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Ad Hoc Committee Main
Daily summary of discussions related to Article
9
EQUAL RECOGNITION AS A PERSON BEFORE THE LAW
UN Convention on the Rights of People with Disabilities
Fourth session of the Ad Hoc Committee - Daily Summary
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Volume 5, #4
August 26, 2004
Uruguay reaffirmed the importance of Article 9 and
issues of legal capacity. After “preferences” in 9(d) it should say,
”to comply with binding agreements and treaties and any other public
or private document by signature to act freely and to act as witnesses.”
In 9(e), it proposes adding “to administer and manage their own affairs.”
Canada reintroduced its proposal made at AHC3, with
some amendments, available at: http://www.un.org/esa/socdev/enable/rights/ahc4da9.htm.
The WG text was based in part on Article 16 ICCPR and also dealt with
legal capacity and issues relating to property management. Canada proposed
language based on Article 15(2) CEDAW. In response to feedback, “adults”
has been changed to “persons” in 9(1) of the Canadian proposal, on the
basis that PWD are to have legal capacity on an equal basis. The proposal
addresses the continuum of support necessary to enable PWD to exercise
their capacity, and this support should be the least restrictive possible
and tailored to the individual. In (3) of the Canadian proposal, appropriately
safeguarded substituted decision-making is necessary in some cases,
even with supported decision-making, because some people cannot exercise
capacity and will be therefore at risk of abuse or neglect. Amendments
to the proposal reflect these points. Canada amended its proposal to
reference provision for review in cases deciding there is an inability
to exercise legal capacity, and added review as well in cases of appointment
of a legal representative. Canada queries whether 9(a) of the WG text
is necessary, given the coverage of equality before the law in Article
7. It recognizes the importance of 9(e) and (f), but considers its own
proposal sufficient regarding property issues.
Costa Rica supported Canada’s proposal and withdrew
its own. Article 9 refers to two issues: legal capacity and access to
justice. Canada’s proposal refers to legal capacity, but leaves aside
the question of access to justice. Proposals by the EU, China, Japan
and Costa Rica address access to justice. Accordingly, Costa Rica proposes
a new article on Access to Justice: “States Parties to this convention
shall recognize that the full and effective enjoyment by persons with
disabilities of equality before the law shall require the modification,
adjustment and flexible application of legal procedures, practice and
rules, including rules of evidence. The States Parties call take immediate
and effective measures to provide such accommodation which shall include:
1) provision of information in plain language and other formats accessible
to persons with disabilities; 2) provision of personal assistance to
understand legal procedures, practices and rules; 3) recognizing and
facilitating access to alternative modes of communication and communication
technology, including sign language and Braille; 4) take all necessary
measures to ensure everyone whose rights and freedoms as recognized
in this convention are violated shall have an effective remedy before
a national authority, notwithstanding that the violation has been committed
in an official capacity.
Serbia and Montenegro reaffirmed that Article 9 addresses
both legal capacity and access to justice. It submitted a new proposal
based on proposals from the EU and Canada. Paragraphs (a) and (b) of
the EU proposal should comprise paragraph 1 of the article as amended
to include reference to obligations of PWD before the law as suggested
by Mexico. The revised Canadian proposal should comprise paragraphs
2, 3 and 4 of the article.
The Netherlands (EU) supports a concise 9(1), in line
with its proposal. The EU accepts the Canadian proposal for 9(2) and
(3), but prefers to separate into two paragraphs (3) and (4), given
that they address two issues, namely, decisions of denial of legal capacity
and appointment of a personal representative. It supports retaining
9(f) as paragraph 5.
Japan noted the new Canadian and Costa Rican proposals,
which it will study. Japan reiterated its proposal from AHC3 for a new
paragraph (g), amended from AHC3 to make explicit reference to Article
14 ICCPR. The proposal is available at: http://www.un.org/esa/socdev/enable/rights/ahc4da9.htm.
Chile supports an amended title for Article 9: “Legal
Capacity.” All persons have legal capacity, and therefore in 9(a), the
language “accept that PWD have full legal capacity” is inappropriate
and should be amended to read “recognize.” Chile supports 9(c) of the
WG text, but emphasizes the safeguards necessary to protect PWD. Where,
in exceptional situations, PWD cannot exercise legal capacity, the decision
should be a judicial one with a range of due process guarantees. There
should be periodic monitoring or reporting to the relevant authorities
with regard to the provision of assistance and consistent with human
rights. Chile supports Kenya’s proposal for (e). There is no reference
to access to justice in Article 9, or the convention text more generally.
There should be a separate article on access to justice. Chile’s amendments
to Article 9 are available at: http://www.un.org/esa/socdev/enable/rights/ahc4da9.htm.
India noted that Article 9 presents competing claims.
On the one hand PWD are asserting their legal capacity, and on the other
caretakers and families are advocating for substituted decision-making.
It is necessary to balance these claims within a model of substituted
decision-making. India will study the Canadian and EU proposals in this
regard. India is sympathetic to the principle of full legal capacity.
