Article 13 - Access to justice
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International Disability Caucus
Access to Justice
States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, facilitating their effective role as direct and indirect participants in all legal proceedings, including investigative and other preliminary stages.
Colombia - Draft Article 9
EQUAL RECOGNITION AS A PERSON BEFORE THE LAW
States Parties shall:
(a) Recognize persons with disabilities as individuals with equal rights before the law;
(b) Accept that persons with disabilities have full legal capacity on an equal basis except as provided by law;
(c) Ensure that where assistance is necessary to exercise that legal capacity:
(i) The assistance is to the extent possible proportional to the degree of assistance required by the person concerned and tailored to their circumstances, and does not undermine the legal capacity, rights and freedoms of the person;
(ii) Relevant decisions are taken by a competent, (independent) and impartial authority in accordance with a procedure established by law and with the application of relevant legal safeguards (including periodic review)
(d) 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, to participate in all stages of procedure in courts and tribunals, as well as to enter into binding agreements or contracts, to sign documents and act as witnesses;
(e) Take all appropriate and effective measures to ensure the equal right of persons with disabilities to own, inherit, use or otherwise dispose of property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit;
[Proposal by the African Group excluding its paragraph iii)]
Costa Rica- Draft Article 9
EQUAL RECOGNITION AS A PERSON BEFORE THE LAW
States Parties shall:
a. Recognize persons with disabilities as individuals with equal rights and obligations before the law [from proposals by Mexico and EU]
b. Recognize the legal capacity of persons with disabilities on an equal basis with others in all fields [new language based on ideas of WG]
c. Ensure that where assistance is necessary to exercise that legal capacity:
i. Such assistance is adequate to meet the person's requirements and does not undermine his/her rights and freedoms [from proposals by WG and Uganda ]
ii Relevant decisions are taken by a competent, independent and impartial authority in accordance with a procedure established by law and with the application of relevant legal safeguards, including provisions for periodic review [from proposals by EU and Costa Rica]
d. Take all necessary measures to ensure everyone whose rights and freedoms as recognized in this convention are violated should have an effective remedy before a national authority, notwithstanding that the violation has be committed in an official capacity [from proposal by Costa Rica, this could be placed elsewhere]
Delete paras d), e), f) and g) of the proposal by Japan because their content is already covered in this proposal and also in art. 19.
EQUAL RECOGNITION AS A PERSON BEFORE THE LAW
States Parties shall:
(a) Recognise persons with disabilities as individuals with rights before the law equal to all other persons;
(b) Accept that persons with disabilities have full legal capacity on an equal basis as others 1 , including in financial matters;
EU Proposal: EU suggests replacing (a) and (b) with the following paragraph:“Recognise persons with disabilities as individuals with equal rights before the law and guarantee equality before the law, without discrimination against persons with disabilities;”.
(c) ensure that where assistance is necessary to exercise that legal capacity:
(i) the assistance is proportional to the degree of assistance required by the person concerned and tailored to their circumstances, and does not interfere with the legal capacity, rights and freedoms of the person;
Proposal: EU suggests ending paragraph (c) (i) after “their circumstances”.
(ii)relevant decisions are taken by a competent, independent and impartical authority in accordance with a procedure established by law and with the application of relevant legal safeguards including provisions for review; 2
EU Proposal 4th AHC: replace paragraph (c) with Canadian language:
States Parties shall ensure that where
adults persons with disabilities
need support to exercise their legal capacity, including assistance to understand
information and to express their decisions, choices and wishes, the assistance
is proportional to the degree of support required and tailored to the adult's
person's individual circumstances.
1. Relevant decisions, inter alia on the loss or restriction of legal capacity, are taken by a competent, independent and impartial authority in accordance with a procedure established by law and with the application of relevant legal safeguards including provisions for review;
States Parties shall provide by law for a procedure with appropriate safeguards
for the appointment of a personal representative to exercise legal capacity
adult's person's behalf. Such an appointment
should be guided by principles consistent with this Convention and international
human rights law, including:
ensuring that the appointment is proportional to the
person's degree of legal incapacity and tailored to the adult's
person's individual circumstances; and
(b) ensuring that personal representatives take into account, to the maximum extent possible, the
adult's person's decisions, choices and wishes.”
(d) 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; 3
EU proposal: Delete 9(d)
(e) take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs, and to have equal access to bank loans, mortgage and other forms of financial credit;
EU proposal: Delete 9(e)
(f) ensure that persons with disabilities are not arbitrarily deprived of their property.
