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Third Session of the Ad Hoc Committee Original MS Word Version | PDF REPORT OF NGO CONSULTATIVE MEETINGS ON THE PROPOSED UN CONVENTION TO PROMOTE AND PROTECT THE RIGHTS OF PERSONS WITH DISABILITIESBackground In May 2003, the British Council in partnership with the National Human Rights Commission of India, the Asia Pacific Forum of National Human Rights Institutions and the Office of the UN High Commissioner for Human Rights, had organised an International workshop for promoting human rights of people with disabilities. This workshop outlined a proposal regarding the key elements, structure and the complimentarity of a new convention on the theme of disability with existing Human Rights treaties. This proposal was submitted to the UN Ad Hoc committee and has been widely appreciated. The UN Ad Hoc Committee established a Working Group for harmonizing the draft text based on the proposals received from Members States; UN bodies disability organisations and human rights institutions. The Working Group was mandated to compile a draft text, which would be the basis of negotiations by the Ad Hoc Committee. Therefore it identified possible approaches and narrowed down the options from a wide range of proposals received. The issues, which could not be resolved by the working group due to divergent positions, have been captured in the footnotes through out the text for consideration by the Ad Hoc Committee. This draft text of the convention has been circulated both by the UN and Government of India inviting views of various stakeholders including persons with disabilities by April 15 2004. Purpose Keeping in view the initiatives of the UN and Government of India, the British Council in partnership with interested Government and non-government partners decided to support the process by convening consultative workshops involving disability Organisations, experts and representatives of State and Central Governments in various parts of India. The purpose of these consultations were two fold, at one hand it aimed to promote awareness about the Treaty elaboration process and achievements made by the UN Ad Hoc Committee and Working Group so far. On the other hand it provided opportunities for critical review of the draft convention on the theme of disability with an ultimate objective to suggest improvements taking into account the lived realities of persons with disabilities in India and the overall economic, social and cultural conditions of the country. NGO Consultative Meetings The first NGO consultation under this process was organised on 3-4
March 2004 at Bangalore, Karnataka. 64 participants representing Disability
NGOs from South India (including Karnataka, Tamil Nadu, Kerala, Andhra
Pradesh and Pondicherry) participated in this consultation. The meeting
was co-hosted by the British Council and the Office of Commissioner
of Disabilities, Government of Karnataka. The National Human Rights
Commission of India provided technical inputs on the meeting. Mr K K
Mishra, Chief Secretary, Government of Karnataka inaugurated the meeting
in Bangalore. A completely participatory approach was adopted at the
meeting where all participants interacted freely and voiced their opinions.
Ms Jayati Chandra, Joint Secretary, Ministry of Social Justice and Empowerment,
Government of India, addressed the participants at the Valedictory session
of the meeting. Methodology To facilitate focussed discussions, the text of the draft convention was classified in four parts: • Discussion on Part I covered Articles 1 to 7, omitting Article-3 on Definitions and Article 6- on Statistics and Data Collection. • In Part II- Articles 8 to 14 and 18 & 19 were discussed. Discussion on each part was preceded by a presentation providing an analysis of the draft text, legal issues it addressed their implications on fundamental freedoms and human rights of diverse disability groups and other stakeholders. For efficiency and optimum participation, the members held discussions in four small groups. The group work was shared during the plenary and the outcomes fine-tuned collectively by the rapporteurs and facilitators. In total twelve working sessions were dedicated to the review of draft convention, where as two sessions provided the opportunity to exchange national and international experience. Mr B S Baswan, Secretary to Ministry of Social Justice and Empowerment,
inaugurated the consultation in New Delhi. Speaking at the Inaugural,
