Equal Legal Rights, Access to Justice Crucial to Implementation of Disabilities Convention, Say Speakers as Conference of States Parties Continues

3 September 2009

Equal Legal Rights, Access to Justice Crucial to Implementation of Disabilities Convention, Say Speakers as Conference of States Parties Continues

3 September 2009
General Assembly
Department of Public Information • News and Media Division • New York

States Parties to Convention

on Rights of Persons with Disabilities

3rd Meeting (AM)

Equal Legal Rights, Access to Justice Crucial to Implementation of Disabilities

Convention, Say Speakers as Conference of States Parties Continues

Round Table Panellists Underline Decision-making Rights of Disabled People

While giving people with disabilities the same legal rights and access to justice as the non-disabled was a formidable challenge, it was crucial to implementation of the United Nations Convention on the Rights of Persons with Disabilities, speakers said today as the Conference of States Parties to the treaty continued its second session.

Participating in a round table discussion titled “Equal recognition before the law, access to justice and support and decision-making”, many Government, civil society and disability–rights representatives conveyed the message that people with disabilities -- be they blind, deaf, mentally or intellectually challenged -- should be on an equal footing with their non-disabled counterparts in all aspects of life, and actively involved in decisions affecting their lives, in keeping with the concept “nothing about us, without us”.

The meeting specifically addressed article 12 of the Convention on the right of disabled persons to equal legal recognition, capacity and support before the law, and article 13 on their right to equal access to justice as well as support and accommodation in the justice process.

Co-chaired by Noluthando Agatha Mayende-Sibiya, Minister for Women, Youth, Children and Persons with Disabilities of South Africa, and Jim McLay, Permanent Representative of New Zealand to the United Nations, the discussion featured the following panellists: Tirza Leibowitz, Director of Advocacy for Survivor Corps and co-founder of the International Disability Caucus; Tina Minkowitz, Co-Chair of the World Network of Users and Survivors of Psychiatry and founding President of the Centre for the Human Rights of Users and Survivors of Psychiatry; Edah Wangechi Maina, Chief Executive Officer of the Kenya Society for the Mentally Handicapped and Vice-Chairperson of the Committee on the Rights of Persons with Disabilities; and Maria Soledad Cisternas Reyes, a Committee member and human rights expert, political scientist, author and law professor from Chile.

Ms. Leibowitz said that in order to effect real change on the ground, physical and communication barriers to accessing justice must be pinpointed and understood, particularly inside the courtroom.  It meant ending the undignified practice of lifting a defendant with a disability by the hands to reach a room or barring physically disabled lawyers from arguing cases merely because they were wheelchair-bound.  Similarly, a deaf witness must have sign language translation and a blind jury member material in Braille to facilitate participation in court proceedings.  Exclusionary laws that limited the capacity of disabled people to give testimony or otherwise partake in legal proceedings must be abolished.

Ms. Minkowitz, said those rights should carry over into other aspects of life.  For example, the deaf and blind were often denied the right to sign their own bank documents, and some disabled people were not allowed to marry.  People with disabilities should have the right to make their own decisions and their own mistakes.  They deserved full personal and legal rights, support to express themselves effectively and freedom from violence and abuse, often disguised as assistance.

To date, however, no country in the world had completely recognized the right to legal capacity of all people with disabilities or fully eliminated forced mental health treatment, she said.  Some countries had granted limited decision-making rights to the disabled, but they remained under the guardianship of others, often against their will.  Such practices should end and judges should be obligated to respect those rights.  It was equally worrying that family caregivers were often reluctant to relinquish control for fear of what would happen should the disabled person concerned be allowed to make his or her own decisions.

Echoing those concerns, Ms. Maina said that for a disabled person to be recognized as a full person before the law, it would be necessary to abolish rules or programmes that replaced his or her capacity with that of someone else.  Coercive detention and institutionalization of mentally and intellectually challenged people violated their right to equal recognition, while outdated guardianship systems infringed on their fundamental right to liberty and equality.  Rather than assigning them to a guardian, disabled people should receive support for decision-making.  She stressed the importance of building a relationship of mutual trust and understanding, in which the supporter provided the supported person with advice, and discussed suitable options and consequences, in line with the latter’s wishes, so that he or she was empowered rather than subjugated.

