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Back to: Third Session | Draft Article 9 Comments on the draft text Download complete compilation of comments: MS Word - The ILO welcomes the draft Text’s call for assistance where required to people with disabilities to exercise their legal capacity, in proportion to the degree of assistance required without interfering with the person’s legal capacity, rights and freedoms. - It suggests that the Convention should specify that such assistance in accessing justice should include access to an effective dispute prevention and settlement system, and to legal aid. EDF supports the way in which this article is drafted. The focus of this article has to be on assisting disabled people, who so need, to exercise their legal capacity. This article should have as a consequence the abolition of all old-fashioned and wrongly conceived guardianship laws. EDF agrees with the concerns raised in the footnotes corresponding to this article, in particular regarding the need to protect persons with disabilities who cannot exercise their legal capacity. EDF supports to keep paragraph (d) in this article. Indian NGO Consultative Meeting In relation of Draft Article 9- b), list of areas should also include socio-cultural and political along with financial. The modified text of article 9-b) should read- “ accept that persons with disabilities have full legal capacity on an equal basis as others including in financial, social, cultural and political matters.” To translate the obligation stated in Article 9-c) ii, an addition is recommended stating that “the state shall establish objective, neutral and fair criterion.”. Therefore the modified text of 9-c) ii should read “relevant decisions are taken only in accordance with a procedure established by law and with the application of relevant legal safeguards based on an objective, neutral and fair criterion; Augmentation of draft article 9-d) is suggested by adding the following text-“ In the event of reduced / temporarily diminished legal capacity a duly appointed surrogate may exercise the legal capacity in the best interest of such a person with disability.” Therefore the modified text of article 9-d) should be read as “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. In the event of reduced / temporarily diminished legal capacity a duly appointed surrogate may exercise the legal capacity in the best interest of such a person with disability.” It has been stated that without the right to recognition as a person before the law, “the individual could be degraded to a mere legal object, where he or she would no longer be a person in the legal sense and thus be deprived of all other rights, including the right to life. … Recognition of legal personality is thus a necessary … prerequisite to all other rights of the individual.” (Cf. “UN Covenant on Civil and Political Rights: CCPR Commentary,” Manfred Nowak, p. 282) Draft Article 9 is therefore a critical component of the Working Group draft text. Draft Article 9 recognizes people with disabilities as persons before the law, though the phrasing in the chapeau differs somewhat from that used in the Covenant on Civil and Political Rights. (Cf. International Covenant on Civil and Political Rights, Article 16) Draft Article 9(b) also confirms that people with disabilities possess legal capacity on an equal basis with others. Footnote 33 confirms that where assistance is necessary to exercise legal capacity, the underlying assumption is that full legal capacity always remains. However, this assumption is not made explicit in the draft text. Draft Article 9(c) also does not adequately elaborate the procedural safeguards necessary to determine when and how assistance should be provided, although it notes in (c)(ii) that “relevant legal safeguards” must be applied. It is therefore unclear, for example, who determines when assistance is provided; the manner in which that assistance is provided; and what avenues for review and appeal the disabled person has. As also referenced in Footnote 33, it is important to elaborate the legal safeguards applicable in situations where the disabled person cannot exercise their legal capacity. Although the MI Principles do not reflect current thinking about disability within the context of the social model, they do outline some procedural safeguards that the Ad Hoc Committee may wish to review in this regard. Specifically, the procedures outlined in Principle 1(6) provide a helpful guideline – not to deprive a person of legal capacity (as is done in Principle 1(6)) but in situations where the person is unable to exercise their legal capacity. (Cf. Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, Principle 1(6)) Draft Article 9 provides examples of contexts in which the legal capacity of people with disabilities must be respected on an equal basis with others, e.g. financial matters, property ownership and disposition. The Ad Hoc Committee may wish to consider whether Draft Article 9 should be kept more general, with such matters being more fully addressed in a separate article(s). Alternatively, Draft Article 9(b),(d),(e) and (f) could be expanded to include non-exhaustive lists of other relevant areas. The right should be obtained "on equal footing with other persons". Para d), is of great importance and MUST be kept here, since PWD are often denied the right to own property, marry, become a parent, inherit, sign contracts, hold a bank account, sign their own daily documents, act as witnesses – both at weddings and before the court, or be exposed to forced sterilisation and so on, due to their disability. World Network of Users and Survivors of Psychiatry WNUSP supports the language in paragraph b recognizing the legal capacity of all people with disabilities on an equal footing with others, and the language in paragraph c guaranteeing that any assistance provided in exercising legal capacity will not interfere with the legal capacity, rights and freedoms of the person. We are concerned that the concept of “assistance to exercise legal capacity” may be inadvertently turned back to substituted decision-making if the fundamental nature of the freedom to make one’s own decisions is not adequately understood. We would like to see explicit recognition that assistance should never be imposed on a person who objects to it, and that the person who is being assisted retains the ultimate decision-making authority in his or her own life. We expect to present information during the Ad Hoc Committee meeting that may help delegates to better understand this issue. |