Making Disability Rights Real in Southeast Asia: Implementing the UN Convention on the Rights of Persons with Disabilities in ASEAN 9781498526920, 1498526926

Citation preview

Making Disability Rights Real in Southeast Asia

Making Disability Rights Real in Southeast Asia Implementing the UN Convention on the Rights of Persons with Disabilities in ASEAN Edited by Derrick L. Cogburn and Tina Kempin Reuter

LEXINGTON BOOKS

Lanham • Boulder • New York • London

Published by Lexington Books An imprint of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 www.rowman.com Unit A, Whitacre Mews, 26-34 Stannary Street, London SE11 4AB Copyright © 2017 by Lexington Books All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without written permission from the publisher, except by a reviewer who may quote passages in a review. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data Names: Cogburn, Derrick L., editor. | Kempin Reuter, Tina, 1976- editor. Title: Making disability rights real in Southeast Asia : implementing the UN Convention on the Rights of Persons with Disabilities in ASEAN / edited by Derrick L. Cogburn and Tina Kempin Reuter. Description: Lanham : Lexington Books, [2017] | Includes bibliographical references and index. Identifiers: LCCN 2016057775 (print) | LCCN 2017004771 (ebook) | ISBN 9781498526913 (cloth : alk. paper) | ISBN 9781498526920 (Electronic) Subjects: LCSH: People with disabilities—Legal status, laws, etc.—Southeast Asia. | Convention on the Rights of Persons with Disabilities and Optional Protocol (2007 March 30) Classification: LCC KNC145.P48 M35 2017 (print) | LCC KNC145.P48 (ebook) | DDC 342.5908/7—dc23 LC record available at https://lccn.loc.gov/2016057775 The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992. Printed in the United States of America

Dedicated to my loving family and all those striving to “Make the Right Real” for persons with disabilities in Asia and around the world Derrick L. Cogburn To my parents who inspired me to go down this path and to everyone involved in realizing human rights Tina Kempin Reuter

Contents

List of Tables

xi

List of Figures

xiii

Foreword xv Preface xix Acknowledgments xxi List of Acronyms

xxiii

PART I:  INTRODUCTION AND CONCEPTUAL FRAMEWORK  1  The “Grand Challenge” of Disability and Development in ASEAN Derrick L. Cogburn  2  Conceptual Foundations of CRPD Implementation: Theory, Data, and Methods Derrick L. Cogburn

3

13

PART II:  CASE STUDIES OF CRPD IMPLEMENTATION IN ASEAN  3  Understanding CRPD Implementation in the Philippines John Paul Cruz

vii

25

viii

Contents

 4  Understanding CRPD Implementation in Thailand Naparat Kranrattanasuit, Issavara Sirirungruang, and Nantanoot Suwannawut

41

 5  Understanding CRPD Implementation in Lao PDR Paula Appelhans

61

 6  Understanding CRPD Implementation in Malaysia Ruzita Mohd. Amin, Rohana Jani, and Norhayati Zakaria

73

 7  Understanding CRPD Implementation in Indonesia Irwanto and Slamet Thohari

91

 8  Understanding CRPD Implementation in Myanmar Paula Appelhans

119

 9  Understanding CRPD Implementation in Cambodia Khy Huy

129

10  Understanding CRPD Implementation in Singapore Meng Ee Wong, Low Jarn May, and Paula Appelhans

143

11  Understanding CRPD Implementation in Vietnam Giang Phan

167

12  Understanding CRPD Implementation in Brunei Khy Huy

185

PART III:  META-ANALYSES, REGIONAL IMPLICATIONS, AND RECOMMENDATIONS 13  CRPD Implementation in ASEAN: A Cross-Case Comparative Analysis Derrick L. Cogburn

197

14  CRPD Implementation in ASEAN: Implications for Human Rights Tina Kempin Reuter

221

15  Legal Norm Diffusion and CRPD Implementation in ASEAN Robert Dinerstein 16  Conclusions and Recommendations to “Make the Right Real” in Southeast Asia Tina Kempin Reuter and Derrick L. Cogburn Appendix A: Convention on the Rights of Persons with Disabilities

259

271

277



Contents ix

Appendix B: Optional Protocol to the Convention on the Rights of Persons with Disabilities

307

Index 313 About the Contributors

319

List of Tables

Table 4.1 Table 6.1 Table 6.2 Table 7.1 Table 7.2 Table 7.3 Table 7.4 Table 13.1 Table 14.1

U.S. Statistical Data of Persons with Disabilities registered as of July 27, 2015 Distribution of Disability by Age Group (%) Distribution by Type of Disability (%) Proportion of disabilities according to different domains Earlier legislations and the conceptualization of disability Categories of DPOs during the New Order Regime NAP Disability, the Incheon Agenda, and Sustainable Development Goals CRPD Signatories and Ratifications in ASEAN Rights included in the CRPD

xi

42 74 75 92 94 96 106–107 201 226

List of Figures

Figure 4.1 Figure 4.2 Figure 4.3 Figure 4.4 Figure 11.1 Figure 13.1

Timelines of Mobilization of the CRPD Ratification Process in Thailand Figure of National Monitoring Mechanisms of Thailand The National Committee for Empowerment of Persons with Disabilities DPOs and CSOs in the CRPD Implementation Organizational Chart of National Government for Persons with Disabilities Cross-Case Comparison of CRPD Implementation in ASEAN

xiii

44 46 47 51 174 198

Foreword

It is my great pleasure to write the foreword for this important book evaluating implementation of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in Southeast Asia. Understanding how this human rights and international development treaty is realized in ASEAN is critical not only for Southeast Asia, but also for persons with disabilities all over the world. This book provides insight into national efforts to “make the right real” for persons with disabilities, and represents a significant step toward enhancing our understanding of how to ensure a society that promotes equality and inclusion for all. For almost fifty years, I have served as a career diplomat. I served as the Permanent Representative of Ecuador to the United Nations in New York and the Office at Geneva, and as Ambassador of Ecuador to the United States from 2005 until 2011. In 2013, I was unanimously elected by my peers to serve as Vice President and Rapporteur of the United Nations Human Rights Council. I have been an expert member of the UN Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. I have served as Vice President of the General Assembly, President of the Political Committee of the Non Aligned Movement three times. I currently serve as Chair of the Global Initiative for Inclusive Information and Communication Technologies (G3ict); Honorary Chair of the Universal Design Commission, Chair of the Joint Advisory Board of the Institute on Disability and Public Policy at American University; Special Advisor for The Nippon Foundation; Senior Fellow at the United Nations Institute for Training and Research (UNITAR); Fellow of the Harvard Law School Project for Disability; and I also serve on the Special Olympics’ International Board of Directors. xv

xvi

Foreword

These activities over the course of my life have been important to me. However, one of my most meaningful diplomatic assignments was from 2002 to 2005, when I served as Chairman of the United Nations Ad-Hoc Committee on a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities. This was the United Nations Task Force that negotiated the international treaty that ultimately became the Convention on the Rights of Persons with Disabilities (CRPD). In our work to develop the CRPD, the collective goals were to ensure that all persons with disabilities had an international legal framework that leveled the playing field for their participation in social and economic development that permeates all aspects of life, on par with their non-disabled peers. As I have said many times, all of us either know someone who is disabled, are disabled ourselves, or will become disabled in our lifetime. You may acquire a disability at any time in your life. All persons with disabilities are human beings, and as such have inherent rights as human beings. It is important that we now have an international treaty designed to guarantee those human rights to persons with disabilities. Persons with disabilities are full and productive members of our societies, and it is our responsibility to ensure accessibility and equality in fact. More than 170 countries around the world have ratified the CRPD, and it has become the fastest growing treaty in history. Now that the Convention has become the dominant global policy framework supporting the rights of persons with disabilities, we are at a key moment in history. It is time for all countries around the world to meet their commitments and implement the convention. As scholars, it is important for us to document progress, provide oversight, and engage in academic analysis of the implementation of the Convention: to “make the right real.” This book is an important step in that process. It adopts and builds on a conceptual framework that clearly illuminates the key elements of Article 33 of the CRPD. Through the application of this framework, we are able to understand the societal dynamics that preceded ratification in a particular country, and to compare those dynamics across multiple countries and entire regions. This book also recognizes the importance of the national focal point for CRPD implementation and the coordination mechanism. Also, we are able to see how the independent mechanism is—or is not—structured in each country. We can assess the level of civil society involvement in monitoring and implementing the Convention, especially the involvement of Disabled Persons Organizations (DPOs) and persons with disabilities. And finally, we can put the analysis and lessons learned in Southeast Asia within a greater context of human rights and development, and give policy recommendations for other



Foreword xvii

areas of the world that want to make disability rights implementation a point of focus in their public policy. It is my pleasure to submit this foreword on behalf of everyone who has been involved in negotiating, implementing, and monitoring the CRPD. Ambassador Luis Gallegos Quito, Ecuador

Preface

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is the first human rights treaty of the twenty-first century. It was adopted by the United Nations General Assembly on December 13, 2006, and open to signature on March 30, 2007. As we approach the tenth anniversary of the CRPD, it is important to remember that it is also a major global development instrument, related to global strategies like the 2030 Sustainable Development Agenda and the New Urban Agenda of Habitat III, the United Nations Conference on Housing and Sustainable Urban Development. The CRPD is also linked to important regional frameworks such as the Incheon Strategy to “Make the Right Real” for Persons with Disabilities in Asia and the Pacific, led by the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP). The CRPD is one of the fastest growing treaties in history, with over 170 ratifications at the moment. It is a complex and comprehensive treaty, reflecting a major global shift away from the individualized “medical model” of approaching persons with disabilities to a more “rights-based” and “social-justice” oriented approach. The treaty is exceptional for a multitude of reasons, not only because it serves as both a human rights and development instrument, but also because it is extensive in terms of rights covered, because of its strong focus on implementation, and because of its high level of integration of non-state actors into the preparation and implementation of the treaty. This is the first international human rights treaty that specifically assigns a role to NGOs and other civil society actors representing persons with disabilities. It also specifies the national implementation mechanisms that need to be established to promote the rights covered in the CRPD and to monitor its implementation. In addition, the CRPD is the fastest ratified human rights treaty, empowering the world’s largest minority group. xix

xx

Preface

For all these reasons, implementing the Convention is a tremendous opportunity for countries in Southeast Asia. They will not only benefit from the international expertise that comes with ratifying a comprehensive treaty like the CRPD, but more importantly, the implementation process serves as an opportunity to integrate persons with disability and their representatives as full and contributing members of society. The CRPD is an instrument enabling a marginalized group of persons, who were previously seen as cases of charity, to be productive and equal participants in the political, economic, and social processes in their communities. It also serves as an instrument for development, giving specific guidelines on how to integrate persons with disabilities in the achievement of the Sustainable Development Goals (SDGs) as specified by the United Nations (UN). Now, ten years after the CRPD opened for signature, we are interested in a detailed assessment of the implementation processes detailed in the Convention and how they are being constructed on the ground. In this volume, we assemble a global team of experts to evaluate the progress and promise of implementing the CRPD in ASEAN. To borrow the theme of ESCAP, we want to assess the degree to which the countries of Southeast Asia are “making the right real” for persons with disabilities in this critically important region of the world. ASEAN has recognized the challenge of empowering persons with disabilities and has engaged in various activities relating to disability rights, most importantly participation in Asian and Pacific Decades of Disabled Persons (1993–2002; 2003–2012; 2013–2022) and the establishment of the ASEAN Disability Forum (ADF). As all ASEAN member states have now ratified the treaty, this book serves as a first insight in what CRPD implementation can achieve and how it has impacted the lives of persons with disabilities. In our book, we highlight some of the best practices across the region and discuss the main obstacles that remain to realize disability rights. We focus on lessons learned and give policy recommendations for states and non-state actors working toward full implementation of the CRPD. Derrick L. Cogburn American University Tina Kempin Reuter University of Alabama at Birmingham October 2016

Acknowledgments

This book represents an intensive multi-year, multi-country research collaboration. It is built on tremendous progress made as the Institute on Disability and Public Policy strives to realize the vision of The Nippon Foundation to use accessible information and communication technologies in building a virtual and networked institution that contributes to the overall vision of an ASEAN Region that is inclusive, barrier-free, and rights-based, where people who are disabled are leaders in the determination of their own identities, reflecting the mantra developed by Disabled Peoples’ International (DPI) of “Nothing About Us, Without Us.” IDPP was designed to serve as a resource for fostering public policies that promote persons with disabilities entering society and competing on par with their non-disabled peers; and to prepare disabled leaders in the field of public policy related to disability. First, we would like to thank all the contributors to this volume. They have generously contributed their time and expertise to helping us understand the progress in their countries, and the broader implications of these developments. Making each of these case studies as complete as we would like would be a never-ending endeavor. As editors of this volume, we are thankful for their wonderful chapters, as well as their patience with the long process of book production. Second, we would particularly like to thank Mr. Khy Huy, our relentless research coordinator, not only for his individual chapter case studies, but also for laying the foundation for this study during an independent study he completed with Dr. Cogburn during his masters of international affairs in Comparative and International Disability Policy (CIDP) at American University as an IDPP Fellow, and later for assisting us in coordinating the efforts of the entire multinational research team. xxi

xxii

Acknowledgments

Also, we would like to thank our home institutions. At American University, we thank the faculty and staff in the School of International Service, the School of Communication, and all the faculty and staff at our Institute on Disability and Public Policy (IDPP) and in the ASEAN Studies Center. We want to especially thank Ms. Maya Aguilar, our Associate Director for her substantial contributions as well as Ms. Sengphet “Anna” Lattanavong, Research Associate at IDPP and Fulbright scholar from Lao PDR. At the University of Alabama at Birmingham, we thank the faculty and staff of the College of Arts and Sciences and the Institute for Human Rights, especially Ajanet Rountree. In particular, we would like to thank our colleagues at The Nippon Foundation in Tokyo, who have provided such generous support to the IDPP over the past seven years. Because of your vision, this volume and all our work in ASEAN, and now around the world, has been possible. We are also tremendously appreciative of the support of our IDPP Joint Advisory Board. We are forever grateful to our colleagues in the International Studies Association (ISA); the American Political Science Association (APSA); the International Association for Media and Communications Research (IAMCR); and the International Communication Association (ICA), who provided comments and feedback on various elements and iterations of this project. We are particularly grateful to past ISA President, Dr. Amitav Acharya, for enabling us to hold a Presidential Panel on this volume at the 2015 ISA Annual Meeting in New Orleans. Finally, we would all like to thank our family and friends, whose patience with us as we worked on this volume and many other projects was indefatigable.

List of Acronyms

ADB ADF AICHR APCD APDDP ASEAN AWARE BMF BNN BPJS BPOC CBR CCES CCT CDC CDPO CDPT CE CHRC COMELEC COSP CRPD CRS CSES CSOs CT

Asian Development Bank ASEAN Disability Forum ASEAN Intergovernmental Commission on Human Rights Asia Pacific Development Center on Disability Asia Pacific Decade of Disabled Persons Association of Southeast Asian Nations Singapore Association of Women for Action and Research Biwako Millennium Framework National Narcotic Board Badan Penyelenggara Jaminan Sosial Indonesian Disabled Athletes Community-Based Rehabilitation Committee on Compulsory Education in Singapore Conditional Cash Transfer Child Development Centre Cambodian Disabled People Organization Council of Disabled People of Thailand Compulsory Education Cambodian Human Rights Committee Philippines Commission on Elections Conference of States Parties to the United Nations CRPD United Nations Convention on the Rights of Persons with Disabilities Catholic Relief Service Cambodia Socio-Economic Survey Civil Society Organizations Cambodia Trust xxiii

xxiv

CwDs DAC DCD DepEd DFA DILG DisCO DOH DOJ DOLE DOTC DEP DPA DPI DPO DPWH DRD DRF DSAP DSW DSWD DTI DTN ECOSOC EMP EPC ERT ERW ESCAP EU FDR FKCPTI GTZ HCM HI HLPEP HLPF

List of Acronyms

Children with disabilities Cambodian Disability Action Council Department of Community Development Philippines Department of Education Philippines Department of Foreign Affairs Philippines Department of the Interior and Local Government Disability Convention Philippines Department of Health Philippines Department of Justice Philippines Department of Labor and Employment Philippines Department of Transportation and Communications Department of Empowerment of Persons with Disabilities Singapore Disabled People’s Association Disabled Peoples’ International Disabled Persons Organization Philippines Department of Public Works and Highways Vietnam Disability Research and Capacity Development Disability Rights Fund Drugstore Association of the Philippines Department of Social Welfare Philippines Department of Social Welfare and Development Philippines Department of Trade and Industry Network of Disability Rights Advocates United Nations Economic and Social Council Singapore Enabling Master Plan Disabled Workers’ Allowances Malaysian Equal Rights Trust Exploded Remnants of War United Nations Economic and Social Commission for Asia and the Pacific European Union Franklin Delano Roosevelt International Disability Award Physically Disabled People Front German Organization for Technical Cooperation Ho Chi Minh, Vietnam Handicap International High Level Panel of Eminent Persons High Level Political Forum on the Sustainable Development Goals



HRC HVO HWDI IAA ICC ICF ICT INGO IDA IDPP IGF ILO ISA JAIF JICA JSPACA KAPCI KPU LBH LDPA LGU LHWCA LPPRPD MAB MCA MCD MCNV MCR MCYS MDAC MDGs MILI MND MOE MoEC MOET MOH MOJ

List of Acronyms xxv

United Nations Human Rights Council Health Volunteers Overseas Indonesian Coalition of Women with Disabilities International Aid Agencies International Coordinating Committee of National Institutions International Classification of Functioning, Disability and Health Information and Communication Technologies International Non-Governmental Organization International Disability Alliance Institute on Disability and Public Policy Internet Governance Forum International Labour Organization International Studies Association Japan Integration Fund Japan International Cooperation Agency Cash Assistance to Persons with Committee for Indonesian People with Disabilities Election Commission Legal Aid Institute Lao Disabled Peoples Association Philippine Local Government Units Lao Handicapped Women and Children Association Cambodian Law on the Protection and Promotion on the Rights of Persons with Disabilities Malaysian Association for the Blind Singapore Mental Capacity Act Malaysian Confederation of Disabled Medical Committee Netherlands Vietnam Malaysian Council for Rehabilitation Singapore Ministry of Community Development, Youth and Sports Mental Disability Advocacy Center Millennium Development Goals Myanmar Independent Living Initiative Singapore Ministry of National Development Singapore Ministry of Education Ministry of National Education and Culture Vietnam Ministry of Education and Training Singapore Ministry of Health Vietnam Ministry of Justice

xxvi

MOLISA MOLSW MOM MOSALVY MoSA MoSVY MOT MSDHS MSF MSWRR NACHR NAP NCCD NCCDP NCD NCDA NCDP NCHR NCMR NCSS NEP NGA NGO NHRC NHRI NIS NRP NSO NVPC OED OP OSTP PDAO PEA PIA PKH PKSA PPDI PPLS

List of Acronyms

Vietnam Ministry of Labor, Invalids and Social Affairs Ministry of Labor and Social Welfare Singapore Ministry of Manpower Cambodian Ministry of Social Affairs, Vocational Training and Youth Rehabilitation Ministry of Social Affairs Cambodian Ministry of Social Affairs, Veteran and Youth Rehabilitation Singapore Ministry of Transportation Ministry of Social Development and Human Security Singapore Ministry of Social and Family Development Ministry of Social Welfare, Relief and Resettlement National Assembly Commission on Human Rights National Plan of Action National Coordinating Committee on Disability in Vietnam Philippines National Commission Concerning Disabled Persons National Center for Dermatology and Venerology Philippines National Council on Disability Affairs National Center for Disabled Persons National Commission on Human Rights National Center for Medical Rehabilitation National Council of Social Service National Office for Persons with Disabilities Philippines National Government Agencies Non-Governmental Organization National Human Rights Commission National Human Rights Institution National Institute of Statistics Philippines National Rehabilitation Plan National Statistics Office Singapore National Voluntary and Philanthropy Center Philippines Office of the Executive Director Philippines Office of the President United States Office of Science and Technology Policy Philippines Persons with Disabilities Affairs Office Singapore Parliamentary Elections Act Philippine Information Agency Program Keluarga Sejahtera Social Welfare Program for Children Indonesian Association of Persons with Disabilities Pendataan Program Perlindungan Sosial



List of Acronyms xxvii

PPUA

Center for Election Access for Citizens with Disabilities

PSBI PSHK PWD PWDs RA RGC RUDs SBT SDGs SEAMEO SENA SHG SHOs SUHAKAM

Perl S. Buck International Center on Law and Policy Studies Philipinos with Disabilities Persons with Disabilities Philippines Republic Act Royal Government of Cambodia Reservations, Understandings, and Declarations School-Based Team Sustainable Development Goals Southeast Asian Ministers of Education Organization Special Education Needs Assistance Self-Help Group Self-Help Organization Malaysia’s National Human Rights Institution (Suruhanjaya Hak Asasi Malaysia) Philippine Technical Education and Skills Development Authority The Leprosy Mission International National Team on Poverty Alleviation Universal Design Universal Declaration of Human Rights United Nations Development Programme Universal Periodic Review United Nations Economic and Social Commission for Asia and the Pacific United Nations Children’s Fund United States Agency for International Development Unexploded Ordinances Vietnam Federation on Disability Vietnam Household Living and Standards Survey Vietnam Assistance for the Handicapped Voluntary Welfare Organizations World Concern Development Organization World Health Organization UN World Summit on the Information Society Women with Disability Forums Christian Center for Public Health

TESDA TLMI TNP2K UD UDHR UNDP UPR UNESCAP UNICEF USAID UXO VFD VHLSS VNAH VWOs WCDO WHO WSIS+10 WWDFs YAKKUM

Part I

INTRODUCTION AND CONCEPTUAL FRAMEWORK

Chapter One

The “Grand Challenge” of Disability and Development in ASEAN Derrick L. Cogburn

INTRODUCTION Vexing societal problems challenge scholarly communities around the world. Many of the most intransigent of these problems rise to the level of what we might think of as “grand challenges,” which have a chance of being better understood, and perhaps even solved, through fundamental interdisciplinary research, linked to specific, well-defined societal goals, and involve innovative uses of technology. The eminent physicist Lewis Branscomb saw grand challenges as “[t]echnically complex societal problems that have stubbornly defied solution.”1 Thomas Kalil, Deputy Director of the White House Office of Science and Technology Policy, called them “[a]mbitious, yet achievable, goals that capture the public’s imagination and that require innovation and breakthroughs in science and technology to achieve.”2 In the United States, the Obama White House launched a series of twenty-first-century grand challenges,3 and the US Agency for International Development (USAID) launched its Grand Challenges for Development initiative.4 One commonality of grand challenges is that frequently they require multiple disciplines, multiple institutions, and perhaps multiple countries, to develop solutions. This concept of a grand challenge is useful in helping us to understand a set of problems facing the world community—long-term, sustainable, strategies for disability inclusive development. We refer to this as the “Global Grand Challenge of Disability and Development.” Several global initiatives are converging to help address this global grand challenge, including the United Nations Convention on the Rights of Persons with Disabilities (CRPD), the 2030 Sustainable Development Agenda and the Sustainable Development Goals (SDGs), the UN Conference on Housing and Sustainable Urban Development (Habitat III), the UN World Conference 3

4

Chapter One

on Disaster Risk Reduction and the Sendai Framework for Disaster Risk Reduction, and at a regional level in the Incheon Strategy developed by the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP) to “Make the Right Real” for Persons with Disabilities in Asia and the Pacific. We also welcome the important focus on the development and integration of accessible information and communication technologies found in the UN World Summit on the Information Society (WSIS+10) and the Internet Governance Forum (IGF). These initiatives, especially the CRPD and the Incheon Strategy, help to set the global and specific regional context for this book. All ten countries of the Association of Southeast Asian Nations (ASEAN) have signed and ratified the CRPD, and are now responsible for its implementation in their countries. Also, since the CRPD was adopted by the UNGA on December 13, 2006, and was available for signature on March 30, 2007, we are now celebrating the tenth anniversary of this historic treaty. In this volume, we seek to understand how these interrelated global and regional strategies have helped to accelerate the norm diffusion and adoption of disability-inclusive development strategies within ASEAN, especially as they attempt to put in place the infrastructure to implement Article 33 of the CRPD in support of the Incheon Strategy. This chapter sets the context for the book by providing an overview of the global and regional policy environment shaping the national-level implementation of the CRPD and the public policies related to persons with disabilities in Southeast Asia. The book presents disability and development as a global “grand challenge,” and focuses on the national-level implementation of these strategic policy frameworks, which in turn puts flesh on the bones of these global and regional strategies, in fact, making the rights identified in these initiatives real to persons with disabilities on the ground. Understanding “Grand Challenges” in Society While becoming more widespread in popular vernacular, the scholarly literature points to specific definitions and examples of “grand challenges.” One of the most iconic examples of a grand challenge was President John F. Kennedy’s challenge to the United States scientific community of achieving manned spaceflight to the moon. On May 25, 1961, in a joint session of Congress, President John F. Kennedy first issued the challenge of sending a US astronaut to the moon.5 Later, on September 12, 1962, in a dramatic address at Rice University, he said: “We choose to go to the moon. We choose to go to the moon in this decade, and do the other things, not because they are easy, but because they are hard, because that goal will serve to organize and



The “Grand Challenge” of Disability and Development in ASEAN 5

measure the best of our energies and skills, because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one which we intend to win, and the others, too.”6 To accomplish this objective was seen as an overwhelming, but critically important, task. It required leadership and collaboration amongst multiple scientific disciplines, including engineering, computer science, information and communication technologies, and logistics. And when President Kennedy issued the challenge, these communities did not know how they were going to achieve these ambitious objectives. This motivation toward an ambitious, heretofore unreached goal, is sometimes known as a “moonshot,” and has been used to stimulate innovation and creativity in a number of fields and collaborative areas. While the moonshot is seen as an historic grand challenge, there are numerous examples of modern approaches. For example, as described above, the United States Office of Science and Technology Policy (OSTP) promoted a series of grand challenges for the twenty-first century, including: new energy sources; high quality jobs in an information economy; cures for cancer; new ways of teaching and learning; improving health care delivery; management of water resources; nutritious food sources and improving food safety; speeding up the development of vaccines for deadly diseases.7 In addition, the US Agency for International Development (USAID) promoted grand challenges in international development that harness the potential of science and technology in addressing these challenges and the importance of global cooperation.8 A precursor to both these developments was in 2000 when the United Nations facilitated the adoption of the Millennium Development Goals (MDGs) at the Millennium Development Summit. The MDGs outlined an ambitious global agenda for the international development community. The goals and targets of the MDGs included a focus on the eradication of poverty by the year 2015. These eight MDGs were focused on stimulating international multistakeholder cooperation in alleviating extreme poverty, and included: (1) Eradicate Extreme Poverty and Hunger; (2) Achieve Universal Primary Education; (3) Promote Gender Equality and Empower Women; (4) Reduce Child Mortality; (5) Improve Maternal Health; (6) Combat HIV/AIDS, Malaria, and other Diseases; (7) Ensure Environmental Sustainability; and (8) Global Partnership for Development. While the MDGs were able to harness significant attention from relevant public and private sector actors around the world, and while there was some progress related to the goals and objectives of the MDGs, actual achievement on most of these eight goals fell far short of their lofty objectives. One limiting factor in the international community not achieving the objectives of the

6

Chapter One

MDGs was the reality that these global development goals did not include any reference to persons with disabilities. As such, more than 1 billion people in the world living with some form of disability9 were not included in the specific strategies and targets that captured the world’s attention and energies for international development in line with the MDGs. In some ways this is ironic, given the substantial intersectionalities between persons with disabilities and many of the MDGs (e.g., many are living in poverty, many are women and children, and many are excluded from educational opportunities). In trying to achieve the global goals for disability and development we have our own “moonshot.” The range of disciplines, technologies, and cultures that challenge us are enormous. Making progress on achieving these rights for persons with disabilities requires us to focus on collaborating across disciplines, institutions, and countries to overcome these challenges. Inclusive development has become one of the driving forces behind international approaches to advancing the social, political, and economic circumstances of countries, communities, and individuals around the world.10 However, the degree to which persons with disabilities have benefited from these inclusive approaches is uncertain. This is particularly true in the developing world, and even more so in Southeast Asia, which is home to perhaps the largest percentage of persons with disabilities in the world.11 As early as 1981, the United Nations declared the International Year of Disabled Persons. The World Program of Action Concerning Disabled Persons followed in 1982, and subsequently launched the first UN Decade of Disabled Persons, 1983–1992. And as Price and Takamine argue, while the rights of persons with disabilities were, in principle, already protected under the Universal Declaration of Human Rights (UDHR) in 1948, in practice these rights had not been upheld.12 Persons with disabilities were routinely “either neglected, rejected and ignored, or they were placed in institutions where they could be kept carefully segregated from their non-disabled brothers and sisters.”13 Shortly after the development of the MDGs, the international disability community began arguing that the achievement of these international development goals required a sustained focus on the millions of persons with disabilities around the world, many of whom were living in poverty and facing discrimination and marginalization in education, transportation, employment, political representation, access to information and communication technologies, and in many other areas. Building on its history in this area, the United Nations engaged in a comprehensive attempt to finally address these issues. In 2006, the United Nations Convention on the Rights of Persons with Disabilities (CRPD) was developed as both a development instrument and a human rights instrument. The social



The “Grand Challenge” of Disability and Development in ASEAN 7

movement that helped to create the CRPD helped to promote the idea that by leveling the playing field for persons with disabilities and creating opportunities for them to access education, transportation, housing, and a range of other areas, they could make positive contributions to social and economic development in each country, thus contributing to international development goals. The CRPD was adopted in 2006 and was opened for signature on March 30, 2007. It was the first human rights treaty of the twenty-first century and the fastest growing treaty in history. There are currently 187 countries that have signed the convention, with 172 ratifications.14 All ten countries of Southeast Asia have signed and ratified the CRPD.15 The CRPD represented a substantial shift in the underlying paradigm for understanding persons with disabilities, away from what was known as the “medical model” of disability—which focused on the physical and mental deficiencies of the individual and the attempts by the medical community to ameliorate those conditions and a charity-oriented model of help and support for those persons—to a model that is “rights-based” and focused on ensuring social justice, and equal access for all persons, regardless of their abilities. This approach recognized that it was social decisions of communities, companies, organizations, cities, states, and countries that created barriers for persons with disabilities, and nothing inherently “unworthy” about them as individuals. The CRPD is designed “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”16 As such, the CRPD is the first human rights treaty of the twenty-first century.17 It provides a comprehensive policy framework to address the rights of PWDs, and Article 33 of the CRPD includes an innovative requirement for national and regional-level implementation that mandates a high-level focal point for coordination, an independent mechanism for monitoring, and a multistakeholder/multisectoral approach to implementation, including the active involvement of persons with disabilities in the process. The CRPD is also an international development instrument. It lays out a strategy for inclusive development that creates an ecosystem within which persons with disabilities can live independently, experience freedom of movement and mobility, have access to accessible education at all levels, enjoy employment opportunities, and access to systems of justice to address violations of these rights. The approach outlined in the CRPD has tremendous potential to accelerate development, through its approach to inclusion and removing barriers to “freedom” for persons with disabilities to make the kinds of choices about their lives that lead to sustainable, resilient, development.18 Nudged by these processes, the UN General Assembly has attempted to integrate

8

Chapter One

these issues into its successor to the Millennium Development Goals, the post-2015 Sustainable Development Goals (SDGs).19 Unfortunately, a landmark study released in 2011 by the World Bank and World Health Organization highlighted that the problem was actually much worse than imagined. Previous estimates of persons with disabilities put the worldwide number at around 650 million, or about 10 percent of every national population in the world. The Global Disability Report actually concluded that more than a billion people in the world were living with some form of disability, which is about 15 percent of every national population in the world.20 While staggering, these numbers are considered conservative, as statistics on persons with disabilities (PWDs) are notoriously unreliable and as older populations begin to require similar accommodations. These numbers are even worse in the developing countries and regions of the world. For example, there are now as many as 650 million persons with disabilities living in the Asia-Pacific Region.21 The United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP) has been particularly active in this area. For example, in Beijing in December 1992, UNESCAP launched the 1st Asian and Pacific Decade of Disabled Persons (1993–2002) with the Agenda for Action for the Asian and Pacific Decade of Disabled Persons. Following this initial effort, UNESCAP convened the 2nd Asian and Pacific Decade of Disabled Persons from 2003–2012, which included numerous spin-off initiatives. One new initiative was the creation of the Asia-Pacific Development Center on Disability (APCD) in Bangkok, Thailand, as a Royal Foundation. Another major initiative was born in 2003 with the launch of the Biwako Millennium Framework for Action toward an Inclusive, Barrier-Free and Rights-based Society in Asia and the Pacific.22 In November 2012, UNESCAP launched the 3rd Asian and Pacific Decade on Persons with Disabilities. At the center of this campaign is a regional-level disability policy framework developed by UNESCAP, called the Incheon Strategy to “Make the Right Real” for Persons with Disabilities in Asia and the Pacific. Similar in some ways to the MDGs, the Incheon Strategy is organized around ten key goals, with specific targets, and indicators (both core and periphery) designed to measure progress toward achieving those goals. It is also designed to accelerate the ratification and implementation of the CRPD in the Asia Pacific region. At a sub-regional level, Southeast Asia has developed a concerted, multilevel approach to addressing these issues. The ASEAN Charter, adopted in Singapore on November 20, 2007, promotes a “people-oriented ASEAN in which all sectors of society are encouraged to participate.”23 In 2009 after the ASEAN People’s Forum (APF), a group of Disabled Persons Organizations (DPOs) from the region started the ASEAN Disability Forum (ADF).



The “Grand Challenge” of Disability and Development in ASEAN 9

A major goal of the ADF is to “raise awareness about the rights of persons with disabilities and promote disability inclusive policies” in ASEAN and to formulate recommendations that can be submitted for consideration by the ASEAN Summit.24 In 2010, the Bali Declaration on the Enhancement of the Role and Participation of the Persons with Disabilities in ASEAN Community and Mobilization Framework of the ASEAN Decade of Persons with Disabilities (2011–2020) was produced. And more recently, on May 11, 2014, the Nay Pi Taw Declaration on Realisation of the ASEAN Community by 2015, the ASEAN Member States agreed: “To enhance efforts to empower women, youth, children, persons with disabilities and other vulnerable groups by encouraging their active participation in and helping them benefit from the ASEAN community-building process.”25 These global and regional developments lay the groundwork for a complex strategic framework for disability policy in the ASEAN region. All ten ASEAN countries have signed and ratified the CRPD. Within two years of ratification of the Convention, Article 35 of the CRPD requires all State Parties to submit to the Committee on the Rights of Persons with Disabilities through the Secretary General of the United Nations “a comprehensive report on measures taken to give effect to its obligations” under the Convention.26 This book serves as a first insight and assessment on how the ASEAN region has fared in addressing the “grand challenge” of disability rights. While much progress has been made, our study discusses some of the main difficulties and obstacles that need to be overcome to “make the right real.” The next chapter focuses on the methods used to assess our case studies and provides the conceptual and theoretical background for our analysis. NOTES 1. Lewis Branscomb. “A Focused Approach to Society’s Grand Challenges.” (2009). 2.  Thomas Kalil. “Grand Challenges of the 21st Century” (prepared remarks at the Information Technology and Innovation Foundation, Washington D.C., April 12, 2012). 3.  The White House. “21st Century Grand Challenges,” https://www.whitehouse. gov/administration/eop/ostp/grand-challenges. 4. “Grand Challenges for Development,” last modified July 11, 2016, https:// www.usaid.gov/grandchallenges. 5.  “The Decision to Go to the Moon: President John F. Kennedy’s May 25, 1961 Speech before a Joint Session of Congress,” Last modified October 29, 2013, http:// history.nasa.gov/moondec.html.

10

Chapter One

  6.  “John F. Kennedy Moon Speech—Rice Stadium,” National Aeronautics and Space Administration, http://er.jsc.nasa.gov/seh/ricetalk.htm.   7.  “21st Century Grand Challenges.”   8.  “Grand Challenges for Development.”   9.  “World Report on Disability,” World Health Organization, http://www.who. int/disabilities/world_report/2011/en/. 10.  Amartya Sen. Development as Freedom. New York: Anchor Books, 2000. 11.  United Nations Economic and Social Commission for Asia and the Pacific. “Statistical Yearbook for Asia and the Pacific 2008.” http://www.unescap.org/stat/ data/syb2008/ESCAP-SYB2008.pdf. 12.  Penny Price and Yutaka Takamine. “The Asian and Pacific Decade of Disabled Persons 1993–2002: What Have We Learnt.” Asia Pacific Disability Rehabilitation Journal 4(2003). 13.  Ibid., 115. 14.  United Nations Department of Social and Economic Affairs. “Disability and Rehabilitation.” https://www.un.org/development/desa/; “Committee on the Rights of Persons with Disabilities,” http://www.ohchr.org/EN/HRBodies/CRPD/Pages/ CRPDIndex.aspx. 15.  “Disability and Rehabilitation.” 16.  “Committee on the Rights of Persons with Disabilities,” Article 1. 17. Janet Lord. “People with Disabilities.” In Encyclopedia of Genocide and Crimes Against Humanity, ed. Dinah Shelton. New York: Macmillian Reference, 2005; Janet Lord and Michael Stein. “Social rights and the Relational Value of the Rights to Participate in Sport, Recreation, and Play.” Boston University International Law Journal 27(2009). Arie Rimmerman. Social Inclusion of People with Disabilities: National and International Perspectives. Cambridge: Cambridge University Press, 2013. 18. Sen, Development as Freedom. 19.  United Nations. “General Assembly Resolutions,” http://www.un.org/en/sections/documents/general-assembly-resolutions/index.html. 20.  “World Report on Disability.” 21.  United Nations Economic and Social Commission for Asia and the Pacific. “Statistical Yearbook for Asia and the Pacific 2013,” http://www.unescap.org/stat/ data/syb2013/ESCAP-syb2013.pdf. 22.  United Nations Economic and Social Commission for Asia and the Pacific. “Resolution Adopted by the Commission and Its Fifty-Ninth Session.” http://www. unescap.org/sites/default/files/ESCAP-Resolution-59-1.pdf; United Nations Economic and Social Commission for Asia and the Pacific. “High-level Intergovernmental Meeting on the Midpoint Review of the Asian and Pacific Decade of Disabled Persons, 2003-2012.” http://www.unescapsdd.org/files/documents/APDDP2_2E_0.pdf. 23.  ASEAN Charter. http://asean.org/wp-content/uploads/images/archive/publications/ASEAN-Charter.pdf. Article 1, Section 13. 24.  “ASEAN Disability Forum,” Association of Southeast Asian Nations. http:// aseandisabilityforum.org/digaleri/.



The “Grand Challenge” of Disability and Development in ASEAN 11

25.  ASEAN. “Nay Pyi Taw Declaration of the ASEAN Community Post 2015 Vision.” http://asean.org/nay-pyi-taw-declaration-on-the-asean-community-s-post2015-vision/, Point 23. 26.  “Convention on the Rights of Persons with Disabilities,” Article 35.

BIBLIOGRAPHY Association of Southeast Asian Nations. “The ASEAN Charter: Article 1, Section 13.” http://asean.org/wp-content/uploads/images/archive/publications/ASEANCharter.pdf. Association of Southeast Asian Nations. “ASEAN Disability Forum.” http://aseandisabilityforum.org/digaleri/. Association of Southeast Asian Nations. “ Nay Pyi Taw Declaration of the ASEAN Community Post 2015 Vision.” http://asean.org/nay-pyi-taw-declaration-on-theasean-community-s-post-2015-vision/. Branscomb, Lewis. “A Focused Approach to Society’s Grand Challenges.” Issues in Science and Technology, 25(2009), 61–66. Committee on the Rights of Persons with Disability. “Reports by State Parties.” http:// www.ohchr.org/EN/HRBodies/CRPD/Pages/ConventionRightsPersonsWithDisabilities.aspx. Kalil, Thomas. “Grand Challenges of the 21st Century.” Prepared remarks at the Information Technology and Innovation Foundation, Washington, D.C., April 12, 2012. Lord, Janet. “People with Disabilities.” In Encyclopedia of Genocide and Crimes Against Humanity, edited by Dinah Shelton, 253–58. New York: Macmillian Reference, 2005. Lord, Janet, and Michael Stein. “Social rights and the relational value of the rights to participate in sport, recreation, and play.” Boston University International Law Journal 27(2009): 9–25. National Aeronautics and Space Administration. “The Decision to Go to the Moon: President John F. Kennedy’s May 25, 1961 Speech before a Joint Session of Congress.” Last modified October 29, 2013. http://history.nasa.gov/moondec.html. National Aeronautics and Space Administration. “John F. Kennedy Moon Speech – Rice Stadium.” http://er.jsc.nasa.gov/seh/ricetalk.htm. Price, Penny, and Yutaka Takamine. “The Asian and Pacific Decade of Disabled Persons 1993–2002: What Have We Learnt.” Asia Pacific Disability Rehabilitation Journal 4(2003). Rimmerman, Arie. Social Inclusion of People with Disabilities: National and International Perspectives. Cambridge: Cambridge University Press, 2013. Sen, Amartya. Development as Freedom. New York: Anchor Books, 2000. United Nations. “Convention on the Rights of Persons with Disabilities.” http://www. un.org/disabilities/convention/conventionfull.shtml. United Nations. “General Assembly Resolution.” http://www.un.org/en/sections/ documents/general-assembly-resolutions/index.html.

12

Chapter One

United Nations Department of Economic and Social Affairs. “Division for Social Policy and Development Disability.” https://www.un.org/development/desa/disabilities/. United Nations Department of Economic and Social Affairs. “Disability and Rehabilitation.” https://www.un.org/development/desa/disabilities/. United Nations Economic and Social Commission for Asia and the Pacific. “Statistical Yearbook for Asia and the Pacific 2008.” http://www.unescap.org/stat/data/ syb2008/ESCAP-SYB2008.pdf. United Nations Economic and Social Commission for Asia and the Pacific. “Statistical Yearbook for Asia and the Pacific 2013.” http://www.unescap.org/stat/data/ syb2013/ESCAP-syb2013.pdf. United Nations Economic and Social Commission for Asia and the Pacific. “Resolution Adopted by the Commission and Its Fifty-Ninth Session (2013).” http://www. unescap.org/sites/default/files/ESCAP-Resolution-59-1.pdf. United Nations Economic and Social Commission for Asia and the Pacific. “Highlevel Intergovernmental Meeting on the Midpoint Review of the Asian and Pacific Decade of Disabled Persons, 2003–2012.” http://www.unescapsdd.org/files/documents/APDDP2_2E_0.pdf. United Nations Office of the High Commissioner. “Committee on the Rights of Persons with Disabilities.” http://www.ohchr.org/EN/HRBodies/CRPD/Pages/ CRPDIndex.aspx. USAID. “Grand Challenges for Development.” Last modified October 27, 2017. https://www.usaid.gov/grandchallenges. The White House. “21st Century Grand Challenges.” https://www.whitehouse.gov/ administration/eop/ostp/grand-challenges. World Health Organization and World Bank. World Report on Disability. Geneva: World Health Organization, 2011. Available from http://www.who.int/disabilities/ world_report/2011/en/.

Chapter Two

Conceptual Foundations of CRPD Implementation Theory, Data, and Methods Derrick L. Cogburn

This chapter lays the conceptual foundation for the book, presents a discussion of the research design and methodology for the study, and provides an overview of the structure of the book. The book is part of a multi-year, multi-institutional, multi-national research project conducted by the Institute on Disability and Public Policy (IDPP) at American University in Washington, D.C., USA, in collaboration with our colleagues in Southeast Asia. The book focuses on evaluating progress in national implementation of the CRPD in ASEAN, with a specific focus on the national implementation mechanisms prescribed in Article 33. The Nippon Foundation supported this study through a generous grant to IDPP at American University. We have also benefited tremendously from our collaboration with the Institute for Human Rights (IHR) at the University of Alabama, Birmingham, whose insights into human rights protection for marginalized populations have been invaluable. Because of the richness of our case studies in part II and the divergent cultural contexts, all conducted by scholars and researchers based in Southeast Asia, we have chosen to edit the text only lightly (with some restructuring to ensure comparability across all ten cases), to maintain the authentic voice of our researchers from the region. CONCEPTUAL FRAMEWORK Over the last several decades, disability issues have undergone a substantial change. There has been a widespread move away from individualized approaches to persons with disabilities with a concomitant focus on medical “solutions” to addressing their needs to one focused on the “rights” of persons with disabilities, and the need to have societal barriers removed through 13

Chapter Two

14

public policy development and enforcement. This shift puts disability issues in line with other struggles for human rights and civil rights. The conceptual framework for this book builds on the seminal work of Gauthier de Beco, who was the first scholar to look at CRPD Article 33 implementation in a regional context, with a focus on implementation in six European countries.1 By using the de Beco framework, we are able to not only better understand the dynamics of CRPD implementation in Southeast Asia, but we are also able to compare the dynamics of this important region with other regions of the world that have used this framework. Closely following the structure of CRPD Article 33 itself, the conceptual framework has four key parts: 1.  dynamics of ratification; 2.  structuring the focal point and coordination mechanism; 3.  establishing the independent monitoring mechanism; and 4.  involvement of civil society and DPOs in CRPD implementation. In each of these areas, the framework encourages us to look at certain key elements important to the implementation process, each of which has become one of our broad and/or subsidiary research questions in the study. These questions drove the process of constructing the case studies presented in part II, as well as the cross-case comparisons of part III. CRPD RATIFICATION Ratification Process Since ratification of the CRPD is the first step in a country attempting to legally bind itself to the principles and commitments of the treaty, the conceptual framework begins with an analysis of the national and international dynamics linked to the ratification process in that country. With the ratification by Brunei Darussalam on April 11, 2016, all ten countries in Southeast Asia have ratified the CRPD. This makes the region an excellent target on which to focus and explain some of the key elements related to implementing Article 33. As such, we include a focus on the driving forces behind the ratification process. We want to understand why the state decided to ratify, and if the state had been active previously in the negotiation of the Convention. Steps Preceding Ratification The second key component in our analysis of the dynamics of CRPD ratification is the steps that preceded ratification. We look to see what the environ-



Conceptual Foundations of CRPD Implementation 15

ment was like in the country before ratification. Also, we assess the degree to which the country undertook a preliminary compliance evaluation, in which they would determine the degree to which the existing legal and policy framework was in line with the commitments of the CRPD. If so, we want to highlight any incompatibilities between the existing legislation and policy environment and the CRPD. DPOs, Ratification, and Article 33 During the negotiations for the CRPD, the international organization Disabled Peoples’ International (DPI) led the adoption by the global disability community of the mantra, “Nothing About Us, Without Us.” This phrase means that persons with disabilities should be involved in every stage of the development and implementation of policy and strategy related to their interests. While this phrase was perfectly suited to the advocacy work of the disability community, it is also in line with the broader international developments toward increased multistakeholder involvement in global governance. This component of the analytical framework seeks to understand the role of persons with disabilities and specifically Disabled Persons Organizations (DPOs) in the ratification process. Were DPOs embraced and welcomed into the process, simply tolerated, or not involved at all? Did DPOs exert pressure on the government to ratify the CRPD? Finally, this component of the framework seeks to assess the degree to which the state party had discussions related to Article 33 and the expectations for implementing the CRPD, before ratifying the treaty. State Reservations All countries ratifying the CRPD have the opportunity to submit Reservations, Understandings, and Declarations (RUDs). These mechanisms limit the state party’s commitment to the content of the treaty (Reservations), clarify how they will interpret certain aspects of the treaty (Understandings), and announce their intentions (Declarations) regarding the treaty. In many cases these RUDs modify the “spirit” of the treaty, but they are sometimes required to get a treaty past political objections and roadblocks. In this component of the framework, we try to determine if the country issued any RUDs as part of their ratification of the treaty. After ratification, the next critical step in a state party meeting its commitments to the CRPD is to begin steps to implement the treaty as detailed in Article 33. Article 33 of the CRPD includes three critical elements: 1. States Parties, in accordance with their system of organization, shall designate one or more focal points within government for matters relating to the

Chapter Two

16

implementation of the present Convention, and shall give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels. 2. States Parties shall, in accordance with their legal and administrative systems, maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to promote, protect, and monitor implementation of the present Convention. When designating or establishing such a mechanism, States Parties shall take into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights. 3. Civil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process.