EU proposal 4th AHC to renumber 9(f) into 9(4)(5)
As stated in the course of the current session, the Government of Japan wishes to see that our proposal on article 9 paragraph (g) tabled in the 3rd and 4th AHC will now find a place under article 9 bis [Access to Justice] proposed by Chile, as a separate paragraph, which reads :
"Take appropriate and effective measures to eliminate physical and communication barriers and to reduce understanding difficulty of persons with disabilities in order to exercise the rights provided in Article 14 of the International Covenant on Civil and Political Rights."
To facilitate the effective role of the persons with disabilities in legal proceedings as stated in Art.9 bis, on an equal basis with others, reduction or removal of physical and communication barriers as well as understanding difficulty is fundamental for all persons with disabilities regardless their type of disability.
Article 9 bis is well drafted as a general statement, but has a room to be a bit further elaborated how we should facilitate their effective role, although we should avoid over-prescriptive languages.
- Information sheet
Supported Decision- Making vs. Guardianship
Guardianship is an ancient mechanism that was constructed without consulting people with disabilities. Guardianship laws assume that some people do not have the capacity to make legally binding decisions. We invite the Ad Hoc Committee to adopt a paradigm shift in which everyone has an equal legal capacity, without distinction based on disability.
Supported Decision-Making means a person may accept help in making decisions without relinquishing the right to make decisions. In supported decision-making, freedom of choice is never violated. Supported decision-making does not question the wisdom of a person's choices but allows everyone the dignity of risk.
Supported Decision-Making helps a person to understand information and make decisions based on his or her own preferences. A person with a learning disability might need help with reading, or may need support in focusing attention to make a decision. A person who has no verbal communication might have a trusted family member who interprets their non-verbal communications, such as positive or negative physical reactions, or uses Alternative and Augmentative Communication.
Guardianship laws theoretically protect people with disabilities from abuse but in practice they open the door to abuse. Guardianship facilitates institutionalization; the guardian can easily give consent even when the person opposes being institutionalized. One decision by the authorities and a person loses the right to decide where to live, loses the right to vote, the right to choose who to marry, the right to start a business. This results in living in a humiliating and degrading way.
- Draft proposal
1) States Parties reaffirm that persons with disabilities have the right to recognition everywhere as a person before the law.
2) States Parties shall recognise that persons with disabilities have, and are entitled to exercise and enjoy, legal capacity on an equal basis with others, in all fields.
3) States Parties shall:
a ) ensure that persons with disabilities are entitled to use support to exercise legal capacity, and that such support is adequate to meet the person's requirements , does not undermine the legal capacity or rights of the person , respect s the will and preferences of the person, and is free from conflict of interest and undue influence ;
b ) enact legislation and devise suitable procedures to facilitate access to, while preventing abuse of, supported decision-making.
- IDC on Article 9
If Disabled Peoples Organizations have no say in the decision-making about a convention to protect and defend our rights, that convention will be fatally flawed. We see the results in the discussion and amended text for articles 9 and 10.
Any form of substituted decision-making – guardianship, appointment of a personal representative, or determination of legal incapacity – excludes people with disabilities from rights that non-disabled men and women take for granted.
- IDC Response on Article 9
International Disability Caucus Rejects the Provision of Article 9 Dealing with Appointment of a Personal Representative
This Convention is aimed at promoting and protecting the rights of persons with disabilities, and not at maintaining discriminatory laws and practice that take away the personhood of persons with disabilities. The Convention must accordingly establish the principles required to empower persons with disabilities in the eyes of the law.
The Article on General Principles which received wide support from this Ad Hoc Committee includes
Article 2 is a substantive obligation as well as a means to interpret all the substantive obligations in this Convention.
The current draft of 9(3)(b) undermines, is inconsistent with, and violates these principles and obligations as well as the purpose of this Convention. Accordingly, paragraph 3(b) of article 9, providing for appointment of a personal representative for people with disabilities, is unacceptable to the International Disability Caucus.
Although an attempt was made to avoid offensive language, the effect of paragraph 2(b) is to endorse substituted decision-making, which is based on a concept of incapacity and takes away the person's right to make his or her own decisions. “Personal representative” is a term of art meaning “guardian”.
We applaud the delegations of Costa Rica and others that have called for deletion of paragraph b. The International Disability Caucus affirms that Supported Decision Making is the only paradigm for legal capacity that upholds the principles articulated in Article 2 of this Convention.
The International Disability Caucus is also concerned about two other aspects of this draft article. First, there is language in the chapeau of paragraph 3 that may inadvertently limit all the substantive obligations in that paragraph. We advocate moving the phrase ‘to the extent possible” so that it limits only the assurance that support will be provided, which is a resource-sensitive obligation and subject to the concept of progressive obligation that has been extensively discussed by this Committee.
