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Article 9 : Equal Recognition As A Person Before the Law

Plenary address on Legal Capacity

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.