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| [discom10.htm] |
Under the No-Discrimination-Principle, the Bill of Rights found in many Constitutions concerns persons with disabilities, as they are human beings, too. Therefore, basic civil rights, such as the right to life, the right to a private life, and liberties such as the liberty of expression and others apply to disabled persons.
The Fifth Amendment of the Constitution of the United States of America provides: " No person (...) shall be deprived of life, liberty, or property, without due process of law."
The Constitution of the Portuguese Republic provides that: "…citizens who are physically or mentally disabled shall enjoy all the rights and be subject to all the duties embodied in the Constitution, except for the exercise or performance of those for which their disablement unfits them."
One way to protect the civil rights of persons with disabilities is to enforce positive discrimination in their favour.
The Spanish Constitution provides: "The public authorities shall implement a policy of (...) integration of those who are physically, sensory and mentally handicapped, who shall be given the special attention which they try to require and afford them special protection for the enjoyment of the rights which this Title grants to all citizens".
In the United States of America, although there is no specific right to education under the Constitution, the Supreme Court has held that when a State provides education, it has to do so on an equal basis. The Federal District Court of Columbia held that no handicapped children should be excluded from public education unless they were provided an adequate alternative education and certain due process.
In India, the Persons with Disabilities Bill ensures free and compulsory education to children with disabilities through different forms of education, such as special, integrated and non-formal education. It also provides financial assistance in the form of distribution of equipment free of charge or at a subsidised cost, promotes research to develop enabling technology and teaching methods for the education of persons with disabilities, and adapts and modifies education syllabi to enhance disabled persons' access to education.
The Constitution of Denmark provides that " …any person unable to support himself or his dependants shall, where no other person is responsible for his or their maintenance, be entitled to receive public assistance, provided that he shall comply with the obligations imposed by Statute in such respect."
In Japan, the Fundamental Law for Countermeasures for Mentally and Physically Handicapped Persons provides that the State and local public bodies should take measures to provide mentally and physically handicapped persons with medical benefits which are necessary for them to restore or obtain their function. They should also accommodate handicapped persons in institutions or have them attend the same, according to their age, kind and degree of their handicaps. This is necessary in order to provide them with appropriate protection, medical care and training and to promote research and development of medical care, guidance, training, and other tools.
The Constitution of Venezuela provides that "…persons who lack the economic means and who are not in a position to obtain them shall have the right to social assistance if they are incorporated in the social security systems."
In the U.K. of Great Britain and Northern Ireland, the Disabled Persons Act (Employment)6 originated from the need to make provisions for people disabled in the Second World War. The objective of the Act was improving the employment prospects of people with disabilities. The Act defined a disabled person as someone who "…on account of injury, disease or congenital deformity, is substantially handicapped in obtaining or keeping employment, or in undertaking work on his own account, of a kind which apart from that injury, disease or deformity would be suited to his age, experience and qualifications." It provided for the registration of disabled people; the establishment of employment quotas; the designation of certain occupations as reserved for persons with disabilities; sheltered employment; vocational training and rehabilitation; and the establishment of a national body to advise on the employment situation of persons with disabilities.
Since 1944, not only have the aspirations of disabled people changed, but also our conception of who we mean when we refer to disabled people, what we mean by discrimination, and our understanding of how employment needs can best be met. It was the aim of the new legislation to reflect these changes.
The UK’s Disability Discrimination Act7 introduced a new definition of disability and repealed the quota, registration, and designated employment provisions of the Disabled Persons Act (Employment). For a number of years it had been recognised that these provisions were not working as originally intended. For example, the requirement for employers with twenty or more employees to meet a 3% quota of registered disabled people proved difficult for employers since only a third of those in the workforce eligible to register did so - about 1%. The quota only took account of recruitment (and to some extent retention in unemployment), but did nothing to promote effective employment policies by considering issues such as training and promotion.
Moreover, quota registration and designed employment were failing to meet the needs of disabled people in a modern labour market. By focusing on disability, they had the effect of stereotyping and stigmatising people with disabilities. The aim of the new legislation was to create an environment in which persons with disabilities would be able, as far as possible, to compete equitably with their non-disabled peers. The provisions on sheltered employment in the Disabled Persons Act (Employment) remain valid. They have not been repealed.
It is worth noting that breaches of the Disabled Persons Act (Employment) were criminal offences for which employers could be imprisoned - although none ever were. From today's perspective, it seems wholly inappropriate for criminal law to be necessary to protect disabled people in the employment field. This is why, when the law was repealed and replaced by the DDA, it seemed right to be using the existing structure of tribunals and conciliation.
In India, the Persons with Disabilities Bill implemented a scheme of positive discrimination in favour of persons with disabilities through a quota system reserving a certain percentage of places for persons with disabilities in the training and employment programs of public and private sector entities. It also provided incentives to establishments promoting the employment of disabled persons and preferential treatment through tax concessions, subsidies and grants.
Disability such as limited mobility caused by age, illness or accident, may restrict the opportunities for the person concerned and his or her family, to fully participate in the life of the community. Disabled persons in developing, as well as industrialised countries, find barriers in the planned environment which restrict their independence. The problem is how to integrate disabled persons in the economic and social life from which they have so far been excluded by both cultural and physical barriers. It is important, therefore, that those who develop policies for both building design and urban planning should take account of the needs of persons with disabilities.
The guide Designing with Care was prepared as a result of the implementation of the Plan of Action of the International Year of Disabled Persons8, which calls for the preparation of a series of Manuals covering different aspects of barrier free environment for disabled persons. The Guide is the result of the joint co-operation between the Swedish International Development Authority (SIDA), the United Nations and the United Nations Centre for Human Settlements (HABITAT).
Unfortunately, disabled persons, lacking in both job and social security allocations, may often become indigents and, therefore, are unable pay judicial fees. In terms of a right of access to the courts, a significant issue arises when some individuals cannot pay the fees required by the Government for the use of the courts.
In the United States, the Supreme Court has not held that there is any right to the judicial process for an individual who seeks to use that process to his benefit. However, the State cannot withhold this process when doing so would constitute the deprivation of a fundamental constitutional right.
The Constitution of the Portuguese Republic provides in article 71 that: "…the State shall assist the disabled persons associations."
6 Adopted in 1994
7 Adopted in 1995
8 Adopted in 1981
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