STRUCTURING THE FOCAL POINT AND COORDINATION MECHANISM Designating the Focal Point As listed above, CRPD Article 33, Paragraph 1 requires each state party to designate one or more official focal point(s) within the country. This focal point is responsible for coordination within the government of the implementation of the convention, including efforts to facilitate action on the convention within different sectors and levels of the government. The conceptual framework for our study identifies which public department is designated as the focal point for CRPD implementation. How was the focal point chosen? If there is more than one focal point, which other departments have been chosen as sub-focal points? What role has the focal point taken on and how is it perceived in the public? Coordination Mechanism Next, we identify the degree to which the coordination mechanism has been established, and which ministries and state actors are represented. Are there differences between the focal point(s) and the coordination mechanism, and how do they collaborate? How were these decisions made within the government, and how did this particular structure come into being? To what degree does the focal point and coordination mechanism work to mainstream the rights of persons with disabilities across public departments? Do these efforts reflect the broad global transition from the so-called “medical model” to the “rights based” social justice model?



Conceptual Foundations of CRPD Implementation 17

Advisory Board In each country in the study, we try to determine if an Advisory Board has been established, and to understand if and how it interacts with the focal point and coordination mechanism. We also want to know which organizations are involved in the Advisory Board, and how was it established. Achievements and Challenges Finally, as we review the progress of each country’s implementation of the CRPD, we seek to understand any difficulties encountered by the focal point and coordination mechanism. What are the main achievements? What are the main obstacles the focal points have encountered? What institutional changes would be necessary to accelerate implementation of the convention? In each case, we want to understand what have been the main achievements of the focal point and coordination mechanism. Here, we also try to illustrate any practical examples that may illustrate the progress and challenges of implementing the CRPD. ESTABLISHING THE INDEPENDENT MECHANISM TO MONITOR IMPLEMENTATION Independent Mechanism As stated in CRPD Article 33, Paragraph 2, each state party is required to establish an independent mechanism within the country to promote, protect, and monitor implementation. For each country, we want to identify the body that serves as the independent mechanism and the degree of independence this body enjoys. We explore whether or not there are any other independent mechanisms or sub-independent mechanisms. Also, we want to determine who coordinates the independent mechanism and how the countries arrived at its structure for designing and/or establishing the independent mechanism. Which factors went into this decision, and by what process was the decision made? Who was involved in the decision-making process? Legal Basis for Independent Mechanism We are interested in how countries determined the legal basis for the designation or establishment of the independent mechanism. Why was this option considered best for the country? How was this option for structuring the legal basis for the independent mechanism developed and which state organs were

18

Chapter Two

involved in the process? How has the option chosen regarding the legal basis affected the success of CRPD implementation in the case studies? Mandate In addition to the legal basis, the specific mandate of the independent mechanism determines the level of engagement in the implementation process of the CRPD. What is the mandate of the independent mechanism? Does the mandate of the independent mechanism include promoting, protecting, and monitoring the implementation of the CRPD? Are there any aspects of the independent mechanism that are missing or that could be strengthened? Representation We are interested in identifying which organizations are represented on the independent mechanism. Does the independent mechanism include participation by persons with disabilities, and how is this participation ensured? Are disabled persons organizations included in the independent mechanism? Roles and Cooperation As mentioned before, in some cases the independent mechanism consists of multiple departments or institutions or sub-independent mechanisms. If that is the case, what is the division of roles between them? Collectively, do they cover all the functions of promoting, protecting, and monitoring the implementation of the convention? How is their cooperation organized? What are the institutional links between the independent mechanisms? Monitoring Monitoring implementation is a key task of the independent mechanism. We are interested to learn whether the independent mechanism is able to monitor all the rights covered by the convention and how does it set its priorities. In addition, we look at the resources of the independent mechanism and how it has affected the effectiveness of the monitoring body. What are the resources of the independent mechanism? Is the independent mechanism allowed to manage its own budget? Is the funding for the independent mechanism adequate for its mission? If not, how does the independent mechanism overcome this lack of funding?



Conceptual Foundations of CRPD Implementation 19

Achievements and Challenges In each case study, we examine the main achievements and obstacles of the independent mechanism. What are the main achievements of the independent monitoring mechanisms? And, what have been its primary achievements? What are the main challenges of the independent monitoring mechanism? Alignment with Paris Principles Finally, we assess the independent monitoring mechanism to determine the degree to which it has been established according to the standards of the Paris Principles. The Paris Principles are a set of international guidelines adopted by the United Nations General Assembly (48/134) on December 20, 1993, and were established to guide the work of National Human Rights Institutions (NHRIs). The Paris Principles include four key areas: (1) Competence and Responsibilities; (2) Composition and Guarantees of Independence and Pluralism; (3) Methods of Operation; and (4) Additional Principles. Is the independent mechanism structured along the guidelines of the Paris Principles? CIVIL SOCIETY AND DPO INVOLVEMENT IN IMPLEMENTATION Finally, as established in CRPD Article 33, Paragraph 3, each state party is required to develop mechanisms for the active involvement of civil society, and persons with disabilities and their respective organizations, to be actively involved in the monitoring of the implementation of the CRPD within the country. DPOs in the Country Our case studies give an overview of what types of Disabled Persons Organizations (DPOs) are active in the country. How are they organized? Is there any kind of “umbrella” organization for DPOs? National Structures The national structures are expected to interact with civil society actors and enhance their position in the implementation process. Have the different bodies set up under CRPD Article 33 helped to improve the position of DPOs and persons with disabilities relative to the national government? How have these organizations evolved as a result of the establishment of these CRPD bodies?

Chapter Two

20

DPOs and Focal Points Are DPOs involved in the working of the focal point and coordination mechanism? Are the focal points and coordination mechanisms accessible to these organizations (e.g., website, meetings, partnerships)? Are DPOs consulted in decision-making processes, as per Article 4(3) CRPD? DPO Consultation How do the focal point and coordination mechanism ensure that the DPOs participating in its processes are adequately representing different groups of persons with disabilities? Were any initiatives taken to strengthen those groups that have been marginalized so far? Have DPOs asked for their opinion regarding the designation or establishment of the independent mechanism? Achievements and Challenges What are the main achievements of DPO integration in implementation of the CRPD? What are the main challenges? FRAMEWORK FOR THE CRPD Overall, we are interested in determining whether or not state parties tried to build a framework for promoting and protecting rights of persons with disability and for monitoring the implementation of the CRPD. If so, what is the country’s “framework” and how did they define and develop the framework? Also, how do the different institutions and national structures (the focal point, the coordination mechanism, and the independent mechanism) interact with each other? How have the national structures for the implementation and monitoring of the convention empowered persons with disabilities and organizations representing them? RESEARCH QUESTIONS The conceptual framework for the study described above leads us to ask four “grand tour” research questions about each country: 1.  What factors influenced the country to ratify (or consider ratifying) the CRPD?



Conceptual Foundations of CRPD Implementation 21

2.  How is the country structuring the focal point and coordination mechanism for implementing the CRPD? 3.  What is the independent mechanism established by the country to monitor implementation of the CRPD? 4.  How are civil society organizations, particularly DPOs, involved in the implementation of the CRPD? And in part III we ask four “grand tour” research questions about the implications for ASEAN, human rights, and development: 5.  To what degree has ASEAN institutionalized the support for persons with disabilities? 6.  What are the implications of the CRPD for human rights in ASEAN? 7.  Are the development objectives of the CRPD in line with the strategic objectives of the ASEAN Economic Community and the broader ASEAN Community designed to come into existence by December 2015? and 8.  How do these developments in ASEAN compare with other countries and regions? METHODOLOGY The project takes a multi-phased, sequential, mixed methods comparative case study approach. In Phase One, we combined a comprehensive analysis of the voluminous amounts of secondary data available with participant observation of public events in New York, Washington, D.C., Geneva, and throughout Southeast Asia. Working with country-specific research teams, we compiled detailed case studies on each country in ASEAN of CRPD implementation. In Phase Two, a selection of these case studies was presented in a panel at the Global South Caucus of the International Studies Association (ISA) in December 2014. The tremendous feedback received at that conference was incorporated into revisions of each case study, and several more were presented on a Presidential Theme Panel at the 2015 Annual Meeting of the International Studies Association (ISA) in New Orleans, Louisiana, in February 2015. Several of the discussants from those panels are also contributing to this volume through their analysis of the implications of the metaanalysis and cross-case comparisons found in part III. Following this process, Phase Three focused on selected interviews in each country with selected government officials, private sector actors, and NGO leaders, including those representing DPOs. These interviews were used to strengthen the analysis in each of our case studies.

22

Chapter Two

CONCLUSION Now, we will turn to part II of the book, which features an in-depth case study on each of the ten countries of ASEAN. We have included the case studies in the order in which the countries ratified the CRPD, which are: Philippines, Thailand, Lao PDR, Malaysia, Indonesia, Myanmar, Cambodia, Singapore, Vietnam, and Brunei Darussalam. These case studies are rich with detail and insight. A research team on the ground in Southeast Asia developed each case study, in most cases by scholars from the country about which they are writing. Other than ensuring that each chapter follows a similar structure, we have decided not to overly edit the chapters. In this way, we hope the flavor and character of each author and research team will come through to the reader. Later, in part III of the book, we synthesize and integrate the findings from these case studies into a coherent picture of the ASEAN region, and talk about broader implications for human rights and development. NOTE 1.  Gauthier de Beco. Article 33 of the UN Convention on the Rights of Persons with Disabilities: National Structures for the Implementation and Monitoring of the Convention. Leiden: Martinus Nijhoff Publishers, 2013.

BIBLIOGRAPHY Beco, Gauthier de. Article 33 of the UN Convention on the Rights of Persons with Disabilities: National Structures for the Implementation and Monitoring of the Convention. Leiden: Martinus Nijhoff Publishers, 2013.

Part II

CASE STUDIES OF CRPD IMPLEMENTATION IN ASEAN

Chapter Three

Understanding CRPD Implementation in the Philippines John Paul Cruz

INTRODUCTION Since the adoption of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2006, a growing number of nations across the world have expressed their commitments to the implementation of the first human rights treaty of the twenty-first century. In less than a decade, the CRPD has been well received in the different parts of the globe, currently with 172 ratifications and 187 states parties signing the Convention, respectively. In addition, the Optional Protocol has ninety-two states parties at the time of writing. Among the member states of the Association of South East Asian Nations (ASEAN) the Philippines was one of the earliest signatories to the Convention on September 25, 2007, and was the first to ratify on April 15, 2008. More than six years after the ratification of the CRPD, the Philippine government continues to face major challenges in the implementation of the Convention. Disability advocates raise their concerns on issues such as the appropriate support of programs that cater to the needs of Filipinos with disabilities and how to enhance the capacity of national and local government agencies, which have been mandated to implement disability-inclusive laws and policies. It should be noted that among the ASEAN countries, the Philippines remains one of the member states which has yet to create an anti-discrimination law on disability and a disability policy.1 These implementation challenges provide an opportunity to revisit the country’s commitment to the full and meaningful inclusion of Filipinos with disabilities by understanding the effectiveness of the Philippine government in implementing the provisions of the CRPD. 25

26

Chapter Three

Purpose This chapter aims to understand the effectiveness of the national implementation of the UN CRPD in the Philippines in line with Article 33 of the Convention. This chapter seeks to revisit the measures adopted by national and local implementing agencies in order to afford Filipinos with disabilities the equal access to basic programs and services that are available to abled-bodied Filipinos. The study also explores the degree of participation of Filipinos with disabilities through the engagement of civil society organizations, particularly disabled people’s organizations (DPOs), from the signing of the CRPD to the development of national policies and programs for Filipinos with disabilities. Through the exploration of these implementation issues, the chapter hopes to identify the progress that the Philippines has already achieved after more than five years since it ratified the CRPD. Another goal of this study is to evaluate the existing implementing measures that the Philippine government has already taken and outline the gaps between these national and local mechanisms with the principles of the CRPD, particularly Article 33, which legally binds state parties to the treaty to establish or strengthen a national implementation and monitoring mechanism. REVIEW OF LITERATURE The accession of states parties to the CRPD poses several questions in terms of impact. Scholars have argued over whether codifying moral norms in treaties such as the CRPD is truly a step toward transformation of these rights in states’ domestic law.2 The ratification of the CRPD by the Philippines became an impetus for domestic activists in the country to participate in the policy formulation process and in pushing for the state to adopt measures to address issues relating to Filipinos with disabilities. The ratification of the Convention is a first step towards an enabling environment for Filipinos with disabilities that will be embedded in the Philippine culture in the form of domestic legal and institutional mechanisms. The compliance of states parties with their commitment to the promotion and protection of human rights of their citizens with disabilities can be viewed from various vantage points. This chapter highlights only the major factors that elucidate why international legal instruments are translated into concrete action plans. It is argued that commitment to and compliance with international treaties are influenced by the impact the treaty has on the policy actors’ reputation before the global human rights community and the potential sanctions that may arise from noncompliance.3 By complying with an international human



Understanding CRPD Implementation in the Philippines 27

rights treaty, the Philippines maintains a good reputation in the domestic and international arena as one of the earliest democracies in the ASEAN region. Signaling to other states parties that it is capable of keeping a promise, the Philippines can enjoy a long-term relationship with other states as these relationships are key for a country to obtain future concessions from other states.4 Another theory that aids in illuminating the compliance of a country with its international legal obligations is the transnational legal theory discussed by Guzman in his paper entitled “A Compliance Based Theory of International Law.”5 Guzman cites proponents of this theory and explains that according to the transnational legal process, compliance is influenced by competing domestic factors such as domestic legal instruments, the existing interest groups, state and non-state actors, the powers of the executive in relation to the legislative body, and the status of the country’s economic environment. Guzman also discusses that domestic institutions tend to internalize international legal obligations, which fosters compliance. It is important to highlight that the proponents of this theory underscore the key role that non-state actors play in ensuring the compliance of a state with its commitments. Private enterprises, local nongovernmental organizations, international nongovernmental organizations, and private citizens are viewed as key policy actors in the implementation process as they pressure their governments and seek changes in the domestic human rights protection.6 The case of Philippines’ accession to the CRPD can be seen against this background. DYNAMICS OF CRPD RATIFICATION IN THE PHILIPPINES Prior to the ratification of the Convention on the Rights of Persons with Disabilities, the Philippine government had already recognized the importance of the inclusion of Filipinos with disability in the mainstream society. As early as 1978, the Philippine government established the National Commission Concerning Disabled Persons (NCCDP), which formulated and integrated a comprehensive long-term national rehabilitation plan (NRP) for people with disabilities. Since then, the NCCDP has evolved to what it is now known as the National Council on Disability Affairs (NCDA). Aside from the establishment of a national implementing body, the Philippines had also in place the necessary legal mechanisms that aimed to protect and promote the rights of Filipinos with disabilities. These included landmark legislative measures such as the Accessibility Law of 1982, which aimed to ensure that public buildings were accessible to every Filipino including those with disabilities, and the

28

Chapter Three

Magna Carta for Disabled Persons of 1992, which is the principal national disability law in the country. Given the existence of laws and programs for Filipinos with disabilities before the inception of the CRPD, the Philippine government received very minimal pressure from the disability community and from other states parties to ratify the CRPD. In April 2008, the Philippine government ratified the CRPD. As one of the earliest democracies in the ASEAN region, the Philippines had already made significant progress in laying down the legal mechanisms that would promote the rights of Filipinos with disabilities. For instance, the Philippine constitution recognizes the importance of the inclusion of specific groups such as Filipinos with disabilities in the democratic processes. Article V, Section 1 of the 1987 Philippine constitution provides the right to suffrage of its citizens unless disqualified by law. Filipinos who are at least eighteen years old, regardless of the level of literacy, property, or other substantive requirements, can exercise the right to vote and run for public office. The constitution also promotes the independence of persons with disabilities in casting their votes as Article V, Section 2 directs the Congress to design electoral procedures that would allow the disabled to vote without the assistance of others. This provision emphasizes the right of PWDs to cast their votes with the assistance of others while maintaining the secrecy of their ballots. The 1987 Philippine constitution also recognizes the role of specific groups such as Filipinos with disabilities in the policymaking process. The constitution promotes the representation of marginalized segments of the Philippine society by affording them the right to run for public office through regular elections. Filipinos with disabilities can seek political office as sectoral representative through a party-list system. Consequently the Philippine Congress adopted in 1992 the Magna Carta for Disabled Persons7 which aimed to promote the inclusion of persons with disabilities into the mainstream society. Some provisions of the law were later repealed with the enactment of Republic Act (RA) 94428, which provided discount privileges, and RA 100709, which provided institutional mechanisms for the implementation of RA 7277 in rural areas.8, 9 STRUCTURING THE FOCAL POINT AND COORDINATION MECHANISM IN THE PHILIPPINES Since 1917, the government recognized the need to address issues concerning the disability sector.10 However, it was only in 1978 with the signing of P.D.



Understanding CRPD Implementation in the Philippines 29

No. 1509, which created the National Commission Concerning Disabled Persons (NCCDP) that this need was formally put into action. The NCCDP then formulated an integrated and comprehensive long-term national rehabilitation plan (NRP) for people with disabilities. In line with the CRPD, the Philippine government reorganized its existing focal point and coordinating institution, the National Council on Disability Affairs (NCDA). The NCDA functions as the national lead steering agency concerning disability issues. The Council oversees the alignment of the convention’s provisions with the domestic disability policies. It formulates disability-related policies, coordinates with key stakeholders, and monitors the implementation of national and International policies concerning the rights of the members of the disability community. Geared toward assisting persons with disabilities in achieving their full potential through their participation in the nation-building process, the National Council on Disability Affairs functions as the country’s lead steering agency concerning disability issues.11 In line with the CRPD, the Council oversees the alignment of the convention’s provisions with the domestic disability policies. Among the Council’s role and functions are the formulation of disability-related policies, close coordination with key stakeholders, and monitoring of the implementation of national and International policies concerning the rights of the members of the disability community. In line with its mandate, the Council steers, coordinates, and monitors all activities of key stakeholders involved in the prevention of disability, rehabilitation and provision of equal opportunities to persons with disabilities. Since 2007, the Council has been an attached agency to the Office of the President (OP). The transfer of the Council, which was formerly under the Department of Social Welfare and Development (DSWD), has enabled the OP to closely monitor the Council’s implementation of programs for PWDs. The Council is composed of a Governing Board and a Secretariat. The Board is headed by a chairperson, who comes from a non-governmental organization (NGO) and is appointed by the President. The Board is comprised of the heads of the following National Government Agencies (NGAs) as its members: Department of Social Welfare and Development (DSWD), Department of Health (DOH), Department of Labor and Employment (DOLE), Department of Education (DepEd), Department of the Interior and Local Government (DILG), Department of Trade and Industry (DTI), Department of Public Works and Highways (DPWH), Department of Transportation and Communications (DOTC), Department of Foreign Affairs (DFA), Department of Justice (DOJ), Philippine Information Agency (PIA), and Technical Education and Skills Development Authority (TESDA). In addition, the Board has two representatives from NGO with national network on PWD,

30

Chapter Three

two disabled representatives of legitimate disabled peoples’ organizations, and two civic group representatives working for the welfare of the persons with disabilities. To facilitate the coordination, organization of services, and evaluation of programs, the Secretariat provides the machinery to the Board. The Secretariat is headed by an Executive Director who is assisted by a Deputy Executive Director. Under the supervision of the Chairperson, the Executive Committee processes policy issues and programs prior to the presentation to the Board for action. The Board has eight subcommittees headed by members of the Board. In order to manage the daily affairs, the Council is subdivided into divisions headed by the Office of the Executive Director (OED). The OED oversees the function of the following: the Programs Management, Information, Education and Communication Technical Cooperation Center, and the Administrative Division. Milestones of the National Council on Disability Affairs For the past year, the Council has achieved gradual yet significant results that are in line with the CRPD provisions. These milestones are manifested in the Council’s policy and plan formulation, advocacy efforts, technical assistance provision, and monitoring and evaluation measures.12 Under the revised Magna Carta for Disabled Persons, Filipinos with disabilities are afforded medical privileges that allow them to have access to basic medical services and goods. They are given 20 percent discounts for every purchase of their medical needs. Although a law has been in place to ensure the provision of better medical care for persons with disabilities, the implementation of the 20 percent discount provision has been a challenge due to an overwhelming opposition from the Drugstore Association of the Philippines (DSAP). After a long battle in the courts, the Court of Appeals finally issued a resolution denying the petition of DSAP for a temporary restraining order on the implementation of the provision of the law.13 NCDA Member Agencies and CRPD Compliance For the past years, the NCDA has been encouraging its partner government agencies to submit data relating to Filipinos with disabilities. This is in line with the Council’s function of establishing and maintaining a databank as regards disability in the Philippines to be submitted to the CRPD. It has rallied NCDA member agencies, international organizations, UN bodies in the Philippines, and concerned partners to participate in the continuous collection of relevant and robust data that would facilitate the formulation of informed policies for the disability sector. Continuous coordination with NGAs such as



Understanding CRPD Implementation in the Philippines 31

the DOH, DPWH, DILG, DepEd, and the Commission on Election (COMELEC). As a result of these efforts, local government units (LGUs) have been encouraged to establish health desks, particularly in rural areas to assist in addressing health concerns of the disability sector. It has also encouraged the active participation of persons with disabilities in the budget preparation and policy formulation in accordance to the areas’ needs. Further, the close coordination has resulted in the conduct of research on the provision of potential medical benefits such as discount privileges, assistive devices, therapeutic treatments, and the like to be extended to the disability community. The Council’s initiatives have also promoted the political rights of the disability sector. In its constant discussion with the COMELEC, Filipinos with disabilities had greater access to their rights as members of the electorate. During the recent 2010 national and local elections, persons with disabilities were provided with preferential treatment as they cast their votes during an election day. The COMELEC designated a polling place at the ground floor of each voting center. This allowed voters with disabilities, particularly wheelchair users, to access polling precincts easily. Advocacy Efforts As part of its advocacy strategies, the Council produced infomercials and distributed information materials to the different parts of the country to promote disability rights and issues concerning the disability community. Media forums participated in by mass media entities from different regions in the country were also conducted to intensify the awareness and support of media entities regarding disability issues. It also conducted regular dialogues with commercial establishments such as shopping malls and encouraged the owners to have a stricter observance of the country’s accessibility law. In response, mall administrations have started training their personnel regarding the reasonable accommodation of PWD customers. Orientations on various disability-related laws are also conducted in various LGUs and municipalities to increase awareness of government personnel regarding disability. The NCDA has been active in the provision of technical assistance to various organization to further uplift the lives of PWDs in the country. Major outcomes of this effort include the passage of a law that would establish institutional mechanisms that would ensure the implementation of programs to PWDs all over the country. Also, its assistance has led to the crafting of an enumerator manual to be used by the National Statistics Office (NSO). Seeing the need to amend the provision of the country’s accessibility law, the Council has spearheaded the organization of a technical working group that would administer the process.

32

Chapter Three

Other Achievements Other achievements of the Council include the monitoring of various commercial establishments in the observance of RA 9442, particularly on discounts on medicine and other basic commodities. In addition, the Council has continuously monitored LGUs in the provision of data on disability within their area and their distribution of PWD ID cards. The PWD ID cards are a major requirement for Filipinos with disabilities to use their privileges. The ID cards are distributed by the NCDA through the LGUs. Under RA 10070, each LGU is mandated to establish a Persons with Disabilities Affairs Office (PDAO) which serves as the focal point and coordinating mechanism of the NCDA at the local level. The Philippines as an archipelago is faced with challenges in reaching far-flung areas. Currently, only forty out of eighty provinces, and only forty-nine out of 143 cities have a PDAO. In smaller communities and municipalities, it is only seven out of 491 that provide this service. CHALLENGES Persons with Disabilities Identification Cards In spite of its successes and initiatives, the Council is still beleaguered with major challenges that hinder the full participation of PWDs in the labor force, educational system, social activities, and other domains where non-disabled members of the society have access. For instance, a majority of the estimated PWD in the country have not been issued with PWD ID cards, which are imperative in accessing discounts on basic medical commodities and other services. Currently, only a total of 348 cities and municipalities out of 1,495 municipalities issue PWD ID cards.14 Inclusive Education Education has also remained exclusive as the majority of the school buildings, facilities, curriculum, and skills of teachers are still employing an integrative approach. Inclusive education requires more than the integration of children with disabilities in schools that allows them to study in a mainstream school. For education to be inclusive, an overhaul of the system is necessary which facilitates the redesigning of the curriculum, enhancing the skills of teachers to fit to the needs of all the students, and provision of facilities that could cater to the needs of teachers, students, and parents.15 Up to now, the government promotes the enrollment of children with disabilities in special schools that are often located separately from mainstream schools or are



Understanding CRPD Implementation in the Philippines 33

located within a mainstream campus but still with a segregated classroom designed for children with special needs. Employment Entry of Filipinos with disabilities in the country’s economy is another challenge for the Council. Most of the government’s efforts to make the PWDs more competitive in the labor market are focused only on low-income-generating service-oriented skills such as massage therapy and other vocational trainings under the supervision of the DSWD and TESDA. PWD professionals in both the public and private sector are still few. Participation of Filipinos with Disabilities in Policymaking Participation of Filipinos with disabilities in the public sphere can be seen in their active involvement in organizations that cater to their needs. In recent years, there had been positive indications that their participation has been increasing as manifested in the active participation of various disabled people’s organizations (DPOs). DPOs are organizations, which are run and managed by people with disabilities themselves. In 2011, it was reported that among the 104 accredited NGOs by the Department of Social Welfare and Development (DSWD), the majority have focused their efforts to assisting the vulnerable and marginalized members of the society such as persons with disabilities and the elderly. In spite of these developments, the full participation of the disability community in the public sphere remains difficult to monitor and to sustain. The currently active DPOs cannot be used as the basis for the representation of all Filipinos with disabilities as many may not belong to these organizations. The presence of organizations for people with disabilities in the political arena has also been limited. In the 2010 elections, no party list group was able to participate in the race. There were efforts to form one but none of these initiatives materialized. It was only in 2013 that the COMELEC was able to have a party list group, Philipinos with Disabilities (PWD) that specifically aims to represent people with disabilities in the Congress. Representatives of the group are all people with disabilities. In addition to the first-time participation of people with disabilities in the political race, their representation in the COMELEC has started to become more visible as the first commissioner with disability has been appointed.16 Commissioner Grace Padaca was a former governor and a polio survivor. She was tasked to handle a committee in the COMELEC that focused on persons with disabilities.

34

Chapter Three

Perception Toward Filipinos with Disabilities The low awareness of the public as regards disability is also a major challenge for the Council. The mass media still stereotype persons with disabilities as unproductive members of the society who need assistance in the form of welfare. Many government and private personnel still do not know how to accommodate persons with disabilities as some have reported their experience of discrimination while accessing public and private services.17 Finally, disabled people themselves keep the perception of self-entitlement because of their disability. Beggars on the streets of Metro Manila, for instance, usually accompany a blind or mobility-impaired person to seek sympathy from commuters and drivers. Barriers The Council has gained significant developments toward promoting rightsbased society for persons with disabilities. However, institutional barriers have to be addressed for it to be more effective and efficient. Some of its major barriers include the limited resources, overlapping functions with other government agencies, lack of periodic consultation with key stakeholders, lack of continuity of support, and weak advocacy strategy. In order for the Council to meet its targets annually, financial resources and institutional capacity are necessary. For the current year, the Council has only about 1 percent of the country’s total budget allocation. This meager budget constrains the Council from performing within its scope. The limited budget also constrains the Council from enhancing the capacity and knowhow of its personnel regarding the issue. As the Council directly functions under the supervision of the Department of Social Welfare and Development, it becomes vulnerable to the changes in the level of support from an administration every six years. A president has only six years within which flagship programs are set. These set programs determine the directions of the government and its goals. Should the government withdraw or reduce its support for the programs concerning the disability sector, initiatives of the Council may be directly or indirectly affected as manifested in the resources provided to it annually. In addition, since the key officials of the Council such as the Chairperson and other representatives of the Board are appointed and are coterminous with the Philippine president, the long-term plans set by the incumbent may suffer as new officials take over the Board after the term of an administration. The same case is true for the heads of members of the Board who are also appointed by the president. Moreover, the institutional organization becomes a barrier for the Council to function as a steering agency. Since its establishment, the NCDA has



Understanding CRPD Implementation in the Philippines 35

undergone several organization rearrangements. It was first attached to the Department of Social Welfare and Development (DSWD). Later on, it was deemed by the government to attach under the Office of the President as prescribed in the CRPD. After a change of administration in 2010, the NCDA was attached again under the DSWD. This allows the DSWD Secretary to oversee the Council’s activities. This limits the Council from functioning as a regulatory agency over the DSWD as its member agency in the Board. Uncoupling Functions Using the core strategy, it is important that the steering and rowing functions are uncoupled.18 In doing so, the Council can focus on its steering functions and leave the rowing powers to its partner agencies. The Council should not be under the supervision of the Secretary of the DSWD on behalf of the president. This uncoupling can also provide enough control to the Council over its resources and the incentives it can provide to its personnel and member agencies. Further, this strategy can clarify the roles of the Council and other key decision makers in the organization. A program initiated in major cities can be replicated in other areas. In order to strengthen its evaluation and monitoring mechanism, the Council can focus its efforts to a specific program in one of the major cities in the country, using it as a model area. This may facilitate the efficient management of resources available. By concentrating on a certain issue such as education within a given area for a given period of time, the Council can closely monitor the development of the program and its outcomes. From the evaluation of outcomes, the Council can continuously redesign its programs and apply the good practices to other areas of the country, which have similar context with the model location. It can develop a plan that can be evaluated within a period of time to ensure continuity of programs and action plans; objectives of the Council should be set within short-term, medium-term, and long-term goals. This could ensure that plans are carried out and will not be disrupted even with the change in leadership. The varying time periods could also aid the Council in assessing the effectiveness of its programs. Active Participation in the Political Arena The Council should promote the active participation of PWDs in the political arena that would facilitate more representation in the Congress. The effort of the Council with the support of the COMELEC is a great start. However, this should be intensified by formulating a policy that would include other members of the disability community in the electoral process. So far, only

36

Chapter Three

the mobility impaired can vote independently during election day. Visually impaired individuals still need assistance from their relatives or personnel in the polling places just to cast their votes. Develop Coordinating Mechanism In order to carry out its mission, the Council has to closely coordinate with other NGAs. This coordinating mechanism has to be strengthened for the Council to be more effective. Often, the laws are not effective because other implementing agencies do not know the provisions of the laws. A periodic orientation of personnel of all partner agencies should be conducted. In addition, the close coordination with LGUs could also improve the Council’s collection of data regarding disability. A central repository of information should be developed for all LGUs to access and input up-to-date information. Additional Regulatory Powers To have greater regulatory functions, the Council should have additional quasi-judicial power to sanction violators of the laws. Complaints with regard to disability issues can be forwarded to the Council and it can impose appropriate sanctions. Effective IEC Strategies In line with its information and education campaigns, the Council should strengthen its advocacy efforts in schools. The earlier the disability issues are taught, the more chances of that awareness becoming effective and lasting. Disability issues can be integrated in the curriculum of primary schools up to the tertiary level. Capacity-Building for Filipinos with Disabilities Aside from the existing vocational and skills training provided to persons with disabilities, the Council should develop a program that would improve the professional competitiveness of persons with disabilities. This could be initiated in schools. The chapter finds that the Philippines is heading in the right direction in structuring its focal point for the effective implementation of the Convention. However, it is evident that much more has to be desired. For instance, more PDAOs need to be put in place all over the archipelago in order to ensure that the services and programs of the government reach every Filipino with



Understanding CRPD Implementation in the Philippines 37

disabilities. Also, the study found that there is a need for the government to re-examine the designation of the NCDA as both the focal point and the coordinating body. With the establishment of PDAOs being contingent upon the resources of LGUs, the function of the NCDA as a focal point is undermined. The study also finds that with the NCDA’s recent reorganization, being attached to the DSWD, its function as a coordinating body that can take initiatives and can liaise with international human rights bodies including UN treaty institutions is undermined. ESTABLISHING THE INDEPENDENT MONITORING MECHANISM IN THE PHILIPPINES As prescribed by law, the National Council on Disability Affairs acts as the monitoring mechanism for the implementation of the Convention. The study found two major issues that limit its independence as a monitoring mechanism. First, the NCDA is not free from government interference as it is attached to the Department of Social Welfare and Development (DSWD). Thus, the NCDA’s priority programs are determined by the DSWD. Second, the NCDA does not have the fiscal autonomy to implement its monitoring function. Its annual budget is appropriated through the legislation of the Philippine Congress. With limited support from the Philippine legislators, the NCDA receives minimal funding for its programs. Often, the budget of the agency is only allocated to operational expenses. Funding for training and workshops to increase the capacity of its personnel in order to effectively monitor disability policy implementation has been limited for the past years. THE INVOLVEMENT OF CIVIL SOCIETY IN CRPD IMPLEMENTATION IN THE PHILIPPINES Since the 1990s, civil society organizations (CSOs) in the Philippines have steadily multiplied. Among these CSOs that have increased in number are disabled people’s organizations (DPOs). Many of them have been engaged in various efforts to advocate for the rights of Filipinos with disabilities. These national and provincial DPOs often work together with the national and local government to address disability issues such as those concerning health, education, employment, and rehabilitation. In spite of these developments, the meaningful participation of Filipinos with disabilities in the implementation of the CRPD has yet to be realized. It has been noted in the study that often, there is little or no consultation with DPOs during the formulation of laws,

38

Chapter Three

programs, and policies concerning the disability community. This limited involvement during the formulation stage of the policymaking process results in programs that fail to comprehensively address the concerns of Filipinos with disabilities. CONCLUSION The chapter finds that the Philippines is moving in the right direction in implementing the CRPD, especially in structuring its focal point for the effective implementation of the Convention. Four main points can be made: 1.  The country’s vibrant democratic processes and institutions in addition to existing legal mechanisms contributed to the ratification of the CRPD; 2.  The role and powers of the existing focal point are fragmented and overlapping and need to be revisited; 3.  There is a need to establish an independent monitoring mechanism in the country; and 4.  DPOs have been increasingly involved in the implementation of policies that impact Filipinos with disabilities. However, it is evident that much more has to be desired. For instance, more PDAOs need to be put in place all over the archipelago in order to ensure that the services and programs of the government reach every Filipino with disabilities. Also, the study found that there is a need for the government to re-examine the designation of the NCDA as both the focal point and the coordinating body. With the establishment of PDAOs being contingent upon the resources of LGUs, the function of the NCDA as a focal point is undermined. The study also finds that with NCDA’s recent reorganization, being attached to the DSWD, its function as a coordinating body that can take initiatives and can liaise with international human rights bodies including UN treaty institutions is undermined. NOTES 1. UNESCAP. Incheon Strategy to “Make the Right Real” for Persons with Disabilities in Asia and the Pacific. 2012. http://www.unescap.org/resources/incheonstrategy-“make-right-real”-persons-disabilities-asia-and-pacific. 2.  Lea Brilmayer. “From ‘Contract’ to ‘Pledge’: The Structure of International Human Rights Agreements.” The British Year Book of International Law 77/1 (2007):



Understanding CRPD Implementation in the Philippines 39

163–202. Rhona Smith. Textbook in International Human Rights. Oxford: Oxford University Press, 2012.   3.  Andrew Guzman. “A Compliance-Based Theory of International Law.” California Law Review 90/6 (2002): 1823–88. Brilmayer, “Contract to Pledge.”   4.  Guzman, “Compliance-Based Theory.”  5. Ibid.  6. Smith, Textbook; Guzman, “A Compliance-Based Theory.”  7. NCDA. “Republic Act 7277,” last modified 2012, http://www.ncda.gov.ph/ disability-laws/republic-acts/republic-act-7277/.  8. NCDA. “Republic Act 9442,” last modified 2012, http://www.ncda.gov.ph/ disability-laws/republic-acts/republic-act-9442/.  9. NCDA. “Memorandum Circular No. 2010 - 103 Establishment of Persons with Disability Affairs Office (PDAO) in Every Province, City and Municipality Pursuant to RA 10070,” last modified 2010, http://www.ncda.gov.ph/disability-laws/ dilg-memorandum-circular/memorandum-circular-no-2010-103-establishment-ofpersons-with-disability-affairs-office-pdao-in-every-province-city-and-municipalitypursuant-to-ra-10070/. 10.  NCDA. “Historical Background,” last modified 2012, http://www.ncda.gov. ph/about/historical-background/. 11.  NCDA. “Executive Order No. 709,” last modified 2012, http://www.ncda.gov. ph/disability-laws/executive-orders/executive-order-no-709/. 12.  NCDA. “2010 NCDA Accomplishment Report,” last modified 2012, http:// www.ncda.gov.ph/directors-report/accomplishment-report/. 13.  NCDA, “2010 NCDA Accomplishment Report.” 14. National Statistical Coordination Board, http://data.gov.ph/catalogue/organization/national-statistical-coordination-board. 15.  Richard Rieser. Implementing Inclusive Education: A Commonwealth Guide to implementing Article 24 of the UN Convention on the Rights of Persons with Disabilities. Commonwealth Secretariat, 2012. 16.  Rappler. “Grace Padaca New Comelec Commissioner,” last modified January 08, 2013, http://www.rappler.com/nation/13467-grace-padaca-new-comeleccommissioner. 17. Celia M. Reyes, Aubrey Tabuga, Christian Mina, Ronina Asis, and Maria Datu. Persons with Disability (PWDs) in Rural Philippines: Results from the 2010 Field Survey in Rosario, Batangas. Philippine Institute for Development Studies, 2011. 18. David Osborne and Peter Plastrik. The Reinventor’s Field Book: Tools for Transforming Your Government. New York: Jossey-Bass, 2000.

BIBLIOGRAPHY Brilmayer, Lea. “From ‘Contract’ to ‘Pledge’: The Structure of International Human Rights Agreements.” The British Year Book of International Law 77/1 (2007): 163–202.

40

Chapter Three

Guzman, Andrew. “A Compliance-Based Theory of International Law.” California Law Review 90/6 (2002): 1823–88. National Statistical Coordination Board, http://data.gov.ph/catalogue/organization/ national-statistical-coordination-board. NCDA. “Republic Act 7277,” last modified 2012, http://www.ncda.gov.ph/disabilitylaws/republic-acts/republic-act-7277/. NCDA. “2010 NCDA Accomplishment Report,” last modified 2012, http://www. ncda.gov.ph/directors-report/accomplishment-report/. NCDA. “Executive Order No. 709,” last modified 2012, http://www.ncda.gov.ph/ disability-laws/executive-orders/executive-order-no-709/. NCDA. “Historical Background,” last modified 2012, http://www.ncda.gov.ph/about/ historical-background/ NCDA. “Memorandum Circular No. 2010–103 Establishment of Persons with Disability Affairs Office (PDAO) in Every Province, City and Municipality Pursuant to RA 10070,” last modified 2010, http://www.ncda.gov.ph/disability-laws/dilgmemorandum-circular/memorandum-circular-no-2010-103-establishment-of-persons-with-disability-affairs-office-pdao-in-every-province-city-and-municipalitypursuant-to-ra-10070/. NCDA. “Republic Act 9442,” last modified 2012, http://www.ncda.gov.ph/disabilitylaws/republic-acts/republic-act-9442/. Osborne, David and Peter Plastrik. The Reinventor’s Field Book: Tools for Transforming Your Government. New York: Jossey-Bass, 2000. Rappler. “Grace Padaca New Comelec Commissioner.” last modified January 08, 2013, http://www.rappler.com/nation/13467-grace-padaca-new-comelec-commissioner. Reyes, Celia M., Aubrey Tabuga, Christian Mina, Ronina Asis, and Maria Datu. Persons with Disability (PWDs) in Rural Philippines: Results from the 2010 Field Survey in Rosario, Batangas. Philippine Institute for Development Studies, 2011. Rieser, Richard. Implementing Inclusive Education: A Commonwealth Guide to implementing Article 24 of the UN Convention on the Rights of Persons with Disabilities. Commonwealth Secretariat, 2012. Smith, Rhona. Textbook in International Human Rights. Oxford: Oxford University Press, 2012. UNESCAP. Incheon Strategy to “Make the Right Real” for Persons with Disabilities in Asia and the Pacific. 2012. http://www.unescap.org/resources/incheon-strategy“make-right-real”-persons-disabilities-asia-and-pacific.

Chapter Four

Understanding CRPD Implementation in Thailand1 Naparat Kranrattanasuit, Issavara Sirirungruang, and Nantanoot Suwannawut

INTRODUCTION Thailand is a constitutional monarchy governed by the parliamentary system. The path of history has revealed the evolution of the rights of persons with disabilities from charity-based to human rights-based approach even though progress has taken decades to appear.2 The charity-based approach originated from the establishment of the rehabilitation place for disabled soldiers after WWI,3 the combination of facilities of the restoration therapy and professional training for disabled veterans after WWII (approximately in 1948),4 and the transfer of medical division’s status into Veterans Hospital.5 Prior to the creation of the 1991 Rehabilitation of Persons with Disabilities Act (the first national law relevant to disabled people), no national law provided the basic rights of persons with disabilities.6 Despite the creation of the Rehabilitation of Persons with Disabilities Act 1991, persons with disabilities were stereotyped as aid-takers rather than rights-bearers. The 1991 Act highlighted the assistance, protection, development, and capacity building without paying attention to the acknowledgement and acceptance of Thai society and government in practice.7 The 1997 Constitution Law required the government to provide protection and assistance in terms of a charity-based more than rights-based approach while disabled people preferred to independently practice their rights.8 The disabled people reiterated their wish to live independently during the drafting process of the 2007 Constitution Law.9

41

Chapter Four

42

OVERVIEW OF DISABILITY IN THAILAND Notwithstanding the total number of 1,705,340 disabled people registered as of July 2015, the authors estimate that there are more non-registered persons with disabilities in Thailand. In fact, the World Health Organization calculated that Thailand contained approximately 6.7 million disabled people in 2010.10 Specifically, they mostly live in rural areas as implied by the current statistical data of the National Statistic Office11 (See table 4.1: Statistical Data of Persons with Disabilities). Even though the Thai government has made an effort to fulfill the rights’ enjoyment of numbers of disabled people through the national laws and policies as enshrined in CRPD,12 there are various elements that have caused incomplete implementation of CRPD as shown by the findings of Medical Disability Advocacy Center.13 First, public and private sectors and disabled people themselves have paid less attention to the CRPD norm.14 The government authority at Department of Empowerment of Persons with Disabilities (DEP) has claimed that the Thai government officials have little knowledge and understanding of CRPD.15 Second, national ministries relevant to disabled people’s rights have been focusing on their own individual projects without communication and collaboration among themselves.16 Third, despite the designation of an independent mechanism to promote, protect, and monitor the implementation of CRPD, disabled people have not been protected while they have been deprived of their rights. 17 Last but not least, Dr. Monthian Buntan (the 2013–2016 UN Committee of CRPD) raised his concern that not all parts of society (namely families, public and private actors, etc.) have acknowledged the rights of persons with disabilities as human rights.18 Because of these aforementioned obstacles, Article 33 of CRPD could provide the best practice for all relevant national mechanisms (focal point, independent mechanism, and civil society) to collaborate and strengthen the exercise in promoting, protecting and monitoring the implementation of CRPD.19 Prior to justifying whether Thailand has undertaken and followed the right direction of Article 33, the authors will first examine whether the

Table 4.1.   Statistical Data of Persons with Disabilities Registered as of July 27, 2015 Provinces Bangkok Other Provinces Total

Male

Female

Total

38,070 884,213 922,283

30,404 752,653 783,057

68,474 1,636,866 1,705,340

Source: Department of Empowerment of Persons with Disabilities (DEP), Statistical Data of Persons with Disabilities, available at http://ecard.nep.go.th/nep_all/file/Stat_June58.pdf (last visited on July 27, 2015).



Understanding CRPD Implementation in Thailand 43

involvement of civil society has driven the CRPD ratification process and the evolvement of national laws pertinent to disability rights. And the authors will secondly investigate the roles and challenges of focal point, independent monitoring mechanisms, and civil society in Thailand. DYNAMICS OF CRPD RATIFICATION IN THAILAND This section aims to investigate the roles the Disabled People’s Organizations (DPOs) and Civil Society Organizations (CSOs) play and how they get involved in the ratification process of CRPD. The authors argue that their serious commitment and the mutual collaboration between the Thai government and DPOs/CSOs have strengthened the rights of persons with disabilities in Thailand. The interviews with the government representatives at Department of Empowerment of Persons with Disabilities (DEP) and the research of de Beco and Hoefmans revealed that the Disabled People’s Organizations (DPOs) belong to disabled group and claim their own fundamental rights in accordance with the CRPD while nongovernmental organizations promote and protect overall human rights. As a result, the authors view that DPOs could reveal the most problematic issues, essential needs, and rights to the independent monitoring mechanism in order to reinforce the promotion, protection, and assessment of the practices of relevant stakeholders and representatives of disabled groups. 20 Though Thailand has progressed in the development of disability rights, only few people have acknowledged the outstanding representatives of DPOs who have driven disability rights into the legal forum.21 Professor Wiriya Namsiripongpun22 and Dr. Monthian Buntan23 have played crucial role as advisory boards of persons with disabilities in Thailand. They mobilized the rights of persons with disabilities since 2001. Their mobilization has empowered disabled people to exercise their fundamental rights as those of other groups of people. The following figure illustrates timelines of mobilization of the CRPD ratification process and evolution of national laws relevant to disability rights from a charity-based to a rights-based approach driven by Professor Namsiripongpun and Mr. Buntan.24 In 1991, Thailand enforced the Rehabilitation of Persons with Disabilities Act, which was the first national law related to the rights of persons with disabilities. In 2001, on the tenth anniversary of this law when Thailand received the Franklin Delano Roosevelt International Disability Award (FDR) on its achievements in supporting persons with disabilities, Professor Namsiripongpun and Mr. Buntan persuaded the Thai government to modify this law.

44

Chapter Four

Figure 4.1.   Timelines of Mobilization of the CRPD Ratification Process in Thailand

Department of Empowerment of Persons with Disabilities (DEP), Meeting on the Reflection toward Annual Report on Implementation of Convention on the Rights of Persons with Disabilities. Held on June 22, 2015, at Prince Palace, Bangkok (Translated from Thai into English by the author), Dr. Monthian Buntan. UN Committee on CRPD. Interviewed on July 4, 2015; National Education Act of B.E. 2542 (1999); National Health Security Act B.E. 2545 (2002); Persons with Disabilities Empowerment Act B.E. 2550 (2007) and its Amendment B.E. 2556 (No. 2) (2013); Rehabilitation of Disabled Persons Act B.E. 2534 (1991); Stephen Frost. Thailand Gives Greater Rights to the Disabled (2008); Gerard Quinn, Theresia Degener et als. Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disabilities. United Nations (2002).