Second, legal capacity has been differentiated from the capacity to act or exercise that legal capacity, and only equal legal capacity – not equal capacity to act - is guaranteed to people with disabilities. CEDAW, in guaranteeing women and men identical legal capacity, treats it as including capacity to act, for example by concluding contracts. Women and men with disabilities will have inferior rights to non-disabled women and men if equal capacity to act is not guaranteed in our Convention.
- Legal Capacity note
Capacity in law constructed by society:
The first thing to appreciate in relation to legal capacity is that it is socially constructed and is thus reflective of choices societies have made at different points of time. Historically capacity has been an attribute or a presumption that the law has conferred or denied from populations. A useful illustration of this process is provided by the legal management of the capacity of women. The negotiable content of the concept is again demonstrated by the Convention on the Rights of the Child acknowledging the evolving capacities of the child and explicitly incorporating the right to participation. (article 12) Therefore when we are asking for the legal disqualifications applicable against us (persons with psychosocial disability) to be lifted we are in a manner of speaking treading paths traversed by other excluded groups. We are saying that the allegation of incapacity that society makes in relation to some or all of us is false and we have a right to live like any other on our own terms.
Cognitive Capabilities Privileged in Legal Construction of Capacity
Whilst accepting the constructed nature of legal capacity (it is necessary to understand) that it is primarily constructed from a normative standard of cognitive capabilities. This privileging of cognitive capabilities is questionable as not all of us use cognitive capabilities to make our decisions. Should those of us who use an emotive or intuitive basis for reaching decisions be considered incapable? The law by according primacy to a certain way of being in the world seems to be manufacturing incapacity labels. If the presumption comes into being because of the way in which the law treats different kinds of intelligences then evidently a Disability Rights Convention needs to change this presumption and recognize these differences. This process would stand initiated if the Convention should unequivocally state that all persons with disabilities have legal capacity.
Legal Capacity not to do with Wisdom of Choices
One of the arguments put forth for substituted decision-making is that a number of persons do not have the wisdom to exercise legal capacity. But legal capacity is about the freedom to make choices and not the wisdom of those choices. There is an inherent freedom for all human beings to make the same or new mistakes and to learn or not learn from them. This liberty to learn from mistakes is at other than legal sites referred to as experimentation or even learning from trial and error. Humanity has progressed by allowing people the freedom to make mistakes. This may be because it has often been found that the blunder of today becomes the discovery of tomorrow. Whenever any people are not accorded the freedom to make their own errors they are in effect not being allowed to develop in accordance with their own genius and it is this discrimination and deprivation that needs to be addressed in relation to persons with psychosocial disability. Dignity of risk and the right not to be protected are inherent rights of all adults. A Convention which is being negotiated to return to persons with disability their full personhood has necessarily to interrogate all stereotypes because if it were to get entrapped by stereotypes it would not just reinforce a mistaken impression it would legitimize it.
Need to Distinguish between a Norm and its Implementation
It is next contended by the proponents of guardianship that supported decision-making cannot substitute for guardianship and even if it could such support is not available. These arguments it is submitted conflate the concerns of implementation into the adoption of norms. Should these constraints of implementation provide the basis for adoption of norms under the Convention especially when the norms adopted under the Convention will be the basis of all future discourse on rights of person with disabilities? A pragmatic approach for the implementation of norms is acceptable but a similar perspective towards the adoption of norms is questionable because this is letting the limitations of today confine the developments of tomorrow.
Substituted Decision Making will apply to all persons with psychosocial disability
A further argument by proponents of some form of substituted decision-making is that as a rule all persons with disability have legal capacity but there are a very small percentage of persons with severe disability for whom supported decision-making will not be sufficient and for whom guardianship will need to be provided. Proponents argue that these guardianship arrangements should be put in place subsequent to determination by a judicial body after due observance of fair procedure safeguards. They contend that this substituted decision-making will be the exception not the rule and would apply to a small percentage of cases.
The first consequence of accepting this argument will be that the rule of substituted decision-making will need to be incorporated in the Convention. Now the rule according to its proponents has been incorporated only for a very small percentage of persons with psychosocial disability. It therefore becomes necessary to ask by what procedure this small percentage of persons will be identified. Evidently this will be done from case to case. This process of identification will render the capacity of all persons with psychosocial disability open to question.
This would give rise to a situation where for questionable advantages to a small group of persons all persons with psychosocial disability shall be disadvantaged. The contention of questionable advantage is being made because studies evaluating the functioning of guardianship have found abuse isn't in fact prevented with guardianship, it is facilitated. Further these arrangements once made cause the guardian to take all decisions on behalf of and without consultation with the ward. This ouster makes for the civil death of the persons subjected to guardianship.
