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Here are some of the key ideas you will need to understand in this module.
Use your mouse or keyboard to expand each of the headings below.
It is important to understand the relationship between rights holders and duty bearers when considering the rights of persons with disabilities and enabling their access to justice.
Rights holders – everyone, including people with disabilities, are rights holders. They have both entitlements and responsibilities. As rights holders they are entitled to, for example, health, education, livelihood opportunities, housing, and political participation. These, as well as other entitlements, are all outlined in the Convention on the Rights of Persons with Disabilities.
Duty bearers – when a person has a right someone else has a duty to respect, protect and fulfil that right. In the case of human rights, this duty is always and only held by the state. For other law, both the state and non-state actors such as non-governmental organizations, religious leaders, parents may be liable. The duties of states are outlined in the Convention on the Rights of Persons with Disabilities.
Access to justice may be limited to the wealthy, the politically connected, and people living in urban areas. People with disabilities face a number of barriers to accessing justice. These barriers include:
Article 12 of the CRPD states: “States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. Legal capacity,or autonomy, is the right to be legally recognized to make personal decisions, such as when to consent to medical treatment, where to live and who to marry. The CRPD recognizes that in some cases, persons with disabilities require support to make decisions. This support may take the form of having another person assist the person with disabilities in communicating the individual’s intentions to others or help him or her understand the choices at hand.
Legal protection
The rights of people with disabilities need to be recognized in national constitutions, legislation and policies. Once their rights are legally recognized, then courts, administrative bodies, tribunals and in some cases human rights institutions can provide solutions when the rights of persons with disabilities are violated. The type of remedy will depend on the wrong that needs to be corrected, and may include:
Legal protection can have either informal mechanisms or formal mechanisms.
Informal mechanisms
Unfair or unjust practices can often be effectively resolved at the community level. Informal mechanisms of social regulation may be accessible through:
Learn about how informal justice paved a way for a man with leprosy in India.
In Orissa, India, a community-based leprosy programme worked with elders and religious leaders to find a solution for a man who was forced to leave his home and village because he had leprosy. It was agreed that, after a religious renaming and re-birthing ceremony, the man would be able to return to his family with a new name and participate once again in community life.
Formal mechanisms
When a person cannot access their rights through informal means, then more formal processes of legal protection need to be used, such as legal action undertaken through the courts. Usually this is a last resort because it is expensive, slow, and requires professional legal advice.
For people with disabilities living it may only be possible to use legal services with support from free legal aid centres or from human rights, disability or development organizations. It is important that any decision to undertake legal action on the behalf of a person with disabilities must be made with their permission.
Learn about how free legal assistance can have a huge impact for people with disabilities.
A number of deaf employees working as money counters had their contracts terminated when the large Manila-based bank they worked for bought money-counting machines. The employees, with the support of KAMPI, the Philippine National Federation of Organizations of Persons with Disabilities, approached a group of lawyers who agreed to provide free legal assistance.
After a number of years, the Supreme Court of the Philippines ruled, on the basis of national disability anti-discrimination law, that the termination was illegal and discriminatory. The bank was ordered to pay back wages to the employees for all the years they had been out of work, and further was ordered to reinstate them to their posts. Rather than choosing to return to their old jobs, the employees used the compensation money to set up small business activities.
Legal awareness
Legal awareness is the foundation for fighting injustice. People with disabilities cannot seek remedies for injustice if they do not know what rights and entitlements are protected under the law. When people with disabilities and family members are aware of their rights, they are better able to defend those rights and speak out when they observe abuse of other people’s rights.
Legal aid
The costs associated with formal legal processes are high and often discourage people from seeking justice. Legal aid support can help people with disabilities to initiate and pursue justice. Legal aid schemes provide funding and support, including advice and assistance to people to understand their rights and the law, as well as representing them in court.
Governments are usually responsible for providing legal aid, but where governments have limited capacity to fulfill this responsibility, non-governmental organizations are important sources of assistance.
Community legal centres
One way to provide legal services for people with few resources who do not meet the eligibility requirements for legal aid is to use community legal centres or law school clinics. These centres and clinics are usually small non-profit organizations that provide a range of legal services, including advice, assistance, referral, representation in court and provision of information about legal issues.
They also play an important role in raising awareness, educating the community on legal issues, and lobbying for and developing policy – such as advocating for the development of a fair legal system and working toward legal reform. A key feature of community legal centres is their use of volunteers in the delivery of services.
Learn about how CBR helped a girl with disabilities to go back to school.
A young girl in Quito, Ecuador was not allowed to study because her parents forced her to beg on the streets. The child’s grandmother was very concerned. After failing to resolve the matter within the family, the grandmother asked CBR to help her gain custody of her grandchild. CBR contacted the legal aid society to support the grandmother with advice and assistance. They took on her case and now the grandmother has custody of her granddaughter, who is pleased to be back in school.