And because of their movement in collaboration with the disability groups, the Thai government enacted a new law called “Persons with Disabilities Empowerment Act” that recognizes persons with disabilities rights as holders of human rights.25 In 2002, Mr. Buntan with the support of the Thai government participated in drafting the CRPD. The Thai government has ratified CRPD on July 29, 2008.26 The government submitted its initial State Report on the implementation of the CRPD with two documents entitled Common Core Document and Treaty-specific Document of 2008–2010.27 These two documents addressed the disabled people’s rights and equality. They also persuaded to create an inclusive society in Thailand.28 At the time of this writing (2015), the Thai government is in the process of drafting the second State Report of the CRPD implementation.29 Notwithstanding the ratification of CRPD in Thailand, the former Thai government initially reserved Article 18 of CRPD on freedom of movement and nationality. The Thai government misinterpreted the Article 7 of Convention on the Rights of a Child that provided that “the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and



Understanding CRPD Implementation in Thailand 45

be cared for by his or her parents.”30 The Thai government interpreted this Article that the government shall provide nationality to all children who were born in Thailand. Therefore, on February 5, 2015, the government withdrew the following interpretative declaration that “. . . the application of Art. 18 of the CRPD shall be subject to the national laws, regulations, and practices in Thailand.” When the Thai government withdrew Article 7 of CRC, it also withdrew Article 18.31 While DPOs representatives like Professor Namsiripongpun and Mr. Buntan influenced the movement of disability rights, CSOs representatives campaigned for disabled people’s rights. Even though CSOs include nongovernmental organization representatives that oversee general human rights issues, they formerly collaborated with other DPOs and government offices in the promotion of disability rights, protection of disabled people, and evaluation of the implementation of CRPD. Further, they represented themselves as a disabled group to gain recognition and acknowledgment of all levels of society, namely individuals, families, private and public sectors, service providers, etc. Their involvement made great contribution to disabled people through the shift from charity-based to human rights-based approach.32 STRUCTURING THE FOCAL POINT AND COORDINATION MECHANISM IN THAILAND The objectives of this section are to scrutinize whether the national mechanisms in Thailand have exercised their duties and responsibilities of promoting disability rights, protecting disabled people, and monitoring the implementation of CRPD. The section will launch the investigation of the roles and challenges of national mechanisms of Thailand, that is, (1) DEP as focal point, (2) NHRC as independent monitoring mechanism, and (3) the Council of Disabled People of Thailand (See figure 4.2: Figure of National Monitoring Mechanism of Thailand). Roles and Challenges of Focal Point: Department of Empowerment of Persons with Disabilities While Article 33 (1) of CRPD requires state parties to designate one or more national mechanism to take coordination action within the government offices,33 Thailand has responded by designating one focal point.34 However, its existing working strategies and plans have not fully stimulated its team to serve as coordinator of all relevant government stakeholders relevant to disability rights. Therefore, the national focal point of Thailand should take into

46

Chapter Four

Figure 4.2.   Figure of National Monitoring Mechanisms of Thailand

Department of Empowerment of Persons with Disabilities (DEP), Overview of Department of Empowerment of Persons with Disabilities (DEP), Ministry of Social Development and Human Security (leaflet).

consideration to shift their role from a project creator to a project coordinator of government ministries and disabled groups, namely DPOs and CSOs.35 The focal point for matters relating to the implementation of CRPD in Thailand is the Department of Empowerment of Persons with Disabilities (DEP). DEP was first established as the National Office for Persons with Disabilities (NEP) on September 28, 2007, pursuant to Section 12 of the Persons with Disabilities Empowerment Act 2007 under Ministry of Social Development and Human Security (MSDHS). DEP is under the supervision of the Thai Ministry of Social Development and Human Security (MSDHS)36 (See figure 4.3: The National Committee for Empowerment of Persons with Disabilities). Based on the aforementioned figure, the Persons with Disabilities Empowerment Act of 2007 and its Amendments (No. 2) of 2013 acknowledge disability rights and assure disabled people with non-discrimination.37 The Persons with Disabilities Empowerment Act has established the National Committee for the Empowerment of Persons with Disabilities chaired by the Prime Minister and Minister of Social Development and Human Security serving as Vice-Chairman. The committee is comprised of three groups: 1) eleven ministries, 2) seven national DPOs and CSOs, and 3) six disability experts.38 First, there are representatives from eleven ministries consisting of Ministry of Finance, Ministry of Tourism and Sport, Ministry of Social Development and Human Security, Ministry of Transportation, Ministry of Informa-



Understanding CRPD Implementation in Thailand 47

Figure 4.3.   The National Committee for Empowerment of Persons with Disabilities

Department of Empowerment of Persons with Disabilities (DEP), National Report on the Implementation of Convention on the Rights of Persons with Disabilities: Common Core Document. (Issue I between B.E.–2551–2553) 35 (no year) (Translated from Thai into English by the author); Department of Empowerment of Persons with Disabilities (DEP), National Report on the Implementation of the Convention of the Rights of Persons with Disabilities: Treaty-Specific Document. (Issue I between B.E. 2008 - 2010) (no year) (Translated from Thai into English by the author); Department of Empowerment of Persons with Disabilities (DEP), Thailand Policies and Plans for Persons with Disabilities. PowerPoint Presentation (2015); National Committee for Empowerment of Persons with Disabilities. The 4th National Plan on the Empowerment of Persons with Disabilities B.E. 2555–2559.

tion Communication Technology, Ministry of Interior, Ministry of Justice, Ministry of Labour, Ministry of Education, Ministry of Health, and Bureau of Budget.39 Second, the seven national disabled people organizations are the Council of Disabled People of Thailand (CDPT) (umbrella organization of another six organizations), the Thailand Association of the Blind, the National Association of the Deaf in Thailand, the Association of the Physically Handicapped of Thailand, the Association of Parents for Thai Persons with Autism, the Thailand Association of the Disabled, and the Association for the Mentally Retarded of Thailand.40 Mr. Rutt Kichtham believes that previously these organizations had very tight relationships and a serious commitment to their mutual projects that aim to promote disability rights. This depicts the collaboration and participation of persons with disabilities.41 Third, six Disability Experts are notable individuals who work in the field of disability. The CSOs/DPOs are the ones who propose the names of the experts to be invited to join the committee. DEP should be applauded for their promotion of disability rights. DEP interacts and cooperates with government and non-government agencies at both national and international levels. DEP’s authorities and responsibilities

48

Chapter Four

include (1) to coordinate and liaise with both government and private sectors nationally and internationally on disability policies, strategies, laws, plans, and activities, (2) to conduct surveys, studies, situational analysis, data and information collection, and information about disability prevention, treatments, rehabilitation for persons with disabilities, (3) to develop an action plan on research, monitoring, and evaluation, (4) to develop a national plan on promotion and development of quality of life of persons with disabilities, and (5) to encourage establishment, implementation, and empowerment of disabled people’s organizations as well as to support and collaborate with government agencies to allocate budget for these organizations.42 The DEP Director General is running a secretariat for this National Committee. The duty of the committee is to oversee the overall policies related to the empowerment of persons with disabilities. Beside the National Committee for Empowerment of Persons with Disabilities, Thailand also established Provincial Subcommittees chaired by provincial governors to oversee the disabilities issues, projects, and activities at the provincial level.43 To implement specific tasks, DEP has appointed various sub-committees to carry out certain tasks, for instance, the sub-committee for the Promotion of the Implementation of the CRPD; the sub-committee for each type of disabilities, the sub-committee on eradication of all forms of discrimination against persons with disabilities, and the sub-committee on provision of accessible facilities for persons with disabilities. The sub-committee for each type of disabilities issues are the sub-committee on visual impairment, the sub-committee on hearing impairment, and the sub-committee on physical disability.44 Notwithstanding the creation of national committee and sub-committees, the work plans and strategies of DEP has practically directed to exercise its actions as project creator rather than project coordinator, which stands contrary to the core objective of Article 33 (1) of CRPD. The study of de Beco and Hoefmans similarly agrees with the Mental Disability Advocacy Center (MDAC) and the recommendations from the UN Conference of States Parties that the key mandate of the focal point should include the development of the national laws and policies on the disability rights in accordance with the CRPD.45 This mandate requires the focal point to perform as a hub for all government stakeholders to value and reinforce the CRPD implementation,46 coordinating with all relevant government organizations in promoting, evaluating, and reporting tasks.47 The focal point collaborates with other actors such as an independent monitoring mechanism and civil society in promoting disability rights.48 The Mental Disability Advocacy Center (MDAC) requires the focal point to take more actions as coordinator of government sectors. These actions



Understanding CRPD Implementation in Thailand 49

include compiling statistical data,49 managing and distributing information among public, private sectors, and civil society organizations; supporting civil society participation; publishing annual CRPD implementation strategy; and coordinating between national and international human rights mechanisms to ensure that the government submits State Reports to the CRPD Committee.50 In addition, the Thai Ministries do not integrate disability issues into their core mission, thus pushing disability issues to their last priority. As a result, the focal point finds it hard to influence the Ministries to take ownership of disability issues and to implement the task. Therefore, focal point focuses on implementing each mission or task rather than coordinating with relevant Ministries to carry out the mission or task. In addition, there are gaps between policy and practice.51 DEP has been expected to accelerate the ratification process of Optional Protocol of CRPD.52 ESTABLISHING THE INDEPENDENT MONITORING MECHANISM IN THAILAND53 This section examines the functions and performance of the independent monitoring mechanism of Thailand in order to prove whether it promotes disability rights, protects disabled people, and monitors the application of CRPD. Just as Thailand designates general subcommittee, it should persuade the monitoring mechanism to establish specific subcommittee with expertise in promoting, protecting, and monitoring the implementation of CRPD. This could broaden the human rights of disabled people.54 The National Human Rights Commission (NHRC) was established under Sections 256–257 of the Constitution of Thailand B.E. 2550 and the National Human Rights Commission Act B.E. 2542 in accordance with the Paris Principles relating to the status and functioning of national institutions for the promotion and protection of human rights. Its duties and responsibilities are to promote and protect human rights in Thailand. Because of its duties and responsibilities, NHRC can act as a monitoring mechanism in CRPD. Therefore, through the invitation of DEP, Thailand has appointed NHRC as an independent monitoring mechanism to promote, protect, and monitor the implementation of the CRPD. NHRC contains different sub-committees.55 However, only one sub-committee is in charge of the rights of persons with disabilities called sub-committee on the rights of the elderly, persons with disabilities, and persons with various genders and health. The said sub-committee also oversees the right of other minority groups such as elderly people and LGBT. This overload of work results in lack of focus on persons with disabilities as much as it should be.

50

Chapter Four

The sub-committee on the rights of the elderly, persons with disabilities, and persons with various genders and health has one human rights committee member as its chair. To implement specific tasks the sub-committee would invite representatives and relevant organizations to participate in the meetings. For example, an ad-hoc sub-committee was formed by inviting representatives from DPOs/CSOs to draft a parallel CRPD report.56 It may be said that persons with disabilities have their rights to participate, voice their thoughts, and influence the decisions in issues related to their lives; but the current practice of forming ad-hoc sub-committees or task forces to address specific tasks whenever urgency arises leads to unsustainable work or discontinuity. In sum, authors observe the fact that there is no specific sub-committee to promote, protect, and monitor the implementation of the rights of persons with disabilities specifically. The stitch-and-patch practice of forming adhoc sub-committees and task forces renders the monitoring role of NHRC remains complicated. THE INVOLVEMENT OF CIVIL SOCIETY IN CRPD IMPLEMENTATION IN THAILAND57 This section investigates the participation of civil society in the implementation of CRPD in order to ensure that the government agencies would have better understanding and recognition of disability rights as human rights. The existing civil society organizations related to disabled groups tend to mobilize their individual projects rather than mutual projects that all groups of disabled people could meet the enjoyment of disability rights. If they expect serious attention from private and public sectors, service providers, etc., they should mobilize some mutual projects as one group from which most of all groups of disabled people could gain benefit. Currently in Thailand there are quite a number of organizations dealing with disability issues (both CSO and DPO), but the major ones that are well known and playing a pivotal role in advocating rights for persons with disabilities are the seven national disabled people organizations. These include the Council of Disabled People of Thailand (CDPT) (umbrella for six organizations), the Thailand Association of the Blind, the National Association of the Deaf in Thailand, the Association of the Physically Handicapped of Thailand, the Association of Parents for Thai Persons with Autism, the Thailand Association of the Disabled, and the Association for the Mentally Retarded of Thailand.58 Previously these organizations had very tight relationships and serious commitment to their mutual projects that aim to promote disability



Understanding CRPD Implementation in Thailand 51

Figure 4.4.   DPOs and CSOs in the CRPD Implementation

Department of Empowerment of Persons with Disabilities (DEP), Thailand Policies and Plans for Persons with Disabilities. PowerPoint Presentation (2015); Department of Empowerment of Persons with Disabilities (DEP), Meeting on the Reflection toward Annual Report on Implementation of Convention on the Rights of Persons with Disabilities. Held on June 22, 2015, at Prince Palace, Bangkok (Translated from Thai into English by the author).

rights through collaboration and participation of persons with disabilities59 (See figure 4.4: DPOs and CSOs in the CRPD Implementation). As time passes, these CSOs/DPOs become stronger and larger in size and ability to mobilize individual issues based on its own group’s benefit; they focus on their activities on advocacy and awareness raising, and recently they provide supports and services to their members. Meanwhile, the scheme of financial aids from government to these organizations has been changed due to the rapid expansion of government funding. Many DPOs/CSOs rely on government supports. Therefore, they are not willing to criticize and monitor the work of government. Nevertheless, the DPOs/CSOs under the leadership of the Council of Disabled People of Thailand are working on the parallel CRPD report as part of the monitoring mechanism. CONCLUSION As presented in this chapter, Thailand already has all necessary mechanisms in place for the implementation and monitoring of CRPD. However, each mechanism still has its own challenges to address to effectively uphold the rights of persons with disabilities. Thailand has come a long way in only a

52

Chapter Four

little over two decades since its first Rehabilitation for Persons with Disabilities Act B.E. 2534, Persons with Disabilities Empowerment Act B.E. 2550 to the ratification of the Convention on the Rights of Persons with Disabilities in 2008. Yet, there is still room for further development for persons with disabilities’ rights. This implementation and monitoring is an ongoing process in which collaboration of all stakeholders, that is, government, independent mechanism, CSO/DPO, as well as Thai society as a whole. At the time of this writing, Thailand is preparing to ratify the optional protocol of CRPD. All mechanisms should take ongoing monitoring to follow up on the implementation according to CRPD. Lastly, the authors believe Thailand will continue to overcome challenges and continue to strive for better quality of life according to the CRPD for its citizens with disabilities. NOTES   1.  This chapter is mainly based on documentary research and interviews to contribute as a part of the research entitled Comparative Analysis of National CRPD Implementation in ASEAN. The authors highly appreciate Dr. Derrick Cogburn for his initiative of this research project and Dr. Yanuar Sumarlan for editing this text.   2.  Department of Empowerment of Persons with Disabilities (DEP), National Report on the Implementation of Convention on the Rights of Persons with Disabilities: Common Core Document (Issue I between B.E. 2008–2010) 31 para 84 (no year) (Translated from Thai into English by the author).   3.  Ibid. p. 31 para 84.   4.  Ibid. pp. 29–35.   5.  Ibid. p. 31 para 84.   6.  Ibid. p. 31 para 87.   7.  Ibid. pp. 32 para 88 and 33 para 90.   8.  Ibid. pp. 33 para 89–90 and 34 para 95.   9.  Ibid. p. 34 para 95. 10.  Ibid. p. 26 para 70. 11.  Department of Empowerment of Persons with Disabilities (DEP), Statistical Data of Persons with Disabilities, available at http://ecard.nep.go.th/nep_all/file/ Stat_June58.pdf (last visited on July 27, 2015). 12.  Medical Disability Advocacy Center. Building the Architecture for Change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities 5 (2011). (Emphasizing that “The UN Convention on the Rights of Persons with Disabilities is a landmark human rights treaty, it obliges State parties to promote, protect and ensure the full and equal enjoyment of all human rights by all persons with disabilities. Equal rights—not just charity, is the message.”) 13.  Ibid. p. 13; Janet E. Lord and Michael Ashley Stein. “The Domestic Incorporation of Human Rights Law and the United Nations Convention on the Rights of



Understanding CRPD Implementation in Thailand 53

Persons with Disabilities” Faculty Publications. Paper 665 (2008), available at http:// scholarship.law.wm.edu/facpubs/665. 14. Ibid. 15. Mrs. Phatcharamart Pitipanyakul. Representative of DEP. Interviewed on July 2, 2015, at Office of DEP. 10 a.m.–12:30 p.m.; Medical Disability Advocacy Center. Building the Architecture for Change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities 13–14 (2011) (citing other obstacles to implementation of CRPD that “Some of the additional barriers that persons with disabilities have to face in seeking to realize their human rights are (1) The clash between the legacy values of human rights (universalism, substantive equality, non-discrimination) and the legacy values of how non-disabled people have treated people with disabilities (“best interests,” social protection, formulaic equality), (2) The lack of recognition of disability as a human rights issue at the international human rights level, prior to the CRPD, (3) Disability laws which exclude some people with disabilities (such as those with psycho-social disabilities or mental illnesses), and fail to address the full spectrum of human rights, (4) The invisibility, stigma and discrimination of persons with disabilities throughout societies, including within the political sphere, (5) The low level of awareness of disability, people with disabilities and the rights of people with disabilities, within all levels of society, including families, service providers, governments, national human rights institutions and human rights organisations, and (6) The failure of mainstream politics and policies to take into account the needs and the rights of people with disabilities”). 16.  Medical Disability Advocacy Center. Building the Architecture for Change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities 13 (2011). 17. Ibid. 18.  Dr. Monthian Buntan. UN Committee on CRPD. Interviewed on July 8, 2015, 2:00–4:00 p.m. at Parliament Building; Medical Disability Advocacy Center. Building the Architecture for Change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities 13–14 (2011). 19.  Medical Disability Advocacy Center. Building the Architecture for Change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities 14 (2011). 20.  Gauthier de Beco and Alexander Hoefmans. Chapter One: National Structures for the Implementation and Monitoring of the UN Convention on the Rights of Persons with Disabilities, in Article 33 of the UN Convention on the Rights of Persons with Disabilities: National Structures for the Implementation and Monitoring of the Convention 57 (Gauthier de Beco, ed., 2013). 21.  Representative of DEP. Interviewed on July 2, 2015. at Office of DEP. 10 a.m.–12:30 p.m. 22.  Prof. Wiriya is presently a teacher in Faculty of Lawat Thammasat University. 23.  Dr. Monthian Buntan is a UN Committee CRPD between 2013 and 2016. 24.  Dr. Monthian Buntan. UN Committee on CRPD. Interviewed on July 8, 2015, 2:00–4:00 p.m. at Parliament Building.

54

Chapter Four

25.  Department of Empowerment of Persons with Disabilities (DEP), Meeting on the Reflection toward Annual Report on Implementation of Convention on the Rights of Persons with Disabilities. held on June 22, 2015, at Prince Palace, Bangkok (Translated from Thai into English by the author); Dr. Monthian Buntan. UN Committee on CRPD. Interviewed on July 8, 2015, 2:00–4:00 p.m. at Parliament Building. 26.  Department of Empowerment of Persons with Disabilities (DEP), National Report on the Implementation of Convention on the Rights of Persons with Disabilities: Common Core Document (Issue I between B.E. 2008–2010) 21 (no year) (Translated from Thai into English by the author); Ministry of Social Development and Human Security. Convention of the Rights of Persons with Disabilities Article 19: living independently and being included in the community (no year). 27.  Department of Empowerment of Persons with Disabilities (DEP), National Report on the Implementation of Convention on the Rights of Persons with Disabilities: Common Core Document (Issue I between B.E. 2008–2010) 21 (no year) (Translated from Thai into English by the author); Department of Empowerment of Persons with Disabilities (DEP), National Report on the Implementation of the Convention of the Rights of Persons with Disabilities: Treaty-Specific Document (Issue I between B.E. 2008–2010) (no year) (Translated from Thai into English by the author); United Nations. Convention on the Rights of Persons with Disabilities: Consideration of Reports Submitted by States Parties under Article 35 of the Convention—Initial Reports of States Parties due in 2010, Thailand. CRPD/C/THA/1 (Jan 30, 2015). 28. Department of Empowerment of Persons with Disabilities (DEP), National Report on the Implementation of the Convention of the Rights of Persons with Disabilities: Treaty-Specific Document. Introduction Page (Issue I between 2008–2010) (no year) (Translated from Thai into English by the author). 29.  Representative of DEP. Interviewed on July 2, 2015, 10 a.m.–12:30 p.m. at Office of DEP; Office of National Human Rights Commission. Information of Following Up and Monitoring Responsibilities Provided in Convention on the Rights of Persons with Disabilities. Official Letter on June 15, 2015. 30.  Department of Empowerment of Persons with Disabilities (DEP), Meeting on the Reflection toward Annual Report on Implementation of Convention on the Rights of Persons with Disabilities. held on June 22, 2015, at Prince Palace, Bangkok (Translated from Thai into English by the author); Dr. Monthian Buntan. UN Committee on CRPD. Interviewed on July 8, 2015. 2:00 p.m.–4 p.m. at Parliament Building; Representative of DEP. Interviewed on July 2, 2015, 10 a.m.–12:30 p.m. at Office of DEP. 31.  Department of Empowerment of Persons with Disabilities (DEP), Meeting on the Reflection toward Annual Report on Implementation of Convention on the Rights of Persons with Disabilities. held on June 22, 2015 at Prince Palace, Bangkok (Translated from Thai into English by the author); Dr. Monthian Buntan. UN Committee on CRPD. Interviewed on July 8, 2015, 2:00 p.m.–4 p.m. at Parliament Building. 32. Mr. Rutt Kichtham, International Relation and Special Affair, Disabilities Thailand Association Interviewed on July 4, 2015, at 10:00 a.m.–12:00. Institute of Human Rights and Peace Studies, Mahidol University. 33.  Article 33 (1) of the CRPD provides that “States Parties, in accordance with their system of organization, shall designate one or more focal points within gov-



Understanding CRPD Implementation in Thailand 55

ernment for matters relating to the implementation of the present Convention, and shall give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels.”; United Nations Convention on the Rights of Persons with Disabilities. National Implementation and Monitoring: Note by the Secretariat. CRPD/ CSP/2014/3. 1 April 2014. Conference of States Parties to the Convention on the Rights of Persons with Disabilities. (Seventh sess., New York, 10–12 June 2014, No. 4 p. 2.); International Disability Alliance, “Contribution to the Office of the United Nations High Commissioner for Human Rights’ thematic study to enhance awareness on the structure and role of national mechanisms for the implementation and monitoring of the Convention on the Rights of Persons with Disabilities” (2009). 34.  United Nations Convention on the Rights of Persons with Disabilities. National Implementation and Monitoring: Note by the Secretariat. CRPD/CSP/2014/3. April 1, 2014. Conference of States Parties to the Convention on the Rights of Persons with Disabilities. (Seventh sess., New York, 10–12 June 2014, No. 10 p. 3) (While Thailand has designated one focal point to serve as a coordinator within government departments to implement CRPD, this source adds that “For the effective implementation of the Convention, a two-pronged approach may be considered, with the designation of an overall focal point, as well as focal points serving at the level of each or most government departments/ministries.”) 35.  Mr. Monthian Buntan. Interviewed on July 8, 2015, 2:00 p.m.–4 p.m. at Parliament Building; and Mr. Rutt Kichtham, International Relation and Special Affair, Disabilities Thailand Association Interviewed on July 4, 2015, at 10:00 a.m.–12:00. Institute of Human Rights and Peace Studies, Mahidol University. 36.  Department of Empowerment of Persons with Disabilities (DEP), Overview of Department of Empowerment of Persons with Disabilities (DEP), Ministry of Social Department and Human Security (leaflet). 37. Ministry of Social Development and Human Security. Convention of the Rights of Persons with Disabilities Article 19: living independently and being included in the community. 38.  Wiriya Namsiripongpun. Paper 10: Thailand. 15–16 (2011). available at http:// www.unescapsdd.org/files/documents/PUB_CRPD-Paper-X-Thailand-20110121. pdf. 39. Ibid. 40. Department of Empowerment of Persons with Disabilities (DEP), Meeting on the Reflection toward Annual Report on Implementation of Convention on the Rights of Persons with Disabilities. Held on June 22, 2015, at Prince Palace, Bangkok (Translated from Thai into English by the author). 41. Mr. Rutt Kichtham, International Relation and Special Affair, Disabilities Thailand Association Interviewed on July 4, 2015, at 10:00 a.m.–12:00. Institute of Human Rights and Peace Studies, Mahidol University. 42.  Department of Empowerment of Persons with Disabilities (DEP), Overview of Department of Empowerment of Persons with Disabilities (DEP), Ministry of Social Department and Human Security (leaflet).

56

Chapter Four

43. Department of Empowerment of Persons with Disabilities (DEP), Meeting on the Reflection toward Annual Report on Implementation of Convention on the Rights of Persons with Disabilities. Held on June 22, 2015, at Prince Palace, Bangkok (Translated from Thai into English by the author); Department of Empowerment of Persons with Disabilities (DEP), Thailand Policies and Plans for Persons with Disabilities. PowerPoint Presentation (2015). 44. Department of Empowerment of Persons with Disabilities (DEP), Meeting on the Reflection toward Annual Report on Implementation of Convention on the Rights of Persons with Disabilities. Held on June 22, 2015, at Prince Palace, Bangkok (Translated from Thai into English by the author); Department of Empowerment of Persons with Disabilities (DEP), Thailand Policies and Plans for Persons with Disabilities. PowerPoint Presentation (2015). 45.  Gauthier de Beco and Alexander Hoefmans. Chapter One: National Structures for the Implementation and Monitoring of the UN Convention on the Rights of Persons with Disabilities, in Article 33 of the UN Convention on the Rights of Persons with Disabilities: National Structures for the Implementation and Monitoring of the Convention 29 (Gauthier de Beco, ed., 2013); Medical Disability Advocacy Center. Building the Architecture for Change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities 26 (2011); United Nations Convention on the Rights of Persons with Disabilities. National Implementation and Monitoring: Note by the Secretariat. CRPD/CSP/2014/3. 1 April 2014. Conference of States Parties to the Convention on the Rights of Persons with Disabilities. (Seventh sess., New York, 10–12 June 2014, No. 11(c) p. 4. 46.  Medical Disability Advocacy Center. Building the Architecture for Change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities 26–28 (2011) (addressing that “The focal point serves as the CRPD hub for: governmental ministries and departments, local and regional governments, persons with disabilities and their representative organizations, other representatives of civil society seeking to promote, protect or monitor implementation of the Convention, Bodies in the Article 33(2) monitoring mechanism and other national human rights institutions and inspectorate bodies, International organizations and bodies like the Conference of States Parties to the CRPD, the UN Committee on the Rights of Persons with Disabilities, Other UN treaty bodies such as the Human Rights Committee and the Committee on Economic, Social and Cultural Rights, UN Special Rapporteurs including the post-holders on Disability, Torture, Right to Health, Right to Education; Bodies within the European Union such as the EU Disability High Level Group, and various Directorates General; Bodies within the Council of Europe such as the European Committee for the Prevention of Torture or Inhuman and Degrading Treatment or Punishment, and the Commissioner for Human Rights)”; Gauthier de Beco and Alexander Hoefmans. Chapter One: National Structures for the Implementation and Monitoring of the UN Convention on the Rights of Persons with Disabilities, in Article 33 of the UN Convention on the Rights of Persons with Disabilities: National Structures for the Implementation and Monitoring of the Convention 30 (Gauthier de Beco, ed., 2013); United Nations Convention on the Rights of Persons with Disabilities. National Implementation and Monitoring: Note by the Secretariat.



Understanding CRPD Implementation in Thailand 57

CRPD/CSP/2014/3. April 1, 2014. Conference of States Parties to the Convention on the Rights of Persons with Disabilities. (Seventh sess., New York, 10–12 June 2014, No. 10 p. 3. 47.  Medical Disability Advocacy Center. Building the Architecture for Change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities 28–29 (2011) (stating that “3. Ensure coordination within government—In practice, this requires the focal point(s) to carry out the following: 3.1. Coordinate disability legislation, policies, programmes and services: This requires setting up effective channels for communication, and convening regular progress review meetings that bring together representatives from across government departments/ ministries. It means ensuring that relevant ministries/departments share priorities, ideas and concerns, so that holistic legislation, policies and programs can be adopted and services for people with disabilities can meet the needs of people with disabilities as effectively as possible. It may require civil servants working within the focal point(s) to travel across the country to domestic coordination meetings. 3.2. Mainstream disability issues across all governmental policies and programs. Article 4(1) (c) of the CRPD requires States Parties “to take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes.” The focal point should thereby ensure that all governmental ministries/ departments take into account the rights of persons with disabilities in all policy and programs (even non-disability policy and programs). Coordinated action should not be restricted to disability policies and programs but to all actions, for example, changing the tax system, allocating development aid spending, writing poverty reduction strategies, planning urban spaces, and so on.); Gauthier de Beco and Alexander Hoefmans. Chapter One: National Structures for the Implementation and Monitoring of the UN Convention on the Rights of Persons with Disabilities, in Article 33 of the UN Convention on the Rights of Persons with Disabilities: National Structures for the Implementation and Monitoring of the Convention 30 (Gauthier de Beco, ed., 2013). 48.  Gauthier de Beco and Alexander Hoefmans. Chapter One: National Structures for the Implementation and Monitoring of the UN Convention on the Rights of Persons with Disabilities, in Article 33 of the UN Convention on the Rights of Persons with Disabilities: National Structures for the Implementation and Monitoring of the Convention 30 (Gauthier de Beco, ed., 2013). 49.  CRPD, Art. 31(1); Medical Disability Advocacy Center. Building the Architecture for Change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities 31 (2011) (addressing that “Article 31 of the CRPD places an obligation on States Parties to “collect appropriate information, including statistical and research data, to enable them to formulate and implement policies to give effect to the [CRPD].” Article 31 also requires that the data are disaggregated to assess implementation of the Convention and the specific barriers faced by persons with disabilities are identified and addressed). 50.  Medical Disability Advocacy Center. Building the Architecture for Change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities 28–29 (2011); CRPD, Art. 35(2); Medical Disability Advocacy Center.

58

Chapter Four

Building the Architecture for Change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities 31 (2011). 51. Mr. Rutt Kichtham, International Relation and Special Affair, Disabilities Thailand Association Interviewed on July 4, 2015 at 10:00 a.m.–12:00. Institute of Human Rights and Peace Studies, Mahidol University. 52.  Mrs. Napa Setthakorn, Director of Department of Empowerment of Persons with Disabilities (DEP). Interviewed on July 2, 2015, at 12:00–1:00 p.m. at Office of DEP; Arnon Sriboonroj and Saovanee Kaewjullakarn. The Protection of Human Rights for Persons with Disabilities to Accession the Optional Protocol to Convention on the Rights of Persons with Disabilities in Thailand. Proceedings at the 2nd Ratchasuda International Conference on Disability 2015: Beyond ASEAN Boundary for Inclusive Living of Persons with Disabilities (Proceedings). Held by Ratchasuda College, Mahidol University at Miracle Grand Convention Hotel, April 21–22, 2015. 53.  Gauthier de Beco. Article 33 (2) of the UN Convention on the Rights of Persons with Disabilities: Another Role for National Human Rights Institutions? Netherlands Quarterly of Human Rights, Vol. 29/1, 84–106 (2011). 54.  Office of National Human Rights Commission. Information of Following Up and Monitoring Responsibilities Provided in Convention on the Rights of Persons with Disabilities. Official Letter on June 15, 2015. 55. Ibid. 56.  Office of the National Human Rights Commission (NHRC). Shadow Report on the Implementation of CRPD (2015). 57.  United Nations ESCAP. Incheon Strategy to “Make the Right Deal” for Persons with Disabilities in Asia and the Pacific (2012). 58. Department of Empowerment of Persons with Disabilities (DEP), Meeting on the Reflection toward Annual Report on Implementation of Convention on the Rights of Persons with Disabilities. Held on June 22, 2015, at Prince Palace, Bangkok (Translated from Thai into English by the author). 59. Mr. Rutt Kichtham, International Relation and Special Affair, Disabilities Thailand Association Interviewed on July 4, 2015, at 10:00 a.m.–12:00. Institute of Human Rights and Peace Studies, Mahidol University.

BIBLIOGRAPHY Buntan, Monthian. “Building the Architecture for Change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities 13–14 (2011).” Interview by Department of Empowerment of Persons with Disabilities (DEP). July 8, 2015. Convention on the Rights of Persons with Disabilities (CRPD), 2515 UNTS 3 (adopted December 13, 2006, entered into force May 3, 2008). Article 19. Convention on the Rights of Persons with Disabilities (CRPD): “Consideration of Reports Submitted by States Parties under Article 35 of the Convention—Initial Reports of States Parties due in 2010, Thailand.” CRPD/C/THA/1 (Jan 30, 2015).



Understanding CRPD Implementation in Thailand 59

Convention on the Rights of Persons with Disabilities (CRPD), 2515 UNTS 3 (adopted December 13, 2006, entered into force 3 May 2008). 33(1). de Beco, Gauthier. “Article 33 (2) of the UN Convention on the Rights of Persons with Disabilities: Another Role for National Human Rights Institutions?” Netherlands Quarterly of Human Rights 29:1 (2011): 84–106. de Beco, Gauthier, and Alexander Hoefmans. “Chapter One: National Structures for the Implementation and Monitoring of the UN Convention on the Rights of Persons with Disabilities,” in Article 33 of the UN Convention on the Rights of Persons with Disabilities: National Structures for the Implementation and Monitoring of the Convention, ed. Gauthier de Beco. The Netherlands: Nijhoff , 2013. Department of Empowerment of Persons with Disabilities (DEP). “Meeting on the Reflection toward Annual Report on Implementation of Convention on the Rights of Persons with Disabilities.” June 22, 2015. Department of Empowerment of Persons with Disabilities (DEP). “National Report on the Implementation of Convention on the Rights of Persons with Disabilities: Common Core Document (Issue I between B.E. 2008–2010),” 31, para. 84. Department of Empowerment of Persons with Disabilities (DEP). “National Report on the Implementation of the Convention of the Rights of Persons with Disabilities: Treaty-Specific Document (Issue I between 2008–2010).” Introduction Page. Department of Empowerment of Persons with Disabilities (DEP). “Overview of Department of Empowerment of Persons with Disabilities (DEP).” Ministry of Social Department and Human Security. Department of Empowerment of Persons with Disabilities (DEP). “Statistical Data of Persons with Disabilities.” Accessed July 27, 2015. http://ecard.nep.go.th/nep_all/ file/Stat_June58.pdf. Kichtham, Rutt. Interviewed by the Institute of Human Rights and Peace Studies. July 4, 2015. Medical Disability Advocacy Center. “Building the Architecture for Change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities,” 2011. 5. Medical Disability Advocacy Center. Building the Architecture for Change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities 13 (2011). Medical Disability Advocacy Center. “Building the Architecture for Change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities,” 2011. 14. Namsiripongpun, Wiriya. “Paper 10.” Thailand (2011): 15–16. http://www.unescapsdd.org/files/documents/PUB_CRPD-Paper-X-Thailand-20110121.pdf. Office of National Human Rights Commission (NHRC). “Information of Following Up and Monitoring Responsibilities Provided in Convention on the Rights of Persons with Disabilities,” June 15, 2015. Office of the National Human Rights Commission (NHRC). “Shadow Report on the Implementation of CRPD,” 2015. Pitipanyakul, Phatcharamart. “Building the Architecture for Change: Guidelines on Article 33 of the UN Convention on the Rights of Persons with Disabilities 13–14

60

Chapter Four

(2011).” Interview by Department of Empowerment of Persons with Disabilities (DEP). July 2, 2015. Representative of Department of Empowerment of Persons with Disabilities (DEP). “Information of Following Up and Monitoring Responsibilities Provided in Convention on the Rights of Persons with Disabilities.” Interviewed by the Office of National Human Rights Commission. July 2, 2015. Setthakorn, Napa. Interviewed at the Office of the Department of Empowerment of Persons with Disabilities. July 2, 2015. Sriboonroj, Arnon, and Saovanee Kaewjullakarn. “The Protection of Human Rights for Persons with Disabilities to Accession the Optimal Protocol to Convention on the Rights of Persons with Disabilities in Thailand.” Presented at the 2nd Ratchasuda International Conference on Disability 2015: Beyond ASEAN Boundary for Inclusive Living of Persons with Disabilities, Mahidol University, April 21–22, 2015. United Nations Economic and Social Commission for Asia and the Pacific (ESCAP). “Incheon Strategy to “Make the Right Deal” for Persons with Disabilities in Asia and the Pacific,” 2012. United Nations Convention on the Rights of Persons with Disabilities. “National Implementation and Monitoring: Note by the Secretariat.” Conference of States Parties to the Convention on the Rights of Persons with Disabilities. April 1, 2014.

Chapter Five

Understanding CRPD Implementation in Lao PDR Paula Appelhans

INTRODUCTION Lao PDR began its path to independence shortly after World War II, but its independence has meant continuous struggles with foreign occupiers and a lengthy civil war. Its history of various forms of dependency and subsequent independence is a series of uncertainty that began with its first declaration in 1947 as an independent monarchy, but remained under perceived control within the French Union. Actual independence as a constitutional monarchy did not become a concrete declaration until October 1953; yet the Constitution was revised again in 1957 and deleted references to status with the French Union. Multiple rebellions against the monarchy led to a lengthy civil war and eventual involvement in the Vietnam War. From the 1960s, various factions fighting among surrounding border countries, led to Lao PDR bearing the brunt of massive aerial bombing. The figures have been put at approximately one bomb every eight minutes during a twenty-four-hour day for just over nine years.1 This information, unfortunately, is a significant aspect to note as unexploded ordinances (UXO) and exploded remnants of war (ERW) continue to contribute to the number of persons with disabilities more than forty years later. The internal strife, however, was not over. The monarchy was overthrown in December 1975 and the Lao People’s Democratic Party was born. Conflicts continued among its multi-ethnic population and the newly formed government. It took until 1991 for a new Constitution to be approved and adopted. The Constitution alluded to inherent rights, duties, and responsibilities of the State as well as its citizens, but did not specifically use language to include issues regarding persons with disabilities. 61

62

Chapter Five

OVERVIEW OF DISABILITY IN LAO PDR The Ministry of Health (MOH) originally placed the initial number of persons with disabilities at approximately 28,627 people.2 The information from the census study was divided into very limited categories by the effect of disability and not specific causes. The categories assessed the extremity amputated, type of deformity, hearing loss, and vision loss only.3 The study was conducted by immunization staff, which had not been trained to obtain more specific information on types of disability. The study recognized that data integrity was not optimum, but it at least established a baseline. The National Statistic Bureau thereafter estimated approximately 40,000 were identified as disabled or approximately 1 percent of the Lao population based upon its 1996–1997 census. Subsequently, Handicap International and the National Center for Rehabilitation reviewed census data on disabilities in children and adults in 1999 and reported approximately a 30 percent ratio of disabilities for those 6–18 years old and a 4 percent for people over sixty.4 It was not until this 1999 study, however, that the information would be categorized by type of UXO-related disability. Disabilities caused by UXO ranged from amputation, paralysis, loss of limb, and loss of eyesight as well as categories for war, accident, birth, and sickness.5 At this point, the ratio of persons with disabilities was the highest for those between six and eighteen years of age. Disabilities categorized at this stage attributed 1 percent to UXO, 8 percent to war, and 12 percent to accident. Sickness and birth, however, were the categories with the highest attribution. Gender disaggregated data placed disabilities among the disabled population at 40 percent female and 59 percent male in total while the disaggregated data showed the victims of UXO were 14 percent female and 59 percent male. Establishing the relevant categories and disaggregated data by gender to include disabilities created by UXO is important to understanding the scope of persons with disabilities in LDPR. DYNAMICS OF CRPD RATIFICATION IN LAO PDR Shortly after LPDR’s 1991 Constitution, disability issues were beginning to be discussed in the Asia Pacific region. The Asia Pacific Decade of Disabled Persons (APDDP) kicked off in 1993. LDPR’s participation in this program may have been the impetus towards further development prior to the CRPD. LDPR appears to have actively participated and created its first of several National Committees of Disabled Persons (NCDP) in 19956 as well as participating in several studies on persons with disabilities throughout the decade and reported information to regional agencies such as ESCAP.7 Information from



Understanding CRPD Implementation in Lao PDR 63

these studies was included in the 1999 midpoint report on country perspectives as presented to ESCAP. The data presented indicated a roughly constructed disability census had been conducted; collaboration between ministries and international NGOs were undertaken and references to disability causes included classifications to identify unexploded ordinances (UXO) and exploded remnants of war (ERW) as an element in the original assessments. While LPDR had some data generated by 2000, there was still no tangible national strategy and no legal definition of disability. The Ministry of Labor and Social Welfare (MOLSW) held a meeting in 2000 to discuss development of a national strategy.8 Participants reviewed topics such as who are the disabled, causes of disability, and social concerns surrounding disabilities. Participants agreed upon four categories of disability, but no real definition other than someone whose ability to perform has been hindered.9 The four categories were summarized as the following: 1) Infectious diseases; 2) war and/or UXO; 3) accidents; and 4) congenital. Participants summarized that up to 70 percent of disability impairments were caused by lack of access to various health care services from infancy. During the decade of APDDP, social stigmas were also identified and centered on a belief that disabilities were untreatable and contagious. This was due in large part to leprosy populations concentrated in the surrounding forests formed by those who had left their families and villages. Several villages were known as “leprous villages”10 and administered by the National Center for Dermatology and Venerology (NCD). Additional concerns reported in 2002 included cases where disabled children were considered a curse, embarrassment to their families, or that seeking rehabilitation services to cope with a disabled person was sinful.11 Identifying types of population affected by various forms of disabilities and social stigma challenges led to a review of other external factors such as geography; public awareness; lack of infrastructure such as physical barriers, budgetary constraints, transportation, and communication. By 2003, several major contributions toward an inclusive society were developed and momentum appeared to be gaining ground. To start, a national action plan was developed by the MOLSW in 200012; a law on hygiene in 2001 offered guidance, but not real definitions, between “handicapped” and “disabled” terms;13 developed a Strategic Plan on Rehabilitation and Development of Diseased Persons 2000–2003;14 and enacted a compulsory education law.15 In 2003, new, more inclusive sections were added to the 1991 Constitution. With the Asia Pacific Decade of Disabled Persons and other programs through the ASEAN region, LPDR made strides toward establishing tangible mechanisms to address persons with disabilities and their challenges prior to ratification of the CRPD. Ministries were granted/assigned authority;

64

Chapter Five

legislation for health and education were established; a national committee created and studies undertaken and the challenges addressed. All of these changes were made prior to ratification of the CRPD and could be attributed more to participation in ASEAN and regional programs. Setting the stage for the CRPD, however, was only the beginning. Issues surrounding tangible progress slowed dramatically until five years after the CRPD ratification. As the Presidential Decree did not make the CRPD law until 2014, funding, coalition building amongst DPOs, monitoring, access to information, physical barriers, transportation or infrastructure development from a clinical based model to a rights based model continued to be elusive for persons with disabilities. STRUCTURING THE FOCAL POINT AND COORDINATION MECHANISM IN LAO PDR Governmental structure and focal points are still elusive. Historically, Lao participated in the ESCAP Decade of Disabled Persons proclamations and attempted to develop an integrated governmental organizational structure to address these issues. The inter-ministerial structure was defined as between the Ministry of Labor and Social Welfare (MOLSW), Ministry of Health (MOH), and the Ministry of Education (MOE). Other NCPD committee members included the Secretary Detachment, Deputy MOH, Deputy from Minister of Defense; Representatives from the Ministry of Defense and well as representatives from MOE and Ministry of Foreign Affairs.16 This can be seen as an effort to start identifying strategies for persons with disabilities amongst the various ministries. Each ministry, however, was tasked to develop separate planning, organizational strategy development, and implementation based upon the scope of their oversight. The MOH was tasked to prevent or reduce disabilities through medical treatment.17 The MOE was given the continued responsibility for compulsory education as it had already begun an inclusive education project with several INGOs.18 The overall primary responsibilities for the welfare of persons with disabilities were directed to MOLSW. With the development by decree in 1995 the National Committee of Persons with Disabilities (NCPD) was formed.19 The NCPD could be loosely construed as a “focal” point.” The NCPD was created to promote and coordinate disability-related activities amongst the Ministries and to develop capacity building with the newly organized Lao Disabled Peoples Association (LDPA),20 and the Lao Handicapped Women and Children Association (LHWCA).21 The MOE, MOH, and MOLSW were designated committee members along with deputies from MOH, the Minister of Defense, and rep-



Understanding CRPD Implementation in Lao PDR 65

resentatives from the Ministry of Defense and well as Ministry of Foreign Affairs.22 This structure has had relatively few changes as far as delegated responsibility since then and the “focal point” wasn’t defined enough to offer any real collective momentum or power. By 2000, an Action Plan of National Strategy was developed. Cross cutting issues identified by the Ministries included recognition and classification of disabled war veterans and those disabled via UXO or other exploded remnants of war (ERW). Through the MOLSW Department of Veterans, disabled war veterans have access to services that include health care, education, vocational training, and employment. Veterans may seek services through the Department of Veterans and Welfare as well as through provincial and local levels.23 Services are bifurcated based upon status as a war veteran versus a citizen born with or otherwise acquired disabilities. Non-war disabled veterans are serviced via other departments under MOLSW. Services provided by other departments appear to parallel services to non-veterans who have suffered disabilities via UXO or ERW, but do not appear to be as financed or as developed except through SHOs or INGOs to assist disabled citizens. The MOH programs focused on public health initiatives to prevent or reduce disabilities, through oversight of the national medical, nursing, and physical therapy schools. As part of the medical hospital system, the MOH runs a National Center for Medical Rehabilitation (NCMR) in the major city of Vientienne and relies on community-based rehabilitation efforts by INGOs for all other areas outside of Vientienne. Non-veterans may seek limited assistive devices through the National Center for Medical Rehabilitation (NCMR).24 Interesting to note, it is the National Center for Medical Rehabilitation (NCMR) under the Ministry of Health which is responsible for support of persons with disabilities including special and instructive schools and vocational training (not the Ministry of Education). While all of this shows activity toward persons with disabilities, it is clear that the main focus continued to be disjointed. Clinical-based models with some education focus are the practical aspects, but not generally a rights-based approach. As the Decree was not signed until 2014, lots of wheels were spinning, but not touching the ground with traction. ESTABLISHING THE INDEPENDENT MONITORING MECHANISM IN LAO PDR While the NCPD was charged with promoting and coordinating disability activities, it had no authority either as an independent oversight mechanism nor could it be an independent mechanism as it remained under the auspices

66

Chapter Five

of the government. The capacity building was more amongst its Ministries and the governmental associations it created, not so much with the CSOs or DPOs. This overall structure remains unchanged. In a speech to the UN in 2014, there was recognition that the NCDP was redesigned in 2009 and again in 2011 to incorporate more of the capacity building, rights-based development and oversight as envisioned by the CRPD to promote and protect the rights of persons with disabilities. While LPDR has created Ministerial steering committees tasked to promote the given Treaties, it has yet to actually create a monitoring mechanism within those committees. According to the UN’s UPR response in 2015, LPDR still has no main focal point or mechanism to monitor any human rights conventions and has been tasked to do so. Legislation and Policies: From Constitution to Treaties From its initial declaration of independence in 1953, it wasn’t until 1991 that a Constitution was established. Significant to note that the 1991 Constitution and subsequent revisions in 2003 included language which emphasized selfdetermination;25 prohibited acts that can be detrimental to an individual;26 encouraged social organizations to develop the right of self-determination;27 all Lao citizens are equal before the law irrespective of gender, social status, education, beliefs, and ethnic group;28 reiterates that both genders should enjoy equal rights in political, cultural, social fields, and family affairs;29 and that all citizens have the right to education and “upgrade” themselves.30 How those rights have manifested continues to be intangible in reality, but the legal structure arguably exists. Prior to the 2014 Presidential Decree, the legal mechanisms were sparse and not specifically crafted to include persons with disabilities. The Labor Law passed in 1994 was the first piece of legislation that suggested a safety net for work-related disabilities. The Decree on Social Security implemented in 2000 arguably added another level of safety net for persons with disabilities. This legislation allowed for Health security funds for persons with disabilities, pensions for families of deceased persons with disabilities, and indemnified funds for work accidents or related diseases. There is also a fund set up for persons with disabilities to encourage small business development for vocationally trained persons with disabilities; however, since there were very few vocational training programs, it’s unclear how effective that program could be or has been. Hostels and villages were created and managed by MOLSW; however, these were mostly set up for individual leprosy or veterans groups and not publicly available. Until the 2009 signing and ratification of the CRPD, this was the structure in place. After 2009, there was little movement in the legislative sphere even though the Presidential



Understanding CRPD Implementation in Lao PDR 67

Proclamation of 2009 provided a structure for implementing all treaties. The Presidential Proclamation on the Conclusion, Accession, and Implementation of International Treaties provides a methodology whereby international treaties were to be implemented and monitored, that is, implementation, publication, record keeping, registration, and management of international treaties. The Proclamation; however, has many caveats. While Article 31 offers that a treaty will have direct application upon entry into force, it does so only if no amendment or no new legislation is needed. Therefore, if legislation can be found that can be remotely relevant in spirit, that previous legislation may be considered as applicable under the treaty and no new legislation is necessary. Article 32 provides that international treaties, which are directly applicable, are those treaties which have their provisions consistent with and provided for in the Constitution and domestic laws of the Lao People’s Democratic Republic, and those treaties, which do not require the amendment of existing laws and regulations or not require the enactment of new laws and regulations. The direct effect of international treaties begins upon the entry into force of the treaties in question. Circumstances here indicate that the CRPD ratified in 2009 did not have the effect of law until the President signed off on a final decree, which was five years after ratification. THE INVOLVEMENT OF CIVIL SOCIETY IN CRPD IMPLEMENTATION IN LAO PDR The civil societies primarily began with international nongovernmental organizations (INGOs) whose primary focus was on clinical models such as community-based rehabilitation programs such as Handicap International and Leprosy Mission International. It was after ESCAP’s Proclamation in 1995 and after creation of the 1995 National Committee for Disabled Persons (NCDP) that LPDR began to develop its disabled people organizations beginning with the Lao Disabled People’s Association (LDPA). By August 1996, LDPA had been formally approved by State. LDPA started with 360 registered members. Shortly thereafter, the Lao Handicapped Women and Children Association (LHWCA) was approved February 2, 1998. The LDPA and the LHWCA are supported by the NCDP as the primary government authorized DPOs. Each of these associations was an initial foray for DPOs in Lao PDR to move away from clinical-based model programs which concentrated on community-based rehabilitation and toward promoting self-sufficiency for persons with disabilities. According to JICA report of 2002, there were approximately eighteen recognized disabled people organizations. However, most were linked to clinical

68

Chapter Five

care models, unexploded ordnances issues, or international aid organizations for clinical care. Current estimates give the number as approximately 180 organizations as suggested by LPDR’s Universal Review Report for 2015. These include SHGs, NGOs, and INGOs which have broadened to now include the Association for the Blind, Association for the Deaf, Association for Autism, a Disabled People Rehabilitation Center, a Training Center for Disabled People, and an Inclusive Education Center. While the number of agencies has grown, it has only been since 2012 whereby the various civil societies were able to meet in disability forum which presented twelve recommendations which encompassed interesting suggestions such as asking funding bodies to allow proposal in the Lao language; support by the Ministries to build links between DPOs in other developing countries; funding projects based on core, multi-year instead of merely project based; and support cooperation amongst organizations to identify, track, and share data. It was also suggested that the Lao Family Book begin to identify family members are disabled as a way to support data collection. It is unclear to date which recommendations have been acted upon. CONCLUSION Challenges to implementing a rights-based disability into the LPDR structure were identified as early as a 2002 JICA Report. Areas such as geography (mountainous topography); lack of transportation infrastructure; lack of communication infrastructure and inadequate budget allocations were all seen as the primary challenges to implementing a rights-based approach for persons with disabilities. The human resources directed at assisting persons with disabilities was offered as a significant practical barrier to the idea of self-sufficiency or raising a persons with disabilities capacity to contribute to national social and economic development and security. Cultural belief systems identified in 2002 also featured such stigmatization that are detrimental to persons with disabilities were seen as a significant challenge. As of 2002, many Laotians still carried the belief that disabilities are untreatable and contagious. Parents hid the existence of children with disabilities as they think it is a curse or an embarrassment or simply do not think rehab is warranted. In some cases, rehab is considered sinful. At the 2015 Universal Periodic Review (UPR), the UN response in 2010 continued to consider the primary challenges surrounding implementation of all human rights conventions as focused on laws, UXO, ERW, and geography. The report indicates over ninety laws and amendments had been adopted



Understanding CRPD Implementation in Lao PDR 69

since its last UPR, suggesting that these laws and amendments directly and indirectly contributed to enhanced promotion of human rights conventions in general. The report further noted that 80 percent of the country population was in rural areas. As reported to JICA back in 2002, the geography and a lack of appropriate infrastructure made incorporating the rural population a difficult target to promote, raise awareness of laws or government policies, and offer access to public services. This was noted as hindering Government’s efforts to ensure access to necessary information to promote and protect under human rights conventions. Along with trying to generate awareness and an understanding of human rights, the education of civil servants and CSOs as well as funding has contributed to the limited range of information that could be made available in the rural areas. The 2010 report continued to note that cultural structures also played a role as belief systems and “old fashioned stereotypes” continued as barriers to access public services. A review of the 2015 UN UPR notes that approximately 103 laws were enacted since 1991, which directly or indirectly promote human rights since the last UPR. The UPR observed that out of 107 recommendations from the previous UPR, seventy-one were seen as fully supported and fifteen were considered partially supported. LPDR’s participation in and revision of the Vientiane Declaration on Aid Effectiveness Action Plan for 2012–2015 further illustrates a clear intention to move forward with its human rights obligations. It can be reasonably argued that these are absolutely positive and progressive steps in the realm of realization principles. However, if there are no monitoring or evaluation mechanisms it is extremely difficult to demonstrate actual progress. To exacerbate this issue, LPDR is currently reviewing its civil society organizations law. This is most problem as it has been the various civil societies, international DPOs and INGOs which have carried the weight of information and data gathering especially since the 2005 census. The draft legislation appears to be of concern to the UN as LPDR may introduce new and more stringent requirements for the registration process of non-profit organization and may further weaken the ability for civil societies to operate. If the Ministries and government-funded DPO are not able to create appropriate evaluation and monitoring mechanisms, yet limit the environment for civil societies to participate, function, or operate, there could be numerous ramifications. The changes could not only negate the work generated thus far, it could dramatically inhibit further progress for implementation. With challenges and barriers that encompass geography, rural population, and lack of any real value monitoring and/or evaluation system, the process is more of an evolutionary model than a transitional model. Many of the

70

Chapter Five

challenges and barriers were recognized in documents as early as 1995; yet progress can be demonstrated as slightly better than an evolutionary rate of speed. It can be argued that a slow, measured and steady amount of legislation and growth of civil societies is taking place; however, the actual, tangible advances are still difficult to measure in LPDR. NOTES   1.  Ian MacKinnon. “Forty years on, Laos reaps bitter harvest of the secret war.” The Guardian, 3 December 2008. http://www.guardian.co.uk/world/2008/dec/03/ laos-cluster-bombs-uxo-deaths   2.  JICA 2002 Country Report, Lao PDR March 2002.   3.  JICA 2002 Country Report, Lao PDR March 2002, 3.   4.  JICA 2002 Country Report, Lao PDR March 2002, 5.  5. Handicap International and National Center for Medical Rehabilitation. “Bridging the Gap: Survey of Disabled Children & Adults Country Report.” 1999.   6.  Decree 18/PM of 1995, National Committee of Disabled Persons.  7. UNESCAP. Asian and Pacific Decade of Disabled Persons: Mid-point— Country Perspectives. 1999.   8.  Developing a National Strategy for People with Disabilities,” held on February 21, 2000.   9.  JICA 2002 Country Report, Lao PDR March 2002, 13. 10.  JICA 2002 Country Report, Lao PDR March 2002, 13. 11.  JICA 2002 Country Report, Lao PDR March 2002, 19. 12.  Action Plan of the National Strategy for People with Disability in Lao PDR 2000, referenced in the JICA 2002 Country Report, Lao PDR March 2002. 13.  The Law on Hygiene, Disease Prevention and Health Promotion, http://www. ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---ilo_aids/documents/legaldocument/wcms_117351.pdf. 14.  Health and Social Welfare Report, August 29–September 1, 2005; Strategic Plan on Rehabilitation and Development of Disabled Persons 2000–2003, http:// www.mhlw.go.jp/bunya/kokusaigyomu/asean/asean/kokusai/siryou/dl/h17_lao.pdf. 15.  No. 03/NA Law on Education, April 8, 2000. 16.  UNESCAP, Mid-point—Country Perspectives, 177. 17.  JICA 2002, page 12. 18.  Peter Grimes. “A Quality Education for All. A History of the Lao PDR Inclusive Education Project 1993–2009.” Save the Children. http://www.eenet.org.uk/ resources/docs/A_Quality_Education_For_All_LaoPDR.pdf. 19.  Decree 18/PM of 1995, National Committee of Disabled Persons. 20. LDPA. 21. LHWCA. 22.  UNESCAP, Mid-point – Country Perspectives, 177. 23.  JICA 2002, 12.