Mr Baswan, lauded the British Council for being a long and trusted partner
in the area of capacity building. He extended his wholehearted support
to the British Council and assured the National Federation of the Blind
that the government would take cognisance of the recommendations of
this consultative meeting. Sessions of the meeting were chaired by these persons along with Mr Sarabjeet Singh, Member Principal Bench of the Central Administrative Tribunal. Over three days of the workshop, the participants, resource persons, the representatives of British Council and NFB deliberated over each draft article of the Convention in group work and outlined a set of recommendations with an aim to balance the Treaty content allowing equal opportunities for the flourishment of fundamental freedoms and human rights of all persons with disabilities who belong to developing countries like India. These recommendations were presented at the Valedictory of the Delhi Consultative meeting on 8 April. Mrs Sarita Prasad, Special Secretary, Ministry of Social Justice and Empowerment, Government of India was the chief guest at the Valedictory. Addressing the participants, Mrs Prasad outlined the efforts of the Government of India in protecting the interests of people with disabilities. She complemented the participants for having gone through the Convention carefully and making clause by clause recommendations. She stressed the need of making interests of the mentally disabled more fully spelt out in the Convention. In conclusion, Mrs Prasad assured the participants that the suggestions and recommendations of the workshop would be very carefully considered at the Government level and those which receive final unanimity would be put forth in the meetings of the Ad Hoc Committee when they elaborate on the draft text for finalisation of the Convention. Other eminent persons present at the Valedictory were Dr Uma Tuli, Chief Commissioner for Persons with Disabilities in the Government of India; Jacqui Christy James, Consultant to the International Disability Equality Agency, UK and Dr Aloka Guha, Chairperson, National Trust for Welfare of People with Autism, Cerebral palsy, Mental Retardation and Multiple Disabilities. Mr Edmund Marsden, Director British Council, welcomed the guests and participants and congratulated them on the successful conclusion of the three-day consultation. Elaborating the process of the adoption of a UN Convention for the benefit of the participants, Dr Aloka Guha, Chairperson, National Trust observed that the process on the new Convention on Disability was moving much faster than all previous treaties and expressed the hope that there may be a Convention on Disability by 2005. Speaking at the Valedictory, Dr Uma Tuli expressed her appreciation at the zeal and vigour of the participants to improve the UN Convention draft on disability over three days of the meeting. She hoped that the implementation of the Convention would be done with similar seriousness and concern. Dr Uma Tuli was pleased that concerned authorities, policy makers as well as implementers who were willing to see the dream come true had attended the meeting. The concrete proposals are outlined in the subsequent paragraphs of this report. Outcomes of both the Bangalore and Delhi consultative meetings have been harmonised in the recommendations below. The lists of participants of both the Bangalore and Delhi meetings have been appended as Annex One and Annex Two respectively. In addition, participants were encouraged to write specific recommendations to the Government of India and the UN. Since representatives of people with mental illness were concerned about their interests not being adequately expressed, they wrote specific recommendations to protect interests of people with mental illness which have been appended as Annex Three. RECOMMENDATIONS OF THE NGO CONSULTATIVE MEETINGS HELD AT BANGALORE AND DELHI 1. The participants are of the view that points a) to r), preceding Article 1 of the Draft text by the Working Group (WG), should be organised under the Title ‘Preamble’. 2. Modifications recommended to points- g), k), n) and p) of the Preamble. 3. With reference to point g), the diversity of persons with disabilities needs to be qualified by the types, nature, degree, socio-economic status, gender and other factors. The modified point- g) should read “Recognising the diversity of persons with disabilities on grounds of the types, nature, degree, socio-economic status, gender and other factors. 