property decisions and personal life decisions. Support persons or networks should be chosen and appointed by the person with disability and should help the person with disability to communicate, connect with the community and make informed and autonomous decisions. The State had to provide status and resources to these support persons or networks.
A representative of Mexico said that general comments were a very valuable tool, and as such a general observation under Article 12 could be very helpful and would clarify what should be done next by countries. A Member of the Committee said that they had to keep in mind what impact a general observation or recommendation could have on State reports and on the work done by civil society.
On the reservations and declarations made by States on the Convention, a civil society representative noted that Egypt had made a declaration saying that, with regard to the concept of legal capacity, in Egypt persons with disabilities enjoyed the capacity to acquire rights and assume legal responsibility but not the capacity to perform, under Egyptian law and wondered whether the Committee believed that this declaration constituted a hidden reservation.
Closing Remarks
MOHAMMED AL-TARAWNEH, Chairperson of the Committee, in closing remarks, said that the Committee had decided not to make any recommendations on the topics they had discussed today at this time. The Committee further greatly welcomed the opportunity of holding the very first day of general discussion and thanked the representatives of States parties and non-governmental organizations for their constructive interventions.
Mr. Al-Tarawneh said that today’s discussion had given them food for thought as far as the content and scope of the application of article 12 was concerned. They would carefully study the comments and recommendations that had been made, in particular the suggestion for the formulation and adoption of a general comment on Article 12 and the comments related to the issue of legal capacity.
Next year, the Committee would begin receiving and examining reports from States parties, noted Mr. Al-Tarawneh. They were, to this effect, discussing and finalizing their working methods and reporting guidelines. They would endeavour to examine all reports in the spirit of constructive dialogue and to formulate and adopt precise pragmatic and implementable recommendations that States could actually act upon. Today’s discussion had already given them an idea of how that might be done.
The Committee would continue to welcome contributions of the numerous non-governmental organizations that had worked towards greater visibility of the Convention, said Mr. Al-Tarawneh. They had been encouraged by the large number of submissions from non-governmental organizations for today’s discussion.
The entry into force of the Convention had been a milestone in the expansion of the human rights protection system, said Mr. Al-Tarawneh. They would do their best to monitor the implementation of the Convention and to interpret the provisions of the Convention constructively and with a view to improving the lives and situations of the hundreds of millions of persons with disabilities.
They had witnessed today that the debate on Article 12 had taken root in the minds of the international community; they were beginning to see the fruit of their labour. The input and recommendations made today had provided them with substance for the future work of the Committee. Today’s discussion had placed a cornerstone in the development of everyone’s right of recognition before the law. Article 12 was a link in the chain of equality, dignity and justice for persons with disabilities.
For use of the information media; not an official record
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