Understanding CRPD Implementation in Lao PDR 71

24.  JICA 2002, 12. 25.  LPDR Constitution 1991, as revised 2003, Preamble page 1, “This is the first time in the history of our nation that the right of self-determination of the people has been defined in the fundamental law of the country.” 26.  LPDR Constitution 1991, as revised 2003, Chapter 1, Article 6; “All acts of bureaucratism and harassment that can be detrimental to the people’s honour, physical well-being, lives, conscious and property are prohibited.” 27.  LPDR Constitution 1991, as revised 2003, Chapter 4, Article 7. 28.  LPDR Constitution 1991, as revised 2003, Article 35. 29.  LPDR Constitution 1991, as revised 2003, Article 37. 30.  LPDR Constitution 2002 recognized organizations in Laos.

BIBLIOGRAPHY Decree 18/PM of 1995, National Committee of Disabled Persons. Developing a National Strategy for People with Disabilities,” held on February 21, 2000. Grimes, Peter. “A Quality Education for All. A History of the Lao PDR Inclusive Education Project 1993–2009.” Save the Children. http://www.eenet.org.uk/resources/docs/A_Quality_Education_For_All_LaoPDR.pdf. Handicap International and National Center for Medical Rehabilitation. “Bridging the Gap: Survey of Disabled Children & Adults Country Report.” 1999. Health and Social Welfare Report, August 29–September 1, 2005. Strategic Plan on Rehabilitation and Development of Disabled Persons 2000–2003, http://www. mhlw.go.jp/bunya/kokusaigyomu/asean/asean/kokusai/siryou/dl/h17_lao.pdf. JICA 2002 Country Report, Lao PDR March 2002. LPDR Constitution 1991, as revised 2003. MacKinnon, Ian. “Forty years on, Laos reaps bitter harvest of the secret war.” The Guardian, 3 December 2008. http://www.guardian.co.uk/world/2008/dec/03/laoscluster-bombs-uxo-deaths. No. 03/NA Law on Education, April 8, 2000. The Law on Hygiene, Disease Prevention and Health Promotion, http://www.ilo.org/ wcmsp5/groups/public/---ed_protect/---protrav/---ilo_aids/documents/legaldocument/wcms_117351.pdf. UNESCAP. Asian and Pacific Decade of Disabled Persons: Mid-point—Country Perspectives. 1999.

Chapter Six

Understanding CRPD Implementation in Malaysia Ruzita Mohd. Amin, Rohana Jani, and Norhayati Zakaria

INTRODUCTION Malaysia has signed the United Nations Convention on the Rights of Persons with Disabilities (CRPD) on April 8, 2008, and ratified it on July 19.1 Malaysia, however, has made reservations under Article 15 (Freedom from torture or cruel, inhuman or degrading treatment or punishment) and Article 18 (Liberty of movement and nationality) of the Convention, and until today the country has also not signed the Optional Protocol. This has sparked criticisms from civil society organizations as persons with disabilities will not be able to bring issues to the international supervisory committee in the case of noncompliance to the CRPD agreement by the government. It has also raised much concern from the Malaysian Bar Council as it casts doubts as to the seriousness of the Malaysian government to fully comply with all the CRPD requirements.2 As such, Malaysia’s capability to effectively implement the CRPD needs to be examined as it has raised questions from many stakeholders. This study seeks to examine the processes and mechanisms adopted by Malaysia in the implementation of Article 33 of the CRPD. Specifically, it analyzes the content and capacity of the national disability legal framework and the administrative capacity in implementing the CRPD at the federal, state, and local governments. It also looks at the extent of the involvement of Civil Society Organizations (CSO) in monitoring the implementation process of the CRPD.

73

Chapter Six

74

OVERVIEW OF DISABILITY IN MALAYSIA In 2011, the number of persons with disabilities registered with the Department of Social Welfare under the Ministry of Women, Family and Community Development Malaysia was 359,203, equivalent to 1.3 percent of the population in Malaysia.3 The recorded statistic is far below the UN estimate of 15 percent disability incidence, which is about 4.2 million out of the 28 million population of Malaysia, mainly due to registration not being mandatory. The age group that records the highest percentage of disability is 22–35 years at 19.9 percent, followed by the 46–59, 7–12, and 36–45 years age groups at 17.7 percent, 16.1 percent, and 14.3 percent, respectively. Those in the 19–21 age group record the lowest percentage share at 5.9 percent (see table 6.1). Among the persons with disabilities registered, those with learning disability record the highest percentage share at 37.5 percent, followed by those with physical disability (see table 6.2). The Malaysian government has several laws and policies in place with regard to persons with disabilities, namely, the Persons with Disabilities Act (2008), Persons with Disability Policy (2007), and Persons with Disabilities Plan of Action. The government also provides a number of benefits to registered persons with disabilities such as assistance for the purchase of assistive equipment/devices, the Disabled Workers Allowance of MR300 (for those earning less than RM1200), and allowance for disabled students of RM150. The CRPD is designed to promote, protect, and ensure the full and equal enjoyment of all human rights by persons with disabilities. It includes accessibility, personal mobility, health, education, employment, habilitation and rehabilitation, participation in political life, and equality.4 Following the CRPD ratification, Malaysia enacted the Persons with Disabilities Act 2008 that aims to provide an equal opportunity and protection and assistance in all circumstances toward persons with disabilities in Malaysia. To add, the Act Table 6.1.   Distribution of Disability by Age Group (%) Age Group (years) 0–6 7–12 13–18 19–21 22–35 36–45 46–59 >60 Source: UNESCAP (2012)

Percentage Share  8.2 16.1  9.7  5.9 19.9 14.3 17.7  8.3



Understanding CRPD Implementation in Malaysia 75 Table 6.2.   Distribution by Type of Disability (%) Type of Disability Learning Physical Hearing Visual Multiple Mental Speech

Percentage Share 37.5 34.3 12.2  8.9  4.4  2.5  0.2

Source: UNESCAP (2012)

is the only Act made specifically to protect one group from any discrimination in Malaysia. According to the Equal Rights Trust (ERT) Report, which explored the issue of discrimination and inequality in Malaysia, several obligations under the CRPD have been included in the Act.5 Since Malaysia has ratified the CRPD, these obligations must be complied with so as to achieve an effective implementation of the CRPD. This review explores some of the obligations under the CRPD that are included in the Act as well as obligations that are excluded. DYNAMICS OF CRPD RATIFICATION IN MALAYSIA Ratification Process In Malaysia, the level of awareness about persons with disabilities is considered to be low. Thus, the disabled persons themselves were the ones who urged the government to participate in drafting of the CRPD since 2002.6 The DPOs joined forces to urge the government to ratify the CRPD. In other words, the DPOs were the ones who initiated the idea of providing facilities and equal opportunities to disabled persons, and act as the driving forces behind the ratification process. The CRPD ratification is also closely linked to Malaysia’s participation in the negotiations of the Convention. Malaysia wants to show her commitment in protecting persons with disabilities as done by other countries.7 Steps Preceding Ratification Prior to ratification, DPOs were the ones who actively organized seminars, workshops, and dialogue sessions with the Ministry in order to make the authorities understand the problems faced by persons with disabilities8 The

76

Chapter Six

Malaysian government started to pay a more serious attention to disability groups and issues only during the Asian Pacific Decade of Disabled Persons (1993–2002). In December 1993, Malaysia hosted the Consultative Expert Meeting on National Disability Legislation for the Asian Pacific Region. Although the government recognized the need for disability legislation, there were no significant developments in this area until 2002, when the Technical Working Group on Legislation under the National Advisory and Consultative Council on the Disabled was assigned the task of preparing a draft bill on the Persons with Disabilities Act. This draft, completed in September 2002, was discussed at three separate workshops organized in 2003 by the Malaysian Confederation of the Disabled, Malaysian Council for Rehabilitation, and the Penang Coalition group on the Disabled, respectively. Their findings and recommendations were forwarded to the government. The Women, Family and Community Development Ministry and its predecessor, the National Unity and Social Development Ministry also held three workshops (the final one in 2006) to gather feedback on the draft from disability organizations. The draft was fine-tuned by the Attorney General’s chambers in 2007, and the Act was passed unanimously in the following year.9 The Ministry of Women, Family and Community Development, Department of Social Welfare, and Japan International Cooperation Agency together with the cooperation of the Malaysian Council for Rehabilitation (MCR) and Malaysia Confederation of Disabled (MCD) organized a seminar on the CRPD on March 20, 2007. Four hundred disabled persons, officers from various ministries and agencies, and representatives of NGOs attended this event. Participants were exposed to the history of the international disability movement and the chronology of how the CRPD came to be in its final form. A number of the more important articles contained in the CRPD were highlighted. During this conference, participants were informed that Malaysia would sign the CRPD but not on March 30, as Malaysia had issues with some of the articles in the CRPD that need to be resolved first. The contents have to be agreed upon by the various Ministries then taken to the Cabinet for approval before Malaysia could become a signatory to the CRPD. A discussion on Malaysia’s stand on the CRPD was conducted by officers from the Disabilities Department of the Department of Social Services, the Attorney-General’s Department, the Ministry of Women, Family and Community Development, Malaysia’s national Human Rights Institution (Suruhanjaya Hak Asasi Malaysia or SUHAKAM), and the MCD. Participants were also informed that Malaysia had reservations with Article 15 which is about “Freedom from torture or cruel, inhuman or degrading treatment or punishment.” This Article was said to contradict Malaysian law because of the penal code which provides for capital punishments such as whipping.



Understanding CRPD Implementation in Malaysia 77

If Malaysia were to adopt that, it would mean that disabled persons would have to be exempted from such punishment under the law. Participants were informed that Malaysia would also not sign the Optional Protocol to the Convention on the Rights of Persons with disabilities, Article 1 of the OP states that “A State Party to the present Protocol (“State Party”) recognizes the competence of the Committee on the Rights of Persons with disabilities (“the Committee”) to receive and consider communications from or on behalf of individuals or groups of individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of the provisions of the Convention.” However, there was no explanation as to why Malaysia has decided not to sign the Optional Protocol.10 The preliminary compliance assessment was done under the Universal Periodic Review (UPR) and it was considered at the first session of the UPR. Basically it was done to assess Malaysia’s human rights performance—which includes the CRPD. Even though excellent diplomatic skills were shown by the Malaysian government, the human rights situation in the country has not improved much.11 Plus, there are several clauses that favor the government in any cases of default.12 In other words, discriminations against persons with disabilities cannot be taken to court. DPOs and Ratification According to Sang, DPOs were involved in the process since the idea of protecting persons with disabilities’ rights was introduced years ago.13 In fact, they were the ones who forwarded the idea to the corresponding Ministry. Apart from that, DPOs were also responsible in giving explanations to the Ministry on two matters: the existing situation and the necessary actions. By doing so, the Ministry has become more aware of the needs of Persons with disabilities in the country. Thus, it can be said that DPOs were actively involved in the ratification process. In the same article, it also mentioned that DPOs were the ones who pressured the government on the issue. On top of that, the author also criticized SUHAKAM for not taking any immediate action. In other words, DPOs were the only body that pressured the government pertaining to this matter. It was due to the constant pressure and lobbying by the DPOs that the government has taken some positive actions to protect and uphold the rights of disabled persons. State Reservations Malaysia signed the CRPD on April 2008 and ratified it on July 2010. However, Malaysia has not signed or ratified the Optional Protocol at the time of

Chapter Six

78

writing. Simply saying, Malaysia did ratify the CRPD but with reservations on several articles in the convention, namely, Article 15 (Freedom from torture or cruel, inhuman, or degrading treatment or punishment) and Article 18 (Liberty of movement and nationality) of the Convention.14 No doubt, DPOs did welcome the CRPD ratification. To them, this is a big step in recognizing the persons with disabilities in the Malaysian community. However, since the government made reservations on several articles in the convention, some of DPOs saying that the CRPD would not be as effective as it should. The reservation will only make the primary goal—to protect the rights and welfare of PWD—less likely to be achieved.15 Implementation In preparation for CRPD implementation, several discussions were held between DPOs and the designated Ministry of Women, Family and Community Development regarding Article 33 CRPD on “National Implementation and Monitoring.” As the Person with Disabilities Act became effective in 2008, the National Council for Persons with Disabilities was created in order to implement and monitor the national policy and national plan of action relating to persons with disabilities. STRUCTURING THE FOCAL POINT AND COORDINATION MECHANISM IN MALAYSIA According to Article 33(1) of CRPD, one or more focal point(s) within the government must be designated for matters relating to the CRPD implementation. This obligation is fulfilled by the establishment of the National Council for Persons with Disabilities, which is stated clearly in the Act. The Council has the following members: 1.  the Minister of Women, Family and Community Development who shall be the chairman; 
 2.  the Secretary General of the Ministry responsible for social welfare, who shall be the Deputy chairman; 
 3.  the Attorney General of Malaysia, or his representative; 
 4.  the Secretary General of the Ministry responsible for finance; 5.  the Secretary General of the Ministry responsible for transport; 
 6.  the Secretary General of the Ministry responsible for human resources; 7.  the Director General of Education; 
 8.  the Director General of Health; 




Understanding CRPD Implementation in Malaysia 79

9.  the chairman of the Commercial Vehicle Licensing 
Board; 
 10.  not more than ten persons having appropriate experience, knowledge, and expertise in problems and issues relating to persons with disabilities to be appointed by the Minister. The Council is under the authority of Ministry of Women, Family and Community Development, which also has charge of social welfare of Malaysians in general. The responsibilities of the Ministry include: i) to cooperate with and assist the National Council pertaining to the matter, ii) to give due consideration to both national policy and national plan of action with regard to persons with disabilities; and iii) to implement steps, measures, or actions required to be taken in order to provide facilities to persons with disabilities. The meetings of the Council should be at least thrice a year and should serve as a coordinating body. In addition to that, the Act also established a Registrar General responsible in the registration process of persons with disabilities. This is in compliance with Article 31 of CRPD, which requires appropriate information, including statistical and research data, to be collected. So far, by the year 2013, the total number of persons with disabilities registered with the Social Welfare Department is 494,074.16 By registering with the Social Welfare Department, persons with disabilities will be entitled to receive assistance in terms of: i) monetary, ii) community-based rehabilitation, iii) institutional services, iv) industrial training, v) counseling, vi) special education, and vii) tax exemption. The monetary assistance, however, needs to be increased in order to catch up with the increase in cost of living in Malaysia. This has been suggested by Senator Bathmavathi Krishnan prior to the Budget 2015 Announcement, which she hoped would include an increase in Disabled Workers’ Allowances (EPC) and general aid for PWD. In the Budget 2015 presented by the Prime Minister, the increment allocated only RM50 and applied to PWD with salary below RM1200 per month, which obviously is not enough to cover everyday cost of living.17 Designated Focal Point The issue of focal point designation in Malaysia is not really well elaborated in any literature. International sources said Malaysia has yet to implement any focal point. This may be due to the fact Malaysia did not send any follow-up documents/reports as requested by the UN—therefore no updates were available. But, it is well understood that the National Council for Persons with Disabilities is the designated focal point as mentioned in the Act 2008. The role of Council is to oversee the implementation, make recommendations,

80

Chapter Six

coordinate, monitor, and review any policies and national plan related with persons with disabilities. Other functions include encouraging and supporting any appropriate measures to recognize the skills at workplace, employment opportunities for disabled, foster level of education for children with disabilities, collect data and research, training professional in habitation and rehabilitation services, and any other functions directed by Minister for proper implementation of the Act.18 Mainstreaming Disability Rights Referring to Persons with Disabilities Act (2008), it is clearly stated that Malaysia wants to promote and develop the quality of life and wellbeing of persons with disabilities since this particular part is especially made for this purpose. In other words, in the official law, there is effort to make rights of persons with disabilities real in all public departments. Therefore, government and providers of public facilities, amenities, and services and buildings must give appropriate consideration and necessary actions to ensure such requirement is suitable in enabling persons with disabilities. However, even though it is already recognized in the Act, the facilities for persons with disabilities are not provided very well.19 Some of the access is isolated and sometimes not even provided. Advisory Board In Malaysia, there is actually no official advisory board established. However, the government and relevant ministries act as consultants to the National Council.20 Generally, the government agencies and relevant ministries are the ones who acts as advisory board. As mentioned in the Act, the National Council must seek for consultation to the government and relevant ministries regarding the steps and measure, to be taken. In other words, any steps or measures undertaken are guided by rules and regulations made by the government. Implementation Difficulties Lack of awareness and appreciation of the issues relating to disabilities among officers of the various ministries is found to be one of the biggest problems that hinder the CRPD implementation of CRPD. Financial constraints are also frequently cited by the relevant ministries that present a big obstacle in implementing plans toward improving the infrastructure and facilities of public schools and buildings, in line with the CRPD requirements. There is



Understanding CRPD Implementation in Malaysia 81

also a lack of a comprehensive long-term and short-term National Inclusive Masterplan that forms the blueprint for the action plans for various ministries to undertake, rather than a “fire-fighting” approach undertaken at present. Another problem is lack of enforcement of the law.21 Although the Uniform Building By-Law 1990 Section 34A (UBBL 34A) has been enacted, the situation has not changed by much. This by-law requires that public buildings built after it came into force provide access for disabled people. Buildings built before its commencement must be retrofitted with such facilities within three years. However, more than twenty years after the by-law was gazetted by the various states, persons with disabilities still face the same problems in public buildings.22 Many buildings in Malaysia remained inaccessible by persons with disabilities as a result of lack of enforcement.23 ESTABLISHING THE INDEPENDENT MONITORING MECHANISM IN MALAYSIA The independent mechanism plays an important role in promoting, protecting, and monitoring the implementation of the Convention to maintain its function of national institution in order to protect the rights for disabilities. Article 33(2) of CRPD requires that States “maintain, strengthen, designate or establish one or more independent mechanisms.” An independent mechanism should be able to perform three functions, namely: promote disability rights, protect the rights of disabled persons, and monitor disability rights in practice by evaluating compliance with disability rights.24 The first part of the statement where States should “maintain, strengthen, designate or establish” independent mechanisms creates two possibilities. First, they may designate existing bodies and give them the functions to promote, protect, and monitor the implementation of the Convention. Second, States may establish independent mechanisms in the case where no existing bodies can fulfill these functions. The second part of the statement where States should designate or establish “one or more independent mechanisms” also creates two possibilities, that is, the States may either designate or establish a single body or several bodies that work together to carry out the functions provided for by Article 33(2). States may share these functions between the bodies, whereas federal or decentralized States may designate or establish regional or local bodies. Based on these functions, to a certain extent, the Malaysian Human Rights Commission (SUHAKAM) can be seen to be playing a role as an independent monitoring mechanism. However, it has not been officially appointed as an independent mechanism to monitor the implementation of the CRPD by the Malaysian government.

82

Chapter Six

SUHAKAM indicates issues pertaining to the rights of persons with disabilities especially those stipulated in the CRPD. The Commission has also been calling upon the government to fulfill its obligations under the CPRD by ensuring that Persons with disabilities enjoy their inherent right to life, non-discrimination, equal rights, access to justice, and participation in political life. Persons with disabilities are entitled to exercise their civil, political, social, economic, and cultural rights on an equal basis with others.25 SUHAKAM has organized programs on raising awareness and increasing research efforts toward legal and policy reform. The Commission has also continuously advocated for the realization of human rights, including the rights of persons with disabilities (Agam, 2011). Although SUHAKAM as a National Human Rights Institution (NHRI) has similar functions as that of an independent mechanism, according to de Beco (2011) a State may or may not consider SUHAKAM as an independent mechanism to monitor the implementation of the CRPD. This is because an NHRI-designated independent mechanism might not be able to fulfill all their functions equally. In addition, their independence will be affected, because they will have to spend more energy on disability rights than on other rights. As such, it may be useful for Malaysia to have the Organizations of persons with disabilities (DPOs) as additional independent mechanisms to complement the role of the NHRI, even if SUHAKAM is officially appointed as an independent mechanism to monitor the implementation of the CRPD. Apart from the State’s submission of its Universal Periodic Review (UPR), SUHAKAM and other stakeholders may also submit separately their own reports for the UPR on Malaysia. Since Malaysia is found to have not officially appointed an independent mechanism as yet, the options in the process of designating or establishing the independence mechanism cannot be examined. Similarly, factors that made up the argument in favor of the option to be chosen also cannot be determined as of now since the appointment process has yet to take place. However, in the event that the country’s NHRI, SUHAKAM, is officially appointed as one, the legal basis would be the Human Rights Commission of Malaysia Act 1999, Act 597, under which SUHAKAM was established. Section 2 of this Act defines “human rights” as referring to the “fundamental liberties as enshrined in Part II of the Federal Constitution.”26 SUHAKAM’s acceptance by the UN Human Rights Council (HRC) was on status “A.” Its status remains the same unless further determined by the International Coordinating Committee of National Institutions (ICC) in April 2009. The Minister of Foreign Affairs had stated that SUHAKAM was formulated in accordance with the Paris Principles, which refer to the ‘Principles relating to the status and functioning of national institutions for the protection



Understanding CRPD Implementation in Malaysia 83

and promotion of human rights. The Paris Principles in Article 33(2) of the CRPD would become a binding document with the appointment of the NHRI such as SUHAKAM, hence providing the Commission with a stronger legal basis as an independent mechanism.27 Mandate Part of the mandate of SUHAKAM would, therefore, be the promotion of human rights, in general, and disability rights, in particular. The task of promoting disability rights may be shared with the national government and DPOs, while the tasks of protecting and monitoring the implementation of the Convention may be in the form of providing supervision and elaborating a general strategy by the Commission that may also be shared with other relevant bodies. Hence, the missing aspect in the independent mechanism is the official appointment itself, whereby if there is an NHRI in a country, it should at least become one of the independent mechanisms and have a leading role in the framework as suggested by de Beco.28 Since SUHAKAM is the NHRI in Malaysia, it would certainly fit well as an independent mechanism, and it could be strengthened to fully comply with the Paris Principles, if it is not already so. Representation SUHAKAM at the moment consists of seven members, although it allows for the appointment of up to twenty members. SUHAKAM members were selected “to reflect the diversity and pluralism of Malaysian society and also on the basis of the experience, commitment, independence and integrity of the individual.”29 It also has specific working groups on education and promotions, law reform, treaties and international instruments, economic, social and cultural rights, and complaints and inquiries. Although one of the SUHAKAM members is an individual with physical disabilities,30 at the moment there is no mechanism within SUHAKAM that ensures permanent representations from DPOs and individuals with disabilities. If SUHAKAM is officially appointed as an independent monitoring mechanism, it must include representatives from relevant DPOs for it to be effective. Framework for the CRPD Following the CRPD ratification, Malaysia enacted the persons with disabilities Act 2008 aimed at providing for the “registration, protection, rehabilitation,

Chapter Six

84

development and wellbeing of persons with disabilities,” and the establishment of the National Council for Persons with disabilities. According to the Equal Rights Trust (ERT) Report,31 which explored the issue of discrimination and inequality in Malaysia, several obligations under CRPD have been included in the Act. However, the Act excluded the requirement of operative provisions setting out the rights to equality and non-discrimination of persons with disabilities and general requirement to ensure reasonable accommodation is provided in every building. This could be a good start, yet it still has a long way to go and a lot to be improved in order to achieve its primary goal and objectives. INVOLVEMENT OF CIVIL SOCIETY IN THE IMPLEMENTATION PROCESS IN MALAYSIA DPOs in the State In Malaysia, there are both National and state32 level organizations for persons with disabilities according to the type of disabilities, or major type of activities. In addition, support groups and associations for children are also established. National level DPOs by type of disabilities include the Malaysian Association for the Blind, the Malaysian Federation of the Deaf, the Malaysian Down Syndrome Association, the Malaysian Association of Persons with Physical Disabilities, the Malaysian Mental Health Association, the Malaysian Spinal Injury Association, and the National Association of Autism of Malaysia. State-level associations examples are the United Voice SelfAdvocacy Society for Persons with Learning Disabilities Selangor and Kuala Lumpur, and Mobility Association of Selangor and Wilayah Persekutuan, and Society of the Disabled Persons of Penang. Examples of support groups and associations for children include the Malaysian Council for Rehabilitation, Association of Parents and Guardians of Deaf Children, Kuala Lumpur. The Associations must be registered with the Registrar of Societies and the Executive Committee members are elected in Annual General Meetings. Typically, the Executive Committee is assisted by a few staff as well as volunteers to manage the Associations. The DPOs are also organized under umbrella organizations such as the Malaysian Confederation of the Disabled. National Structures Persons with disabilities have somewhat been empowered in the implementation and monitoring of the Convention through Malaysia’s Persons with Disabilities Act 2008 and the membership of persons with disabilities in the



Understanding CRPD Implementation in Malaysia 85

National Council of Persons with Disabilities as well as in its six subcommittees. Although some improvements have taken place, much is yet to be desired despite the establishment of these bodies since the ratification of the Convention. DPOs and Focal Points Membership of persons with disabilities in the National Council of Persons with Disabilities comes from DPOs or individuals who may not necessarily be associated with DPOs but have the necessary expertise. At the moment there is no formal coordination mechanism between the National Council as the focal point and the DPOs. Representatives of DPOs in the National Council or its six committees are consulted in the decision-making process, while representatives from other DPOs are also consulted from time to time, depending on the issues. DPO Consultation It is currently up to the Minister and the Secretariat of the National Council to ensure that DPOs consulted duly represent the different groups of persons with disabilities. So far, it is not clear as to whether initiatives have been undertaken to strengthen the groups that have been marginalized. DPO Opinion The independent mechanism has yet to be established or designated by the Malaysian government. Hence, whether DPOs will be asked for their opinion regarding the designation or establishment of the independent mechanism(s), or if they have other proposals are yet to be seen. Sufficient Involvement Similarly, whether the arrangements to include persons with disabilities in the independent mechanism(s) are sufficient to involve them, and whether they can have an impact on the agenda of the independent mechanism(s) can only be answered once the independent mechanism(s) has been established. Effective DPO Involvement Technically, the DPOs should be able to use the opportunities offered to them to be involved in the different bodies set up under Article 33 CRPD.

86

Chapter Six

The government ensures their capacity through appointments in the National Council and its six subcommittees, as well as inviting them from time to time for specific consultation meetings and conferences. DPO Drafting The State report was due in 2012 but has yet to be submitted by the Malaysian government to the CRPD Committee. Hence, it is not very clear whether or not the DPOs are included in the drafting of the State report. It is also not clear whether a shadow report has been drafted. DPO Achievements The DPOs are more actively involved in programs conducted by relevant bodies and agencies to improve the level of disability awareness among their employees and to provide inputs for the improvement of standards, the built environment, and services which are directly involved in planning and construction of public buildings. For example, DPOs are fully involved in the revision of the Malaysian Standards MS1184:2014 on Universal Design and Accessibility in the Built Environment—Code of Practice (Second Revision). DPOs are also very actively involved in Access Audit training programs conducted by local authorities as well as other agencies. One of the problems is that sometimes DPO representatives consulted do not have the necessary expertise, resulting in inaccurate advice. There is a need to have capacity building and perhaps have accreditation programs among more members of DPOs to enable them to serve as accredited advisors. CONCLUSION This chapter is based on secondary data and represents work in progress. It is a part of a larger study on Understanding National Implementation of the UN Convention on the Rights of Persons with Disabilities (CRPD) in CRPD in Malaysia. Data collection and analysis of the data set will be continued through 2015 to research further these issues based on the four research questions outlined in the study, that is, factors that influence Malaysia to ratify the CRPD; the focal point for implementing the CRPD; the independent mechanism established by Malaysia to monitor implementation of the CRPD; and the involvement of civil society organizations involved in the implementation of the CRPD in Malaysia through survey, interviews, and discussion with responsible ministries, agencies, NGOs, and Disabled People’s Organizations (DPOs) other stakeholders.



Understanding CRPD Implementation in Malaysia 87

NOTES   1.  UN Enable—Development and Human Rights for All, 2011.   2.  Lim Chee Wee. Press Release: Time to remove all reservations and sign the Optional Protocols, July 8, 2010. Retrieved July 5, 2014, The Malaysian Bar: http:// www.malaysianbar.org.my/press_statements/press_release_time_to_remove_all_reservations_and_sign_the_optional_protocols.html?date=2011-04-01.   3.  United Nations Economic and Social Commission for Asia and the Pacific, 2012.  4. Department of Public Information (United Nations). Why a Convention? (2006). Retrieved December 23, 2014, from Convention on the Rights of Persons with Disabilities: http://www.un.org/disabilities/convention/questions.shtml.   5.  The Equal Rights Trust in partnership with Tenaganita. (2012). Washing the Tigers: Addressing Discrimination and Inequality in Malaysia. London.  6. Bathmavathi Krishnan. A step forward, 2008. Retrieved July 5, 2014, from The Star Online: http://www.thestar.com.my/story.aspx/?file=%2f2008%2f1%2f24 %2flifeparenting%2f20063266&sec=lifeparenting.   7.  Ikmal Hisham Md. Tah. A Need for Remedial Provision to Protect Persons with Disabilities in Malaysia. International Journal of Business, Economics, and Law, 3 (2013): pp. 9–15.   8.  Wong Nam Sang. Review on SUHAKAM and Rights of Persons with Disabilities in 10 Years, September 23, 2011. Retrieved July 6, 2014, from South East Asia Human Rights Watch: http://www.seahrw.org/v1/index.php?option=com_content &view=article&id=55:review-on-suhakam-and-rights-of-person-with-disabilities-in10-years&catid=39:malaysia&Itemid=67.   9.  Krishnan, “A Step Forward.” 10. Peter Tan. Breaking Barriers: The State of Accessible Facilities. (2013). Retrieved July 15, 2014, from The Borneo Post: http://www.theborneopost. com/2013/02/23/the-state-of-accessible-facilities/. 11.  Ying Hooi Khoo. Cosmopolitan Civil Societies Journal, 6:1 (2014), 19–37. Malaysia’s Human Rights Performance: Assessment of its First Session of Universal Periodic Review in the United Nations Human Rights Council. 12.  Md. Tah, “A Need for Remedial Provision to Protect Persons with Disabilities in Malaysia.” 13.  Sang, “Review on SUHAKAM and Rights of Persons with Disabilities in 10 Years.” 14.  Wee, “Time to remove all reservations and sign the Optional Protocols.” 15.  Wong Kar Fai & Syamsuriatina Ishak. Forum on Persons with Disabilities Act 2008, 2010. Retrieved July 5, 2014, from The Malaysian Bar: http://www.malaysianbar.org.my/human_rights/forum_on_persons_with_disabilities_act_2008_12_ dec_2010.html. 16.  Social Welfare Department. (2013). 2013 Statistics Report. 17.  Jeswan Kaur. Budget 2015—Govt not in touch with disabled people’s struggles, October 13, 2014. Retrieved December 25, 2014, from Malaysia Edition: http://

88

Chapter Six

www.malaysiaedition.net/budget-2015-govt-not-in-touch-with-disabled-peoplesstruggles/. 18.  Persons with Disabilities Act. (2008). Laws of Malaysia. Malaysia: Percetakan Nasional Malaysia Berhad. 19.  Tan, “Breaking Barriers: The State of Accessible Facilities.” 20.  Persons with Disabilities Act. 21.  Tiun Ling Ta and Khoo Suet Leng. Disability, CBR and Inclusive Development (DCID) (2013): 6–12. Challenges Faced by Malaysians with Disabilities in the World of Employment. 22.  Tan, “Breaking Barriers: The State of Accessible Facilities.” 23. H. Kamarudin, N.R. Muhamad Ariff, W.Z. Wan Ismail, A. F. Bakri, and Z. Ithnin. MATEC Web of Conferences (pp. 1–7) (2014). EDP Sciences. Malaysian Scenario on Access and Facilities for Persons with Disabilities: A literature review. 24.  Gauthier de Beco. Netherlands Quarterly of Human Rights, 29:1 (2011): 84– 106. Article 33 (2) of the UN Convention on the Rights of Persons with Disabilities. Another Role for National Human Rights Institutions. 25. “Persons with Disabilities,” SUHAKAM, Retrieved from http://www.suhakam.org.my/areas-of-work/pendidikan/orang-kurang-upaya-oku/. 26. “Functions and Power,” SUHAKAM, Retrieved from http://www.suhakam. org.my/about-suhakam/fungsi-kuasa/. 27.  de Beco, “Article 33(2) of the UN Convention on the Rights of Persons with Disabilities. Another Role for National Human Rights Institutions,” 101–04. 28.  de Beco, “Article 33(2) of the UN Convention on the Rights of Persons with Disabilities. Another Role for National Human Rights Institutions,” 105. 29. “About,” SUHAKAM, Retrieved from http://www.suhakam.org.my/aboutsuhakam/. 30.  Mr. Francis Johen Adam is a member of SUHAKAM, and he is a person with physical disability who uses a wheelchair. 31.  The Equal Rights Trust. 32.  Malaysia has thirteen states, namely, Perlis, Kedah, Perak, Penang, Selangor, Melaka, Negeri Sembilan, Johor, Pahang, Kelantan, and Terengganu in West Malaysia, and Sabah and Sarawak in East Malaysia. There are also three Federal Territories in Malaysia, namely, Kuala Lumpur, Labuan, and Putrajaya.

BIBLIOGRAPHY Agam, Tan Sri Hasmy. “Welcome Remarks.” Seminar on the Rights of Person with Disabilities. Knala Lumpur, December 5 2011. Unpublished document. de Beco, Gauthier. Article 33 (2) of the UN Convention on the Rights of Persons with Disabilities. Another Role for National Human Rights Institutions, Netherlands Quarterly of Human Rights, 29:1 (2011): 84–106. Department of Public Information (United Nations). (2006). Why a Convention? Retrieved December 23, 2014, from Convention on the Rights of Persons with Disabilities: http://www.un.org/disabilities/convention/questions.shtml.



Understanding CRPD Implementation in Malaysia 89

“The Equal Rights Trust in partnership with Tenaganita,” Washing the Tigers: Addressing Discrimination and Inequality in Malaysia. London, 2012. Fai, Wong Kar and Ishak, Syamsuriatina. (2010). Forum on Persons with Disabilities Act 2008. Retrieved July 5, 2014, from The Malaysian Bar: http://www.malaysianbar.org.my/human_rights/forum_on_persons_with_disabilities_act_2008_12_ dec_2010.html. Kamaruddin, H., Muhammad Ariff, N. R., Wan Ismail, W. Z., Bakri, A. F., and Ithnin, Z. “Malaysian Scenario on Access and Facilities for Persons with Disabilities: A literature review.” MATEC Web of Conferences, 2014: 1–7. EDP Sciences. Kaur, Jeswan. ”Budget 2015—Govt not in touch with disabled people’s struggles,” Malaysia Edition, October 13, 2014. Retrieved December 25, 2014. http://www. malaysiaedition.net/budget-2015-govt-not-in-touch-with-disabled-peoples-struggles/. Khoo, Ying Hooi. “Malaysia’s Human Rights Performance: Assessment of its First Session of Universal Periodic Review in the United Nations Human Rights Council.” Cosmopolitan Civil Societies Journal , 6:1 (2014): 19–37. Krishnan, Bathmavathi. “A step forward,” The Star Online, 2008. Retrieved July 5, 2014. http://www.thestar.com.my/story.aspx/?file=%2f2008%2f1%2f24%2flifepa renting%2f20063266&sec=lifeparenting. Md. Tah, Ikmal Hisham. “A Need for Remedial Provision to Protect Persons with Disabilities in Malaysia,” International Journal of Business, Economics and Law 3 (2013): 9–15. Persons with Disabilities Act. (2008). Laws of Malaysia. Malaysia: Percetakan Nasional Malaysia Berhad. Sang, Wong Nam. (2011, September 23). Review on SUHAKAM and Rights of Persons with Disabilities in 10 Years, South East Asia Human Rights Watch, September 23, 2011. Retrieved July 6, 2014. http://www.seahrw.org/v1/index. php?option=com_content&view=article&id=55:review-on-suhakam-and-rightsof-person-with-disabilities-in-10-years&catid=39:malaysia&Itemid=67. Social Welfare Department. (2013). 2013 Statistics Report. Tan, Peter. “Breaking Barriers: The State of Accessible Facilities,” The Borneo Post, February 23, 2013. Retrieved July 15, 2014. http://www.theborneopost. com/2013/02/23/the-state-of-accessible-facilities/. The Equal Rights Trust in partnership with Tenaganita. (2012). Washing the Tigers: Addressing Discrimination and Inequality in Malaysia. London. Tiun, Ling Ta, and Khoo, Suet Leng. “Challenges Faced by Malaysians with Disabilities in the World of Employment,” Disability, CBR and Inclusive Development (DCID) (2013): 6–12. UN Enable—Development and Human Rights for All, 2011. United Nations Economic and Social Commission for Asia and the Pacific, 2012. Wee, Chee Lim (2010, July 8). Press Release: Time to remove all reservations and sign the Optional Protocols, The Malaysian Bar, July 8, 2010. Retrieved July 5, 2014. http://www.malaysianbar.org.my/press_statements/press_release_time_to_remove_all_reservations_and_sign_the_optional_protocols.html?date=2011-04-01.

Chapter Seven

Understanding CRPD Implementation in Indonesia1 Irwanto and Slamet Thohari

INTRODUCTION Indonesia is one of the leading countries in Southeast Asia. It is the largest Muslim country in the world, has one of the strongest economies in the region, and serves as the headquarters for the secretariat of the Association of Southeast Asian Nations (ASEAN). Along with Thailand, it was the first country in ASEAN to sign the United Nations Convention on the Rights of Persons with Disabilities (CRPD), on the first day it was available for signature. It ratified the Convention on November 30, 2011, and like most countries in Southeast Asia did not sign the Optional Protocol. OVERVIEW OF PERSONS WITH DISABILITIES IN INDONESIA For a long time, Indonesia has struggled with the definition and accommodation of persons with disabilities. Law Number 4 of 1997 defines persons with disabilities as “individuals with defects.” Article 1 of the law states that a disabled person is “an individual with physical or mental anomalies (abnormalities) that prevent them from doing normal activities.” This definition was used in the enumeration of people with disabilities in previous census and demographic surveys, such as the National Socio-Economic Survey (Susenas) by the National Bureau of Statistics. The World Health Organization (WHO) and the World Bank estimated that approximately 15 percent of the world’s population is comprised of people with disabilities.2 However, the National Socio-economic Survey of 2009 reported that the number of persons with disabilities in Indonesia was 2,126,785, which is just a bit short of 1 percent of the total population (total 91

92

Chapter Seven

population is 238 million according to the 2010 Census).3 The huge gap between the WHO estimate and Indonesia’s data is due to the operational definition used to collect the data. The definition of persons with disabilities used by Susenas is based on the medical model of disability. The WHO uses the International Classification of Functioning, Disability, and Health (ICF) concept of disability which assesses the functional capacity of persons with disabilities, namely their perceived ability to undertake activities and tasks across functional domains (such as mobility, hearing, communication, cognitive comprehension) that would allow them to participate in the social and economic life of their communities. Questions based on the ICF concept generate more responses than questions based on medical functionality.4 For public policy purposes, ICF-based surveys provide more realistic data on disability, and hence are more useful for planning public investment. To get more reliable data on disability, the National Team on Poverty Alleviation (TNP2K) assigned the Demographic Institute of the Faculty of Economics, Universitas Indonesia, assisted by a Washington Group consultant, to reconcile available statistics on disability. The research team decided to use the Basic Health Survey (RISKESDAS) 2007 and 2010 Census data as a baseline for their study. The researchers concluded: Overall, this report finds that the prevalence of disability in Indonesia is between 10 and 15 percent, which is comparable to the global findings presented in the recent World Report on Disability 2011—but that is a conservative estimate. According to the RISKESDAS data, including the prevalence rate for moderate and severe disabilities is about 11 percent, but including mild disabilities would raise the prevalence to over 25 percent (which is only slightly higher than reported prevalence rates in the US and Australia). The Census in Indonesia tends to underreport that rate in part because of less extensive questions on disability. 5

Most recently, RISKESDAS 2013 reported overall prevalence of disability at 11 percent of the population.6 Table 7.1 illustrates the prevalence of disability according to different domains. Table 7.1.   Proportion of disabilities according to different domains Domains

Moderate

Severe

Very Severe

Cognition Mobility Self-care Interpersonal Interactions and Relationship Daily Activities Participation Prevalence (national)

2.70 3.00 1.05 1.65

1.23 2.65 0.45 0.55

0.33 0.75 0.20 0.20

2.35 2.20 11% (of total population)

1.25 1.20

0.40 0.40

Source: (RISKESDAS, 2013), Source: www.litbang.depkes.go.id



Understanding CRPD Implementation in Indonesia 93

Although sought by TNP2K, the above data has not been used for disability programming because the Ministry of Social Affairs (MoSA) holds the mandate for such activity. The MoSA has its own data based on poverty alleviation programs that estimate the percentage of persons with disabilities at a much lower level than national surveys. DYNAMICS OF CRPD RATIFICATION IN INDONESIA During the authoritarian regime of the New Order under President Soeharto, Indonesia had been an active participant of the Biwako Millennium Framework (BMF) for Action during the Asia Pacific Decade for Persons with Disabilities 1992–2002. At the end of the decade-long evaluation, Indonesia received a favorable assessment. The country had been able to achieve recognizable progress in national coordination and legislation.7 Law Number 4 of 1997 was a product of this commitment that was soon followed by important ministerial decrees in the sectors of public works, social welfare, and education. Indonesia was also a signatory to the next Asia Pacific Decade for Persons with Disabilities and the plus five commitments. It was also an active participant in the ASEAN’s Strategic Framework for Social Welfare and Development (2007–2010). Beyond the international discourse, however, domestic disability movement activists heavily criticized Law Number 4. The law was not able to capture the rights-based nature of the Biwako Framework. On the contrary, the law contained the old perception and conceptualization of persons with disabilities as persons with handicaps and defects. As such, the impairment becomes more important than the person. In earlier legislation, different terms (but the same meaning) were used to describe persons with disabilities. The following is a summary of previously used terminology.8 As a result of dissatisfaction with the term, disability movement activists were keen to find new terminology. During a seminar on the disability paradigm discourse in September 1999, social, religious and human rights activist Dr. Mansour Fakih coined the term “Difabel” or “Different Abilities.”9 This term found unanimous support by the Head of the Indonesian Association of Persons with Disabilities (PPCI) and the audience.10 In December 1999, disability activists who were part of the Committee for Indonesian People with Disabilities (KAPCI) met and created a dialogue titled “Reformatting the Indonesian Disabled Rights’ Movement.” These groups recommended the use of “difabel” as the new term for internal and public discourse. They firmly believed that to be accepted in the community, the conceptualization of person with disabilities should focus on the positive or the ability rather on the deficit. DraManunggal, a disability-based NGO in Yogyakarta, led by Mr. Setya adi Purwanta, and other NGOs such as Indonesian Disabled

Revised

Still in effect

Orang-orang yang dalam keadaan kekurangan jasmani atau rokhaninya Persons who have physical and mental deficits Tuna such as in tunarungu (deaf )—a Javanese word that means “Loss” or “Deficit” Orang yang terganggu atau kehilangan kemampuan untuk mempertahankan hidupnya—which means “persons who have been disturbed or lost the ability to survive” Penderita cacat—or “person suffering from defect”

Revised

Penyandang cacat—or “people with defect or handicapped”

* all revised laws and regulations used the terminology “penyandang cacat” in line with the Law Number 4 of 1997. Source: Adioetomo, Mont, & Irwanto, 2014

Revised

Penyandang kelainan or “persons with abnormalities or anomalies”

Revised

In effect

Revised*

Orang “cacat”—Handicapped or persons with defect

Undang-undang (Law) Nomor 33 Tahun 1947 tentang Ganti Rugi Buruh yang Kecelakaan (on Compensation for Work-related Accident) Undang-undang (Law) Nomor 12 Tahun 1954 tentang dasar-dasar pendidikan dan pengajaran di sekolah untuk seluruh Indonesia (Fundamental Principles for Teaching and Learning for All Indonesian Schools) Undang-undang (Law) Nomor 6 Tahun 1974 tentang Ketentuan-ketentuan Pokok Kesejahteraan Sosial (on Principal Provisions in Social Welfare)

Peraturan Pemerintah (Government Regulation) Nomor 36 Tahun 1980 tentang Usaha Kesejahteraan Sosial Bagi Penderita Cacat (Welfare Services for Persons Suffering from Disability)—and Undang-Undang (Law) Nomor 14 Tahun 1992 tentang Lalu Lintas Angkutan Jalan (on Ground Traffic) Peraturan Pemerintah (Government Regulations) Nomor 72 Tahun 1991 tentang Pendidikan Luar Biasa (on Special Education)—and Undang-Undang (Law) Nomor 15 Tahun 1992 tentang Penerbangan (on Aviation).