Supported Decision Making the Sole Model
In the circumstances it may be worthwhile to ask if the paradigm of supported decision-making would be a preferable option for all persons with disability as it would keep us at the centre of all decisions affecting us. It would interrogate the cognitive privileging existing in present laws and yet allow persons with disabilities along with others needing help to seek assistance in those tasks which require higher reliance on cognitive capabilities.
An assistance provided irrespective of the will of the recipient is an infliction and not a support. In making this statement the general humanitarian impulse of helping people in distress or in life endangering situations is not being questioned, what are being questioned are the procedures whereby persons with psychosocial disability are displaced from governing their own lives. Whilst an acknowledgement of human interdependence furthers the human rights of all persons; the imposition of dependence is a negation of human aspiration, respect and choice. It is for this recognition of human interdependence that supported decision-making needs to displace guardianship in legal constructions of capacity.
- Intervention on Legal Capacity at the Fifth Session
Address by Amita Dhanda on behalf of IDC on Legal Capacity
Mindful of the time constraints within which this Committee is functioning the International Disability Caucus wishes to raise those issues only which are of foundational concern to us. Our suggestions n drafting sequencing etc we will continue to you in memorandums.
I am speaking to you in relation to article 9 and the first point I wish to make is that the entire discussion on legal capacity has been textually and not contextually made. Consequently the social and legal history which has prompted the introduction of this article has not been acknowledged. It has not been recognized that disability has been long equated with incompetence. This equation has not just been confined to social prejudice but has in fact passed into the law. Legal incorporation has been both at the normative level and at the level of practice. It is the incorporation at the level of practice which explains why my visually impaired friend –colleague is prevented from opening a bank account. And the normative induction prevents persons with psychosocial disability to conclude contracts.
In view of these disqualifications and exclusions it is essential for us that article 9 should unequivocally declare that all persons with disability have full legal capacity. On similar grounds of exclusion and disqualification article 15(2) was incorporated in CEDAW to state that women had legal capacity identical to that of men. A provision which has provided a basis for challenging laws and practices where women were excluded only because they were women; the induction of this article in the Convention would provide a similar opportunity to persons with disability.
In such a situation it is specious to say that persons with disability cannot be allowed legal capacity as such capacity is denied to them in the national laws. Instead it is precisely because such disqualifications subsist in national laws that the Convention needs to incorporate norms which supersede the national laws.
The other reason why persons with disability are supposed to lack capacity is because some of us for some things and others for all matters may need support whilst carrying out their life activities and taking decisions in relation to them. It may be worthwhile here to ask that are persons with disability being singled because they are the only ones needing support to carry out life activities or are they being discriminated against because they are the only ones seeking this support openly and explicitly. It is important to appreciate that for us persons with disability supported decision-making is about seeking help to live life on our terms. It is for this reason that we do not wish that support in this Convention be viewed as a negative and reactive activity. Instead our contention is that this Convention should recognize as a principle that persons with disability are entitled to support. And the seeking or provision of this support will in no way undermine or negate their legal capacity. In fact Supported Decision-Making provides us with the opportunity to expand our capabilities. It is due to this opportunity of capability development whilst support from a scale to 0-100 is acceptable the legal device of substituted decision-making or guardianship is unacceptable.
Guardianship is unacceptable because it is premised on the incapacity of persons with disability. It is a device by which whilst the life affairs of persons with disability are managed our rights to growth and development are thwarted.
Legal Capacity has been constructed in ignorance of the disability experience. It is a protection which has been mechanically extended to persons with disability without asking us as to what it does to our lives and the quality of our living. It is on the basis of our lived experience that we are demanding that this Convention should accord recognition to us as persons before the law with full legal capacity. Any principle whereby we are denied the capacity to act would be no more than a legitimization of subsisting discriminatory laws.
We also demand that in acknowledgement of the principle of human interdependence-- which we hold is going to be disability's special contribution to human rights jurisprudence— the Convention should recognize that we are entitled to support and the provision or obtaining of such support in no way negates our capacity.
Lastly we are aware that the system we are proposing is not without its pitfalls and there would be need to devise regulatory measures to prevent abuse. However we believe that these legislative procedures both for facilitating access to supported decision making and to prevent its abuse should be individually designed by State Parties in consonance with their ground level realities. The Convention should again lay down the principle that such procedures are required but the details of the procedure should be worked out by each State Party.
In conclusion honourable Delegates we urge you to negotiate a Convention which is a charter for our hopes and aspirations and not a stranglehold on our future.