Similarly, Ms. Cisternas Reyes noted that many laws declared people with disabilities to be completely incapable, whereas those with intellectual or psychological challenges often had additional faculties that made them fully capable of acting on their own behalf.  The “all or nothing” approach to treatment was flawed and unfair, as disabled people had varying levels of decision-making capacity.  Article 12 represented a paradigm change that intended to change that traditional approach by guaranteeing disabled people the right to act fully for themselves in judicial life, giving them gradual support and safeguard systems, as needed.

The challenge now was to define legally suitable support systems that both respected the will of disabled people and generated social awareness of their circumstances, she said.  Societies must provide community-based rehabilitation and other support to people in need.  Governments were chiefly responsible for creating such support systems, which should be tailored to the specific concerns of the person in question.  Those with severe disabilities should receive the greatest level of care, she stressed, adding that support must be provided under judicial guardianship and reviewed periodically.

Reflecting on those interventions, Ms. Mayende-Sibiya called on States parties to commit themselves to advancing and protecting the rights and dignity of persons with disabilities by translating issues of legal capacity into good practice, enshrining those rights in their respective Constitutions and making their judiciaries user-friendly to disabled people.

Mr. McLay urged Governments to make good on their commitment to article 12, which challenged centuries of legal practice and required States, for the first time, to exam domestic laws to ensure compliance with the Convention.  Many required adjustments should be a product of common sense rather than legal intervention.  For example, while many courtrooms had ramps, they often lacked other services to accommodate disabled people.  A judge should be able to allow an interpreter into a courtroom to accommodate a disabled person without requiring a legal reform to do so.

During the ensuing discussion, many delegates took the floor to shed light on their respective Governments’ efforts to provide equal legal recognition and support for persons with disabilities.  For example, New Zealand’s representative said national laws had been revised to give disabled people greater capacity to make their own decisions, regardless of whether family members felt such decisions were prudent.  Italy’s representative said his country’s Government was scrutinizing the national courts to see whether they were providing proper legal assistance to persons with disabilities, and had abolished the forced institutionalization of the mentally disabled.  Brazil’s representative said his Government was facilitating a greater role for the disabled in the justice system, and the nation’s first blind judge would soon assume office.  Morocco’s representative said his Government had enacted guidelines to ensure that the deaf had sign language interpreters in the courtroom.  It was also important to train and educate the judiciary about the needs and concerns of disabled people.

Thailand’s representative said article 40 of his country’s Constitution required that legal assistance and accommodation be made available to persons with disabilities so as to give them legal access to justice.  In reality, however, it was difficult to draw the line between supportive decision-making and substitute decision-making.  Good guidelines in the form of a handbook or manual that explained those two concepts were essential, as it was difficult to make people understand the importance of equal recognition.

Several civil society representatives also took the floor to express their views.  A representative of Inclusion International said that, while it was heartening to see how far the disability-rights discussion had advanced since the Convention had been negotiated, many States that had signed and ratified the text were still using a form of substitute decision-making for people with intellectual disabilities while calling it something else.  Most people with disabilities could, in fact, make decisions with only informal support.

A representative of the Israel Human Rights Centre for People with Disabilities lamented that legal recognition was woefully lacking in many criminal justice systems.  There was systematic neglect of people facing real barriers, as in the case of a 17-year-old girl with disabilities forced to confront her rapist in a courtroom.  People with disabilities represented a disproportionate number of crime victims -– a truth that society and Governments often failed to acknowledge.  They needed special access to justice as well as investigators and judiciary personnel schooled in how to accommodate their specific needs.

A representative of the International Disability Alliance stressed the importance of considering the proposal presented on Tuesday to set up an intersessional working group and a United Nations fund to encourage national implementation and strong participation in decision-making by representatives of organizations of persons with disabilities.

Also making statements were representatives of the Republic of Korea, Belgium, Sweden, Panama, Argentina and Mexico.

The Conference of States Parties will meet again at 10 a.m. tomorrow, Friday 4 September, to conclude its second session.

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For information media • not an official record
For information media. Not an official record.