Status of the law

Terminology used

Name of the law

Table 7.2.   Earlier legislations and the conceptualization of disability



Understanding CRPD Implementation in Indonesia 95

Athletes (BPOC), the Christian Center for Public Health (YAKKUM), and the Legal Aid Institute (LBH) agreed to use “difabel” as well. Most DPOs such as PPCI, the Physically Disabled People Front (FKCPTI), GERKATIN, and PERTUNI still use the term “penyandang cacat” although colloquially members may use the term “difabel.” In addition to the above legal and definitional framework, the institutional framework for persons with disabilities also raised serious concerns. Under the Suharto regime, institutions for persons with disabilities were established not on the basis of disability rights but because of the need for philanthropic organizations to assist them. For that purpose, the government established umbrella organizations for persons with disabilities, namely the Indonesian Association of Persons with Disabilities (PPCI, now PPDI)11 and the Indonesian Coalition of Women with Disabilities (HWPCI now HWDI),12 which have assumed representation of all DPOs in the country and established chapters in the provinces. Any assistance from international NGOs is channeled through these institutions via the Ministry of Social Affairs (MoSA). These organizations have been used to help the promotion and implementation of government programs—in fact, they presented themselves in a similar manner to government institutions.13 At the same time, these umbrella organizations have been instrumental in bringing the voices of Indonesian persons with disabilities to both the National Council of Social Welfare and to the UNESCAP that monitors the BIWAKO Decade review. The following is a summary of DPOs established during the Soeharto Regime. Various reviews of the role of DPOs in advancing the rights of persons with disabilities in Indonesia have indicated that a lot of progress has been achieved, especially in the area of special education, occupational training, and government assistance for persons with disabilities, and in particular, for those with severe impairments and living in social institutions and in poor households.14 However, these reports have to be put into context. Special education, for example, is available only in the big cities on the islands of Java, Bali, and Sumatra, and most of these programs are established by the community or private sector. The total number of special education schools at the primary level is less than 1 percent of the regular schools of the same level. Inclusive education has been promoted and piloted since 2003,15 and is progressing very slowly.16 According to Mr. Praptono, the director of special education of the Ministry of National Education and Culture (MoEC), inclusive schools have been developed in only twelve out of thirty-four provinces in Indonesia.17 In addition, funding for inclusive education is very low. For example, the budget available to assist forty Inclusive Vocational High Schools in 2013 was only IDR 2 billion (equal to USD 160,000) and the fixed-cost budget for every school was IDR 25 million (equal to USD 1,923)

96

Chapter Seven

Table 7.3.   Categories of DPO during the New Order Regime Categories

Main characteristics

DPO

Umbrella Organizations

Representing the interest of persons with disabilities, main connection with government agencies and programs, main referral for INGOs working through MoSA. Helping DPOs to help institutionalize children with special needs, established by churches, provide scholarships, provide skill training for persons with disabilities. Function as a self-help group and accommodated by PPC(D)I to receive government assistance. They have sub-national level representation. Provide necessary medical treatment and medical services and rehabilitation, vocational trainings, job skills training. Based on government programs. Connected with international funds and/or other programs.

PPDI, HWDI

Charitable Organizations

Disability unions based on specific categories of disability

Medical rehabilitation and special education for children with disabilities

Yakatunis, Yayasan Senang Hati

Gerkatin, Pertuni

YPAC

Source: Compiled by author.

to pay for the transportation and salary of special teachers, curriculum adjustments or modifications, the development of learning materials, to improve capacity of teachers, and to provide special services for students.18 Similarly, as a review by the ILO in Jakarta indicates, implementation of the right to work has been very slow. The requirement to employ persons with disabilities for at least 1 percent of the total work force has not been seriously enforced. The labor sector, as well as other sectors, has been entangled in the disablement discourse and philanthropic approach inspired by the definition in the Law Number 4 of 1997.19 The political reform that brought down the New Order regime in 1998 opened new windows of opportunity for disability rights implementation. In 1999, President Abdulrahman Wahid was elected, a Muslim intellectual and political activist who had low vision. This was a magic moment for disability rights activists. Soon after President Wahid took office, the amendment process of the Constitution of 1945 was started (1999 to 2000) to adopt human



Understanding CRPD Implementation in Indonesia 97

rights provisions into the body of the constitution (Article 28). Human rights have become the basis for the national development framework. The Bureau of National Planning (Bappenas) changed its approach to poverty from a social cultural to a human rights-based perspective. This shift significantly affected the way disability activists looked at their situation and condition vis á vis Law Number 4 of 1997. Issues of access to basic services and participation in national development planning became salient issues for disability rights advocacy. In 2010, President Bambang Yudhoyono expressed his concerns on not being able to achieve Millennium Development Goal (MDG) No. 1 in 2015, which focuses on the elimination of poverty. While he mentioned that disability is an important factor affecting poverty levels of individuals, he recognized that disability concerns were not yet included into all sectors dealing with poverty alleviation programs. He issued Presidential Instruction number 13 of 2010 to set the theme for its Medium-Term Development Plan, or MTDP (RPJMN ) 2010–2014, which was “Building Prosperous, Democratic and Just Indonesia” (Mewujudkan Indonesia yang Sejahtera, Demokratis, dan Berkeadilan). This decree was followed by Presidential Instruction number 20 of 2011 to accelerate eleven national development programs to meet the MDGs by 2015. Improving data and information on the aging population and persons with disabilities, along with related issues of the old-age pension scheme and social protection programs, were identified as main issues and put forward as national priorities.20 In addition to these developments, the fast growing number of more educated and informed activists, improved communication technology that facilitates wider network and sharing of experiences of persons with disabilities across national and international boundaries, and the active role of disability-related international NGOs drove Indonesia toward the ratification of the CRPD. The National Plan of Action 2004–2013 The National Plan of Action (NAP) 2004–2013 addressed the following eight strategic issues: 1.  Establishment of self-supporting disabled peoples’ organizations and associations of families and parents of children with disability; 2.  Improvement of the welfare of women with disability; 3.  Early detection of and early intervention on disability, as well as education for people with disability; 4.  Training and placement of workers with disability;

98

Chapter Seven

5.  Access for people with disability to public facilities and transportation; 6.  Access to information, communications, and technology, including assistive device technology, for PwDs; 7.  Poverty alleviation and improvement of social security protection and livelihoods; 8.  International cooperation and human rights. A coordination team consisted of representatives of multi-sectoral ministries, DPOs, and academics was established by a MoSA decree called Team Koordinasi Nasional Upaya Peningkatan Kesejahteraan Sosial Penyandang Cacat (National Coordination Team on Welfare Improvement of Disabled People). Despite best efforts, our situational analysis concluded that the team did not make significant progress in implementing the NAP 2004–2013.21 Senior Policy Analyst of MoSA, Eva Kasim, provided the following reasons: 1.  NAP 2004–2013 lacked authority, as it was only issued on the basis of a circular letter from the Coordinating Ministry of Social Welfare. 2.  The document lacked specificity for its implementing mechanism, such as coordination, program execution, and monitoring and evaluation.22 Besides these criticisms, the NAP 2004–2013 also lacked funding for effective implementation.23 The failure to achieve the majority of objectives of the NAP sent a strong message that the government lacks political will and that MoSA is unable to effectively carry out the plan. Ratification of the CRPD In the preparation for ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), MoSA was appointed focal point to find a new definition of disability that was conceptually equivalent to the one used in the Convention. The MoSA received its mandate from the Ministry of Foreign Affairs and the State Secretary to prepare for the ratification and translation of the Convention with technical assistance from the Human Rights Commission and to inform the public (key stakeholders) about CRPD and the ratification plan.24 Indonesia signed the CRPD on March 30, 2007. It took another four years and a great deal of pressure from DPOs to finally ratify the convention without any reservation with Law Number 19 of 2011 on November 30, 2011. Although the ratification of the convention was considered “complimentary” to existing Law Number 4 of 1997, the ratification actually brings Indonesia into another level of engagement with disability-related issues. While the



Understanding CRPD Implementation in Indonesia 99

provisions in existing law contain the terminology of “right,” the definition of the person with disability as “penyandang,” or “the owner of,” denotes that the locus of the problem is the impairment of the person. The whole person is lost in the highlighted “anomalies or abnormalities” that characterized the individual.25 As such the existing law is not compatible with the social model that inspired the CRPD.26 In addition, the ratification of the convention was not followed by the ratification of the Optional Protocol to CRPD. According to the Report of the Working Group on Universal Periodic Review on Indonesia, the state indicated that the optional protocol “is yet to be discussed with national stakeholders for possible inclusion in the next human rights action plan.”27 STRUCTURING THE FOCAL POINT AND COORDINATING MECHANISM IN INDONESIA The Ministry of Social Affairs (MoSA) has also been actively assisting DPOs (especial through the umbrella organization PPCI/PPDI) and related parties to plan for steps following the ratification of the CRPD. Among these planned actions was the proposal to form a National Commission on Persons with Disabilities as a monitoring mechanism. This plan received positive support from DPOs across the country, especially disability-based NGOs in the provinces led by young and more liberated activists (especially from Yogyakarta, Surakarta, and Malang). However, DPOs expressed serious concerns because the Commission was to be housed in the MoSA as the national focal point. Many of these NGOs have been exposed to international debates on human rights through the work of CBM, Handicapped International, Disability Rights Fund, and other international NGOs that promote the understanding that a human rights body representing persons with disabilities should comply with the Paris principle of independence. In addition, DPOs learned from emergency responses during the tsunami in Aceh, massive earthquakes in Yogyakarta in 2006 and in West Sumatra or Padang in 2009 that highlighted the complexity of disability affairs and the fact that they cannot be managed by only one ministry. The Open Society Foundation through its representative in Indonesia—the Tifa Foundation—seconded the DPOs’ objections. In 2011–2012, the Open Society Foundation decided to organize participatory discussions across DPOs throughout the country to listen to their aspirations regarding a national mechanism for CRPD implementations after ratification. This process concluded that the current coordination mechanism under MoSA has been weak and ineffective. Therefore, it was recommended that an independent

100

Chapter Seven

commission that represents the rights of people with disabilities should be established and mandated by the new (revised) law. Although the MoSA may still have significant roles, the main focal point should be shifted under the Vice President office28 or a stronger actor, such as the Ministry of Law and Human Rights.29 There is no final decision on this issue at the time of writing, as the new law has not been enacted. REVISION OF THE LAW: DPO LEADERSHIP Since the ratification of the Convention, the immediate priority of the government and DPOs has been the revision of Law Number 4 of 1997 on the Handicapped Persons with a new CRPD informed law on disability. The MoSA has been mandated as the focal point of the national plan of action on disability by the existing law. In effect, it was MoSA that played the focal point role until the new law on disability was enacted. In addition to that, MoSA also received a mandate from the law number 11 of 2009 on Social Welfare to manage social welfare affairs to deal with problems related to poverty and social exclusion. Since disability30 is closely related to poverty and social exclusion, programs related to social inclusion are managed by this ministry, which also focuses on the protection and empowerment of persons with disabilities. The drafting of the new Law on The Rights of Persons with Disability after the ratification of CRPD came from the National Commission on Human Rights (NCHR—Indonesia) in 2012 involving PPDI and HWDI. The draft had been brought to the public hearing in six provinces to receive constructive inputs. Early in 2013 the draft was handed over to the Ministry of Social Affairs in a multi-stakeholders forum involving major national DPOs. Based on the draft, MoSA took the liberty to rewrite the draft according to the social welfare perspective. The rewritten draft was rejected by DPOs. The NCHR, therefore, continues to write letters to the parliament urging them to officially adopt the draft. While national DPOs were continuing to review the NCHR draft, PPDI formed the National DPOs Working Group and appointed Mrs. Ariani Soekanwo, the PPUA Penca Chairperson, as the coordinator and assigned Dr. Saharuddin Daming to revise the NCHR draft. On June 1, 2013, NCHR was officially called by Balegnas (National Legislative Body) to the Peoples Assembly for submission of the draft. For this occasion, NCHR invited National DPOs to come to the parliament together. Two versions of draft law were submitted (NCHR and PPDI versions). PPDI’s draft has been presented to major government sectors and major chap-



Understanding CRPD Implementation in Indonesia 101

ters of PPDI during organization meetings and therefore, considered as the representative draft of PwDs. However, with 332 articles included, the draft was considered too bulky. PPDI invited PSHK (Center on Law and Policy Studies) and LBH Jakarta (Jakarta Legal Aid) and appointed seven representatives to rewrite the draft. The rewriters are Mrs. Ariani Soekanwo (Chair of PPUA Penca), Aria Indrawati (Chair of Pertuni), Maulani Rotinsulu (Chair of HWDI) and Yenni Rosa Damayanti (Chair of Perhimpunan Jiwa Sehat/PJS), Mahmud Fasa (PPDI), Fajri Nursyamsi (PSHK), and Tigor Hutapea (LBH Jakarta). During the redrafting of the law they were assisted by Mr. Prampode (staff of the Balegnas) and getting input from prominent activists from Yogjakarta such as Setia Purwanta, Nurul Saadah from SAPDA, Mr. Jhoni Julianto from SIGAB, and Dr. Irwanto from Center for Disability Studies, Universitas Indonesia. On September 29, 2014, a final draft consisting of 251 articles was submitted to the Parliament and became the Parliament-initiated draft to be officially considered by the relevant Commission of the Parliament (8th Commission). Unfortunately, soon after submission of the draft law, the members of the commission had to be replaced by newly elected members. It was soon found out that the new elected members acknowledged and deemed the Parliament initiated draft to be the only draft to be considered. There are many NGOs who actively oversee the legislation process. Among them are National Coalition of Women’s Rights, PPDI, National Consortium, academic institutions such as UI’s Center for Disability Studies, Women’s Rights Commission, and Human Rights Commission. While the Ministry of Social Affairs is still the official focal point of disability affairs and implementation of CRPD, the role of the ministry in drafting the law has more recently been in the background, supporting the civil society movement. The newly appointed Minister of Social Affairs (Ms. Khofifah Indar Parawansa) took a more active role in mainstreaming disability within the social welfare sector. In the relative absence of leadership by MoSA, HWDI played an increasingly significant role in a number of important events at the central level. Ms. Ariani Soekanwo, who used to chair the organization, was appointed as the chairwoman for Accessible Election during the 2014 legislative and presidential election. She and her coworkers worked closely with a USAID-sponsored program, AGENDA, and the Election Commission (KPU) to promote active participation of persons with disabilities and accessible election mechanisms and infrastructure. The 2014 legislative and presidential election was enjoyed by citizens with disabilities because accessibility was closely monitored. Many DPOs in big cities were involved in such monitoring and reporting.31

102

Chapter Seven

At the subnational level, the National Consortium on Disability Rights has been receiving support from Handicapped International and DRF to promote CRPD nationwide, especially to local authorities and activists. In close coordination with the Women’s Coalition and the Women’s Rights Commission, the consortium has been able to organize CRPD trainings targeted at women and disability activists, as well as public sector leaders. The consortium has also been active in promoting and voicing Indonesian disabled proposed post MDGs agenda through international events such as in the Post 2015 Global Development Framework Consultation with the High Level Panel of Eminent Persons (HLPEP) in Bali (December 13, 2012), public consultation with the UN Rapporteur Mr. Shuaib Chalklen (June 2013), and UN Summit New York (September 2014). The consortium and the HWDI-led groups in Jakarta were actively engaged to promote non-discrimination in state university admission for 2013–2014. They filed a very strong complaint through the Indonesian ombudsman who assisted them in organizing a friendly meeting among representatives of rectors of state universities and disability rights activists on Tuesday, April 24, 2014, that resulted in the abolition of all requirements that discriminate incoming students based on disability. On June 12, 2014, the Minister of Education made it legally binding by enacting the Ministry of Education Decree No. 46 of 2014 on Special Education, Special Services in Education, and or Special Learning Processes in Higher Education. According to this decree, all forms of discrimination against students with disabilities are prohibited. Every higher education institution should be able to assist or modify their facilities to accommodate the special needs of students with disabilities. On the same note, the mental health professionals working together with coalitions of persons with psychosocial disabilities were successfully able to enact a new law, Number 18 of 2014 on Mental Health. This replaced the old law Number 3 of 1966, which was considered more punitive and less palliative. Still at the central level, the Center for Disability Studies is keen to work with the National Narcotic Board (BNN) to inform persons with disabilities about the national drug policies and consequences of drug-related crimes due to increasing number of drug-related PwDs arrests.32 In the provinces and districts, members of the consortium and PPDI (they overlap, of course) were actively engaged in the development of accessibility and respect for the rights of persons with disabilities through local laws and regulations. Universitas Islam Hidayatullah in Yogyakarta and Universitas Brawijaya in Malang have started university-sponsored services for students with disabilities. The Center for Disability Studies has been actively engaged in disability policy studies in the area of public policy (access to identity,



Understanding CRPD Implementation in Indonesia 103

social protection), emergency response, CBR development, and promoting disability issues in university curriculum. The center has recently (April 8, 2015) received approval by the Senate of the Faculty Community Health to start five courses on disability issues in the graduate (Masters) level of Department of Public Health, Universitas Indonesia. Mainstreaming of Disability Rights Although disability has been perceived as a cross-cutting issue in national development, the main approach was very sectoral.33 The acceleration decree provides a vehicle for the mainstreaming of disability into multi-sector programs in poverty alleviation. Innovation of state interventions through individual, family, and community-based programs was coordinated by TNP2K34—the national team which is composed of twelve cabinet ministries and private sector actors. Although there has generally been evidence that the new approach to poverty alleviation has been effective, the impact for persons with disabilities has been very slow. Lack of understanding of disability issues, cultural barriers, lack of information related to CRPD at the local and central government level, and inconsistencies in the law with regards to disability all contribute to significant barriers to mainstreaming. A lot is expected with the new law on disability to provide the legal basis for mainstreaming. Disability Rights and the National Plan of Action on Human Rights 2014–2019 For this analysis, we could not obtain the NAP final-final version from the Ministry of Law and Human Rights. To obtain the most recent and accurate information on the integrated plan of action, we have communicated with the former Director General of Human Rights (Dr. Harkristuti Harkrisnowo) and the Director for Cooperation of the directorate general (Mr. Arry Sigit), Ms. Eva R. Kasim (focal point MoSA), Ms. Risnawati Utami (National Coalition of PwD), Ms Maulani S. Rotinsulu (Chairperson, HWDI), and all DPO chairs. The following are the results. The Director General of Social Rehabilitation of the MoSA, Mr. Samsudi, once indicated, “Disability is a cross-cutting issue. The formulation of a National Action Plan is in line with the State obligation in the CRPD. The plan is needed to guide the state and other stakeholders to ensure that persons with disability can enjoy the fulfillment of their basic rights in concerted and systematic manner with clear targets and clear objectives.”35 The plan is also important as a policy guide to subnational authorities.

104

Chapter Seven

Learning from the failure of the implementation of NAP People with Disability 2004–2013, DPOs, activists, and concerned government stakeholders opted for a different strategy for the new Plan of Action. At least the mandate for implementation should be at a higher level than of a ministerial decree, or a mere ministry circular letter. They consulted the president to issue the decree. The pressure resulted in the presidential decision to integrate the National Plan of People with Disability and the Plan of Action of Human Rights. The president assigned the Ministry of Law and Human Rights to integrate the plans and to draft the integrated version. Learning from past challenges, the plan should be supported by at least a presidential decree, containing specific structure and mechanism for implementation, and containing a mechanism for monitoring and evaluation equipped with measurable objectives and indicators of achievement. DPO, activists, and academic researcher are convinced that when the rights of persons with disabilities are mainstreamed into the Human Rights agenda, it may get more attention and stronger support. Some of them, however, are concerned that specific agendas for persons with disabilities will be lost in translation. According to Ms Eva Kasim, the Draft NAP 2014–2019 will implement the following primary programs in table 7.4.36 To make it relevant to the international agendas, we put the primary programs of Draft NAP together with the Incheon Strategy Goals and Sustainable Development Goals. It is obvious from the above comparison that Draft NAP Disability 2013– 2019 tries to adopt most of the goals of the Incheon Strategy and addresses disability relevant SDGs. Since the document is a draft, and it is going to be integrated with the human rights agendas, we can only hope for the best outcome in regard to those primary programs being kept intact. Progress in Inclusion of Persons with Disabilities in Social Protection Programs Although mainstreaming of disability into sectoral programs has been very slow, significant progress has been noted in the inclusion of persons with disabilities into newly introduced social protection programs. As part of the acceleration of poverty alleviation, in 2006, the government of Indonesia introduced cash transfer assistance to persons with disabilities called JSPACA (Jaminan Sosial Penyandang Cacat or Cash Assistance to Persons with Disabilities) and in 2007, the government introduced the Family Hope Program (Program Keluarga Sejahtera or PKH) as Conditional Cash Transfer (CCT) assistance to help lactating mothers and school-age children to access basic health services, nutrition, and basic nine-year education.



Understanding CRPD Implementation in Indonesia 105

The extent of inclusion of persons with disabilities, as well as CwDs, in social protection programs was assessed by five important studies. Three of them reviewed available data and interviewed policy makers, DPOs, and activists about persons with disabilities’ participation in the above schemes.37 Findings confirmed that participation of persons with disabilities was very low and, in fact, the scope and coverage of the programs were very limited, especially JSPACA (only 19,500 recipients according to available data in 2011).38 To respond to the recommendation of the studies, in 2010 the government launched another CCT program called PKSA or Social Welfare Program for Children that has a specific target cluster on children with disabilities. Unfortunately, this program was not able to scale up its coverage and suffered a lot of problems of delivery and access.39 In 2013 Bappenas instructed that PKH which has much bigger coverage (3.2 million household) should include parents and children with disabilities. Although there has been a concerted effort to identify and include persons with disabilities, there were challenges that needed to be resolved. In particular, regarding the knowledge and capacity of field managers to identify and recruit beneficiaries, readiness of service personnel to serve persons with disabilities, and categories of allowed expenditures (related to specific services to children with disabilities such as assistive devices, special learning materials, and home schooling). General accessibility to enable beneficiaries to access services remains a serious issue.40 Very interesting and important progress has been made in the participation of persons with disabilities in the National Health Security program. In 2004, the government indicated its high commitment to provide a universal health security program for the people by enacting Law number 40 of 2004 on the National Security System. After a heated debate on the implementation body, in 2011 the Social Insurance Body or Badan Penyelenggara Jaminan Sosial or BPJS was established. The central government launched a health insurance scheme called Jamkesnas or Jaminan Kesehatan Nasional or JKN (National Health Insurance) and the subnational government may add investment from their district budget to support its respective District Health Insurance or Jamkesda. Prior to the introduction of the health security system, persons with disabilities have no way of getting or purchasing private insurance scheme. Through the universal health insurance scheme, all persons with disabilities have the opportunity to purchase or to get the scheme through government subsidy. According to the road map 2012–2019 by the year 2019 all Indonesian people will be covered by the BPJS, including persons with disabilities. Recent studies that reviewed regulations related to the implementation of BPJS found a number of obstacles that may cause disadvantages to persons

e. Ensuring the enjoyment of economics and social-cultural rights of persons with disabilities—with specific goals to eradicate poverty, improved employment opportunity, protection of PwD in emergency situation, improve access to health care, social protection, and legal protection, improve access to education at all levels, and access to sport and leisure programs and facilities elimination of disability-related stigma, especially for persons affected by leprosy and other debilitating diseases

d. E nsuring the enjoyment of civil and political rights

c. Education and dissemination of the rights of persons with disabilities

b. S ynchronizing or Harmonization disability related laws and regulations.

a. Institutional development and strengthening for NAP implementing body

NAP Disability 2014–2019 Primary Programs

Goal 1: Reduce poverty and enhance work and employment prospects Goal 4: Strengthen social protection Goal 7: Ensure disability-inclusive disaster risk reduction and management

Goal 9: Accelerate the ratification and implementation of the Convention on the Rights of Persons with Disabilities and the harmonization of national legislation with the Convention Goal 3: Enhance access to the physical environment, public transportation, knowledge, information, and communication Goal 2: Promote participation in political processes and in decision-making

Incheon Agenda 2013–20221

Table 7.4.   NAP Disability, the Incheon Agenda, and Sustainable Development Goals

Goal 4 on inclusive and equitable quality education and promotion of life-long learning opportunities for all focuses on vulnerable population, including persons with disabilities Goal 8: to promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all, including for persons with disabilities, and equal pay for work of equal value. Goal 10, which strives to reduce inequality within and among countries by empowering and promoting the social, economic, and political inclusion of all, including persons with disabilities.

Sustainable Development2

Goal 10: Advance subregional, regional, and interregional cooperation

Goal 5: Expand early intervention and education of children with disabilities Goal 3: Enhance access to the physical environment, public transportation, knowledge, information, and communication Goal 8: Improve the reliability and comparability of disability data

Goal 6: Ensure gender equality and women’s empowerment

Goal 17 stresses that in order to strengthen the means of implementation and revitalize the global partnership for sustainable development, the collection of data and monitoring and accountability of the SDGs are crucial.

Goal 11: sustainable and inclusive human settlement

1. UNESCAP (2012). Incheon strategy “ to make “the rights real” for persons with disabilities. Bangkok: UN Publications. 2. UN Enable, Disability and Sustainable Development Goals - http://www.un.org/disabilities/default.asp?id=1618

International partnership (not specifically put as primary program)

h. Improve data and information system

g. P  rovision of adequate accessibility and reasonable accommodation

f. E mpowering women with disabilities, children with disabilities, persons with multiple disabilities, psychotics, and people affected by leprosy

108

Chapter Seven

with disabilities vis à vis their peers with no disabilities. Irwanto41 identifies a number of shortcomings in the Presidential Instruction number 12 of 2013 on National Health Insurance, that is, 1.  One is qualified to receive state assistance when he or she has “permanent, total handicap.” This is problematic for a number of reasons. One is that there is no explanation of who will determine such condition. Even if a medical doctor is supposed to have the capacity to do that, it would be expensive and time consuming. Not only that some curable medical conditions may have disabling effect for quite some time, such as GuillainBarre Syndrome.42 2.  Many assistive devices and special (medical) treatment needed for certain categories of disability are not covered by the existing scheme. 3.  Extra costs of disability were not accounted for by the current scheme. A recent review of BPJS and relevant regulations and interviews with key informants by Widagdo43 also reveals the following challenges: 1.  In all regulations reviewed there was no mention of the right of persons with disability on health. 2.  The available data used for the basis of inclusion of persons with disabilities (PPLS) is too low and may use incorrect or inappropriate criteria of inclusion for poverty to persons with disabilities. 3.  There are many essential needs for persons with disabilities that have not been covered, both medical technology and specific treatment. 4.  Accessibility of services and information remains a serious problem. 5.  Knowledge and capacity of service provider on disability-related issues remains, presenting barriers for accessibility. Although there are obviously serious challenges for the inclusion of persons with disabilities in the current National Health Insurance system, it is very clear that the current government takes the issue very seriously. One good example is the Back to Work program now promoted by the Ministry of Manpower and Transmigration. This program is managed by the BPJS Ketenagakerjaan through professional case management approach.44 Based on the Workplace Insurance Scheme, a person who experiences work-related trauma that causes disability will be supported for medical treatment, retraining, and re-placement. When the disability causes a worker to permanently lose his or her job, the state insurance will provide post-retirement funds (over fifty times basic salary) to enable the disabled person to start a new gainful activity. According to one of the case managers, his office currently



Understanding CRPD Implementation in Indonesia 109

has eleven case managers who are mostly medical doctors and manage over a hundred cases in Jakarta alone. Soon they will add more case managers and scale up its coverage nationwide. Initial Report to CRPD Committee Recent communication with the Director for Cooperation of the Directorate General of Human Rights of MoLHR indicated that initial report is currently constructed by the government of Indonesia, especially by the Ministry of Social Affairs in conjunction with the Ministry of Foreign Affairs and supported by the Ministry of Law and Human Rights. The construction of the report started in November 2013. Yet, due to unfinished business, the revision of the Law Number 4 of 1997 on Disabled Persons, National Plan of Action and other affairs was postponed. The Initial report should contain, among others, revision of the Law Number 4 of 1997, the construction of NAP 2014–2019, establishment of the independent monitoring mechanism, advocacy of the new law to subnational authorities, and so on. The draft Presidential Regulation for National Human Rights Plan of Action 2014–2019 (Perpres RANHAM 2014–2019) has been sent to the Cabinet Secretary for approval by the President.45 In response to the postponement of the Initial Report by the government of Indonesia, a team called DisCO (Disability Convention) Team is currently proposing to submit a shadow report to the CRPD Committee. A draft shadow report has been prepared for further input by national community leaders of persons with disabilities. This process is coordinated by Mr. Edy Supriyanto, the Chairperson of SEHATI Foundation in Sukoharjo District, Central Java. The shadow report will be submitted before the end of this year. Obstacles and Challenges Edwards,46 who has been observing Indonesia’s CRPD ratification, identifies a number of challenges in CRPD implementation. One is inconsistency in the domestic laws regarding compliance to human rights principle of nondiscrimination. She mentioned Marital Law Number 1 of 1974 that has been proven very resilient to any attempts of revision by women activists. Article 4 paragraph 2 of this law allows a husband to end a marriage when his wife cannot perform her duties because of disability. At the provincial level, she mentions the Jakarta Provincial Regulation No. 8 Year 2007 that stipulates persons with “illness that causes community unrest” are not allowed to be in public places. Another concern has to do with the Procedure of the Criminal Code article 29(1)(a) and 29(3), which allows for extension of detention for

Chapter Seven

110

suspects with mental disability for further investigation or questioning. This is just to cite a few examples. There are many legal stipulations in subnational laws that may be in conflict with CRPD. She also indicates that a ratified convention does not necessarily and automatically make it legally binding. There should be parallel legal instruments at the national and subnational level to be effectively enforceable. Therefore, there would be a long process of legal reform to ensure complete adherence to the convention. Another possible barrier to effective implementation of the convention is the availability and quality of data on disability. Although recently the Demographic Institute of Universitas Indonesia,47 assisted by the Washington Group (the World Bank), has recalculated the prevalence of persons with disabilities using Census 2010 data and Basic Health Survey (RISKESDAS) 2007 data to find a more realistic estimated prevalence of 11–14 percent (almost similar to WHO global estimate), most public policies and programs still used older data collected through National Labor Survey (SAKERNAS) with the very low prevalence of less than 2 percent. The huge difference in the estimated prevalence is due to the different definition of disability. SAKERNAS used definition of body and mental impairment of Law Number 4 of 1997, while 2010 Census and RISKESDAS use ICF-based questions used by the Washington Group in the WHO global report. Institutional Reform Much is expected from the revised law on disability. This law contains state obligations as stipulated in the convention as well as addressing gaps currently existing in the present law and related subnational level regulations. Respect for the rights of persons with disabilities, state obligation to provide accessibility in public building, transportation, tourism facilities, and religious facilities have been accommodated in respective laws. The problem is there is no institution that monitors and reports noncompliance or practices against the law. The ratification of CRPD and the enactment of the new law may provide opportunities to establish a monitoring body (such as a National Commission on Persons with Disabilities) or mechanism (a convention watch group) that will help ensure the enforcement of the law and the convention. ESTABLISHING THE INDEPENDENT MONITORING MECHANISM IN INDONESIA Since the new law on disability is still being deliberated in the House of People’s Assembly, we have no legal mandate for an independent monitoring



Understanding CRPD Implementation in Indonesia 111

and reporting mechanism for CRPD. That being said, we do have independent monitoring mechanisms for the implementation of district- or provinciallevel laws and regulations pertaining to the existing Law Number 4 of 1997. There have been at least two provinces (DKI Jakarta, West Sumatra), seven cities or municipalities (Yogyakarta, Semarang, Solo, Malang, Surabaya, Bekasi, Bandung), and seven districts (five districts in Yogyakarta and six districts in Solo)48 that have their own regulations on the rights of persons with disabilities as an affirmation and extension of the national law. In each of the district regulations, an independent monitoring system called Komisi Perlindungan dan Pemenuhan Hak-hak Difabel49 received the mandate for monitoring and reporting to the local authorities. In each of these commissions, the role of local DPO is very strong. This model has been used to draft the new law on disability. Another available mechanism is through existing human rights institutions such as the Human Rights Commission (Komisi Nasional HAM), National Commission on Women’s Rights (Komisi Nasional Perempuan), and Indonesian Commission on Child Protection (Komisi Perlindungan Anak Indonesia); each has its own and shared mechanisms. THE INVOLVEMENT OF CIVIL SOCIETY IN CRPD IMPLEMENTATION IN INDONESIA On June 1, 2013, NCHR was officially called by Balegnas (National Legislative Body) to the People Assembly for submission of draft. For this occasion NCHR invited National DPOs to come to the parliament together. Two versions of draft law were submitted (NCHR and PPDI versions). PPDI’s draft has been presented to major government sectors and major chapters of PPDI during organization meetings and therefore, considered as the representative draft of persons with disabilities. Seven representatives are to rewrite the draft. The rewriters are Mrs. Ariani Soekanwo (Chair of PPUA Penca), Aria Indrawati (Chair of Pertuni), Maulani Rotinsulu (Chair of HWDI) and Yenni Rosa Damayanti (Chair of Perhimpunan Jiwa Sehat/PJS), Mahmud Fasa (PPDI), Fajri Nursyamsi (PSHK) and Tigor Hutapea (LBH Jakarta). During the redrafting of the law they were assisted by Mr. Prampode (staff of the Balegnas) and getting input from prominent activists from Yogyakarta such as Setia Purwanta, Nurul Saadah from SAPDA, Mr. Jhoni Julianto from SIGAB, and Dr. Irwanto from Center for Disability Studies, Universitas Indonesia. On September 29, 2014, a final draft consisting of 251 articles was submitted to the Parliament and became the Parliament-initiated draft to be officially considered by the relevant Commission of the Parliament (8th Commission). Unfortunately, soon after submission of the draft law, the members of the

112

Chapter Seven

commission had to be replaced by newly elected members. It was soon found out that the new elected members acknowledged and accommodated the Parliament-initiated draft to be the only draft to be considered. There are many NGOs who are actively guarding the legislation process. Among them are National Coalition of Women’s Rights, PPDI, National Consortium, academic institutions such as UI’s Center for Disability Studies, Women’s Rights Commission, and Human Rights Commission. While the Ministry of Social Affairs is still the official focal point of disability affairs and implementation of CRPD, the role of the ministry in drafting the law has been in the background, supporting the civil society movement. The newly appointed Minister of Social Affairs (Ms. Khofifah Indar Parawansa) took a more active role in mainstreaming disability within the social welfare sector. In the relative absence of leadership by MoSA, HWDI took the leadership role in a number of important events at the central level. Ms Ariani Soekanwo, who used to chair the organization, was appointed as the chairwomen for Accessible Election during the 2014 legislative and presidential election. She and her coworkers worked closely with a USAID-sponsored program, AGENDA, and the Election Commission (KPU) to promote active participation of persons with disabilities and accessible election mechanisms and infrastructure. The 2014 legislative and presidential election was enjoyed by citizens with disabilities because accessibility was closely monitored. Many DPOs in big cities were involved in such monitoring and reporting50 public consultation with the UN Rapporteur Mr. Shuaib Chalklen (June 2013), and UN Summit New York (September 2014). The consortium and the HWDI led groups in Jakarta were actively engaged to promote nondiscrimination in state university admission for 2013–2014. They filed a very strong complaint through the Indonesian Ombudsman who assisted them in organizing a friendly meeting among representatives of Rectors of state universities and disability rights activists (Tuesday, April 24, 2014) that resulted in the abolition of all requirements that discriminate incoming students based on disability. On June 12, 2014, the Minister of Education made it legally binding by enacting the Ministry of Education Decree No. 46 of 2014 on Special Education, Special Services in Education, and or Special Learning Processes in Higher Education. According to this decree, all forms of discrimination against students with disabilities are prohibited. This replaced the old Law Number 3 of 1966, which was considered more punitive and less palliative. Still at the central level, the Center for Disability Studies is keen to work with the National Narcotic Board (BNN) to inform persons with disabilities about the national drug policies and consequences of drug-related crimes due to increasing number of drug-related persons with disabilities arrests.51



Understanding CRPD Implementation in Indonesia 113

In the provinces and districts, members of the consortium and PPDI (they overlap, of course) were actively engaged in the development of accessibility and respect for the rights of persons with disabilities through local laws and regulations. Universitas Islam Hidayatullah in Yogyakarta and Universitas Brawijaya in Malang, have started university-sponsored services for students with disabilities. The Center for Disability Studies has been actively engaged in disability policy studies in the area of public policy (access to identity, social protection), emergency response, CBR development, and promoting disability issues in university curriculum. The center has recently (April 8, 2015) received approval by the Senate of the Faculty Community Health to start five courses on disability issues in the graduate (Masters) level of Department of Public Health, Universitas Indonesia. CONCLUSION Since the ratification of CRPD in 2011, all stakeholders, especially DPOs and persons with disabilities, perceive that the biggest and immediate challenge and task ahead is to revise Law Number 4 of 1997 on Handicapped persons. The new law will determine the paradigm shift of policy undertaking from a medical deficit to social-human rights-based perspective. It is, therefore, most of the attention and energy has been invested to draft and advocate the new law on disability. The current law would not enable the state to address most of its obligations under the convention. Four years has passed and the draft law is presently discussed in the parliament and scheduled to be enacted before 2015 ends. The National Action Plan should ideally follow the new law on disability. But the government transition in 2014 and other current priorities in national development have forced the government and DPOs to draft the action agenda as soon as possible. The presidential decision to integrate the disability and human rights agenda has been received with optimism, but also serious concerns. In the meantime, DPOs, activists, and the MoSA are engaged in educating the authorities, community and religious leaders, and the private sector on CRPD. Relevant sectors such as the health, social welfare, politics, and employment sectors have responded positively. The education sector has been responding slowly. With the launch of the National Health Insurance system, DPOs and activists seized the moment early on to ensure inclusion of persons with disabilities. This effort has been supported by international and bilateral agencies. A lot has been going on since the ratification of CRPD. This is a period of time that has never been seen before in the disability discourse. National

114

Chapter Seven

and international pressure has been strong enough to make disability issues as salient as any human rights and political issues. No one can shove the issue under the rug anymore. Indonesia is currently welcoming new disability leadership who are young, more informed, and possess the capacity to change the disability policy landscape in the country. NOTES   1.  Acknowledgment—the authors would like to express high appreciation to Ms. Risnawati Utami, Mr. Arry Sigit, Ms. Maulani Rotinsulu, and Mr. Paul Kellner for their generous assistance during the writing of this article.   2.  World Bank. “Disability Overview.” Last modified September 21, 2016. http:// www.worldbank.org/en/topic/disability/overview.   3.  Central Bureau of Statistics (BPS) of Indonesia. “Indonesia—National SocioEconomic Survey.” 2009.   4.  Sri Moertiningsih Adioetomo, Daniel Mont and Irwanto. “Persons with Disabilities in Indonesia: Empirical Facts and Implications for Social Protection Policies.” September 2014.   5.  WHO and the World Bank. World Report on Disability 2011. WHO: Malta, 2011.   6.  Dasar, RISKESDAS 2013. Badan Penelitian dan Pengembangan Badan Kesehatan Kementerian Republik Indonesia. 2013.   7.  Penny Price and Yukata Takamine. “The Asian and Pacific Decade of Disabled Persons 1993–2002: What Have We Learned?” 2003. http://www.aifo.it/english/resources/online/apdrj/apdrj203/ap-decade.pdf.   8.  Adioetomo, Mont, and Irwanto, “Persons with Disabilities in Indonesia.”   9.  Mansour stated that a disability is a term or condition produced by a capitalist system, which leads members of society to compete with one another. To deal with this problem, the concept of disability should be deconstructed. 10.  Kompas Daily, October 29, 1999. 11.  Persatuan Penyandang Cacat Indonesia or now Persatuan Penyandang Disabilitas Indonesia and Himpunan Wanita Penyandang Cacat Indonesia or now Himpunan Wanita Disabilitas Indonesia. 12.  According to Ms. Maulani Rotinsulu, the present chair of HWDI, the umbrella organization fund and sustain their activities using members’ resources, June 20, 2015. 13.  Setia Adi Purwanta. “Menumbuhkan Prespektif Difabel untuk Mewujudkan Masyarakat Inklusif” dalam Suharto dan Munandar. Pokok-pokok Pikiran Dr. Mansour Fakih: Refleksi Kawan Seperjuangan. Yogyakarta: Sigab dan Oxfam, 2004. 14.  Adioetomo, Mont, and Irwanto, “Persons with Disabilities in Indonesia.” 15.  Surat Edaran Direktorat Jenderal Pendidikan Dasar Dan Menengah (Circular Letter of the Directorate General of Primary and Secondary Education) Nomor 380/G.06/MN Tahun 2003 Perihal: Pendidikan Inklusi (on inclusive education).



Understanding CRPD Implementation in Indonesia 115

16. Irwanto, Eva Kasim, Mimi Lusli, Amin Fransiska, Okta Siradj. Situation Analysis of Persons with Disabilities in Indonesia. Jakarta: AusAID-Jakarta, 2011. Adioetomo, Mont, and Irwanto, “Persons with Disabilities in Indonesia.” 17. Diva Pendidikan, “Baru direaisasikan 12 propinsi, kepedulian pendidikan inklusi masih belum optimal,” diunduh dari http://www.kuipperschool.com/2015/04/ baru-direalisasikan-12-provinsi.html. 18. Petunjuk Teknis. “Pengelolaan belanja bantuan khusus sekolah penyelenggara program pendidikan inklusif dikmen Tahun.” Kementerian Pendidikan dan Kebudayaan, Dirjen Pendidikan Menengah, Direktoral PK-LK, 2013. 19.  Markus Sudibyo. “The Status of Training and Employment Policies and Practices for People with Disabilities in Indonesia.” Jakarta: ILO, 2002. 20.  Irwanto et al., Situation Analysis of Persons with Disabilities in Indonesia. 21. Ibid. 22.  Eva Kasim “Pokok-pokok draft Rencana Aksi Nasional Penyandang Disabilitas 2014–2019.” Ministry of Social Affairs, 2014. 23.  Irwanto, Christiane, and Natalia. “Evaluasi program bantuan sosial bagi penyandang cacat.” Internal Report to Bappenas, 2010. 24. Letter No. B–72/M.Sesneg/D-4/02/2009 dated 17 February, 2009. See also Eva Kasim. Kronologis Upaya Ratifikasi CRPD. 2011. Download: http://ppdi.or.id/ kronologis-upaya-ratifikasi-the-convention-on-the-rights-of-persons-with-disabilities-crpd.html. 25.  Irwanto, Supriyanto, Julianto, Wirya, and Sagita. “Investing in Ability: Rapid Assessment of Living Conditions of Persons with Disabilities in Sukoharjo District, Central Java—Focusing on Access to Social Protection.” Manuscript for the Ministry of National Development and GIZ, 2013. 26.  Nicola Edwards. “Disability rights in Indonesia. Problems with ratification of the United Nations Conventions on the Rights Persons with Disabilities.” Australian Journal of Asian Law 15/1 (2014): 1–15. 27.  Response to the recommendation No. 109.6 of the 13th session of UPR Working Group. UN General Assembly, September 5, 2012. 28.  Yayasan Tiffa. “Membangun Mekanisme Independen Perlindungan Hak Penyandang Disabilitas.” Jakarta: HWPCI, 2012. 29.  Another voiced option not written in the report. 30. In the Department of Social Affairs, person with disabilities (PwDs) are categorically called persons with social welfare problems (penyandang masalah kesejahteraan sosial or PMKS)—a very disempowering nomenclature. 31. See Monitoring Report 2014 General Election: South Sulawesi, East Kalimantan, East Java, and Yogyakarta. Yogyakarta: SIGAB. 32.  Concerted effort has been made since 2012 resulted in the publication of a braille version of the national drug policy document and active role of BNN to refer convicted persons with disabilities to rehabilitation services. Continued dialogue is going on with BNN, related media, and provision of rehabilitation services. 33.  Adioetomo, Mont, and Irwanto, “Persons with Disabilities in Indonesia.” 34. Tim Nasional Percepatan Penanggulangan Kemiskinan (TNP2K)—National Team for the Acceleration of Poverty Alleviation Program.

116

Chapter Seven

35.  Presented during socialization of the National Plan of Action for People with Disabilities 2014–2019 at Grand Cemara Hotel, Jakarta, Indonesia, May 7, 2015. 36.  Eva Kasim “Pokok-pokok draft Rencana Aksi Nasional Penyandang Disabilitas 2014–2019.” Ministry of Social Affairs, 2014. 37.  Irwanto, Christiane, and Natalia. “Evaluasi program bantuan sosial bagi penyandang cacat.” 38.  Adioetomo, Mont, and Irwanto, “Persons with Disabilities in Indonesia.” 39.  Kusumaningrum and Irwanto. “Building a Social Protection System for Children in Indonesia (an Assessment on the Implementation of the Ministry of Social Affairs’ Social Assistance Program PKSA and Its Contribution to the Child Protection System.” Jakarta, Center on Child Protection, Ministry of Development Planning (Bappenas), and the World Bank. 2011. 40. Irwanto. “Inklusi penyandang disabilitas dalam program PKH.” Research Policy Brief submitted to TNP2K and Bappenas for OHANA, 2015. 41. Irwanto. “Hak atas kesehatan dan perlindungan sosial (Jaminan Kesehatan) bagi difabel di Indonesia.” Jurnal Difabel 2/2 (2014). 42.  A medical condition that may cause pseudo paralysis for months before it is cured. 43. Widagdo. Asesmen inklusivitas Jaminan Kesehatan Nasional terhadap difabel. Presentasi disajikan di Bappenas Juni 10 Juni 2015. 44. BPJS Ketenagakerjaan. “JKK-Return to Work. Menuju Pasar tenaga kerja yang inklusif untuk semua.” Presented at Bappenas June 10, 2015. 45.  Email dated May 10, 2015 and May 11, 2015 to Mr. Arry Sigit. 46.  Edwards, “Disability rights in Indonesia.” 47.  Adioetomo, Mont, and Irwanto, “Persons with Disabilities in Indonesia.” 48.  Mr. Arry Sigit, email message to author, May 11, 2015. 49.  Commission on Protection and Fulfillment of the Rights of Persons with Disabilities. 50.  See “Monitoring report 2014 General Election: South Sulawesi, East Kalimantan, East Java, and Yogyakarta.” Yogyakarta: SIGAB. 51.  Concerted effort has been made since 2012 resulted in the publication of a braille version of the national drug policy document and active role of BNN to refer convicted persons with disabilities to rehabilitation services. Continued dialogue is going on with BNN, related media, and provision of rehabilitation services.