However, circumstances on the ground may not allow for this. This issue
should be cast in a more aspirational mode to achieve a balanced position.
Articles 10 and 11 must also be examined from this perspective.
Australia thanked Canada for its proposal. Article
9(d) should be addressed elsewhere in the convention. Australia would
like to ensure that the article addresses the situation where an individual
who at the time is able to exercise their capacity, makes a decision
as to what should happen when they are unable to exercise their capacity.
Venezuela noted the Canadian proposal and welcomed
the Costa Rican proposal on access to justice.
Eritrea (on behalf of the African Group) submitted
a proposal available at: http://www.un.org/esa/socdev/enable/rights/ahc4da9.htm.
Amongst other amendments, the proposal incorporates proposals of China
in 9(a), India in 9(d), the EU and Costa Rica in 9(c)(ii).
Norway thanked Canada and the EU for their proposals
for 9(b). It supports the EU’s proposed 9(1), as it is of wider scope
than the Canadian proposal. Norway supports the Canada’s proposed 9(2).
It supports dividing the Canadian proposal (3) into two separate sub-paragraphs.
Thailand welcomed the proposals of Canada and the EU,
and will study further the concept of supported decision-making circulated
by the NGOs.
Jordan thanked the Canadian delegation for its proposal.
Jordan proposed amending that proposal in (3) to reference “periodic”
before “review”.
El Salvador welcomed proposals on Article 9 by Chile,
and especially supports Chile’s proposed use of the term “recognize.”
It welcomes the Canadian proposal.
New Zealand strongly supports the Canadian proposal
that presumes legal capacity for PWD and recognizes that it may need
to be exercised with support. It insists on a proper procedure under
law before someone can be found unable to exercise their legal capacity
on their own or with support. It also proposes safeguards where support
is deemed necessary.
New Zealand encourages other delegations to indicate
whether they accept the Canadian proposal or another. The Canadian proposal
should be strengthened with the following language at the end of (2)
“respect the will and preferences of the person receiving support, is
free from conflicting interests, and does not involve undue influence”
which derives from the International Disability Caucus position. Where
PWD exercise their capacity with support, steps must be taken to recognize
this supported decision-making, as noted by the Caucus. Protection of
property rights must be respected, but the Canadian proposal in paragraph
one adequately covers this issue. Consistent with Australia, New Zealand
will also consider whether the Canadian proposal adequately addresses
the situation where power of attorney has been given to a third party.
Costa Rica’s proposal for a separate article on access to justice may
have merit.
China stressed that everyone is equal before the law.
PWD must have the protection of the law on the basis of equality. It
supports the Mexican revision in 9(a). The issue of legal capacity is
controversial and derives from differences in legal system. In Continental
systems there is no general statement as to whether people have legal
capacity or not, or whether it is limited. The UN Principles for the
Protection of Persons with Mental Illness, 1(6), approaches the issue
of legal capacity differently. At AHC3, many delegations proposed deletion
of portions of the WG text. China supports (2) and (3) of the Canadian
proposal.
Trinidad and Tobago supports the Canadian proposal
as a basis for further discussion. It supports Serbia’s proposal to
use the EU proposal (a) in a first paragraph, followed by the Canadian
text.
Mexico stated that the focus of Article 9 is legal
recognition issues, and supported addressing access to justice in another
article. It supports the Canadian proposal, though with some additions.
It is important to recognize that PWD have rights and obligations before
the law, as reflected in the Mexican proposal for 9(a) at AHC3. Assistance
to PWD should not interfere with the full enjoyment of human rights
and should be retained in (c)(i). The concept of supported decision-making
should be recognized in this article and not surrogate decision-making.
There should be an adequate and periodic review mechanism.
Lebanon supports the presumption of legal capacity in Canada’s proposal.
But the wording in (3) still seems to accept legal incapacity. The need
for support should be recognized, and not substitutions of decision-making
by another. A section on access to procedures should be added.
Jamaica noted that PWD have legal capacity on the same
basis as others, yet there is the need to introduce and safeguard the
interests of those who in some circumstances may have reduced capacity.
Jamaica supports India’s proposal for 9(g).
International Disability Caucus supported the interventions
by Mexico and Lebanon that rejected a system of surrogate decision-making.
The Caucus has a proposed draft for Article 9, available at: http://www.un.org/esa/socdev/enable/rights/ahc4idcupdate.doc.
It takes into account the evolving legal capacity of children. Four
goals must be achieved in ]Article 9: 1) the right to make and carry
out decisions and life choices according to one’s own will; 2) the right
to take legally effective actions ; 3) the right to represent oneself;
and 4) elimination of the barriers to the exercise of such rights which
may require positive measures. The new Caucus draft is modeled on a
supported decision-making model and away from a substituted decision-making
model.
DPI underlined the need to ensure accessibility of
legal and other procedures where PWD exercise their legal capacity.
National Human Rights Institutions supported the Canadian
proposal, and the proposal by Costa Rica and Mexico to split the article
into an article on legal capacity and one on access to justice. It supports
the Canadian proposal for the article on legal capacity.
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