4. In point k), additional text suggested after “freedom to make their own choice” as- “which should include freedom of assisted / informed choice for those who encounter difficulties in expressing free choice”. Therefore the modified text of point k) should read as “Recognising the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices, which should include freedom of assisted / informed choice for those who encounter difficulties in expressing free choice.” 5. In point n), the group suggested to replace the expression- “persons with disabilities” with “men, women, boys and girls with disabilities” as expressed in UN Standard Rules. The modified text for point n) should read as “Emphasising the need to incorporate a gender perspective in all efforts to promote the full enjoyment of human rights and fundamental freedoms by men, women, boys and girls with disabilities”, 6. The scope of Point-p) of Preamble is suggested to be widened by incorporating “consequences arising due to acts of terrorism and natural disasters” apart from armed and civil conflicts. Therefore the Modified text for point –p) should read as “Concerned that situations of armed conflict, acts of terrorism and natural disasters have especially devastating consequences for the human rights of persons with disabilities”. 7. An additional clause should also incorporate the reference to the Vienna Declaration, Declaration On Right to Development and World Programme of Action. 8. A special mention is recommended for the work done by Special Rapporteur in the UN Standard rules on equalisation of opportunities for persons with Disabilities 1993 would be valuable in the Preamble. 9. The Preamble could include a statement expressing diversity in economic development to justify progressive realisation of certain rights whereas no compromise is recommended in the immediate realisation of civil and political rights. Draft Article 1 10. The participants felt that since “promotion and protection” of human rights of persons with disabilities is a central issue, therefore the statement of purpose must reflect this notion explicitly. The modified text should read-“The States parties to this convention shall introduce all such measures that are necessary to promote, protect equal and effective enjoyment of all human rights and fundamental freedoms by persons with disabilities”. Draft Article 2 11. The Articles arranged under the Title of general principles are comprehensive but the participants felt that principle of social justice and equity to ensure de facto equality should be reflected. To this effect suitable text may be evolved. Draft Article 4 12. In this article, the expression “all individuals” should be substituted with “men, women, boys and girls with disabilities” to clearly incorporate gender prospective in the general obligations. The modified article would thus read as “States Parties undertake to ensure the full realisation of all human rights and fundamental freedoms for all “men, women, boys and girls with disabilities” within their jurisdiction without discrimination of any kind on the basis of disability. Draft Article 5 13. In point 2- b), the list of people who should be made aware should be broadened. The modified text in point b) should be read as “promoting awareness, including in all children, from an early age and at all levels of the education system, including administrators, services providers, media, opinion makers, legislatures and community at large to foster an attitude of respect for the rights of persons with disabilities;” Draft Article 7 14. As regard article 7 para 3, additional text is suggested to tightly guard abuse of the provision. The modified text for para-3 should read “Discrimination does not include a provision, criterion or practice that is objectively and demonstrably justified by the State Party by a legitimate aim and the means of achieving that aim are reasonable, necessary and are consistent with international human rights laws.” Draft Article 8 15. In the area of civil and political rights, the participants suggested enlargement of the scope of the provision - “Right to Life” by including the words “ survival and development”. The modified text of article 8 would therefore read-“States parties reaffirm the inherent right to life, survival and development of all persons with disabilities and shall take all necessary measures to ensure its effective enjoyment by them.”