BIBLIOGRAPHY Adioetomo, Sri Moertiningsih, Daniel Mont and Irwanto. “Persons with Disabilities in Indonesia: Empirical Facts and Implications for Social Protection Policies.” September 2014. BPJS Ketenagakerjaan. “JKK—Return to Work. Menuju Pasar tenaga kerja yang inklusif untuk semua.” Presented at Bappenas June 10, 2015. Central Bureau of Statistics (BPS) of Indonesia. “Indonesia—National Socio-Economic Survey.” 2009.



Understanding CRPD Implementation in Indonesia 117

Commission on Protection and Fulfillment of the Rights of Persons with Disabilities. Dasar, RISKESDAS 2013. Badan Penelitian dan Pengembangan Badan Kesehatan Kementerian Republik Indonesia. 2013. Edwards, Nicola. “Disability rights in Indonesia. Problems with ratification of the United Nations Conventions on the Rights Persons with Disabilities.” Australian Journal of Asian Law 15/1 (2014): 1–15. Email dated May 10, 2015 and May 11, 2015 to Mr. Arry Sigit. Irwanto, Christiane, and Natalia. “Evaluasi program bantuan sosial bagi penyandang cacat.” Internal Report to Bappenas, 2010. Irwanto, Eva Kasim, Mimi Lusli, Amin Fransiska, Okta Siradj. Situation Analysis of Persons with Disabilities in Indonesia. Jakarta: AusAID-Jakarta, 2011. Irwanto, Supriyanto, Julianto, Wirya, and Sagita. “Investing in Ability: Rapid Assessment of Living Conditions of Persons with Disabilities in Sukoharjo District, Central Java—Focusing on Access to Social Protection.” Manuscript for the Ministry of National Development and GIZ, 2013. Irwanto. “Hak atas kesehatan dan perlindungan sosial (Jaminan Kesehatan) bagi difabel di Indonesia.” Jurnal Difabel 2/2 (2014). Irwanto. “Inklusi penyandang disabilitas dalam program PKH.” Research Policy Brief submitted to TNP2K and Bappenas for OHANA, 2015. Kasim, Eva. Kronologis Upaya Ratifikasi CRPD. 2011. Download: http://ppdi.or.id/ kronologis-upaya-ratifikasi-the-convention-on-the-rights-of-persons-with-disabilities-crpd.html. Kasim, Eva. “Pokok-pokok draft Rencana Aksi Nasional Penyandang Disabilitas 2014–2019.” Ministry of Social Affairs, 2014. Kompas Daily, October 29, 1999. Kusumaningrum and Irwanto. “Building a Social Protection System for Children in Indonesia (an Assessment on the Implementation of the Ministry of Social Affairs’ Social Assistance Program PKSA and Its Contribution to the Child Protection System.” Jakarta, Center on Child Protection, Ministry of Development Planning (Bappenas), and the World Bank. 2011. Letter No. B–72/M.Sesneg/D-4/02/2009 dated 17 February, 2009. Monitoring report 2014 General Election: South Sulawesi, East Kalimantan, East Java, and Yogyakarta. Yogyakarta: SIGAB. Pendidikan, Diva. “Baru direaisasikan 12 propinsi, kepedulian pendidikan inklusi masih belum optimal,” diunduh dari http://www.kuipperschool.com/2015/04/barudirealisasikan-12-provinsi.html. Price, Penny and Yukata Takamine. “The Asian and Pacific Decade of Disabled Persons 1993–2002: What Have We Learned?” 2003. http://www.aifo.it/english/ resources/online/apdrj/ apdrj203/ap-decade.pdf. Purwanta, Setia Adi. “Menumbuhkan Prespektif Difabel untuk Mewujudkan Masyarakat Inklusif” dalam Suharto dan Munandar. Pokok-pokok Pikiran Dr. Mansour Fakih: Refleksi Kawan Seperjuangan. Yogyakarta: Sigab dan Oxfam, 2004. Response to the recommendation No. 109.6 of the 13th session of UPR Working Group. UN General Assembly, September 5, 2012.

118

Chapter Seven

Sudibyo, Markus. “The Status of Training and Employment Policies and Practices for People with Disabilities in Indonesia.” Jakarta: ILO, 2002. Surat Edaran Direktorat Jenderal Pendidikan Dasar Dan Menengah (Circular Letter of the Directorate General of Primary and Secondary Education) Nomor 380/G.06/ MN Tahun 2003 Perihal: Pendidikan Inklusi (on inclusive education). Teknis, Petunjuk. “Pengelolaan belanja bantuan khusus sekolah penyelenggara program pendidikan inklusif dikmen Tahun.” Kementerian Pendidikan dan Kebudayaan, Dirjen Pendidikan Menengah, Direktoral PK-LK, 2013. Tiffa, Yayasan. “Membangun Mekanisme Independen Perlindungan Hak Penyandang Disabilitas.” Jakarta: HWPCI, 2012. UN Enable, Disability and Sustainable Development Goals—http://www.un.org/disabilities/default.asp?id=1618. UNESCAP. “Incheon strategy “to make “the rights real” for persons with disabilities.” Bangkok: UN Publications, 2012. WHO and the World Bank. World Report on Disability 2011. WHO: Malta, 2011. Widagdo. Asesmen inklusivitas Jaminan Kesehatan Nasional terhadap difabel. Presentasi disajikan di Bappenas Juni 10 Juni 2015. World Bank. “Disability Overview.” Last modified September 21, 2016. http://www. worldbank.org/en/topic/disability/overview.

Chapter Eight

Understanding CRPD Implementation in Myanmar Paula Appelhans

INTRODUCTION The Republic of Myanmar has recognized the protection of vulnerable persons since its independence in 1948. Each subsequent constitution since 1948 has, in some way, set about to at least define vulnerable citizens to include women, children, and the disabled. Very few public policies, regulations or laws, however, addressed needs of the vulnerable. If needs were addressed, they were acknowledged as a health-based issue and left to non-governmental social welfare organizations, non-governmental organizations, or international aid agencies. The historical proliferation of political conflict and lack of economic growth did little more than offer a simple recognition of a State duty. Once the military junta took power, these factors not only inhibited developments, it encouraged an atmosphere of denial. Transitioning from a militaristic system toward a form of democracy never comes easy and the struggles continue. A turning point came in the form of a horrific natural disaster, a new constitutional referendum, and influx of humanitarian relief. In 2008, amongst a previously constitutional referendum, Cyclone Nargis devastated the highly populated and agricultural center of the Irrawaddy River Delta in central Myanmar. As the ruling military had essentially closed off the country to foreigners regardless of purpose, even sending humanitarian aid was considered an unwelcomed intrusion. The international community pressured the Myanmar’s leaders and eventually, the borders were opened to foreign relief. Once borders were opened, international aid agencies (IAAs) and non-governmental organizations (NGOs) were able to enter the country and assess the needs of those affected, including persons with disabilities. 119

120

Chapter Eight

Opening the country’s borders offered opportunities in three critical ways; funding, professional expertise, and access to the population. Each has now been available in unprecedented ways. The harsh reality of the many political changes and access by the international community requires even the most optimistic to have a pause. Progress is more the result of an equation: take the number of forward steps, subtract the number of backward steps, then count each side step as a half step in either direction, and you may have a picture of what progress looks like in Myanmar/Burma. UN Conventions have been signed, ratified, or ascended, but it is difficult to assess if there is a quantifiable government-led implementation strategy. Reports to monitoring committees have alluded to progress, but are difficult to review. Multiple laws have been drafted, but very few reach the point of being “gazetted” or made official much less available for legal or regulatory effect. Ministries have created committees and national plans have been generated; yet tangible and sustained movement is still questionable. Monitoring strategies are in their infancy, if any at all and only recently appear to be with the support or encouragement of the Ministries. The current winds of change indicate a route of more significant involvement by the Ministries, with more response to coalition building among the various facets of NGOs, Self Help Groups (SHGs), and civil society overall. The participation of the Ministries at the local level shows signs of actual engagement with the citizens and not mere lip-service or photo-ops. Keeping in mind that even with international funding and various experts, access is the most challenging factor for any sort of cohesive implementation national policy. The reality undermining progress is not so much that a particular law is or is not passed; it is that most of the population live in rural wards or villages where consistent access to trained health care personnel or social services are extremely difficult to sustain. Even health care practitioners in the rural areas are generally not trained to assess patients with disabilities in a way that encourages the disabled to seek treatment options or interventions for assistance. Families and caretakers as well as the disabled have little access to resources. The transition, however, from a treatment/services-based model to a rightsbased model is the truest struggle for anyone. Given the premise suggested in JICA’s 2002 report and even most recently with the 2013 APDC/JAIF report, the focus still generates from a treatment/services based model. The rightsbased approach is not a separate or exclusive mechanism. Rather, the design is one of inclusion and complements the medical model. Public awareness requires a continuous and repetitive process with tangible credibility with a realistic pipeline or pathway that includes education and an active social services program. The health, education, and social services



Understanding CRPD Implementation in Myanmar 121

system for disabled persons wrestles not just with facilities, but with adequate and appropriate training for health care providers, teachers, caretakers, interpreters, and curriculum even in the cities. Government’s heavy reliance on INGOs, SHGs, and CSOs to develop and fund the necessary programs to implement the CRPD, puts a disproportionate burden shift away from the State’s responsibility. OVERVIEW OF DISABILITY IN MYANMAR Myanmar can point to a lengthy paper history of recognizing a duty to its citizens and their vulnerable population. This can be traced back to Burma’s independence after World War II and its original 1948 Constitution. The 1948 Constitution recognized the State’s obligations and duty in public policy, to protect its vulnerable population defined then as orphans, women, mothers and children, and disabled service personnel.1 Even with the continuous political and military upheavals throughout Myanmar’s history since independence, the various revisions of their Constitutions have at least addressed the concept of protection for its vulnerable citizens.2 There have been several reviews of Myanmar’s situation on persons with disabilities. A country profile was created by the agency Japan International Cooperation Agency named “Planning and Evaluation Department” in 2002 (JICA).3 This report outlined a comprehensive outline of endeavors: 1) an employment law in 1958 recognized rehabilitation and employment for persons with disabilities;4 2) a 1974 National Policy on persons with disabilities; 3) participant to the Asian and Pacific Decade of Disabled Persons 1993–2002; 4) a Child’s Law passed in 1993 whereby a child has the right to acquire primary level of vocational education; 5) focus on those with injuries incurred while serving with the military as well as other clinical models for assistance such as vaccine programs to eliminate polio, and elimination of leprosy. The JICA report noted that while it was problematic that no definition of disability had been developed, a more pressing challenge was public perception of disabled persons. As the population was significantly Buddhist, there exists a belief that a person with disabilities had done something wrong in their past life to warrant such attributes in their current life.5 Raising awareness and answering this challenge were not specifically addressed other than to say that the Ministry of Health and the Ministry of Social Welfare, Relief and Resettlement were working with NGOs with a long-term plan for awareness activities. What and how these will be conducted were not elaborated upon and the example used was a training session for health workers in 1996, four years prior to the report. No real review as to whether or not these

122

Chapter Eight

mechanisms were working or trending credible progress. Interestingly, the JICA report suggests a hope of enactment in the future for the various activities with ongoing drafting of various disability directed legislation, policies and governmental committee reviews of laws and policies with a focus on persons with disabilities. Fulfilling the forecasts appears to have been illusive between 2002 and 2008. According to the International Labor Organization, there was an attempt by Myanmar to draft an employment law in 2005, which would have included provisions for disabled workers; yet, to date no such law has been passed.6 Any movement on disability issues or policy remained limited until such time as international community rallied to assist victims after a natural disaster. DYNAMICS OF CRPD RATIFICATION IN MYANMAR While a few international aid organizations and international NGOs were referenced in the 2002 JICA report as being active, the mobility of foreigners and NGO activities was strictly limited to cities such as Yangon and Mandalay.7 The turning point appears to have occurred in the aftermath of devastation brought about by Cyclone Nargis. Prior to Cyclone Nargis, Myanmar was led by a military junta, which operated to essentially close the country to foreigners. The country was in a state of heightened military rule due to other political changes at that time as well. On May 2, 2008, Cyclone Nargis catapulted this “closed country” into an international spotlight. In the aftermath of the cyclone, international humanitarian aid, aid experts, and workers were lined up to assist with search, rescue, medical care, food and other humanitarian efforts. The ruling military, however, refused immediate assistance and in essence, refused full assistance from anyone outside of ASEAN for almost a month and only allowed if it was organized thru Thailand’s relief efforts.8 The confluence of natural disaster and political change set the stage for international organizations to offer a voice and influence in a country long closed off to the rest of the world. The influx of aid and relief agencies offered opportunities. The Leprosy Mission International (TLMI) took lead and conducted an international survey of persons with disabilities in 2008–2010. Subsequently, TLMI worked with the DSW to develop a disability-focused national plan and emergency plan specifically for the disabled population. The momentum saw the first stakeholder meeting for persons with disabilities held in January 2011. Later that year, Myanmar became a signatory to the Bali Declaration (November 2011), which was followed by the actual ascension of the CRPD in December 2011. The momentum slowed from there as it is unclear what implementation



Understanding CRPD Implementation in Myanmar 123

policy was in effect, if any, shortly after ascension. The previous National Plan was scheduled to end in 2012. Parliamentary Progress: Implementation Challenges Of the twenty-one UN Treaties and Optional protocols Myanmar participates, it has ascended to ten and ratified nine. There is only one of which has been signed but not ratified or ascended.9 The UN Convention on Rights of Persons with Disabilities (CRPD) does not appear to have been conducted through a full Parliamentary process. Nevertheless, Myanmar ascended to the CRPD without reservations on December 7, 2011.10 Myanmar did not ratify the Optional Protocol. While the ascension to a UN treaty has the same legal effect as ratification, we note this distinction as challenges for implementation. The Parliament’s lack of participation could be premised on several levels; that is, lack of legislation; lack of leadership, lack of a consistent public policy, and significant dependence on DPOs and CSOs to drive the implementation process. STRUCTURING THE FOCAL POINT AND COORDINATION MECHANISM IN MYANMAR Lack of Parliamentary participation may have contributed to minimal implementation strategies. A movement to establish anti-discriminatory legislation has been met with repeated failure to progress in the Parliamentary process.11 International aid agencies and international disabled persons organizations (IDPOs) have been the primary driving force for implementation and growth of services through regional and local DPOs with no policy framework from Parliament or the responsible ministries after its 2010–2012 national policy. Article 33 of the CRPD requires an implementation strategy and none appears to have been developed from DSW, MSWRR or most notable, from Parliament itself since ascension. Even if the provisions of the previously signed Bali Declaration (2011) were to fashion a premise for Myanmar, it was still elusive in practice in the government system. A country report in 2009 indicated that a “Central Law Scrutinizing Committee” had reviewed disability laws in Myanmar and was in the “technical finalization stage.”12 This law was supposed to include a right to education, health, and employment opportunities. The report stated a hope that the law would be enacted later. The previous Employment Act of 1958 which was the premise for many assertions to comport with disability was “demolished” since it did not comport with the CRPD and a new Persons with Disabilities law (which was to include

124

Chapter Eight

employment opportunities) was purportedly drafted and waiting for approval in 2013.13 Without the Employment Act for Person with Acquired Disability 1958 or its replacement “gazette,” the one piece of legislation recognizing disability is gone. In 2012, a welcoming speech by H. E. U. AungKyi, Union Minister of the MSWRR, to ESCAP, APDC, Nippon Foundation, Independent Living Initiative and representatives of invited DPOs went into great detail of the efforts of the Rights of Persons with Disabilities Law. The new law will have four objectives: 1) to protect the rights of persons with disabilities; 2) To care for the persons with disabilities; 3) to enjoy all human rights without discrimination on the basis of disability; 4) to enhance the socio economy of persons with full participation in the nation building tasks.14 All concepts are noble and noteworthy to include in legislation for persons with disabilities. The reality is somewhat different, again. Most interesting to this same speech is the following quote, “Hence, it is very pleasant to pass on the great new(s) that the drafted law will be soon adopted and taken into action.” 15 The current status in 2015, however, is that no law exists recognizing persons with disabilities other that the Child Law 1993 and the MOE launched “Education for All” National Action Plan of 2003 (EFA NAP) where the focus is limited to education.16 In 2013, the MSWRR referenced again to a disability law that had been drafted in accordance with the CRPD. Yet continuous references since 2009 are made to developing or drafting inclusive legislation in hopes of passage.17 At this point, the failure to actually pass legislation, which has been continuously promised, diminishes the credibility of the State’s intention to comply. ESTABLISHING THE INDEPENDENT MONITORING MECHANISM IN MYANMAR Creating implementation strategies as well as mechanisms for independent monitoring, and inclusive environment are some of the basic tenets of the CRPD. In a speech marking the “Making the Right Real” campaign 2012, it was stated that the National Plan of Action 2010–2012 would be continued in order, “to develop the socio economy of Persons with Disabilities, to reduce their poverty, to have their access in the public places and to participate in their community.”18 Creating or developing these mechanisms has proven to be quite a sluggish, if not a slow measured process. The proliferation of INGOs, NGOs, and DPOs after Cyclone Nargis are a significant factor in the ongoing development of disability rights in Myanmar.



Understanding CRPD Implementation in Myanmar 125

INVOLVEMENT OF CIVIL SOCIETY AND DPOS IN CRPD IMPLEMENTATION IN MYANMAR The number of NGOs and local SHOs grew rapidly in response to international aid and funding after Cyclone Nargis. According to the 2002 JICA report, less than ten organizations were listed as active in the country due to severe restrictions by the military junta. What was not discussed was the fact that many INGOs and DPOs were operating, arguably, outside of the laws to operate by not completing the formal registration process. Legal structures of many INGOs, international DPOs which allowed aid organizations to be active in Myanmar, were ambiguous at best, arbitrarily applied, and exorbitant fees were unreliably enforced under a 1993 Associations Law. This led to many international aid organizations, DPOs and other local CSOs bypassing the approval process under this law and taking a secondary approach whereby the organizations only required a certificate to operate at the local level. Bypassing the law allowed organizations to effectively operate without regulatory ambiguity and high fees. The Associations Law has since been repealed; however, the new association law will be in effect this year. Changes to the initial drafts were significant as to content and process. The original draft carried criminal penalties for failure to register. This draft led many organizations to become concerned, not only about their ability to continue operations, but also for the local self-help organizations that could not bear the onerous and ambiguous process or hefty fees from the start. The process to the final draft and ultimate approval leaves hope that organizations can be part of the political, legal, and public policy process with success. The subsequent changes negotiated via a public consultation process included changing the language from a requirement to register with criminal penalties if not registered, to a voluntary registration process and deleted the criminal penalties. It is unclear how the actual enforcement of this law will affect organizations; for now, it is a success story of cooperation and tangible results. The DSW/MSWRR further clarified that the Education for All policy of 2004 could “not assist persons with disabilities properly.”19 DSW stated that the Ministry of Education and DSW were working to organize inclusive education (IE) models. IMPLEMENTATION CHALLENGES Implementation Challenges: 1.  No clear national policy could be found after the previous 2010–2012 National Policy. However, representatives from the Ministry of Social Welfare has been involved with regional program via ASEAN, Asia Pacific.

126

Chapter Eight

2.  MSWRR and Department of Social Welfare has been prominent in meeting with other ASEAN members via APCD, USAID, World Learning, and Japan. 3.  June 20–12, 2014, Myanmar National Disability Conference, Election of the Myanmar Council of People with Disabilities. Attended by U Thein Sein, Union Minister of Social Welfare, Daw Aung San Suu Kyi, US Ambassador and sixteen DPOs and schools represented by the WCRPD. Main sponsor was the USAID, World Learning, Malteser International, TDH-Italy and Ooredoo. 4.  2010 Survey conducted from 2008–2009 by DSW and TLMI, found 1 in 10 households contains a person with disabilities. http://www.burmanet.org/news/2010/06/21/myanmar-times-survey-finds-1–3m-disablednationally-–-khin-myat/. 5.  Transition from service/health treatment approach to rights-based approach. 6.  66–70 percent of the population live in rural areas. Community based rehabilitation has been a talking point since before 2002 JICA report. The Leprosy Mission International appears to have been the lead agency since 2010 and currently is providing outreach services to villages and wards/ communities. CONCLUSION Recognition alone has not brought about a substantial or tangible realization of those rights to date, but changes are emerging. Cautious optimism can be seen as changes have included more forums, conferences, and inclusion of the other political parties with the DPOs and civil societies. The presence of relevant Ministries working with civil societies and other international and local NGOs to build coalitions and renewed drafting of national plans and anti-discriminatory legislation offers encouragement. Tangible and credible efforts are underway to recognize, respect, and protect the rights of disabled persons. There are continued significant challenges facing implementation such as continued lack of governmental or inclusive policy mechanisms. Parliamentary participation, DPOs, Self Help Groups (SHG) as well as a new concern over NGOs continued status to work within the country are reviewed. NOTES 1. Chapter IV Sections 32–40, Constitution Union of Burma 1948 Republic of Burma Constitution 1948.



Understanding CRPD Implementation in Myanmar 127

 2. 1972 Constitution Chapter XI, Fundamental Rights and Duties of Citizens Republic of Burma Constitution 1974, and the current 2008 Constitution (Chapter 8).   3.  “Country Profile on Disability, Union of Myanmar” (presented at Japan International Cooperation Agency Planning and Evaluation Department, March 2002).   4.  Country Profile on Disability, Union of Myanmar, Section 3.2, 9.   5.  Country Profile on Disability, Union of Myanmar, Section 2.1, 5.  6. International Labor Organization. Last modified 2015. http://www.ilo. org/gateway/faces/home/ctryHome?locale=EN&countryCode=MMR&_adf.ctrlstate=f2vkpryma_9.   7.  Country Profile on Disability, Union of Myanmar, Section 4.2, 19.   8.  Andy Newman, “U.N. Pressures Myanmar to Allow Aid,” New York Times, May 9, 2008. Accessed July 7, 2015. http://www.nytimes.com/2008/05/09/world/ asia/09myanmar.html?fta=y&_r=0.  9. United Nations Treaty Collection. Last modified October 25, 2016. https:// treaties.un.org/. 10.  http://www.altsean.org/Research/UN%20Dossier/UNTreaties.htm. Table noting the UN Treaties which have been signed vs. ratified and ascended. 11. Asia-Pacific Development Center on Disability. Last modified October 28, 2016. http://apcdfoundation.org/?q=archive/201610. 12.  Myanmar Country Report (presented at the 7th ASEAN and Japan High Level Official Meeting on Caring Societies Tokyo, Japan, August 31–September 3, 2009). 13. “Promoting the CRPD: Towards Enhancing the Roles and Participation of Persons with Disabilities in the ASEAN Community” (presented at ASEAN Meeting by Ministry of Labor, Vietnam (MOISA); APCD, UNICEF Vietnam and Japan Integration Fund (JAIF), Hanoi, Vietnam, August 29, 2013). 14.  UNESCAP. “Report on Celebration to ‘Making the Right Real in Myanmar.’” Last modified 24 January 2013. http://www.unescapsdd.org/events/celebration-makeright-real. Promotion of the United Nations Convention on the Rights of Persons with Disabilities in Myanmar, Nay Pyi Taw, Myanmar, June 27, 2012. 15.  “Report on Celebration to ‘Making the Right Real in Myanmar.’” 16.  Myanmar Country Report. 17.  Promoting the CRPD: Towards Enhancing the Roles and Participation of Persons with Disabilities in the ASEAN Community. 18.  “Report on Celebration to ‘Making the Right Real in Myanmar.’” 19.  Promoting the CRPD: Towards Enhancing the Roles and Participation of Persons with Disabilities in the ASEAN Community.

BIBLIOGRAPHY ASEAN. “Promoting the CRPD: Towards Enhancing the Roles and Participation of Persons with Disabilities in the ASEAN Community” (presented at ASEAN Meeting by Ministry of Labor, Vietnam (MOISA); APCD, UNICEF Vietnam and Japan Integration Fund (JAIF), Hanoi, Vietnam, August 29, 2013).

128

Chapter Eight

Asia-Pacific Development Center on Disability. Last modified October 28, 2016. http://apcdfoundation.org/?q=archive/201610. “Country Profile on Disability, Union of Myanmar” (presented at Japan International Cooperation Agency Planning and Evaluation Department, March 2002). International Labor Organization. Last modified 2015. http://www.ilo.org/gateway/faces/home/ctryHome?locale=EN&countryCode=MMR&_adf.ctrlstate=f2vkpryma_9. Myanmar Country Report (presented at the 7th ASEAN and Japan High Level Official Meeting on Caring Societies Tokyo, Japan, August 31–September 3, 2009). Newman, Andy. “U.N. Pressures Myanmar to Allow Aid.” New York Times, May 9, 2008. Accessed July 7, 2015. http://www.nytimes.com/2008/05/09/world/ asia/09myanmar.html?fta=y&_r=0. Republic of Burma Constitution 1948. Republic of Burma Constitution 1974. Republic of Burma Constitution 2008. UNESCAP. “Report on Celebration to ‘Making the Right Real in Myanmar.’” Last modified January 24, 2013. http://www.unescapsdd.org/events/celebration-makeright-real. Promotion of the United Nations Convention on the Rights of Persons with Disabilities in Myanmar, Nay Pyi Taw, Myanmar 27 June 2012. United Nations Treaty Collection. Last modified October 25, 2016. https://treaties. un.org/.

Chapter Nine

Understanding CRPD Implementation in Cambodia Khy Huy

INTRODUCTION To ensure the effective implementation of the Convention on the Rights of Persons with Disabilities (CRPD), besides the establishment of the Committee on the Rights of Persons with Disabilities at the international level, the Convention obliges the state parties to establish national mechanism for the implementation and monitoring of the Convention.1 Article 33 (1) CRPD requires that States designate focal points for matters relating to the implementation of the Convention and that they consider the establishment or designation of a coordination mechanism.2 Article 33 (2) CRPD requires that States designate or establish a framework including one or more independent mechanisms to promote, protect, and monitor the implementation of the Convention.3 Article 33 (3) CRPD requires that States ensure the participation of persons with disabilities in monitoring the implementation of the Convention.4 Cambodia signed the Convention on the Rights of Persons with Disabilities (CRPD) in October 1, 2007 and ratified it on December 20, 2012.5 After signing the convention, a number of legal instruments have been passed and existing mechanism has been designated to prepare the country for the implementation of the convention. The purpose of this chapter is to contribute to the understanding of the national implementation mechanism of CRPD in Cambodia in light of Article 33 of CRPD. After Cambodia signed the Convention on the Rights of Persons with Disabilities (CRPD) in October 1, 2007, a number of legal instruments have been passed and existing mechanism has been designated to prepare the country for the implementation of the convention. The purpose of this chapter is to 129

130

Chapter Nine

review this process with an attempt to answer four grand tour research questions: (1) What factors influenced Cambodia to ratify the CRPD?; (2) How is Cambodia structuring the focal point for implementing the CRPD?; (3) What is the independent mechanism established by Cambodia to monitor implementation of the CRPD?; (4) How are civil society organizations, particularly DPOs, involved in the implementation of the CRPD in Cambodia? Primary findings indicate that Disabled People’s Organizations (DPOs) play an active role in advocating for the government to ratify the CRPD. There is a lack of a strong national focal point and an independent monitoring mechanism. The existing welfare-based focal point needs to be restructured to reflect the human rights based model of disability as enshrined in the CRPD. An independent monitoring mechanism with active involvement of DPOs and persons with disabilities should be established to ensure the effective implementation of the convention in the country. OVERVIEW OF DISABILITY IN CAMBODIA Currently, there is no reliable data of persons with disabilities in Cambodia. Different institutions use different definitions of disability, resulting in various estimates of the number of persons with disabilities across the country.6 In 2014, the National Institute of Statistic (NIS) estimated that 4 percent of the total population of Cambodia are persons with disabilities.7 The Cambodia Demographic and Health Survey (CDHS) in 2014 showed higher rate of persons with disabilities, with 10 percent of persons aged five and over have some form of disability.8 However, according to the report of the Cambodia Inter-Censual Population Survey 2013, number of persons with disabilities was only 2.1 percent of the total population.9 People with disabilities in Cambodia are often considered as the most vulnerable group and the poorest among the poor with “very limited access to resources, basic social services, education, vocational training and employment.”10 They are often seen as a hopeless and isolated group without adequate support and love from their families and community.11 DYNAMICS OF CRPD RATIFICATION IN CAMBODIA After Cambodia signed the Convention on the Rights of Persons with Disabilities in 2007, Disabled People’s Organizations (DPOs) have made an effort in pushing the government to ratify it. In 2008, The Cambodian Dis-



Understanding CRPD Implementation in Cambodia 131

abled People’s Organization (CDPO), which is a membership-based nongovernmental organization representing persons with disabilities in Cambodia, developed a position paper to urge the government to ratify the Convention as well as adopt the Law on the Protection and Promotion on the Rights of Persons with Disabilities.12 As the draft Law on the Protection and Promotion on the Rights of Persons with Disabilities did not comply with the CRPD,13 the paper provides a discussion on several options that the government can choose relating to timing of passage of the Cambodian disability law and ratification of the Convention.14 There are four options: 1.  Pass the Cambodian draft law first, then ratify the CRPD and its Optional Protocol; 2.  First, ratify the CRPD and its Optional Protocol, then pass the Cambodian draft law; 3.  Neither ratify the CRPD or pass the draft law; and 4.  Pass the draft law and ratify the CRPD at the same time.15 Considering the advantages and disadvantages of the options, the position paper recommended that the government pass the draft law and ratify the UN Convention on the Rights of Persons with Disabilities at the same time.16 The advantages of this option would be that there will be no delay in either the adoption of the law or the ratification and that PWDs will be given full protection under both the legislation and the Convention.17 In 2009, the government adopted the Law on the Protection and Promotion on the Rights of Persons with Disabilities.18 Although this disability law was adopted after Cambodia signed the Convention on the Right of Persons with disabilities, certain provisions of this law were framed based on medical model of disability rather than human rights-based model as enshrined in CRPD.19 Some important rights in CRPD, such as right of vulnerable groups including women and children with disabilities; access to justice; freedom from exploitation, violence and abuse; freedom of expression and opinion, and access to information; and protection of persons with disabilities during situation of risk and humanitarian emergencies were not integrated into this law.20 Besides publishing the position paper to encourage the government to ratify the Convention, the CDPO also conducted workshops and meetings with relevant stakeholders to raise the awareness on the importance of the ratification of Convention. For example, on March 29–30, 2012, CDPO in collaboration with other DPOs in ASEAN organized a Regional Conference on raising awareness of the ASEAN Disability Forum (ADF): A platform for engagement of the DPOs to promote the ASEAN Decade for Persons with

132

Chapter Nine

Disabilities.21 One of the objectives of the conference was to encourage all ASEAN governments to sign, ratify, and implement the CRPD. The outcome document of this conference is the Phnom Penh Declaration.22 The Declaration specifies twelve recommendations. Recommendation 5 urges all ASEAN member states to sign and ratify the Convention on the Rights of Persons with Disabilities and its Optional Protocol without reservation and facilitate its implementation.23 Moreover, on November 6–7, 2012, CDPO in collaboration with DPOs in ASEAN organized a second ADF in Siem Reap.24 The Siem Reap Statement was issued after the conference. Nine recommendations were made, one of which was to ensure that the recommendations in the 2012 Phnom Penh Declaration were shared and disseminated during the ASEAN Civil Society Conference / ASEAN People’s Forum 2012 (ACSC/APF) in Phnom Penh and Siem Reap Province held concurrently in order to reflect disability perspectives within the final ACSC/ APF outcome documents to be submitted to the ASEAN Summit.25 In addition, CDPO is a member of the international network Disabled Peoples’ International (DPI). These activities indicate the active involvement of DPOs in pushing the government to ratify the CRPD. STRUCTURING THE FOCAL POINT AND COORDINATION MECHANISM IN CAMBODIA The Disability Action Council (DAC) was designated as the national coordination and advisory mechanism on disability issues based on article 5 of the Law on the Protection and Promotion on the Rights of Persons with Disabilities, which was adopted in 2009.26 DAC is housed in the Ministry of Social Affairs, Veteran and Youth Rehabilitation (MoSVY).27 DAC originated from the Special Working Group (Task Force), which was established during 1995–1997. This Special Working Group became the Disability Action Commission (more frequently called the Disability Action Council, or simply DAC).28 DAC was established on October 26, 1999, through Prakas (Ministerial Declaration) of the Ministry of Social Affairs, Vocational Training and Youth Rehabilitation (MOSALVY) and interministries as well as five national and international nongovernmental organizations, including Cambodia Trust (CT), Handicap International (HI), National Center for Disabled Person (NCDP), Jesuit Relief (JR), and Cambodian Disabled People Organization (CDPO).29 From 1999 to 2009, DAC was a permanent semi-government and nongovernmental organization to replace the Disability Action Commission, which finished its mandate.30



Understanding CRPD Implementation in Cambodia 133

Based on Sub-decree No. 59 dated June 21, 2010, DAC’s roles include: 1.  To provide technical advice on disability and rehabilitation issues; 2.  To assist the relevant ministries, institutions, and organizations in developing policies, national plans, and strategies related to disability and rehabilitation; 3.  To promote the implementation of policies, laws, and other regulations related to disability and rehabilitation issues; 4.  To propose revisions, additional completion or amendment of policies, laws, or other regulations related to disability issues; 5.  To monitor and evaluate the implementation of policies, national plans, laws and regulations related to disability issues; 6.  To communicate with national and international communities in order to exchange experiences and mobilize resources from both internal and external sources.31 It should be noted that after Cambodia ratified the CRPD, the government issued Sub-decree No. 216 dated May 2, 2013, to add more roles for DAC including to organize international and national days and events for persons with disabilities; to develop national strategic plan and action plan relating to disability issues; to lead, manage, implement, and develop reports on the implementation of CRPD; to develop the report on the situation of PWDs for the government; and to carry out other tasks entrusted by the government.32 DAC meets at least two times per year. If necessary, DAC is entitled to call for an extraordinary meeting as per invitation from the president.33 It may invite experts of the related field to participate in the meeting, but the experts are not entitled to make decisions at all. DAC is entitled to invite the representatives from relevant ministries, institutions, nongovernmental organizations, persons with disabilities, development partners, and private sectors to participate at the meeting and to provide advice and observe the meeting if necessary.34 Currently, the Prime Minister of Kingdom of Cambodia is the DAC’s Honorary President. DAC is led by a President, who is the Minister in Charge of Social Affairs, and six vice presidents who are Secretaries of State from Ministry of Social Affairs, Veterans, and Youth Rehabilitation, Council of Ministers, Ministry of National Defense, Ministry of Interior, Ministry of Health, and a representative of Disability Organizations who is a person with disability. DAC is composed of members from fifteen line ministries including the Under Secretary of State. There are other institutions represented, namely the Deputy Secretary General, the representative

134

Chapter Nine

of Cambodian Red Cross, representatives of disabled people’s organization who are persons with disabilities, the representative of a Non-Governmental Organization working for disability sector, the representative of employers, Deputy Governors of each Municipal/Provincial area and the Secretary General. Currently, DAC has a total of fifty-eight members who are nominated by government decision.35 DAC has a Secretariat General as an Executive Unit, which is located in the Ministry of Social Affairs, Veterans, and Youth Rehabilitation. The Secretariat General of DAC is led by a Secretary General, and assisted by Deputy Secretary Generals, who are appointed by Royal Decree or Sub-Decree. The Secretariat General of DAC is operated by civil servant employees, who are currently employed by the Ministry of Social Affairs, Veterans, and Youth Rehabilitation, and DAC may employ contracted employees, technical advisors, national and international experts as necessary.36 DAC is entitled to establish technical committees or subcommittees as necessary. Composition of each committee or subcommittee shall be selected amongst the members of DAC and technical staff from ministries, institutions, representatives of persons with disabilities, representatives of disabled people organizations, nongovernmental organizations, international organizations, and development partners.37 The Secretariat General of DAC has plays an important role in ensuring sustainability and functioning of DAC.38 It serves as a mechanism to provide technical advice on disability and rehabilitation; coordinate the relevant ministries, institutions, and relevant organizations in developing policies, national plans and strategies related to disability and rehabilitation issues; and promote the implementation of policies, laws, and regulations related to disability and rehabilitation issues.39 The Secretariat General of DAC also monitors and evaluates the implementation of policies, national plans, laws and regulations related to disability issues. Besides being a coordinating and monitoring mechanism on national disability laws, policies, and regulations, the Secretariat General of DAC also plays a crucial role in managing, organizing, and implementing the CRPD and in developing the report on the implementation of the Convention for the Royal Government of Cambodia to be submitted to the United Nations.40 The Secretariat General of DAC has five units including the Administration and Finance Unit, the Rights of Persons with Disabilities Unit, the Welfare and Rehabilitation Unit, the Integration of Persons with Disabilities Unit, and the Development for Disabilities Services. Among these five units, it is only the Rights of Persons with Disabilities Unit that coordinates, leads, and manages the implementation of the CRPD.41



Understanding CRPD Implementation in Cambodia 135

ESTABLISHING THE INDEPENDENT MONITORING MECHANISM IN CAMBODIA Currently, there is no formal designated monitoring framework. There are several mechanisms in place that act just like monitoring mechanisms; however, they are not independent institutions as far as Paris Principles relating to the establishment of national institutions for the promotion and protection of human rights are concerned. Article 8 of LPPRPD states that “The Ministry in charge of Social Affairs shall establish the Disability Rights Administration, which is an entity under the Department of Rehabilitation.”42 The Disability Rights Administration (DRA) was established by Prakas No. 056 dated 28 January 2010. Its roles include:43 • Disseminate information on policies, national action plan, and the CRPD • Monitor and promote the implementation of the LPPRPD and relevant legal instruments • Coordinate to encourage persons with disabilities, ministries, institutions, and employers to implement LPPRPD • Carry out inspection on ministries, state institutions, and legal entities in accordance with the LPPRPD • Provide legal consultation to persons with disabilities, ministries, institution, public establishments, private sector and other relevant organizations • Provide facilitation and reconciliation services to resolve conflicts which occur within the framework of LPPRPD • Take measures to impose interim fine according to article 54 of LPPRPD for ministries, state, and private institutions who fail to fulfill obligations specified in the LPPRPD • File a complaint to the court against those who breach provisions of the LPPRPD • Develop monthly, quarterly, semester, and annual reports to MOSVY The DRA is led by one director who is the deputy director of the rehabilitation department and a number of deputy directors as assistants. Although the DRA acts just like a monitoring mechanism on disability issues with regards to the implementation of LPPRPD, it does not qualify as an independent mechanism as it is housed within the Ministry of Social Affairs, Veterans and Youth Rehabilitation. Moreover, the CRPD was not mentioned at all in all roles of DRA. This can be explained based on the fact that Cambodia had not ratified CRPD at the time.

136

Chapter Nine

Attention should be paid to the existing human rights institutions in Cambodia and whether they can be considered as monitoring mechanisms. In September 2006, the Cambodian Prime Minister announced that the Cambodian government will establish a National Human Rights Institution (NHRI) based on the Paris Principles.44 Unfortunately, a NHRI based on the Paris Principles has not yet been established at the time of writing. Currently, there are three existing human rights bodies:45 1.  National Assembly Commission on Human Rights (NACHR): The NACHR is one of nine commissions of national assembly. It is entrusted with the duties to protect human rights and address requests and complaints of the citizens whose rights have been violated by the state or organs of the state. It is also intended to be an advisory body to the RGC on relevant laws, and has an education and awareness raising mandate.46 2.  Senate Commission on Human Rights: The Senate Commission on Human Rights’ role is to promote and protect every citizen’s rights to live in dignity and equality as well as to follow up and monitor the implementation of human rights in Cambodia. Its duties are to investigate complaints from individuals and by the public and to draft proposals to implement provisions on human rights as stipulated in the Constitution of Cambodia and other international legal instruments. 3.  Cambodian Human Rights Committee (CHRC): The CHRC was established in 1998 to promote human rights and the rule of law in Cambodia. The CHRC’s role is to investigate and remedy complaints relating to human rights, to collect information relating to the implementation of human rights, to organize training and disseminate information on human rights, and to prepare human rights reports to the UN.47 It is not clear how these human rights bodies work together to promote and protect human rights in Cambodia. Moreover, some roles overlap, leading to duplications and doubts about the effectiveness of these bodies. THE INVOLVEMENT OF CIVIL SOCIETY IN CRPD IMPLEMENTATION IN CAMBODIA There are several organizations working on disability issues in Cambodia. The Cambodian Disabled People’s Organization (CDPO) is considered an umbrella organization. CDPO was established in 1994 as a movement of Cambodian persons with disabilities. CDPO is a membership-based nongovernmental organization, representing persons with disabilities in Cambodia



Understanding CRPD Implementation in Cambodia 137

and working toward becoming “The voice of persons with disabilities in Cambodia.” CDPO has differentiated itself from other Cambodian disability organizations by building a national network of member DPOs/WWDFs. The CDPO does not provide goods or rehabilitation services but rather represents DPOs/WWDFs nationally and advocates for their rights and interests as well as helping to build their rights awareness and capacity toward achieving a life with dignity for persons with disabilities.48 Part of the CDPO’s mission is to monitor and encourage the government and relevant stakeholders to implement the Law on the Protection and Promotion of the Rights of Persons with Disabilities, and relevant subdecrees, parkas, and government policies relevant to the rights of persons with disabilities and CRPD in order that the rights of persons with disabilities are realized. In 2013, CDPO in collaboration with Disabled Peoples’ International (DPI) and International Disability Alliance (IDA) organized a two-day workshop with nineteen other disability organizations to develop a stakeholder report to be submitted to the UN during the second cycle of Universal Periodic Review (UPR).49 Five priority issues have been identified and further elaborated with recommendations to take action to improve disability rights in Cambodia on law, policies, and action plan; accessibility; education; political participation; and access to public health and rehabilitation services. The involvement of DPOs in the monitoring process at the international level indicates that with both financial and technical supports, DPOs in the country are able to leverage the existing international monitoring mechanisms to help them put forward their recommendations to improve the implementation of CRPD and Cambodian disability law. CONCLUSION The ratification of the CRPD in Cambodia has been a remarkable turning point for disability rights protection in Cambodia. After the signing of the Convention, DPOs in the country have strived to push the government to ratify it. Even before signing and ratifying the Convention, Cambodia had existing mechanism and legal instruments concerning disability. These have helped prepare the country for the implementation of the Convention after the ratification. The designation of the DAC as a focal point and coordination mechanism would be an easier option for the government. However, to uphold the human rights paradigm enshrined in the CRPD, the focal point and coordination mechanism should not be placed under the Ministry responsible for welfare of persons with disabilities as it will reflect the medical model of disability. With regard to the monitoring mechanism, the government should consider establishing an independent mechanism

138

Chapter Nine

based on the Paris Principles. One of the options would be to modify an existing human rights body in terms of its structure, composition, and mandate so as to establish a framework as stated in Article 33(2) with clearly defined roles and responsibilities. Although DPOs in the country have been active in the monitoring process and their involvement in the work of focal point and coordination mechanism has been acknowledged, their participation in the implementation of the CRPD needs to be improved. In the absence of an independent monitoring mechanism, DPOs’ involvement in the work of focal point and coordination mechanism should be highly valued in the sense that their recommendations and concerns are prioritized and carefully considered in any development of disability laws, policies, and implementing mechanisms. NOTES  1. United Nations. “Convention on the Rights of Persons with Disabilities (CRPD),” art. 33, available at http://www.un.org/disabilities/documents/convention/ convoptprot-e.pdf.  2. Ibid.  3. Ibid.  4. Ibid.  5. United Nations Treaty Collection. Status on the Signatories and Ratification of Convention on the Rights of Persons with Disabilities, available at https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV15&chapter=4&clang=_en.   6.  Universal Periodic Review, 18. “A Stakeholders’ report prepared by Disabled People Organization in Cambodia,” https://www.upr-info.org/sites/default/files/document/cambodia/session_18_-_january_2014/js6_upr18_khm_e_main.pdf.   7.  National Institute of Statistics (NIS), Cambodia Socio-Economic Survey 2014, Phnom Penh: Ministry of Planning, 2015. 77.   8.  National Institute of Statistics, Directorate General for Health, and ICF International, 2015, Cambodia Demographic and Health Survey 2014. Phnom Penh, Cambodia, and Rockville, Maryland, USA, 2015. 41.  9. National Institute of Statistics, Cambodia Inter-Censual Population Survey. Phnom Penh: Ministry of Planning, 2013. 92. 10.  Universal Periodic Review, 18. “A Stakeholders’ report prepared by Disabled People Organization in Cambodia.” 11. Ibid. 12. Cambodian Disabled People’s Organization (CDPO), Position Paper on Ratification of the UN Convention on the Rights of Persons with Disabilities and its Optional Protocol. Phnom Penh: CDPO, 2008. 2. 13.  CDPO, Position Paper on Ratification of the UN Convention on the Rights of Persons with Disabilities, 3.



Understanding CRPD Implementation in Cambodia 139

14. Ibid. 15. CDPO, Position Paper on Ratification of the UN Convention on the Rights of Persons with Disabilities, 3–5. 16. CDPO, Position Paper on Ratification of the UN Convention on the Rights of Persons with Disabilities, 5. 17. Ibid. 18.  Royal Government of Cambodia (RGC), “Law on the Protection and Promotion on the Rights of Persons with Disabilities.” 19.  Universal Periodic Review, 18. “A Stakeholders’ report prepared by Disabled People Organization in Cambodia.” 20. Ibid. 21.  Disabled Peoples’ International Asia-Pacific, Regional Conference on raising awareness of the ASEAN Disability Forum (ADF): A platform of engagement for DPOs and multi-stakeholders to promote and implement the ASEAN Decade of Persons with Disabilities in Phnom Penh Hotel, Phnom Penh, Cambodia, March 28–31, 2012. http://www.dpiap.org/reports/detail.php?id=0000150&year=2012&month=3. 22. Disabled Peoples’ International Asia-Pacific, Phnom Penh Declaration,” http://www.dpiap.org/reports/doc/ADF_PhnomPehn_Declaration_2012_Cambodia_12_04_04.doc. 23. Ibid. 24.  Disabled Peoples’ International Asia-Pacific, Regional Conference on Raising Awareness of the ASEAN Disability Forum (ADF), Siem Reap, Cambodia, November 6–7, 2012, http://www.dpiap.org/reports/detail.php?id=0000189&year=2012&m onth=11. 25. Disabled Peoples’ International Asia-Pacific. “Siem Reap Statement.” Regional Conference on Raising Awareness of the ASEAN Disability Forum (ADF), Siem Reap, Cambodia, November 6–7, 2012. http://www.dpiap.org/reports/doc/ Siam_Reap_Statement_ADF_Nov_12_11_12.doc. 26.  Royal Government of Cambodia (RGC), Law on the Protection and Promotion on the Rights of Persons with Disabilities, Phnom Penh: RGC, 2009. Art. 5. 27.  Disability Action Council, “About Us.” Last modified 2016. http://dac.org.kh/ en/article/about-us.html. 28.  Disability Action Council. “History.” Last modified 2016. http://dac.org.kh/ en/article/about-us/who-we-are.html. 29. Ibid. 30. Ibid. 31. Royal Government of Cambodia (RGC), Sub-decree No. 59 dated 21 June 2010, available in Khmer at http://dac.org.kh/images/pictures/pdf/law/anukret/dac_ anukrit_59_kh.pdf. 32. Royal Government of Cambodia, Sub-decree No. 216 dated 02 May 2013, available in Khmer at http://dac.org.kh/images/pictures/pdf/law/anukret/dac_anukrit_216_kh.pdf. 33.  Disability Action Council. “The Functioning.” Last modified 2016. http://dac. org.kh/en/article/about-us/the-functioning.html. 34. Ibid.