16. In relation of Draft Article 9- b), list of areas should also include socio-cultural and political along with financial. The modified text of article 9-b) should read- “ accept that persons with disabilities have full legal capacity on an equal basis as others including in financial, social, cultural and political matters.” 17. To translate the obligation stated in Article 9-c) ii, an addition is recommended stating that “the state shall establish objective, neutral and fair criterion.”. Therefore the modified text of 9-c) ii should read “relevant decisions are taken only in accordance with a procedure established by law and with the application of relevant legal safeguards based on an objective, neutral and fair criterion; 18. Augmentation of draft article 9-d) is suggested by adding the following text-“ In the event of reduced / temporarily diminished legal capacity a duly appointed surrogate may exercise the legal capacity in the best interest of such a person with disability.” Therefore the modified text of article 9-d) should be read as “ensure that persons with disabilities who experience difficulty in asserting their rights, in understanding information, and in communicating, have access to assistance to understand information presented to them and to express their decisions, choices and preferences, as well as to enter into binding agreements or contracts, to sign documents, and act as witnesses. In the event of reduced / temporarily diminished legal capacity a duly appointed surrogate may exercise the legal capacity in the best interest of such a person with disability.” Draft Article 11 19. Additional text is suggested to article 11 therefore the new subpara 3 of article 11 should read as “To ensure that the best interest of the person is protected in the event the person is passing through a phase in which he or she is unable to communicate free consent, no intervention shall occur unless a form of consent is given on their behalf by a duly appointed nominee by the person concern or by an impartial authority established under the law.” 20. With regard to para 1 of article 12, the participants suggested enlargement of the heads of prevented actions and suggested inclusion of word “abduction”. The modified text of 12-1) should therefore be read as “States Parties recognise that persons with disabilities are at greater risk, both within and outside the home, of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse. States Parties shall, therefore, take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation, abuse and abduction.” 21. Similar addition of the word “abduction” is suggested for article 12-3. Therefore the article 12-3 should read as “States Parties shall also take all appropriate measures to prevent violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation, abuse and abduction, by ensuring, inter alia, support for persons with disabilities and their families, including the provision of information.” 22. Under 12-5 similar addition of the word “abduction” is suggested. Therefore the article 12-5 should be read as “Where persons with disabilities are the victim of any form of violence, injury or abuse and abduction, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse, States Parties shall take all appropriate measures to promote their physical and psychological recovery and social reintegration. 23. With regard to article 12-6, addition of text was suggested. The 12-6 should be read as “States Parties shall ensure the identification, reporting, referral, investigation, treatment and follow-up of instances of violence and abuse, and the provision of protection services and, as appropriate, legal remedies, judicial intervention and judicial involvement. Draft article 14 24. Augmentation of draft article 14-c) protecting the interests of disabled women in developing countries from rural areas and urban slums by adding the following text-“special measures should be taken to protect the rights of underprivileged women with disabilities in particular. Therefore the modified text of the article 14-c) should be read as “the rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children on an equal basis with other persons and to have access to information, reproductive and family planning education, and the means necessary to enable them to exercise these rights, special measures should be taken to protect the rights of underprivileged women with disabilities in particular.” 25. The participants suggest alternative text to draft article 14-e) which should read as- “States parties shall render appropriate assistance to parents with disabilities to enable their children to live with them.” 26. With regard to article 14 para 2, the participants suggested inclusion of “live-in partnerships” in the text. Therefore the modified text of article 14-2 should be read as “States Parties to this Convention shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, live-in partnerships and family relations, and in particular shall ensure:” 27. Some organisations providing services, legal advocacy groups, parent’s associations and self-help lobbies in the field of Mental Retardation and Mental Illness are of the view that the right to marry and parenthood with free consent of two intending spouses should be guided for effective exercise of their marital and parental responsibilities by professionals and experts” Draft Article 16 28. A substitute text for 16-3- b). is suggested. The new text proposed is as follows “ the extension to the child and those responsible for his/her care, of assistance for which application is made and which is appropriate to the child’s condition and to the circumstances of the parents and others caring for the child.” 