140

Chapter Nine

35. “History.” 36. Ibid. 37. Ibid. 38. “Role and Duty of DAC Secretariat General,” Disability Action Council, accessed November 26, 2014, http://dac.org.kh/en/article/about-us/role-and-duty-ofdac-secretariat-general.html. 39. Ibid. 40. Ibid. 41. Ibid. 42. RGC, Law on the Protection and Promotion on the Rights of Persons with Disabilities, Art.8. 43.  Royal Government of Cambodia (RGC), Prakas No. 056 dated January 28, 2010, available in Khmer at http://dac.org.kh/images/pictures/pdf/law/prakas/prakas_ on_admin_of_disabled_person-28_jan_2010.pdf. 44. CCHR Institutions Series, “National Human Rights Body in Cambodia Factsheet.” Retrieved from http://www.cchrcambodia.org/admin/media/factsheet/ factsheet/english/2012_03_30_CCHR_Institutions_Series_Factsheet_National_ Human_Rights_Bodies_ENG.pdf. 45. Ibid. 46. Ibid 47. Ibid. 48. Cambodian Disabled People’s Organisation, “CDPO strategic plan 20142018.” Last modified 2014, available at http://www.cdpo.org/index.php/en/mediapublication/publication/strategic-plan. 49.  Cambodian Disabled People’s Organization (CDPO) et al., Universal Periodic Review (UPR18): A Stakeholders’ report prepared by Disabled People Organizations (DPOs) in Cambodia, accessed November 26, 2014, https://www.upr-info.org/sites/ default/files/document/cambodia/session_18_-_january_2014/js6_upr18_khm_e_ main.pdf.

BIBLIOGRAPHY Cambodian Disabled People’s Organisation, “CDPO strategic plan 2014–2018.” Last modified 2014, available at http://www.cdpo.org/index.php/en/media-publication/ publication/strategic-plan. Cambodian Disabled People’s Organization (CDPO) et al., Universal Periodic Review (UPR18): A Stakeholders’ report prepared by Disabled People Organizations (DPOs) in Cambodia, accessed November 26, 2014, https://www.upr-info. org/sites/default/files/document/cambodia/session_18_-_january_2014/js6_upr18_ khm_e_main.pdf. Cambodian Disabled People’s Organization (CDPO), Position Paper on Ratification of the UN Convention on the Rights of Persons with Disabilities And Its Optional Protocol. Phnom Penh: CDPO, 2008.



Understanding CRPD Implementation in Cambodia 141

CCHR Institutions Series, “National Human Rights Body in Cambodia Factsheet.” Retrieved from http://www.cchrcambodia.org/admin/media/factsheet/factsheet/ english/2012_03_30_CCHR_Institutions_Series_Factsheet_National_Human_ Rights_Bodies_ENG.pdf. Disability Action Council, “About Us.” Last modified 2016. http://dac.org.kh/en/ article/about-us.html. Disability Action Council. “History.” Last modified 2016. http://dac.org.kh/en/article/about-us/who-we-are.html Disability Action Council. “Role and Duty of DAC Secretariat General,” http://dac. org.kh/en/article/about-us/role-and-duty-of-dac-secretariat-general.html. Disability Action Council. “The Functioning.” Last modified 2016. http://dac.org.kh/ en/article/about-us/the-functioning.html. Disabled Peoples’ International Asia-Pacific, Regional Conference on raising awareness of the ASEAN Disability Forum (ADF): A platform of engagement for DPOs and multi-stakeholders to promote and implement the ASEAN Decade of Persons with Disabilities in Phnom Penh Hotel, Phnom Penh, Cambodia, March 28th–31st, 2012. http://www.dpiap.org/reports/detail.php?id=0000150&year=2012&month=3. Disabled Peoples’ International Asia-Pacific, Regional Conference on Raising Awareness of the ASEAN Disability Forum (ADF), Siem Reap, Cambodia, November 6–7, 2012, http://www.dpiap.org/reports/detail.php?id=0000189&year=20 12&month=11. Disabled Peoples’ International Asia-Pacific. “Siem Reap Statement.” Regional Conference on Raising Awareness of the ASEAN Disability Forum (ADF), Siem Reap, Cambodia, November 6–7, 2012. http://www.dpiap.org/reports/doc/Siam_ Reap_Statement_ADF_Nov_12_11_12.doc. ICF International, Cambodia Demographic and Health Survey 2014. Phnom Penh, Cambodia, and Rockville, Maryland, USA, 2015. National Institute of Statistics (NIS), Cambodia Socio-Economic Survey 2014, Phnom Penh: Ministry of Planning, 2015. National Institute of Statistics, Cambodia Inter-Censual Population Survey. Phnom Penh: Ministry of Planning, 2013. Royal Government of Cambodia (RGC), Law on the Protection and Promotion on the Rights of Persons with Disabilities, Phnom Penh: RGC, 2009. Royal Government of Cambodia (RGC), Prakas No. 056 dated 28 January 2010, available in Khmer at http://dac.org.kh/images/pictures/pdf/law/prakas/prakas_on_ admin_of_disabled_person-28_jan_2010.pdf. Royal Government of Cambodia (RGC), Sub-decree No. 59 dated 21 June 2010, available in Khmer at http://dac.org.kh/images/pictures/pdf/law/anukret/dac_anukrit_59_kh.pdf. Royal Government of Cambodia, Sub-decree No. 216 dated 02 May 2013, available in Khmer at http://dac.org.kh/images/pictures/pdf/law/anukret/dac_anukrit_216_ kh.pdf. United Nations Treaty Collection. Status on the Signatories and Ratification of Convention on the Rights of Persons with Disabilities, https://treaties.un.org/pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en.

142

Chapter Nine

United Nations. “Convention on the Rights of Persons with Disabilities (CRPD)” http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf. Universal Periodic Review, 18. “A Stakeholders’ report prepared by Disabled People Organization in Cambodia,” https://www.upr-info.org/sites/default/files/document/ cambodia/session_18_-_january_2014/js6_upr18_khm_e_main.pdf. Universal Periodic Review, 18. “A Stakeholders’ report prepared by Disabled People Organization in Cambodia.”

Chapter Ten

Understanding CRPD Implementation in Singapore Meng Ee Wong, Low Jarn May, and Paula Applehans

INTRODUCTION On November 30, 2012, Singapore became one of the ten ASEAN countries to sign and ratify the United Nations Convention of the Rights of Persons with Disabilities.1 Singapore’s ratification took effect August 18, 2013. Until this explicit commitment to the CRPD, challenges and barriers relating to persons with disabilities in Singapore had been addressed under a convoluted and fractionated history of general social welfare programs. Prior to formal legislation or regulatory provisions in place, regard for persons with disabilities has been couched from three public policy initiatives. The 1988 Advisory Council on the Disabled; the 1999 Singapore 21 Report and more recently, Prime Minister’s Lee Hsien Loong’s 2004 inaugural speech. Prior to 2004’s PM Rally, the focus on persons with disabilities has culminated in a more formal framework known as the Enabling Masterplan (EMP1) was launched in 2007 with the mapping of development of programs and services in the disability sector in Singapore for five years from 2007–2011 to enable persons with disabilities to better integrate into society. After 2012, there was an improved version Enabling Masterplan 2012–2016 (EMP2) seeking to build upon the earlier initiatives that were spelt out in EMP1, adopting a lifelong or life cycle approach for persons with disabilities starting from infant detection early pre-school years, education, employment to aging years. This plan also aims to create an inclusive Singapore where persons with disabilities can maximize their potential and are embraced as an integral part of our society. In the backdrop of nation building, the journey to support persons with disabilities has made much progress over the decades. This chapter reviews Singapore’s historical progress toward the challenges of 143

Chapter Ten

144

persons with disabilities; identifies current key milestones; as well as considers the forward implications arising from the ratification of the CRPD. DYNAMICS OF CRPD RATIFICATION IN SINGAPORE

Steps Preceding Ratification Singapore has historically incorporated matters relating to persons with disabilities into its government general welfare schemes. From a humble beginning in 1946 with the first Social Welfare Officer, Singapore shifted to Voluntary Welfare Organizations (VWOs) and consolidated under the Singapore Council of Social Service. Shortly after statehood, Singapore established a full-fledged ministry known as the Ministry of Social Affairs (1963–1965) and subsequently renamed Ministry of Culture and Social Affairs after merging with Ministry of Culture on September 24, 1965. Through the years, Singapore’s ministries have been re-organized and re-structured. In 1985, Ministry of Social Affairs and Ministry of Culture restructured into the Ministry of Community Development (MCD) as an example. The purpose of the MCD was to promote and nurture a robust, culturally vibrant, cohesive and caring society. The government formed the Advisory Council on the Disabled on February 1988 to examine the issues and problems of persons with disabilities in Singapore and to recommend measures for integration. At a time where economic development was the major focus of nation building in Singapore, this is arguably the seminal report that considered disability issues shaping the direction on public policy on disability. The report recognized the right of persons with disabilities to have an equal part in society: 1.1.1 Disabled people have the same rights as other people to take their proper place in society. They should be enabled to live as independently as possible. This should be the concern of everyone—the family, the community and the Government.2

The report also recognized the influence of attitudes as a hindrance of persons with disabilities to full participation in society: 1.2.1 A disabled person’s quality of life is influenced by the attitudes of the society he lives in. The community should regard him as an individual with potential and abilities. Given early and appropriate assistance, he can be an asset to the community.3



Understanding CRPD Implementation in Singapore 145

One of the recommendations that have influenced the support of persons with disabilities in Singapore is the “many helping hands” approach where the government, family, and community share collaboratively in the care of persons with disabilities.4 This philosophy still remains as a guiding doctrine in support for persons with disabilities in Singapore today. Following the 1988 report, there is a paucity of policies recorded in the literature addressing issues on disability. Almost ten years later, Prime Minister Goh Chok Tong launched the Singapore 21 Committee in 1997 to engage the public for their view of the future of their nation. Dialogue on building the “heartware” of Singapore in the twenty-first century, where the “heartware” referred to society’s intangibles, such as social cohesion, political stability, the collective will, values, and attitudes of the people were deliberated.5 Though not specifically directed at disability issues, the five new ideals in Singapore 21 were (1) Every Singaporean matters; (2) Strong families; (3) Opportunities for all; (4) Feeling passionately about Singapore; and (5) Active citizenship.6 Lim and Tan postulated that the ideals paralleled those observed in advancing the special education movement7 while Ngiam considered the Singapore 21 report for persons with disabilities a milestone as there was a place for them in society with the recognition that the social climate was sensitive to improving opportunities.8 Where points 1 and 3 of the ideals emerging from the Singapore 21 had implications for persons with disabilities, the implicit and generic nature of the ideals were unable to make significant impact to make a difference on issues relating to disability. Nevertheless, the introduction of the term “heartware” signaled a beginning of a shift in response to addressing social needs with greater humanity. From 2000, Singapore recognized the importance of sports toward nation building and community bonding. In accordance, the MCD was renamed and re-structured to include as the Ministry of Community Development, Youth and Sports (MCYS) on September 1, 2004. Prime Minister Lee Hsien Loong’s inauguration speech in 2004 expressed a need to build a nation without leaving anyone behind. He explicitly stated, “We will look after the less educated and the elderly who have helped build Singapore. And we must also have a place in our hearts and our lives for the disabled, who are our brothers and sisters too.”9 PM Lee went on to articulate: “Ours must be an open and inclusive Singapore.”10 The language in PM Lee’s speech was explicit and has since been the mandate for a series of changes with regard to issues on disability. The first was a $220 million pledge to supporting children with disabilities in mainstream education and the introduction of the allied educator profession to support this program announced soon after his inauguration speech. Yet the doctrine

146

Chapter Ten

most relevant to persons with disabilities is found in the Enabling Master Plans. Enabling Master Plans as a National Roadmap for Singaporeans with Disabilities The Enabling Master Plan (EMP1) (2007–2011) was the initial five-year national roadmap that identified a framework and set the direction for national disability issues in Singapore. At the end of the study, the Steering Committee identified thirty-one recommendations to advance disability issues in Singapore.11 Singapore has made a concerted effort to develop model programs and funding even prior to the ratification of the CRPD. The EMP1 originally developed in 2007 was a four-year plan. Structurally, a national office on disabilities with various ministry representatives was recommended to be created to define disability and coordinate programs amongst relevant ministries. The national office of disability was originally designed to be governed by two panels: Early Intervention and Education. This national office would focus on program development strategies for persons with disabilities in five different areas: early intervention, education, employment opportunities, empowering the family and enhancing community based services which also included participation in sports activities as possible. The 2007 EMP was a very simplified structure with the MCYS appearing to be the “lead” agency to create the national office for the disabled program development input from various ministries. Funding mechanisms were to include a hybrid structure of fixed subsidies and “means tested” subsidies as well as modifying existing programs to either include additional services the Enable Fund to assist employers and funding outreach support services in mainstream tertiary institutions. The Enabling Masterplan 2012–2016 (EMP2) not only extends the work from the previous master plan. EMP2 utilizes bolder language and reflects the current vision, Our vision is for an inclusive Singapore where every person with disability can maximise his potential and is embraced as an integral member of our society.12

The guiding principles of the EMP2 adopt a life-course (or life cycle) approach starting with infant health, early detection, life-time education process, training as adults, and culminates with aging. The EMP2 identifies the needs of persons with disabilities throughout the life cycle at the same time identifying the gaps and engaging recommendations. The Steering Committee has recommended policies, programs and services to plug the gaps.



Understanding CRPD Implementation in Singapore 147

Staying with the “many helping hands” philosophy, the needs of caregivers features in order to remain the first line of support for families in caring for persons with disabilities. Beyond meeting only basic support needs, sports is also featured more prominently to improve health and quality of life. In 2012, MCYS was restructured and renamed the Ministry of Social and Family Development (MSF). The current MSF is designed to bring a sharper focus to Singapore’s work in the development of families, social services, and social safety nets. This continuous restructuring of the ministries would strongly suggest Singapore’s willingness and operational flexibility to organize as necessary to meet the needs of disabled citizens. One of Singapore’s strengths is in its flexibility and willingness to address changes at the highest levels to achieve maximum efficiency. This flexibility and efficiency, however, can become a challenge to incorporate sustainable changes. Currently, budget speeches for 2014 indicated subsidy funding to be provided for various disabled programs and for assistive technology (ICT budget announced to be SGD $50M). The increased funding to improve accessibility for persons with disability is to be applauded. Often, it is the administration of the funds that may pose obstacles to potential users. As an example, the Straits Times (first week of Nov 2014) reported that only seventy of the 150 buildings in the Central Business District were disabled access despite an establishment of a SGD$40M dollar fund just for business to create disabled access. This program was funded in 2007 and does not appear to have been used. This challenge is also evident in the Open Door Fund whereby SG offers subsidies to businesses to hire persons with disabilities; however, the business must front all expenses and keep the employee for at least six months before they can even begin the process of being reimbursed. The costs for an SME in SG may be fiscally unsustainable and not be assured of reimbursement. This has led to a discouragement by SME’s to even attempt the process. Nevertheless, there is a reality of fund administration that needs to ensure funding is met by measurable and sustainable outcomes. Restrictions on CRPD and Their Impact Singapore has reserved the right to place reservations or restrictions on several articles in the CRPD as it feels its administrative and legal processes adequately protect Persons with disabilities’ interests. These restrictions include access to voting (Article 29); specifically exclude private insurers from covering Persons with disabilities in health and life insurance (Article 25); and represents that issues of capacity are respected (Article 12). An initial review of applicable statutes and/or regulatory processes regarding these reservations

148

Chapter Ten

suggest significant gaps in the protections more so than respecting the rights of persons with disabilities. A state party of the CRPD is required to not only recognize, promote, and respect its duties and obligations under its provisions, it also has a duty to protect those rights enumerated under the purview of the convention. Voting rights, access to health and protection of self (capacity) are fundamental duties/obligations under the CRPD as well as integral to an individual’s selfreliance. Self-reliance is a core feature of governmental policy and which is envisioned throughout any political discussion in Singapore. Of primary concern under the reservations is the matter of access to the political process via voting. Essential to the right of persons with disabilities and crucial to the CRPD is the right to be heard, to have a voice in the political process. Barriers to access voting process or to be informed of the political debates undermines the very right the CRPD seeks to protect. The reservations specifically place emphasis on secrecy of the ballot, but fails to see that barriers exist to access to political information, accessing a polling venue and/or casting the ballot. Under the Election Commission Handbook and the Parliamentary Elections Act Revised 2011 (PEA), no provisions are made to require or to ensure political information on issues to be voted upon is available to visually or hearing impaired. While there are provisions in the PEA that ban political party buttons on the person or other political leaflets in the polling area, there are no requirements to ensure signage for the visually impaired nor are sign language interpreters made available to explain the election process.13 Only the Presiding Officer in charge of the polling place is allowed to explain the process to a voter.14 The question becomes quite clear if a hearing impaired individual would be able to fully understand a Presiding Officer. The polling venues, under the Act, are not required to be disabled accessible nor are individuals allowed to change their place of polling if the venue is inaccessible.15 Since the PEA requires voting to be done in person, if the venue is inaccessible and changes can’t be made to a more accessible polling venue, that vote may not be cast to be counted.16 This is contrary to the primary purpose of the CRPD. Understanding the barriers to the voting booth itself is one avenue of review of the voting reservations. Equally concerning, however, is the concept of secrecy in the voting booth. Fundamental to the right to have a voice or to be heard in the political process or even to the most basic conscripts of democracy, is not only the ability to be informed of the issues, to access the polling venue, but secrecy in the ballot area. The reservation indicates that the oath a presiding officer takes to protect the secrecy of the vote is protected



Understanding CRPD Implementation in Singapore 149

and in essence, that appears to be the case.17 The authority delegated to the Presiding Officer of the polling venue, however, has a significant arbitrary scope. Under the PEA, a Presiding Officer has been given the authority to assist those who require assistance such as a blind person or one who is unable to mark their ballot by reason of disability and may mark the ballot for the blind person.18 This is done at the individual’s request and direction to mark the ballot. For the first time, stencils were provided in the 2011 General Elections as a template to guide voters with visual impairments. The stencils corresponded to the boxes on the ballot paper allowing voters to mark the boxes independently. Presiding Officers had only to inform voters of the order in which the candidates are listed in order on the ballot paper.19 This system worked so far as voters remember the order of candidates and did not require further assistance. Any additional assistance would fall on the Presiding Officer to provide the support.20 The above scenario is described as a “legal power” granted to the Presiding Officer and acceptable procedure under the PEA as the Presiding Officer takes an oath of secrecy.21 What the Election Department states in its Parliamentary Guide, however, is that should the Presiding Officer notice that a voter is taking an unusually long time to cast their vote, “the presiding officer may take such steps as are necessary to expedite the process.”22 What those steps are and how long is an “unusually long time” are not defined. What is unknown for the scope of this chapter is how many disabled voters are disenfranchised in the voting process and protocol due to these issues. Other developed countries such as the United States, Canada, the UK, and Australia have utilized adaptive technology or allow an individual appointed by the disabled person to assist in the polling area to actually cast the vote. These countries have experimented with various options and technology for election ballots designed to assist visually impaired and other persons with disabilities facing physical and visual challenges to voting. All include bringing your own assistant to cast your ballot. Factors such as duress,23 fraud in the voting, or impersonating a voter, 24 or voting more than once25 are already codified in the PEA and seem to be manageable issues in other developed countries. More challenges remain even if the barriers to access are eliminated. The Mental Capacity Act (MCA) is the standard by which capacity is legally determined. Scenarios exist under the MCA and the PEA whereby a Presiding Officer may make the determination of capacity of an individual to cast a vote. While this provision may refer to whether an individual is under the influence of drink or drugs, it fails to ask whether the situation is such or

150

Chapter Ten

whether an individual is intellectually impaired; yet has the capacity to cast a vote. Since the Mental Capacity Act does not allow a “proxy” or “donee” to cast a ballot for another,26 an intellectually impaired individual must appear and cast their vote. If the Presiding Officer may make their own determination, this process potentially by-passes the protections contained within the Mental Capacity Act to act on one’s own behalf and contrary to the Act whereby an individual may meet the requirements to vote; yet, still be denied. Access to health may not be as protected as the reservations may suggest. The Singapore health care approach utilizes a public/private partnership that includes subsidies to help defray health care costs; however, the schemes associated with health care financing leave open gaps in coverage. It is not a universal health care system as defined by the World Health Organization. It is a system which includes an individual’s savings account (non-insurance based coverage with various subsidies allowed) known as Medisave and a catastrophic and risk pooled commercial insurance coverage which cover certain illness or accidents and premiums charged based upon an actuarial model (MediShield). The challenge of having the Medisave account is that it is based on an individual’s working wage and employer contributions. If one isn’t working, such as the disabled or women that exit the workforce to care for themselves as disabled or family members who are disabled or other family situations, an account may not have been created or, if created, ceased contributions. As many disabled individuals may not be working, it is unclear as to how many are ineligible for this coverage. MediShield Life is a newer program based off of a previous program designed for catastrophic medical situations and previously allowed insurance companies to exclude pre-existing conditions or exclude coverage based upon other actuarial decisions. The new program allows for pre-existing conditions coverage and no age limit to access this commercial type of insurance coverage; however, the limitations are that pre-existing conditions may require the individual to pay up to 30 percent more in premiums.27 Additionally, the coverage is for catastrophic incidents (illness or accident such as a stroke or car accident) and not for preventive care or continuous care of chronic conditions or disabilities. It is unclear how the reservation to exclude private insurers comports with the protections envisioned by the CRPD as it is the private insurers who offer the MediShield Life coverage in partnership with the State. Some would argue that the reservation only carves out commercial insurance coverage related to the MediShield Life; but if the issue is access, then the coverage provided through the State, is marginalized as well. Again, until all of these matters are reviewed in Parliament, it is unclear how the rights of the disabled under the stated reservations are respected, much less protected.



Understanding CRPD Implementation in Singapore 151

STRUCTURING THE FOCAL POINT AND COORDINATION MECHANISM IN SINGAPORE To understand how the CRPD is interfaced in Singapore, it is necessary to have some background to how disability is supported. Disability related issues are under the purview of the Ministry of Social and Family Development (MSF). The ministry sets national social welfare related policies and in doing so, adopts a broad role and describes itself as: “MSF develops the “heartware” for Singapore through our policies, community infrastructure, programmes and services.”28 Under the MSF is the National Council of Social Service (NCSS), the national coordinating body for member voluntary welfare organizations (VWOs). In 2013, there were 425 VWOs. Of these, 307 were full members and 188 associate members.29 Social services in Singapore offer various social and community services to build a strong community such as children’s homes, childcare services, social services for youth and families as well as services for the elderly and disabled. The social and community sector employs more than 10,200 people ranging from professionals such as social workers, therapists, psychologists, nurses, special education teachers, Early Intervention Teachers, to associate professionals such as health attendants and nursing aides.30 Amongst the many roles NCSS assumes are: provide leadership and direction in social services; enhance the capabilities of social service organizations and promote strategic partnerships for social services. NCSS also seeks to better improve the quality of social services by identifying service gaps; pioneer programs and set industry best practices and standards. The training role is also provided through the Social Service Institute.31 The mechanisms to provide support for persons with disabilities have already been in place in the years preceding the CRPD. With regard to the ratification of CRPD, the Minister of MSF Chan Chun Sing stated “The Enabling Masterplan lays the foundation for progressive realisation of the UN Convention on the Rights of Persons with Disabilities.”32 To implement many of the Enabling Masterplan initiatives, the Centre for Enabled Living would be repositioned to support this function.33 In July 2013, the Centre for Enabled Living was renamed to SG Enable, dedicated to enabling persons with disabilities. SG Enable aspires toward an inclusive society where persons with disabilities are integrated and empowered to reach their potential and become contributing members of the society. Its vision statement is “Inclusive Society. Enabled Lives.” The roles include: • Empower persons with disabilities and their caregivers via timely access to information and referral services, grants and support;

152

Chapter Ten

• Enhance employability and employment options for persons with disabilities; • Improve transition management across different life stages; • Engage the family, community, stakeholders and public in enabling persons with disabilities as integral members of society.34 Initially, in EMP1, it was not clear whether it was designed to act as implementation protocols or as public policy guidelines to identify where Singapore would merely allocate resources to disabled programs. However, as EMP2 was formally stated to be a blueprint to help realize the implementation of CRPD, the EMP2 framework will serve as the implementation protocols as they relate to governmental structures, program development and funding for disabled programs. Originally, the EMP1 subcommittees had representations from a greater number of Ministries, namely: Ministry Of Health (MOH), Ministry Of Education (MOE), Ministry Of Transport (MOT), Ministry Of Manpower (MOM), Ministry of Community Development Youth and Sports (MCYS), National Council of Social Service (NCSS), Ministry of National Development (MND), and National Voluntary and Philanthropy Centre (NVPC) and representatives from disabled persons organizations (DPOs). The EMP2 shortened the list to just five bodies; MOE; MOM; MCYS, NCSS; and MOH, and representation from various DPOs and VWOs. There were no clear statements as to why the changes included a reduction in the ministries to be held accountable, other than various revisions in the Ministries themselves required the re-alignment by ministerial expertise. Most notably, the difference between EMP1 and EMP2 are significant and cautiously encouraging. EMP1 listed thirty-one recommendations while EMP2 listed forty-one recommendations and included five “cross cutting” issues. Cross cutting issues reviewed identified: Caregiver Support, Caregiver Options for Relief and Support; Manpower and Technology Integration; Public Education; Volunteer Management; and Sports and Healthy Lifestyles. Taking the “whole” of the articles of the CRPD, some strategic areas remain outstanding in the EMP review process. For example, EMP1 recommendations included the creation of a national office for the disabled; yet, there remains no national office and no mention was made in EMP2 discussing the change in policy from EMP1; failure to design transparency mechanisms to access and review any studies in either EMP1 or EMP2, nor are budgetary allocations by Ministry reviewable by the public; failure to create or invoke any legal framework or structures such as regulatory or legislative legal structures for enforcement of anti-discrimination against persons with disabilities; lack of gender perspective is noted in both EMP1 and EMP2 as neither reflects any discussion of the disproportionate effect disabilities can impair by gender.



Understanding CRPD Implementation in Singapore 153

ESTABLISHING THE INDEPENDENT MONITORING MECHANISM IN SINGAPORE Monitoring the progress of the commitment to the CRPD are two government-led committees. These are the Inter-Agency Standing Committee on Disability35 and the Enabling Master Plan Implementation Committee.36 While details on the Inter-Agency Standing Committee on Disability was not available at the moment, it is likely that the similar organizing structure from the current EMP2 will follow. This is where MSF is the “Lead” Ministry with the authority to delegate its responsibilities to either other Ministries or to DPOs, VWOs, or NGOs. However, upon review of the various responsibilities delegated, relevant ministries/agencies are assigned a “lead” position based on the type of responsibility delegated. Educational aspects were assigned to MOE; early intervention assessments could be delegated to MOH. NCSS was assigned more social program development, and SG Enable assigned aspects related to engaging employers and training persons with disabilities for the workforce. The Enabling Masterplan Implementation Committee has clearer roles outlined for this task.37 The Terms of Reference for Enabling Masterplan Implementation Committee are: 1.  Provide feedback and advise the government on the implementation of the EM recommendations; and 2.  Facilitate dialogue with stakeholders and members of the disabled community on the EM implementation. There are nineteen invited individuals in the committee comprising representatives of the various disability groups and across the life stages.38 On closer examination, only one representative is a person with disability. Though the other members of the committee have long-standing experience, relationships, and in some cases, familial stakes in the communities they represent, this raises queries on representation. Yet, this is not to mean that channels for raising issues to relevant committees are unavailable. Individuals are at liberty to raise issues through the VWOs or directly to the administering bodies or relevant government ministries. INVOLVEMENT OF CIVIL SOCIETY IN THE IMPLEMENTATION PROCESS IN SINGAPORE People are an important partner to the public, private, and people tripartite relationship in supporting persons with disabilities as they are recognized to

154

Chapter Ten

have the knowledge, passion, and expertise to drive programs and initiatives. Representation of “people,” however, has often been largely professionals, caregivers, stakeholders and fewer so from individuals with disabilities. As CRPD implementation gains momentum, it is also incumbent upon the people sector, especially individuals with disabilities to step forth to exercise greater responsibility in charting the direction on disability issues. Where persons with disabilities may have previously been passive recipients of support, there needs to be a paradigm shift toward greater agency to have people with disabilities themselves participate to set the direction. After all, it is about decisions that affect their lives. Beginning this process is a need for greater awareness and education. Civil Society, VWO and DPO Participation Following the ratification of the CRPD, there have been several levels of participation from civil society and the various DPOs. The “We Are Able!” campaign received significant support from the public, with 8,600 pledges received total. The campaign was a year-long movement by NCSS that aimed to create an inclusive society for persons with disabilities. As part of the campaign, NCSS produced an easy-read guidebook on the articles stated in the CRPD, which came into effect for Singapore on August 18, 2013. The guidebook is available on the NCSS website and the CRPD website, and 15,000 copies have been distributed to VWOs and the public.39 A further celebration of the CRPD campaign was the “We Are Able!” Conference held on January 18, 2014, that witnessed about 340 participants. Present were persons with special needs, caregivers, VWO staff, employers, and policymakers. One of the sessions during the conference was a panel discussion on the importance of partnerships between the people, private, and public sectors to achieve an inclusive society. Panelists also shared their experiences and inspired persons with special needs to contribute actively to the community. Another first was NCSS’s use of Communication Access Real-time Translation (CART) or live captioning at a conference. The use of CART allowed deaf participants and those with hearing disabilities to participate in the conference.40 The Purple Parade, co-organized by the Autism Resource Centre, Central Community Development Council, NCSS, and partner VWOs, supported inclusion and celebrated the abilities of those with special needs on November 30, 2013. At the parade, 4,500 people from the public, private, and people sectors came together in a show of solidarity for persons with disabilities. The event also made an entry into the Singapore Book of Records for most number of pledges collected to support inclusion.41



Understanding CRPD Implementation in Singapore 155

Does Participation Mean Representation? While these are important expressions of public participation from the community, does participation mean representation? Civil society groups such as the Disabled People’s Association (DPA) and MARUAH are examples of greater representation. They have voiced their support for Singapore’s ratification of the CRPD at the same time, called for continued efforts to improve changes as articulated in the articles of the CRPD.42 Groups such as MARUAH, DPA, SPD, and AWARE have taken further steps to draw attention to gaps in the disabled policies for voting and capacity and have submitted concerns via the national paper and directly to the ministries. However, as the CRPD takes roots in Singapore, it is also in the spirit of the convention that DPOs must take the responsibility to advocate for themselves as they step up to the next level of involvement as greater awareness and opportunities become available. This is as much of participation and representation if Article 33 is to be realized in the time ahead. Gender Perspective and Policy Development to Implement the CRPD Perspectives that are considered “traditional notions” of gender role are significant barriers to implementation of the CRPD and were not addressed at all in either Enabling Master Plans or subsequent policy discussions. In Singapore, gender roles as constructed through public and state discourse continue to represent the idea that a woman’s contribution in society is based on her “national duty” to bear children, act as care giver, and take charge of household chores.43 If the goal of the current EMP2 is to implement the CRPD and its purpose to encourage autonomy of disabled people, then challenging “traditional notions” of gender roles needs to be a part of the implementation strategy and not merely an article for inclusion. Gendered Perspective Adding a gendered perspective as a factor to maximize strategies in the policy discussions and implementation phase would require a look at the factors which diminish autonomy for men and women. Factors such as the differences in societal perceptions of roles for men and women and their effect (i.e., protectionism of women which creates dependency vs. men being encouraged to seek education and work as a way to support a family; gendered differences in access to education, gendered distinctions as victims in criminal cases, gendered discrimination factors as a barrier to employment and reversal of caregiving are primary examples.

156

Chapter Ten

Access to Education Even the Enabling Masterplans 1 and 2 treat implementation as an exercise in increasing economic viability and not as an issue of autonomy. The education system does little to encourage more than basic activities of daily living and men are encouraged more so than women to seek education as it is the male role to provide for the family. Anecdotes from teachers in the education sector suggest that in families with multiple children with disabilities, parents may prioritize sending their disabled boy children to school. Compulsory education has been around since 2003; however, this legislation specifically denies these protections to disabled children as it is seen as the parent’s responsibility and burden. While education is a strategic thrust of the EM2, it is still not compulsory to provide education to persons with disabilities. Compulsory education is discussed further in this chapter. Violence against Women Disabled women also have to contend with gender-based violence. Anecdotal evidence from the disability community suggests that women and girls with cognitive impairment are sexually abused at home more often than is being reported, and there have also been cases where disabled women living in institutional homes have been victimized by male resident caregivers. Social workers reported a distressing case where a woman with cognitive impairment was repeatedly victimized by a group of men when she wandered out alone while her parents were working—a corrective that was considered involved performing a hysterectomy on the woman after she required repeated abortions. The threat of gender-based violence also presents an additional barrier to seeking autonomy. Exploratory research conducted by Emily Charissa Lim suggests that blind and partially sighted women have be discouraged from, or have chosen not to, enter intimate relationships due to the threat of intimate partner violence, making it more difficult for them to leave oppressive family situations.44 It is also due to this threat that some families of blind and partially sighted women choose not to encourage mobility training and strongly discourage their sisters and daughters to even leave the house. Clearly, accessibility to the built environment is gendered. True accessibility cannot be achieved without a consideration of the gendered nature of disablement. Moreover, statistics of the victimization of women due to domestic violence, sexual assault, and criminal assault are under-reported as they are still seen as a “private family issue” or one where the woman “invites” sexual assault or rape. Part of a campaign by Singapore Police called for women to ensure their own safety with the “Don’t Get Rubbed the Wrong Way” posters throughout bus and train advertisements. Marital rape is not considered a



Understanding CRPD Implementation in Singapore 157

crime in Singapore and legally recognized cases of sexual assault or rape are grossly underreported much less prosecuted. One hundred and twenty cases of rape were reported to the police in 2013,45 but researchers have noted that even legally recognized forms of rape tend to be grossly under-reported. There is not disaggregated data on victimization rates of women with disabilities; however, with difficulties in identifying the attacker (for blind and partially sighted women) or communicating with the police (for deaf and hard of hearing women and women with cognitive impairment, it is not illogical to assume reporting and prosecution statistics would be even lower. Employment Discrimination Discrimination in employment is also a gendered barrier for persons with disabilities; yet, no legislation exists to counteract it. Since the focus of the EMP 1 and 2 is to create, as much as possible, economically viable individuals, attention has to be given to discrimination issues in the employment sector.46 These low-paying jobs include sheltered workshops where salaries may be as low as S$60.00 per month. Selling tissue paper on the streets or near hawker centers is actually encouraged as a means of employment. Career Roles Reversed Career roles are gendered and traditionally incumbent upon women. Disability may mean that career roles will need to be reversed (though this is not always the case). However, because of differential gender role expectations, it is more difficult for women with disabilities to find intimate partners than it is for their male counterparts. Even where women with disabilities do not require care, disablist assumptions that they do have been noted to make it more difficult for disabled women to find nondisabled partners. Once again, this might make it more difficult for them to leave oppressive family situations, a situation that is made more difficult by the fact that the state deems the family as the first line of care. With the lack of comprehensive disability services that enable independent living, marriage is an important way to escape one’s family; however, this option is less available to women who are disabled. Clearly, the situation of women with disabilities cannot be improved without a recognition of the way in which disablism interacts with gender. Family Life Disabled women have been discouraged from bearing children so that their “disability” does not get passed down (regardless whether the “disability” is even addressed as genetic or not). The policies from the 1970s to the present

158

Chapter Ten

have consistently manipulated family life for Singaporean women and to the detriment of disabled women.47 From 1966–1982, women were encouraged to “Stop at Two.” From 1983–1986, less educated women were incentivized to have fewer children. Until the 2012 Amendment, the Voluntary Sterilisation Act, which legalizes sterilization for non-medical reasons, contained the following eugenic clause: in the case of a person who . . . is afflicted with any hereditary form of illness that is recurrent, mental illness, mental deficiency or epilepsy”, the parent, guardian or spouse of the person may consent on their behalf to sexual sterilization for non-medical reasons, so long as a doctor “certifies that the treatment is necessary in the interest of the person undergoing such treatment and of society generally.48

Since 1987, however, Singaporean women are encouraged to have three or more “If they Can Afford It.” Note that the encouragement of fertility is still selective, restricted to those who are doing well economically. For lower-income households which earn less than $1,700 per month, there is the less-publicized Home Ownership Plus Education Scheme, which incentivizes them to keep their families small. The eugenic slant remains: in families where at least one parent has post-secondary education, the family cannot qualify for the scheme until the wife is at least thirty years old. Issues facing women with disabilities such as gender-based violence, employment and education are the realities that have to be addressed as part of the implementation of the CRPD. Realities include barriers to the autonomy encouraged and established as the inherent goal of the CRPD. For disabled women in Singapore, caregiving and household chores are either eliminated or diminished due to their disability such as visual impairment; education is not compulsory for all disabled in Singapore, which in turn greatly diminishes a woman’s ability to be a positive economic factor instead of a negative one (the drain on family and public/government resources due to their dependency). The lack of compulsory education for disabled children, coupled to gender role expectations, reduces the ability of women with disabilities to find good employment and be independent (for those who can be). Societal aspects of family shame continue to be prevalent in Singapore’s majority Chinese culture whereby disabled family members are “hidden” as much as possible, such that families may be sites of oppression. For disabled women, they have fewer opportunities to escape such situations. Meanwhile, violence against women on the streets presents an additional barrier to true accessibility for women with disabilities. All of which are the realities that create dependence and greatly diminish the strategic goal of greater autonomy for persons with disabilities.



Understanding CRPD Implementation in Singapore 159

Compulsory Education and Systemic Exclusion for Disabled Children Compulsory Education (CE) was implemented in Singapore in 2003 passed by Parliament in Singapore. The CE will take effect on the first cohort of pupils who are Singapore citizen children born between January 2, 1996, and January 1, 1997, who must be residing in Singapore. The key objectives of CE were to equip the Singaporean children with common core curriculum of knowledge which would lead to a strong foundation for further education and training in order to prepare them for a knowledge-based economy and finally, to instill a common educational experience which would help to build a national identity and foster cohesion. Background Since the establishment of Ministry of Education in December 13, 1957, Singapore has achieved almost universal education at the primary and the secondary levels through combined years of effort. There was a small percentage of children who are not enrolled in national schools. The government became concerned, however, that these children were not being equipped with the necessary skills and knowledge to be productive citizens in a knowledgebased economy. Hence, the Committee on Compulsory Education in Singapore (CCES) was formed in December 1999 to review whether compulsory education should be introduced in Singapore. The key recommendations are summarized as follows: • Compulsory education should be introduced. • Responsibility for sending children to school and ensuring that they attend school should still remain with the parents. • Compulsory education should be up to Primary 6 as this is considered the minimum period of education for all Singapore children. • Certain categories of children, for example, those with special needs will be exempted from compulsory education. Legislation The CE Act (Cap 51) was passed by Parliament on October 9, 2000, and assented to by the president on October 16, 2000. The focus of CE concerned compulsory primary education in Singapore and related matters. After the CE was passed, a child of “compulsory school age” is now defined as one who is above six years of age, born after January 1, 1996, and who has not yet attained the age of fifteen years. However, an exemption is granted to children with 1) special needs; and/or 2) attending a designated school and receiving

160

Chapter Ten

home-schooling. A penalty will be imposed if a child fails to attend regularly at a national primary school or a designated school/be home-schooled (where an exemption is granted), against the parent/guardian of the child if found guilty under this law. The penalties provided in the Act for a person convicted for the offense are a fine not exceeding $5,000, or to imprisonment for a term not exceeding twelve months, or to both. Now our chapter turns to a focus on children with special needs. Compulsory Education Act Does Not Apply to Children with Special Needs According to MOE Minister’s statement in 2010,49 a very small number of children do not attend school each year because very severe disabilities or medical conditions prevent them from doing so. The viewpoint of MOE is that the enforcing Compulsory Education on this group of children will not benefit them, and would impose unduly harsh requirements on their parents to comply with the Act. MOE further stated that their goal is to provide valuable education to children with special needs, but that this goal is better achieved through the “many helping hands approach,” which has yielded positive results, rather than the force of blunt legislation. Several misperceptions are evident here. Compulsory education should not be seen as a “blunt force” legislation and the “many helping hands” approach is arguably successful depending on viewpoint. Neither perception appears to accept the duty a Member State has as a signatory to the CRPD, if the premise is to advance the goals of autonomy and/or economic viability. For those with severe mental disabilities, formal education may be limited, but only by each individual’s abilities, not through a blanket exclusion. If the true purpose of compulsory education is to create national cohesion and a knowledge-based population, then it is up to the Member State to make it as inclusive from the beginning and not as a divider to disenfranchise disabled children. By excluding disabled children, the burden impermissibly shifts from the State to an already vulnerable population. From 2000 to 2014, there have been many improvements yet there is still the problem of inadequate facilities for the children—there is waitlist of children with disabilities seeking admission to some special education schools that cater to a more holistic development of the child with multiple disabilities. Parents anguish over an average wait of up to four months (previously up to a year), before they know if their child is accepted in a school. The “Enabling Master Plan (EMP1)” by MCYS proposes to invest $610 million in education for children with disabilities from 2007 to 2011. This funding would be distributed between SPED schools and SPED classes in mainstream schools. However $610 million funding can work out to be a



Understanding CRPD Implementation in Singapore 161

small investment over the years for children with disabilities. What has not been made clear in the current Enabling Master Plan, is whether the funding through 2011 was effectively spent. The Enabling Master Plan 2 (EMP 2) goes through an elaborate exercise as to how identification, diagnosis, and intervention will be conducted and how the model for education will be reviewed; however, it is unclear as to whether the goals set from 2007 through the 2015 plans have been met or the challenges faced to meet them or the funding involved. The current situation is that special needs children in Singapore are not enjoying the same legal right to education as other children. At the moment, it is largely left to voluntary welfare organizations to educate special needs children. The government provides some subsidies, but parents of special needs children still bear a much heavier financial burden than other parents. Apart from the additional expenses parents will spend associated with a special needs child, school fees are means-tested, unlike in the mainstream schools. Currently, the Compulsory Education Act ensures that every “abled” child attends at least six years of primary school. However, the subsidiary legislation specifically exempts children with physical or intellectual disabilities from compulsory education. Early intervention is critical for special needs children to mitigate the effects of their disabilities. But there are waiting lists for schools and therapies, interpreters, and losing precious time in the child’s formative years. While the legislation may have originally been thought to burden the parents with fear of being penalized; the actual effect is to burden the parents and disabled children by creating barriers to obtaining education. CONCLUSION At the core of any human rights convention is the Member State’s obligation to recognize, promote, respect, and protect the rights of the individual. The CRPD outlines the Member State’s duties and obligations under Article 33 whereby the State shall designate focal points, establish a framework with independent mechanisms to promote, protect, and monitor implementation. Article 33 further requires a Member State to not only involve civil society, but requires that persons with disabilities and their representatives fully participate in the monitoring process. Considering the fact that Singapore only recently ratified the CRPD and its official “start” date barely eighteen months past, Singapore may appear to have met its most basic structure requirements. Additionally, under the Enabling Master Plans, it can be argued that these plans provide a vision for progressive realization of the CRPD principles; however, even under progressive realization, the Member State must “take

162

Chapter Ten

steps” and with good faith efforts to enforce the CRPD and not allow a regression of their duties and obligations. This review of the CRPD implementation has identified positive components in the structure and program developments; however, significantly fundamental challenges and barriers remain to be addressed much less contemplated, debated, or reviewed. NOTES   1.  Ministry of Social and Family Development. Last modified 2016. https://app. msf.gov.sg/.   2.  Tony Keng Yam Tan. “Opportunities for the disabled: Report of the Advisory Council on the Disabled.” Singapore, 1988. WorldCat (OCLC 53812594).   3.  Tan, “Opportunities for the disabled: report of the Advisory Council on the Disabled.”   4.  Tan, “Opportunities for the disabled: report of the Advisory Council on the Disabled.”  5. Singapore, Prime Minister’s Office. Singapore 21: Together, We Make the Difference. 1999.   6.  Singapore, “Singapore 21: Together, We Make the Difference,” preface.   7.  Lisa Lim and Tan, J. (2001). Addressing disability in educational reforms: A force for renewing the vision of Singapore 21. In J. Tan, S. Gopinathan, and W. K. Ho (Eds.), Challenges Facing the Singapore Education System Today (pp. 175–88). Singapore: Prentice Hall.   8.  T. L Ngiam. (2002). “Inclusion of people with disabilities: Policies and services” in N. T. Tan., & K. K. Mehta. (eds.) Extending frontiers: Social issues and social work in Singapore (pp.154–74). Singapore: Eastern Universities Press  9. Prime Minister Lee Hsien Loong, “Swearing in Speech,” presented at the Prime Minister Ceremony, August 12, 2004. https://www.mfa.gov.sg/content/mfa/ overseasmission/tokyo/press_statements_speeches/2004/200408/press_200408_5. html. 10.  Loong, “Swearing in Speech.” 11.  Ministry of Social and Family Development. Last modified January, 22, 2015. https://app.msf.gov.sg/Research-Room/Research-Statistics/Enabling-Masterplan. 12.  Ministry of Social and Family Development, 2015. 13.  Singapore Statutes Online. “Contested elections.” Last modified August 20, 2015. http://statutes.agc.gov.sg/aol/search/display/view.w3p;ident=04da1e8e-580d4c03-b51a-5a3903ddbd0b;page=0;query=DocId%3A%228cc6883c-c5f5-4e3c-bad4e3b6992999a5%22%20Status%3Ainforce%20Depth%3A0;rec=0#pr34-he-. 14.  (Presidential Handbook 2011). 15. Singapore Statutes Online. “Polling places and polling stations.” Last modified August 20, 2015. http://statutes.agc.gov.sg/aol/search/display/view. w3p;ident=04da1e8e-580d-4c03-b51a-5a3903ddbd0b;page=0;query=DocId%3



Understanding CRPD Implementation in Singapore 163

A%228cc6883c-c5f5-4e3c-bad4-e3b6992999a5%22%20Status%3Ainforce%20 Depth%3A0;rec=0#pr36A-he-. 16.  Singapore Statutes Online. “Compulsory voting.” Last modified August 20, 2015. http://statutes.agc.gov.sg/aol/search/display/view.w3p;ident=04da1e8e-580d4c03-b51a-5a3903ddbd0b;page=0;query=DocId%3A%228cc6883c-c5f5-4e3c-bad4e3b6992999a5%22%20Status%3Ainforce%20Depth%3A0;rec=0#pr43-he-. 17.  Singapore Statutes Online. “Fourth Schedule Parliamentary Elections Rules.” Last modified August 20, 2015. http://statutes.agc.gov.sg/aol/search/display/view. w3p;ident=388060ef-05bb-4e72-be49-d576ceb85d65;page=0;query=DocId%3 A%228cc6883c-c5f5-4e3c-bad4-e3b6992999a5%22%20Status%3Ainforce%20 Depth%3A0;rec=0#Sc4-. 18. Singapore Statutes Online. “Manner of voting.” Last modified August 20, 2015. http://statutes.agc.gov.sg/aol/search/display/view.w3p;ident=04da1e8e-580d4c03-b51a-5a3903ddbd0b;page=0;query=DocId%3A%228cc6883c-c5f5-4e3c-bad4e3b6992999a5%22%20Status%3Ainforce%20Depth%3A0;rec=0#pr42-he-. 19.  L. H. Chua. “Polling Day on May 7: Time is ripe for me to ask voters for fresh mandate, says PM.” Straits Times, 20 April 2011. 20.  Singapore Statutes Online, “Manner of Voting.” 21.  Singapore Statutes Online. “Elections Department to supply information and assistance.” Last modified April 15, 2011. http://statutes.agc.gov.sg/aol/search/display/view.w3p;ident=242f35de-9f1a-411b-a199-3ce12816c746;query=DocId%3A59 f8a2cf-1841-4970-a0fe-301f4dbef30e%20Depth%3A0%20Status%3Ainforce;rec=0. 22.  Singapore Statutes Online, “Elections Department to supply information and assistance.” 23.  Singapore Statutes Online. “Corrupt practices.” Last modified May 31, 2010. http://statutes.agc.gov.sg/aol/search/display/view.w3p;orderBy=date-rev,loadTime;p age=0;query=Id%3A4b55895f-fe66-4806-8933-b5ea55e5a55a;rec=0. 24.  Singapore Statutes Online, “Corrupt practices.” 25. Singapore Statutes Online. “Plural voting.” Last modified August 20, 2015. http://statutes.agc.gov.sg/aol/search/display/view.w3p;ident=05737d76-655e40d8-8908-74c8e9e2a1d8;page=0;query=DocId%3A%228cc6883c-c5f5-4e3c-bad4e3b6992999a5%22%20Status%3Ainforce%20Depth%3A0;rec=0#pr7-he-. 26.  Singapore Statutes Online. “Voting rights.” Last modified September 1, 2016. http://statutes.agc.gov.sg/aol/search/display/view.w3p;query=DocId%3A7f933c478a34-47d1-8d0a-0a457d6fa1c2%20%20Status%3Ainforce%20Depth%3A0;rec=0. 27.  (Straits Times, June 27, 2014). 28.  Ministry of Social and Family Development, 2014. 29.  National Council of Social Service. Last modified October 31, 2016. https:// www.ncss.gov.sg/. 30.  Ministry of Social and Family Development, 2014b. 31.  Ministry of Social and Family Development, 2014c. 32.  Ministry of Social and Family Development, Chan, 2013. 33.  Ministry of Social and Family Development, Chan, 2013. 34.  SG Enable. Last modified 2015. https://www.sgenable.sg/Pages/Home.aspx.