29. New text to be included in article 16 as para 6. This should be read as “ States parties shall ensure children with disabilities specially girl child with disabilities is not subjected to exploitation and abuse of any kind including sexual abuse.” 30. Further addition to the text of article 16 is suggested by way a new para- 7 of article 16, which should be read as “ States parties undertake to ensure children with disabilities including girl child with disabilities is not used for any illegal purpose including for economic gains. Draft Article 17 31. The participants suggested addition of a new sub-para under article 17 as 17-6, which should be read as “States parties shall simultaneously promote special education system to meet the specific education needs of respective disability groups.” Draft Article 19 32. Augmentation of draft article 19-b) is suggested by adding “auditory signal” among other measures for accessible transportation. Therefore the modified text of article 19-b) should read as “the development and remodelling of public transportation facilities, communications and other services, including electronic services and auditory signals. Draft Article 20 33. The participants felt that the Article 20 on Personal Mobility in its present shape is weak and vague and it doesn’t address the legal issue involved, therefore Government of India and the Members of the Ad hoc Committee may wish to recast this article. Draft Article 21 34. Minor additions are suggested to the text of article 21 for example- add “disability NGOs” after the word ‘monitored’ in article 21-i). 35. In 21-j) addition of “his/her guardian” after the word ‘persons concerned’. 36. Similarly in 21-k) add “ without the consent of the person or their guardians as the case may be” after the word ‘disabilities’. 37. Some participants strongly felt that in Article 21- Health and Rehabilitation should be separated in two articles to give prominence to each area. Draft Article 22 38. Article 22 can be strengthened by adding gender perspective to reduce inequalities of the economic status among men and women with disabilities. 39. With regard to article 22-c, additional text is suggested. The modified text of the article 22-c should be read as “ Pursue active labour market policy to promote employment opportunities and career advancement for persons with disabilities in the open labour market, including opportunities for self employment and starting one’s own business, as well as assistance in finding, obtaining and maintaining employment; 40. In article 22-d) minor addition is suggested to reflect both public and private sector employers. The modified text of article 22-d) should be read as “encourage employers in both public and private sectors to hire persons with disabilities, such as through affirmative action programs, incentives and quotas;” 41. In article 22-e) minor addition is suggested. The modified text of article 22-e) should be read as “ensure the reasonable accommodation of persons with disabilities in the workplace, work environment and in work processes.” 42. In article 22.i) – prefix “Government” before “public sector” and “private sector” 43. Start article 22.j- with the following sentence-“Undertake awareness campaigns by disseminating information in..”.. 44. A new sub para 22.k) is suggested which should be read as “To evolve and formulate necessary policy and legislative measures to prevent harassment, discrimination and sexual abuse of women with disabilities in work places.” 45. A new sub para 22- l) is suggested which should be read as “To formulate policies and other suitable legislative measures for promoting assured market for the products and services belonging to ventures of persons with disabilities or disability NGOs, which may include preferential treatment, incentives and tax benefits.” 46. A new sub para 22-m) is suggested, which should be read as “To promote self employment initiatives by persons with disabilities through formulation of policies and legislative measures for preferential allocation of licence items of raw materials and development of special marketing channels for the sale of product/services of self-employed persons with disabilities and disability NGO. 47. A new sub para 22-n)is suggested which should be read as –“Promote research, development and delivery of enabling technologies to expand possible job opportunities for persons with disabilities both in open and protected labour markets. 48. A new sub para 22-o)is suggested which should be read as- “Promote establishment of sheltered workshop for ensuring Right to work of persons with severe disabilities or those who may not have access to employment in open labour market. Draft Article 23 49. Endorse footnote 100 vehemently { i.e. Some members of the Working Group considered that this provision should be strengthened to mention explicitly technical aids to mobility, transfer, auditory or visual perception and other special devices that persons with disabilities require. The Ad Hoc Committee may wish to consider whether this issue is adequately covered in draft Article 20 on Personal Mobility.}
Draft Article 24 50. In Article 24.d-Add “mobile library” after “library” Draft Article 25 51. The participants strongly recommend provision of an international and national mechanism for monitoring and redressal of individual complaints. They note that under existing Treaties, such systems are in place, though an effort is underway for stream lining these procedures. Therefore a proposal to this effect should be concretised after the UN has taken a final view. However the participants recommend inclusion of the provisions outlined in Bangkok Draft regarding monitoring of the convention. ______________________________________________________________ Report compiled by: 1. Anuradha Mohit, Member of the UN Working Group and Special Rapporteur
on Disability with the National Human Rights Commission Distribution List: 1. Ministry of Social Justice and Empowerment, Government of India 19 April 2004 NGO Consultative Meeting on the new UN convention on Disability Participants (see original contribution in MS Word document) Annex Two NGO Consultative Meeting on the new UN Convention on Disability Participants (see original contribution in MS Word document) Annex Three Recommendations on the proposed UN convention on Disability to the Government of India By Ishita Sanyal, Turning Point, Kolkata and Mr S D Raheja, President, National Federation of the Mentally Ill Introduction Line 16 of draft convention – To provide effective access to persons with disabilities, including mental illness. Preamble Sentence 4 – discrimination of any kind, such as race…………………..illness (including mental illness). Sentence 6 - equal opportunities for persons with disabilities should include specific quota for mental illness too, specific quota is there for all other disabilities excluding mental illness. Draft Article 1: Objects (d) To eliminate………………….disabilities including facility for job reservation which is to be included for persons suffering from mental illness (once they recover). Draft Article 3: Legislative Measures 2) Establish measures……………………persons with disabilities including mental illness. c) Legal provisions should be taken to the right of property for the mentally ill. Guardianship rights should be vested with the approval of caregivers or their nominees. Draft Article 5 (a) adopt……………….electronic media. Negative propagation by the media or other modes of communication like TV or cinema should be banned as they might create negative impact amongst the public, that is often seen in case of mental illness. 1c) Promote an image of persons with disabilities including mental illness as capable and…………………….. 2b) even though the persons with mental illness may sometimes have bizarre behaviour, absent-mindedness, defiant attitude and other behavioural and educational problems. Draft Article 9: Right to Health (a) Ensure……….disability. Right to treatment for un-cooperative mentally ill who are under severe conditions must be there with the full consent of their parents or caregivers. Draft Article 10: Right to Education and Cultural Life (e) Ensure……………activities. Ensure special provisions for persons with mental illness during interruptions in their regular educational process. Draft Article 11: Right to Rehabilitation Services (a) Forms of psychotherapy should be included. Right to Rehabilitation Service for the mentally ill should be provided even after the demise of the caregivers. Mental illness should also be included in the National Trust Act, as they also require guardians after the death of their caregivers. 1. State parties shall also take effective measures to prevent victimization, segregation and exclusion of persons or children suffering from mental illness. 2. Special Provisions should be kept for necessary interventions of persons with mental illness when and if required with the consent of their caregivers as often in acute phase. Mentally ill persons are not able to take decisions for themselves and reject intervention that is detrimental to their health. Draft Article 12: Right to Work (a) Special Provisions should be made for mentally ill persons as there are no separate quotas for them till now though other disabilities enjoy the quota system. (c) Promote………..sector. There should be a provision that mentally ill can continue their employment after recovering from illness. Draft Article 13: Right to Social Security (d) Ensure that persons with disabilities including mental illness have……………so desire. Draft Article 14 2b) In case of persons suffering from mental illness, if marriage takes place on the basis of full knowledge and consent of both the parties about the illness, the law should ensure about the necessity of alimony or maintenance allowance for the parties involved in case of separation and divorce. Draft Article 15 Living independently 1a) In case of persons with mental illness the caregivers along with the professionals (both psychiatrist and psychologist) should decide whether they are in a position to live independently. But this in no way means that persons with mental illness are always dependent on caregivers and family members. Draft Article 17 Interruptions in continuation of education in case of children and persons with mental illness should be condoned and he must have accessibility of education after interruptions due to his relapses. In foot note 61 Include – special needs for mental disorders should be there. (g) covering all disciplines including mental illness. Draft Article 22 Right to Work (b) Special emphasis should be kept for persons with mental illness as there is no fixed quota for jobs availability for them in Government and private sectors as it is there for all other disabilities. Draft Article 23 1b) particularly women, girls with disabilities, mental illness and the aged. Draft Article 24 4b) Special provisions should also be kept for persons with mental illness as they often suffer from some physical problems due to the prolonged intake of medication and their side-effects. Right to treatment for un-cooperative mental illness patients under severe illness conditions (parents and caregivers must have the legal rights to take the unco-operative patient to the doctor and take necessary treatments) |