164

Chapter Ten

35.  Tan, “Opportunities for the disabled: report of the Advisory Council on the Disabled.” 36.  Ministry of Social and Family Development, 2012. 37.  Ministry of Social and Family Development, 2012. 38.  Ministry of Social and Family Development, 2012. 39.  National Council of Social Service. 40.  National Council of Social Service. 41.  National Council of Social Service. 42.  Disabled People’s Association. Last modified 2013. http://www.dpa.org.sg/. See also MARUAH. Last modified June 15, 2016. https://maruah.org/. 43.  (Teo 2009) 44.  Emily Charissa Lim. http://nus.academia.edu/EmmyCharissa. 45.  (Hoe 2014) 46.  Most people with visual impairment are relegated to a few low-paying, lowprestige occupations (Chung 2013/14). 47.  Wong and Yeoh (2003). 48.  Singapore Statutes Online. “Voluntary Sterilization Act.” Last modified October 1, 2014. http://statutes.agc.gov.sg/aol/search/display/view.w3p;page=0;query=DocId %3A%22863b11b9-15f7-4200-a21f-59a41f57f525%22%20Status%3Ainforce%20 Depth%3A0;rec=0. 49. Ministry of Education, Singapore. “Vocational Education.” Last modified April 16, 2015. https://www.moe.gov.sg/education/special-education/vocationaleducation/.

BIBLIOGRAPHY Chua, L. H. “Polling Day on May 7: Time is ripe for me to ask voters for fresh mandate, says PM.” Straits Times, April 20, 2011. Lim, L., and Tan, J. “Addressing disability in educational reforms: A force for renewing the vision of Singapore 21.” In Challenges Facing the Singapore Education System Today, edited by J. Tan, S. Gopinathan & W. K. Ho, 75–188. Singapore: Prentice Hall, 2001. Ministry of Education, Singapore. “Vocational Education.” Last modified April 16, 2015. https://www.moe.gov.sg/education/special-education/vocational-education/. Ministry of Social and Family Development. Last modified 2016. https://app.msf. gov.sg/. Ngiam, T. L. “Inclusion of people with disabilities: Policies and services.” In Extending Frontiers: Social Issues and Social Work in Singapore, edited by N. T. Tan., and K. K. Mehta, 154–74. Singapore: Eastern Universities Press, 2002. Singapore Statutes Online. “Contested elections.” Last modified August 20, 2015. http://statutes.agc.gov.sg/aol/search/display/view.w3p;ident=04da1e8e-580d4c03-b51a-5a3903ddbd0b;page=0;query=DocId%3A%228cc6883c-c5f5-4e3cbad4-e3b6992999a5%22%20Status%3Ainforce%20Depth%3A0;rec=0#pr34-he-.



Understanding CRPD Implementation in Singapore 165

Singapore Statutes Online. “Corrupt practices.” Last modified May 31, 2010. http:// statutes.agc.gov.sg/aol/search/display/view.w3p;orderBy=date-rev,loadTime;page =0;query=Id%3A4b55895f-fe66-4806-8933-b5ea55e5a55a;rec=0. Singapore Statutes Online. “Elections Department to supply information and assistance.” Last modified April 15, 2011. http://statutes.agc.gov.sg/aol/search/display/ view.w3p;ident=242f35de-9f1a-411b-a199-3ce12816c746;query=DocId%3A59f8 a2cf-1841-4970-a0fe-301f4dbef30e%20Depth%3A0%20Status%3Ainforce;rec=0. Singapore Statutes Online. “Fourth Schedule Parliamentary Elections Rules.” Last modified August 20, 2015. http://statutes.agc.gov.sg/aol/search/display/view. w3p;ident=388060ef-05bb-4e72-be49-d576ceb85d65;page=0;query=DocId%3 A%228cc6883c-c5f5-4e3c-bad4-e3b6992999a5%22%20Status%3Ainforce%20 Depth%3A0;rec=0#Sc4-. Singapore Statutes Online. “Manner of voting.” Last modified August 20, 2015. http://statutes.agc.gov.sg/aol/search/display/view.w3p;ident=04da1e8e-580d4c03-b51a-5a3903ddbd0b;page=0;query=DocId%3A%228cc6883c-c5f5-4e3cbad4-e3b6992999a5%22%20Status%3Ainforce%20Depth%3A0;rec=0#pr42-he-. Singapore Statutes Online. “Plural voting.” Last modified August 20, 2015. http:// statutes.agc.gov.sg/aol/search/display/view.w3p;ident=05737d76-655e-40d88908-74c8e9e2a1d8;page=0;query=DocId%3A%228cc6883c-c5f5-4e3c-bad4e3b6992999a5%22%20Status%3Ainforce%20Depth%3A0;rec=0#pr7-he-. Singapore Statutes Online. “Polling places and polling stations.” Last modified August 20, 2015. http://statutes.agc.gov.sg/aol/search/display/view. w3p;ident=04da1e8e-580d-4c03-b51a-5a3903ddbd0b;page=0;query=DocId%3 A%228cc6883c-c5f5-4e3c-bad4-e3b6992999a5%22%20Status%3Ainforce%20 Depth%3A0;rec=0#pr36A-he-. Singapore Statutes Online. “Voluntary Sterilization Act.” Last modified October 1, 2014. http://statutes.agc.gov.sg/aol/search/display/view.w3p;page= 0;query=DocId%3A%22863b11b9-15f7-4200-a21f-59a41f57f525%22%20 Status%3Ainforce%20Depth%3A0;rec=0. Singapore Statutes Online. “Voting rights.” Last modified September 1, 2016. http:// statutes.agc.gov.sg/aol/search/display/view.w3p;query=DocId%3A7f933c478a34-47d1-8d0a-0a457d6fa1c2%20%20Status%3Ainforce%20Depth%3A0;rec=0. Tan, Tony Keng Yam. “Opportunities for the disabled: report of the Advisory Council on the Disabled.” Singapore, 1988. WorldCat (OCLC 53812594).

Chapter Eleven

Understanding CRPD Implementation in Vietnam Giang Phan

INTRODUCTION The information on disability prevalence rate in Vietnam is available but varied by surveys. The prevalence of disability found in the 2006 Vietnam Household Living and Standards Survey (VHLSS) was 15.3 percent, almost doubling the rate of 7.8 percent found in the 2009 Viet Nam Population and Housing Census. The variation in the disability rate is because of the use of different measuring methods (e.g., different data collection method, types of disabilities considered, disability-specific questions, length of the questionnaire, and the skill of interviewers).1 Whether it is 7.8 percent or 15.3 percent, Vietnam’s disability rate is among the highest in the region and is expected to rise due to social development causes, accidents, and environmental pollution.2 OVERVIEW OF DISABILITY IN VIETNAM Vietnamese people with disabilities still encounter many hardships. Findings from the investigation on the implementation of the ordinance on persons with disabilities in eleven cities/provinces in Vietnam conducted by the Ministry of Labor, Invalids, and Social Affairs (MOLISA) in 2009 reveal difficulties facing persons with disabilities in their daily life. Regarding households with persons with disabilities, the investigation found that: around 75 percent of households with persons with disabilities live in rural areas; 32.5 percent is classified as poor households; about 24 percent is living in temporary houses, and 65 percent in semi-solid houses; over 80 percent face difficulties in medical examination and care; 51.2 percent of households have difficulties 167

168

Chapter Eleven

in caring for persons with disabilities in their daily life; and nearly 55 percent of them are in need of employment. In terms of findings on persons with disabilities, most persons with disabilities have limited, low, and unstable income which cannot cover their daily expenses; around 80 percent of persons with disabilities in urban areas and 70 percent in rural areas are dependent on their families, their relatives as well as social allowance for their living; and only 11 percent of the total can live independently. These numbers disclose the challenging situation of Vietnamese persons with disabilities, requiring appropriate attention from Vietnamese authorities to address the problems.3 The ratification of the CRPD should bring new hopes to Vietnamese persons with disabilities. This chapter will examine the drivers behind the determination of Vietnam to ratify the CRPD and explore the progress toward implementation. In particular, the chapter will examine four big research questions: (1) What factors encouraged Vietnam to ratify the CRPD? (2) How is Vietnam structuring the focal point and coordination mechanism for implementation of disability policy within the country? (3) Is there an independent mechanism in Vietnam to monitor implementation of disability policy within the country? (4) How are civil society organizations, particularly DPOs, involved in the implementation of disability policy in Vietnam? The chapter argues that great efforts have been made by the Vietnamese government to perfect its legal system on disability in preparation for the ratification of the CRPD; however, additional work remains to be able to comply with the CRPD’s requirements. There is also a need to strengthen the structure and capacity of the disability coordinating body, the effectiveness of which is still limited. An independent monitoring mechanism is lacking. The role of disabled people organizations (DPOs) in the development, implementation, and monitoring of disability laws and policies is more acknowledged but still not comprehensive. DYNAMICS OF CRPD RATIFICATION IN VIETNAM Before the National Assembly in Vietnam ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD) on December 3, 2014, it had already started to develop and consolidate its legislation and policies toward persons with disabilities. Vietnam laws require persons with disabilities to be treated on an equal basis with others and supported by the State and the society to exercise their political, social, economic, and cultural rights in accordance with the law.4 Vietnamese government is also fully aware of the importance of the CRPD ratification in promoting the implementation of human rights issues in the country, achieving an equal society for Vietnamese



Understanding CRPD Implementation in Vietnam 169

people, including persons with disabilities. This might be the main rationale behind the determination of Vietnam to ratify the CRPD for Vietnam, which is highlighted in Vietnam’s speech delivered in the ASEAN meeting held in Hanoi on August 29, 2013: Becoming a member of the Convention will enhance legal foundation for Viet Nam in protecting human rights, especially persons with disabilities, contributing to improving the national legal system in order to prevent, minimize and gradually eliminate violations related to disability, build an inclusive and equal social environment for both persons with disabilities and normal people.5

Importantly, the ratification of the CRPD reflects a strong political commitment by Vietnamese government to protect and promote the rights and interests of the persons with disabilities. Generally, Vietnam has early included disability issues in its legal system. The determination to ratify the CRPD has given Vietnam a push in the development of its legal system regarding disability issues in the recent years. National Disability Laws and Policy before the Signing to CRPD in 2007 The protection and promotion of legitimate rights and interests of persons with disabilities has been early integrated in Vietnam’s legal system and become a constituted defined principle, which is specified by law. The 1992 Constitution of the Socialist Republic of Viet Nam, which was amended in 2001 by the National Assembly, specifically addresses the rights of children with disabilities and people disabled by war in Articles 59 and 67, respectively. The protection of children with disabilities is enshrined in Article 59: “The State and society shall create the necessary conditions for handicapped children to acquire general knowledge and appropriate job training.”6 Article 67 protects disabled war veterans: War invalids, sick soldiers, and the families of fallen soldiers and revolutionary martyrs shall enjoy preferential treatment in State policies. War invalids shall enjoy favourable conditions for their physical rehabilitation, shall be given employment suited to their state of health and assistance in securing stable, living conditions.7

While the Vietnamese Constitution speaks only to children with disabilities and disabled war veterans, it is undeniable that the protection of the legitimate rights and interests of persons with disabilities is very early considered an important human rights issue that should be addressed in the legal system.

170

Chapter Eleven

Adopted six years after the release of the Constitution, the 1998 Ordinance on persons with disabilities is the first law on disability in Vietnam. The Ordinance has a purpose to provide legal protection for persons with disabilities and to promote their integration into the community. The law addresses different aspects of persons with disabilities’ life: healthcare; cultural education; job training and employment; access to culture, physical training, sport activities, and public work; state management of the protection and care for persons with disabilities; and responses to violations.8 The National Coordinating Council on Disabilities of Vietnam is also established pursuant to the Ordinance, which will be discussed in more depth in the later part of the chapter. The creation of favorable conditions for persons with disabilities to enjoy different rights (e.g., health care, rehabilitation, job training, education, and accessibility) is also reflected in other important laws such as Labour Code (1994), Education Law (1998 and 2005), Barrier-Free Access Code & Standards for Public Constructions (2002), Law on Child Protection, Care, and Education (2004), Barrier Free Codes and Standards for Public Transportation (2005), the National Action Plan to Support People with Handicap for 2006–2010 (2005), Vocational Training Law (2006), Legal Aid Law (2006), and Information and Technology Law (2006).9 The signing to the CRPD in 2007 has even further promoted the articulation of disability in Vietnam’s legal system that will be detailed in the following part. National Disability Laws and Policies after the Signing to CRPD in 2007 After the signing to the CRPD in 2007, Vietnam has continued the development and consolidation its disability laws and policies with a view to promote the rights of persons with disabilities and enhance their participation in all life aspects. From 2010 to 2013, a total of thirteen enforced bylaws documents related to the rights of persons with disabilities were issued in the field of communication, sports, tourism, access to social security, and the implementation the Millennium Goals.10 The most prominent newly adopted law by the National Assembly of Vietnam is the 2010 Law on persons with disabilities, functioning as a solid legal foundation for the protection of persons with disabilities in Vietnam. Since the issuance of the 2010 Law on persons with disabilities, the Vietnamese government has been developing a regulatory framework and implementation guidance in support of the implementation of the Law on persons with disabilities, including: the Decree 28/2012/NDCP provides guidance for a number of articles within the Law (2012); the Circular 26/12/TT-BLĐTBXH providing guidance for Decree 28/2012/CDCP (2012); the Inter-ministerial Circular 34 /2012/TTLT-BYT-BLĐTBXH



Understanding CRPD Implementation in Vietnam 171

providing guidance for determination of disability level by medical council (2012); the National Action Plan to Support People with Disabilities for 2012–2020 (2012); the amended Labor Code (2012) updating regulations on the employment of persons with disabilities; and the Inclusive Education by 2015, which aims to provide inclusive education for all children with disabilities by 2015.11 Key disability legal documents including the 2010 Law on persons with disabilities and the National Action Plan to Support People with Disabilities for 2012–2020 will be reviewed in the following section. The 2010 Law on persons with disabilities took effect on July 1, 2011, and replaced the 1998 Ordinance on persons with disabilities. The purpose of the Law is to provide “the rights and obligations of persons with disabilities and responsibilities of the State, families and society towards persons with disabilities”12 The Law uses the term “person with disabilities” in lieu of “handicap” that used to be commonly used before. For the first time, Vietnam has an official definition of disability articulated in Article 2 of the Law: persons with disabilities by definition of this Law are those who have impairment of one or more parts of their body, or functional impairment, which are shown in different forms of disability, and may cause difficulties in work, daily life and learning.13

The CRPD includes the following definition in Article 1: persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.14

Compared to the definition provided by the CRPD, the 2010 Law on Persons with Disabilities reflects a medical approach to disability; the CRPD reflects the rights-based approach and promotes the full integration of persons with disabilities in societies.15 The medical approach considers persons with disabilities to be persons with physical problems that need to be cured whereas the rights based model emphasizes the fulfillment of human rights.16 It is undeniable that the ratification of the CRPD in near future reflects the commitment of Vietnamese government to shift from a charity and medical model of disability to a rights-based model.17 The 2010 Law on persons with disabilities is Vietnam’s first comprehensive legal document guaranteeing the rights of persons with disabilities. This Law mandates important rights of persons with disabilities to healthcare; education; employment and vocational training; culture, physical education, sports, entertainment and tourism; housing, public buildings, public

172

Chapter Eleven

transportation and information technology and communication; and social protection.18 The Law applies twenty-five of the thirty basic articles of the CRPD.19 Therefore, despite its less comprehensiveness, Vietnam Law on persons with disabilities is basically in line with the CRPD, which will be a great advantage for Vietnam in implementing the CRPD after the ratification. However, disability legislation in Vietnam still considers persons with disabilities from the charity and medical perspective; therefore, this approach needs to be replaced and shifted to rights-based approach in future laws for a better compliance with the spirit and requirement of the CRPD.20 The National Action Plan to Support People with Disabilities for 2012–2020 (hereinafter referred to as: “the Action Plan”) is important in promoting the implementation of disability policies. Approved by the Prime Minister in August 2012, the Action Plan has a purpose to support persons with disabilities in promoting their ability to meet their personal needs and to create conditions for persons with disabilities to equally participate in socioeconomic activities, in contribution to the construction of the community and the society. The Action Plan comprises two phases (2012–2015 and 2016–2020) with specific criteria in order to promote persons with disabilities’ equal participation and integration in the field of healthcare, inclusive education, accessibility to public buildings and transportation, employment and vocational training, medical services, legal services, and more. For example, the Action Plan will provide vocational training and suitable jobs to 250,000 working-age persons with disabilities in the first phase and 300,000 in the second phase.21 The successful implementation of the Action Plan will greatly assist Vietnam in complying with the CRPD after the ratification in 2015. International Cooperation on Disability In addition to improving domestic legal system on disability, Vietnam has strengthened international and regional cooperation on disability as part of its efforts to promote the equal participation in society and to protect the rights of persons with disabilities. In particular, Vietnam has committed to the implementation of different international/regional initiatives including: Biwako Millennium Framework for Action Towards an Inclusive, Barrier-Free and Rights-Based Society for persons with disabilities in Asia and the Pacific 2003–2012; Bali Declaration on Enhancing the Roles and Participation of persons with disabilities in ASEAN Community and the ASEAN Decade 2011–2020; the 2012 Incheon Strategy to “Make the Right Real” for persons with disabilities; and the Ministerial Statement on the Asia-Pacific Decade for persons with disabilities 2013–2022.22



Understanding CRPD Implementation in Vietnam 173

Obviously, in recognition of the importance of as well as benefits brought by the ratification of the CRPD, Vietnam has made significant strides in perfecting its legal system on disability in preparation for the CRPD ratification. Vietnam’s commitment to the implementation of internal and regional agreements also makes it more feasible for the country to comply with the CRPD’s requirements. STRUCTURING THE FOCAL POINT AND COORDINATION MECHANISM IN VIETNAM In parallel with the development of its legal system, Vietnam is also working on improving its administrative system to comply with the CRPD after the ratification. The section attempts to answer one main question: How is Vietnam structuring the implementation of disability policy within the country? To do that, the section will review Vietnam’s system of organizations working on disability issues, looking at their structure, functions as well as challenges facing the sector. A system of agencies and organizations operating at all levels throughout the country to protect the rights and interests of persons with disabilities has been in place in Vietnam. Articles 49 and 50 of the 2010 Law on persons with disabilities describe state management on disability and responsibilities of ministries, ministerial agencies, and People’s Committees at all levels. In general, three key ministries responsible for state management on disability include the Ministry of Labor, Invalids and Social Affairs (MOLISA), Ministry of Health (MOH), and Ministry of Education and Training (MOET). Other ministries and agencies involved are: Ministry of Culture, Sports and Tourism, Ministry of Construction, Ministry of Transport, Ministry of Information and Communication, Ministry of Science and Technology, Ministry of Finance, Ministry of Planning and Investment, and People’s Committees at all levels. MOLISA is designated to be responsible to the government for executing the role of the state management on disability. Other ministries, ministerial agencies, and government agencies have the responsibility to collaborate with MOLISA to coordinate and carry out state management on disability. People’s Committees at all levels (i.e., provincial, district, and communal levels) shall execute state management on disability within their responsibilities and authorities.23 The administration organizational chart on disability at central level is described in figure 11.124, 25 As shown in the organizational chart, MOLISA is the key ministry responsible for disability issues in Vietnam, acting as a coordinating agency on behalf of the State. Among responsibilities of MOLISA listed in Article

174

Chapter Eleven

Figure 11.1.   Organizational Chart of National Government for Persons with Disabilities

Worldbank. “Country Profile Vietnam: Issues on Disability.” 12. http://siteresources.worldbank.org/DISABILITY/Resources/Regions/East-Asia-Pacific/JICA_Vietnam.2.pdf

50 of the 2010 Law on persons with disabilities, the Ministry shall have the responsibilities to lead and coordinate with Ministries, ministerial agencies, People’s Committees of cities and provinces under central management for enforcement and implementation of legal documents on disability, projects, proposals, and plans on disability; and to inspect and monitor the enforcement and implementation of disability laws and policies.26 The Ministry therefore will function not only as a coordinator but also a monitor of the enforcement and implementation disability laws and policies. Other government agencies (e.g., MOET, MOC, MOH, and others) have the responsibility to report activities to MOLISA through the mechanism of the National Coordinating Council for Disabilities, which will be mentioned in the following section. At provincial level, provincial Peoples’ Committees are the peak body in each province and all agencies of government in the province fall under their



Understanding CRPD Implementation in Vietnam 175

authority. The provincial People’s Committees also have independent control over their budget and how it is allocated within their province.27 Established under MOLISA, the National Coordinating Council for Disabilities (NCCD) acts to coordinate and monitor the implementation of disability legislation within and across ministries. The NCCD was founded in 2001 pursuant to a decision adopted, on January 22, 2001, by MOLISA’s Minister. The NCCD is chaired by the Vice-Minister of MOLISA, who is responsible to the Minister of MOLISA for the performance of the NCCD. The NCCD consists of twenty-three representatives from thirteen ministries, two organizations for people with disabilities, and three organizations of people with disabilities. These disabled people organizations (DPOs) include the Association of Support for Handicapped and Orphans, Vietnam Red Cross, Vietnam Blind Association, Hanoi Deaf Association, and Hanoi Disabled People Association. The NCCD has the responsibility to lead, coordinate, inspect and monitor the development and implementation of legal documents on disability, projects, proposals, and plans on disability; and to carry out international cooperation in disability areas.28 In other words, the NCCD is responsible for ensuring the effective coordination and monitoring of government activities related to persons with disabilities and the implementation of disability legislation. As the key Vietnamese coordinator and monitor on disability issues, NCCD has played an important role in promoting the status of disability issues in Vietnam and the overall efforts toward greater equal and inclusive society. Since its establishment in 2001, NCCD has focused its efforts on communication and awareness raising activities on disability issues and the implementation of seven targets and priority areas of the Biwako Millennium Framework including: (i) self-help organizations of persons with disabilities and related family and parent associations; (ii) women with disabilities; (iii) early detection, early intervention, and education; (iv) training and employment, including self-employment; (v) access to built environments and public transport; (vi) access to information and communications, including information, communication, and assistive technologies; (vii) poverty alleviation through capacity building, social security and sustainable livelihood programs. In addition, NCCD has also succeeded in building effective international cooperation with many international and regional governmental and nongovernmental organizations, including United Nations Development Programme (UNDP), the United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP), Asia Pacific Development Center on Disability (APCD), Asia and Pacific Disability Forum (APDF), International Labour Organization (ILO), World Bank (WB), the United States Agency for International Development (USAID), the United Nations Children’s Fund

176

Chapter Eleven

(UNICEF), the German Organization for Technical Cooperation (GTZ), VietNam Assistance for the Handicapped (VNAH), Pearl S. Buck International (PSBI, Catholic Relief Service (CRS), World Concern Development Organization (WCDO), Health Volunteers Overseas (HVO), Medical Committee Netherlands–Vietnam (MCNV), and others. These international cooperation activities have brought in valuable technical and financial resources in support of disability area in Vietnam.29 The NCCD has also made significant contribution to the development and finalization of the 2010 Law on Persons with Disability, the most recent and comprehensive disability law in Vietnam.30 NCCD’s activities and its contributions to the national, regional, and international disability area were highly appreciated by UNESCAP in its evaluation report on People with disabilities in Asia and Pacific the second Decade.31 However, it is said that the NCCD’s effectiveness is significantly hindered by its placement in the Department of Social Protection in MOLISA rather than being independent.32 Furthermore, the future role of the NCCD is questionable as it does not have sufficient participation of high-level officials with sufficient authorities in the other ministries. Therefore, USAID, in its Disability Projects Review Assessment and Analysis Report, suggested elevating the NCCD to the national committee that consists of high-level officials so that it can ensure its coordination role across ministries on disability issues. In reorganization of this issue, the NCCD has attempted to revitalize the committee by requesting all ministries to nominate a representative to serve on the NCCD. The continued effective coordination and collaboration among key ministries will become more important when the Law on Persons with Disability is fully implemented.33 The multi-sectoral coordination on disability issues at provincial level also needs to be strengthened. According to the Summary of Key Findings for the National Baseline Survey of Disability Service System conducted by the three key ministries MOH, MOET, and MOLISA, and supported by VNAH/ USAID, the coordination on disability issues among agencies providing services in health, education, and social work is still low. For example, only 2.9 percent of the provinces surveyed said that there was coordination for rehabilitation, community participation, and inclusion between health and social sectors; regarding the coordination between education and social sectors in providing services to persons with disabilities, it was reported that only 14 percent of the seventy-five special education schools/centers coordinated to ensure CWD received support and eleven of the schools coordinated to transfer older children with disabilities to vocational training centers. The Baseline Assessment also indicated the unawareness of commune authorities and staff on the policies on disability.34



Understanding CRPD Implementation in Vietnam 177

As mentioned above, monitoring and evaluating is also a key responsibility of the MOLISA/NCCD. However, the monitoring and evaluation in all facets of the sector is still lacking, negatively affecting the potential impact of disability programs and initiatives. Though there exists a system of reports and statistics on disability situations and activities, the enforcement is inadequate and not legally binding as required by the Convention. In fact, the government does not require performance reports related to disability activities and standard assessment tools remain to be developed. Disability projects are not tracking impact indicators such as retention in employment or education programs. For example, the enforcement of the 2010 Law on Persons with Disability and subsequent decrees and circulars is not well defined. MOLISA is looking to the help of DPOs such as Vietnam Federation on Disability (VFD) with monitoring activities. MOLISA, and Ministry of Justice (MOJ), supported by VNAH, are developing a Penalty Decree that addresses violations of the disability law.35 ESTABLISHING THE INDEPENDENT MONITORING MECHANISM IN VIETNAM A second key question for evaluating Article 33 implementation in Vietnam is as follows: Is there an independent mechanism in Vietnam to monitor implementation of disability policy within the country? It is obvious that the NCCD, the key coordinator on disability issues in Vietnam, does not fully meet all the requirements of a “focal point” prescribed in Article 33 of the CRPD. Instead of being an independent agency that is “within the government,” the NCCD is only a subordinating agency under the Department of Social Protection in MOLISA; therefore, it is not structured properly to fulfill effectively its monitoring role. The MOLISA/NCCD is designated as a coordinator of the implementation of the disability legislations and, at the same time, is responsible for the monitoring role. This means an independent monitoring mechanism does not exist in Vietnam now. In fact, the monitoring in disability field in Vietnam is currently ineffective and lacking. As a result, it will be challenging for Vietnam to comply with the CRPD’s Article 33 on national disability implementation and monitoring when the country ratifies the Convention. In other words, Vietnam needs to make greater efforts to improving its organizational structure and resources on disability in support of its compliance with the CRPD.

178

Chapter Eleven

THE INVOLVEMENT OF CIVIL SOCIETY IN CRPD IMPLEMENTATION IN VIETNAM The CRPD requires a full involvement and participation of civil society, in particular persons with disabilities and their representative organizations in the implementation and monitoring of the Convention. In an attempt to examine Vietnam’s efforts to ratify the CRPD, the section will discuss the role of civil society, particularly Disabled Persons Organizations in the implementation and monitoring of disability laws and policies in Vietnam. The 2010 Law on persons with disabilities provides definitions of Disabled Persons Organizations (DPOs) in Article 9: An organization of persons with disabilities (DPO) is a social organization established and operates according to the laws. DPOs represent legitimate rights and interests of persons with disabilities. DPOs shall be responsible to participate in planning, monitoring the implementation of disability laws, policies, programs, and plans; Organization for persons with disabilities is a social organization established and operates according to the laws of Vietnam in order to carry out supporting activities for persons with disabilities.36

It is obvious that the Law officially recognizes DPOs’ legitimate representativeness for persons with disabilities as well as DPOs’ responsibility to “participate in planning, monitoring the implementation of disability laws, policies, programs and plans.” How are civil society organizations, particularly DPOs and organization for persons with disabilities, involved in the implementation of disability laws and policies in Vietnam? The development of DPOs in Vietnam dates back to 1969 with the formation of the Vietnam Blind Association, the first and oldest DPO in Vietnam. Over the past decades, many more DPOs have been established with a view to represent, protect, and promote persons with disabilities’ rights and benefits, including the equal participation of persons with disabilities in society. DPOs in Vietnam often operate independently of each other; therefore, the establishment of umbrella bodies has facilitated the cooperation, collaboration, and communication among DPOs and government agencies.37 Initiated by the Health Volunteers Overseas, the Disability Forum is the first umbrella organization in Vietnam established in 2000 with a view to “promote co-operation, collaboration and better communications among NGOs, organizations for persons with disabilities and relevant government ministries.” The Disability Forum focuses on different disability issues including rehabilitation and health services, employment, inclusive education, consciousness-raising and barrier-free access to public places. The activities



Understanding CRPD Implementation in Vietnam 179

of the Disability Forum include “keeping track of activities related to persons with disabilities, organizing semi-annual workshops, issuing newsletters, and providing information to people and organizations concerned with persons with disabilities.” The establishment of the Disability Forum has played an important role in encouraging and empowering persons with disabilities and in promoting their comprehensive inclusion in society at all levels.38 Most recently, with the assistance of VNAH/USAID, the Vietnam Federation on Disability (VFD) was formed in March 2011 as an umbrella coordinating organization among DPOs. In particular, VFD is responsible for facilitating the coordination and collaboration among DPOs in Vietnam, for contributing to the development and implementing national disability laws and policies and the CRPD, and for representing organizations of and for persons with disabilities to attend international activities on disability. VFD consists of organizations of and for persons with disabilities and individuals concerned about persons with disabilities and operates nationwide under the state management of MOLISA and other relevant ministries. Members of VFD include: Vietnam Red Cross Society, Vietnam Blind Association, Vietnamese Association of Victims of Agent Orange/Dioxin, Vietnamese Rehabilitation Association, the Association for the Support of Vietnamese Handicapped and Orphans, Vietnam Association for Invalids and Disabilities Enterprises, Vietnam Paralympic Association, and the Associations of Disabled People in cities (e.g., Hanoi City and Ho Chi Minh City) and in provinces (VFD Website 2013). As it can be seen from the functions of the VFD, the organization would be a bridge connecting the activities of various DPOs and self-help groups across the country, enhancing the effectiveness of disability activities nationwide. Since its establishment, the VFD has worked with VNAH: to organize two regional training workshops for DPOs and a job fair and outdoor event to celebrate International Disability Day, to conduct field visits to monitor and promote disability programs, and to upgrade the VFD website, which provides information on disabilities activities as well as information on disability legislations.39 The overall priorities of the DPOs in Vietnam are to provide direct support and services for persons with disabilities and to promote inclusive development. The focus of the established DPOs is however varied according to their geographic locations. There is a tendency that provincial and small city based DPOs/SHGs focus more on member networking and socialization in the provinces whereas the DPOs in the larger cities (e.g., Hanoi, Da Nang, and Hochiminh city) are more involved in policy advocacy. Generally, most DPOs have limited capacity with a couple of exceptions such as Disability Research and Capacity Development (DRD) in HCM City, Hanoi DPO, VFD, and possibly the Da Nang DPO. Therefore, there is a need to provide

180

Chapter Eleven

Vietnamese DPOs with capacity building. Technical and financial support from governmental resources is limited; the support mainly comes from international sources including VNAH, USAID, Japan Embassy, Irish Aid, and others.40 The DPOs established by government’s initiative tend to have more regular interaction with the government while self-organized DPOs have difficulties in gaining attention and support from the government due to their self-help categorization and low prioritization.41 The most obvious participation of DPOs in the development, implementation, coordination, and monitoring of disability laws and policies is, as mentioned earlier, the presence of five DPOs (two organizations for people with disabilities and three organizations of people with disabilities) in the structure of the NCCD, the national coordinating and monitoring organization on disability in Vietnam. These DPOs include: the Association of Support for Handicapped and Orphans, Vietnam Red Cross, Vietnam Blind Association, Hanoi Deaf Association, and Hanoi Disabled People Association. In short, we can see that the opportunities for Vietnamese DPOs to engage and participate in the development, implementation, coordination, and monitoring of disability laws and policies are more available with the establishment of umbrella organizations and inclusion of DPOs’ representatives in the internal structure of the NCCD. However, the participation is still not comprehensive and unequal with the preference given to larger DPOs sponsored by the Government and based in large cities. In addition, the limited capacity and resources of most DPOs are also obstacles preventing them effectively involving and participation in the development, implementation, coordination, and monitoring of disability laws and policies. Clearly, financial and technical assistance for these DPOs should be continued for a better participation. CONCLUSION This chapter provides an overview of the development and implementation of disability legislation in Vietnam to examine the drivers behind Vietnam’s ratification of the CRPD. The chapter finds significant efforts have been made by Vietnamese government to improve its disability laws and policies to better comply with the CRPD, especially after the country’s signing to the Convention in 2007. However, more work is required to make the country’s legal system more aligned with the CRPD. The chapter also attempts to examine the feasibility of Vietnam in complying with Article 33 of the CRPD regarding the national implementation and monitoring mechanism



Understanding CRPD Implementation in Vietnam 181

and finds that Vietnam still faces obstacles and challenges in implementing Article 33 of the CRPD. Particularly, Vietnam has had a coordinating agency responsible for the coordination of the development and implementation of disability laws and policies; however, this agency needs more power in order to effectively fulfill its duties. No independent monitoring mechanism has been put in place in the country; instead, it is assigned to the same coordinating agency. The role of DPOs in the development and monitoring mechanism has been enhanced, but still limited. Future technical and financial support for Vietnamese DPOs should be continued so that they have more capability in the implementation and monitoring of disability activities. NOTES 1.  Ellen Lynch and Dr. Pham Huy Tuan Kiet. Disability Projects Review Assessment and Analysis Report. 2013. Accessed May 25, 2014. http://www.usaid.gov/sites/ default/files/documents/1861/Final_Disability_Assessment_and_Analysis_7-20-13_ FINAL.pdf 2.  Hang M. Le. “Opening the Gates for Children with Disabilities: An Introduction to Inclusive Education in Vietnam.” 2013. 3.  National Coordinating Council on Disability (NCCD). 2010 Annual Report on Status of People with Disabilities in Vietnam. Hanoi: National Coordinating Council on Disability, 2010. Accessed May 27, 2014. http://nccd.molisa.gov.vn/attachments/221_BC%20thuong%20nien%202010%20tieng%20Anh%20cuoi.pdf. 4. “National Report of the Socialist Republic of Vietnam under the Universal Periodic Review of the United Nations Human Rights Council,” The Embassy of Vietnam in the United States of America, accessed May 29, 2014, http://vietnamembassy-usa .org/news/2009/04/national-report-vietnam-under-universal-periodic-review-un-human-rights-council. 5.  ASEAN Meeting on Promoting the United Nations Convention on the Rights of Persons with Disabilities (CRPD), presented at Asia-Pacific Development Center on Disability (APCD), 2013, Bangkok, Thailand, May 20, 2014. http://apcdfoundation. org/?q=content/apcd%E2%80%9Cempowerment%E2%80%9D-volume-54. 6.  Socialist Republic of Vietnam. “The 1992 Constitution of the Socialist Republic of Vietnam.” Available at: http://www.na.gov.vn/htx/English/C1479/#1L9CoVz8XotL. 7.  Socialist Republic of Vietnam, 1992. 8.  Michael Schwartz. “Deafness in Vietnam: Will the United Nations Convention on the Rights of Persons with Disabilities Make a Difference?” Syracuse Journal of International Law and Commerce 34 (2007): 483–515. 9.  “National Report of the Socialist Republic of Vietnam under the Universal Periodic Review of the United Nations Human Rights Council,” The Embassy of Vietnam in the United States of America, accessed May 29, 2014, http://vietnamembassy-usa .org/news/2009/04/national-report-vietnam-under-universal-periodic-review-un-human-rights-council.

182

Chapter Eleven

10.  “Vietnam National Report on the Promotion and Protection of Human Rights under the 2nd Cycle Universal Periodic Review,” Ministry of Foreign Affairs, accessed May 23, 2014, http://www.mofa.gov.vn/en/ctc_quocte/ptklk/nr040819162124/ ns131204205453. 11.  Lynch and Kiet. 12.  Socialist Republic of Vietnam. “The National Law on Persons with Disabilities.” (2010), available at: http://dredf.org/wp-content/uploads/2012/08/Vietnam-thelaw-on-persons-with-disabilities.pdf. 13.  Socialist Republic of Vietnam, 2010. 14.  UN General Assembly, Convention on the Rights of Persons with Disabilities: resolution / adopted by the General Assembly, 24 January 2007, A/RES/61/106, available at: http://www.refworld.org/docid/45f973632.html [accessed 30 August 2013]. 15.  Lynch and Kiet. 16. “The four models,” Handicap International, accessed May 25, 2014, http:// www.making-prsp-inclusive.org/en/6-disability/61-what-is-disability/611-the-fourmodels.html. 17.  For more information on disability models, see Handicap International website: http://www.making-prsp-inclusive.org/en/6-disability/61-what-is-disability/611the-four-models.html accessed May 2014. 18.  Socialist Republic of Vietnam, 2010. 19.  Lynch and Kiet. 20.  ASEAN Meeting on Promoting the United Nations Convention on the Rights of persons with disabilities (CRPD), 2013. 21.  The National Action Plan on Supporting People with Disabilities for the period 2012–2020 UN. (2006, December 13). Convention on the Rights of Persons with Disabilities. Retrieved July 30, 2013, from http://www.ohchr.org/EN/HRBodies/CRPD/ Pages/ConventionRightsPersonsWithDisabilities.aspx. 22.  ASEAN Meeting on Promoting the United Nations Convention on the Rights of Persons with Disabilities (CRPD), 2013. 23.  Socialist Republic of Vietnam, 2010. 24.  Note that this chart is a little misleading as the other government agencies (e.g., MOET, MOC, MOH, and others) are not subordinate to MOLISA, but must report activities to MOLISA through the mechanism of the National Coordinating Committee on Disability of Vietnam (NCCD). 25.  International Labour Organization Country Office for Vietnam, 2008. 26.  Socialist Republic of Vietnam, 2010. 27.  International Labour Organization Country Office for Vietnam, 2008. 28.  “The National Coordinating Council for Disabilities,” Vietnam’s Ministry of Labor, Invalids and Social Affairs, accessed May 30, 2014, http://nccd.molisa.gov. vn/index.php/about 29.  National Coordinating Council on Disability (NCCD), 2010. 30.  Lynch and Kiet. 31.  National Coordinating Council on Disability (NCCD), 2010. 32.  Management Systems International. Vietnam Disability Situation Assessment and Program Review. Washington DC: Management Systems International, 2005.



Understanding CRPD Implementation in Vietnam 183

Accessed May 24, 2014. http://pdf.usaid.gov/pdf_docs/PDACF476.pdf. Also see Lynch and Kiet. 33.  Lynch and Kiet. 34.  Lynch and Kiet. 35.  Lynch and Kiet. Also see ASEAN Meeting on Promoting the United Nations Convention on the Rights of Persons with Disabilities (CRPD), 2013. 36.  Socialist Republic of Vietnam, 2010. 37.  Lynch and Kiet. 38. Ivo Vasiljev. “The Disabled and Their Organizations –The Emergence of New Paradigms,” Reaching Out Handicrafts, accessed May 28, 2014, http://reaching outvietnam.com/wp-content/uploads/2016/01/article_2003_Getting-Organized-inVietnam.pdf. 39. “First National Disabled People Organization Established,” Vietnam Assistance for the Handicapped, accessed June 5, 2014, http://www.vnah-hev.org/NewsLetter-Winter-2011-2012.html. 40.  Lynch and Kiet. 41.  Lynch and Kiet.

BIBLIOGRAPHY ASEAN Meeting on Promoting the United Nations Convention on the Rights of Persons with disabilities (CRPD), presented at Asia-Pacific Development Center on Disability (APCD), 2013, Bangkok, Thailand, May 20, 2014. http://apcdfoundation.org/?q=content/apcd%E2%80%9Cempowerment%E2%80%9D-volume-54. “First National Disabled People Organization Established,” Vietnam Assistance for the Handicapped, accessed June 5, 2014, http://www.vnah-hev.org/News-LetterWinter-2011-2012.html. Handicap International. “The four models.” Accessed May 25, 2014. http://www. making-prsp-inclusive.org/en/6-disability/61-what-is-disability/611-the-four-models.html. Le, Hang M. “Opening the Gates for Children with Disabilities: An Introduction to Inclusive Education in Vietnam.” 2013. Lynch, Ellen and Dr. Pham Huy Tuan Kiet. Disability Projects Review Assessment and Analysis Report. 2013. Accessed May 25, 2014. http://www.usaid. gov/sites/default/files/documents/1861/Final_Disability_Assessment_and_Analysis_7-20-13_FINAL.pdf. Management Systems International. Vietnam Disability Situation Assessment and Program Review. Washington DC: Management Systems International, 2005. Accessed May 24, 2014. http://pdf.usaid.gov/pdf_docs/PDACF476.pdf. National Coordinating Council on Disability (NCCD). 2010 Annual Report on Status of People with Disabilities in Vietnam. Hanoi: National Coordinating Council on Disability, 2010. Accessed May 27, 2014. http://nccd.molisa.gov.vn/attachments/221_BC%20thuong%20nien%202010%20tieng%20Anh%20cuoi.pdf.

184

Chapter Eleven

“National Report of the Socialist Republic of Vietnam under the Universal Periodic Review of the United Nations Human Rights Council,” The Embassy of Vietnam in the United States of America, accessed May 29, 2014, http://vietnamembassyusa.org/news/2009/04/national-report-vietnam-under-universal-periodic-reviewun-human-rights-council. Schwartz, Michael. “Deafness in Vietnam: Will the United Nations Convention on the Rights of Persons with Disabilities Make a Difference?” Syracuse Journal of International Law and Commerce 34 (2007): 483–515. Socialist Republic of Vietnam. “The 1992 Constitution of the Socialist Republic of Vietnam.” Available at: http://www.na.gov.vn/htx/English/C1479/#1L9CoVz8XotL. Socialist Republic of Vietnam. “The National Law on Persons with Disabilities.” 2010. http://dredf.org/wp-content/uploads/2012/08/Vietnam-the-law-on-personswith-disabilities.pdf. The National Action Plan on Supporting People with Disabilities for the period 2012–2020 UN. (2006, December 13). Convention on the Rights of Persons with Disabilities. Retrieved July 30, 2013, from http://www.ohchr.org/EN/HRBodies/ CRPD/Pages/ConventionRightsPersonsWithDisabilities.aspx. “The National Coordinating Council for Disabilities,” Vietnam’s Ministry of Labor, Invalids and Social Affairs, accessed May 30, 2014, http://nccd.molisa.gov.vn/ index.php/about. Vasiljey, Ivo. “The Disabled and Their Organizations—The Emergence of New Paradigms,” Reaching Out Handicrafts, accessed May 28, 2014, http://reachingoutvietnam.com/wp-content/uploads/2016/01/article_2003_Getting-Organized-inVietnam.pdf. “Vietnam National Report on the Promotion and Protection of Human Rights under the 2nd Cycle Universal Periodic Review,” Ministry of Foreign Affairs, accessed May 23, 2014, http://www.mofa.gov.vn/en/ctc_quocte/ptklk/nr040819162124/ ns131204205453.

Chapter Twelve

Understanding CRPD Implementation in Brunei Khy Huy

INTRODUCTION Brunei Darussalam’s political system is based on an absolute monarchy where Sultan has absolute power.1 He has different roles in the government, serving as the king, the head of State, head of religion, the head of Government, the Prime Minister, the Minister of Finance, and the Minister of Defense.2 Brunei signed the Convention on the Rights of Persons with Disabilities on December 18, 2007, and ratified it on April 11, 2016.3 Before the ratification, Brunei had legislation and existing mechanisms that can help address issues of persons with disabilities in the country. Currently, Brunei still does not have a common definition of persons with disabilities.4 Different agencies have different definitions and categories of disability,5 which results in unreliable data of disability in the country. According to 2015 report of Economic Social Commission for Asia and Pacific (ESCAP), number of people with disabilities in Brunei are 4,148, which is 1.1 percent of total population.6 However, based on Brunei country report, the number of registered persons with disabilities in 2014 is 7,724, which is 2.4 percent of total population.7 The purpose of this chapter is to examine the CRPD implementation in Brunei with attempt to explore the reason behind Brunei’s CRPD ratification, examine the focal point and coordination as well as independent monitoring mechanism for the implementation of CRPD, and the role of disabled people’s organization in contributing to the implementation of CRPD.

185

186

Chapter Twelve

DYNAMICS OF CRPD RATIFICATION IN BRUNEI The ratification process of the Convention on the Rights of Persons with Disabilities in Brunei was slow. It took eight years for Brunei to ratify the Convention after its initial signing of the Convention in December 2007. Even before the ratification, Brunei had legislation in place to address the welfare of persons with disabilities.8 Enacted in 1954, the Old Age and Disability Pensions Act provides allowances for persons with disabilities aged fifteen years old and above.9 It provides for pecuniary payments through old age pensions, pensions for blind persons, allowances for dependents of persons who are suffering from Hansen’s disease and lunatics, disability pensions, and such other pensions and allowances as may be prescribed.10 Through this Act, persons with disabilities who wish to embark on income-generating projects are eligible to apply for financial assistance without the need for collateral or a guarantor.11 In addition to the Old Age and Disability Pensions Act, specific disability legislation is being drafted with a view to promote and protect rights of persons with disabilities from a rights-based approach.12 The legislation will address various issues, including access to infrastructure, education, health, recreation and sports, culture, and information.13 Moreover, a building control order is also being drafted to ensure that persons with disabilities have access to public and private buildings and facilities.14 Beside legislation, Brunei also has several programs and services for persons with disabilities. To promote employment opportunity for persons with disabilities, skills training and job attachments programs are available for persons with disabilities who need this service.15 Home-based or communitybased rehabilitation programs have been set up for persons with disabilities who are not able to undergo training at the specified training centers, particularly for those who live in rural areas.16 There is not a clear single reason behind Brunei’s ratification of CRPD. It appears that with the existing legislation and program concerning persons with disabilities as well as government mechanisms dealing with disabilities (as described in next section), the country has prepared itself toward the ratification of CRPD. STRUCTURING THE FOCAL POINT AND COORDINATION MECHANISM IN BRUNEI Before Brunei ratified the CRPD in April 2016, the Department of Community Development (DCD) of the Ministry of Culture, Youth, and Sports



Understanding CRPD Implementation in Brunei 187

(MCYS) was designated as focal point for matter relating to disability in Brunei.17 Previously known as the Customs, Religions, and Welfare Department, the DCD was established on July 1, 1954,18 to recommend and implement welfare programs and services to respond to the needs of the various categories of people.19 It has four divisions—1. pension and welfare division; 2. disabled training center division; 3. family, counseling, and employment division; and 4. protection and rehabilitation division.20 Since 1954, the Department of Community Development (DCD) has provided social welfare programs, rehabilitation, and counseling services as well as assistance to the vulnerable and people with disabilities.21 Its specific core functions related to disability include: (1) produce selfreliant, responsible persons with disabilities who can contribute to the society by providing them with educational training on basic living skills, skills and vocational training, on-the-job training and industrial attachment, community-based rehabilitation, disability pensions and allowances, and special disability aid equipment; (2) plan, implement and review the effectiveness of policies, programs, and projects for Persons with disabilities in accordance to the National Plan of Action for Persons with Disabilities and in compliance with CRPD; (3) monitor the implementation of programs and activities of DPOs; and (4) administer the registration of Persons with disabilities and run four centers for persons with disabilities (Pusat Bahagia).22 The DCD has established an institution called Centre for the Disabled to provide basic lifeskills, income-generating skills training, and work attachment for disabled people of primary school age to forty years old so that they can participate and contribute meaningfully to the society.23 The services provided by the center include Basic Orientation Training Program, Vocational Training Program, Industrial Training Program, Overseas Scholarship Program, Government Scholarship in Tahfiz Institute, Job Placement for Vocational and Training Program, Community-Based Rehabilitation (CBR) Program, Special Aids and Appliances, and Sports for Persons with disabilities.24 The other two ministries that are involved in disability matters are Ministry of Health and Ministry of Education.25 In 1999, the Ministry of Health established a community-based rehabilitation center known as the Child Development Centre (CDC). The center provides services to facilitate the diagnosis, assessment, treatment, and support therapy for children with disabilities in order to ensure their optimal health and development.26 Besides being a resource center and providing information to parents about other relevant agencies such as schools and (NGOs), CDC also provides coordination and professional support and training for NGOs in the country.27 Besides CDC, there is a Medical Social Work Division to provide appropriate assistance to children with disabilities and their families.28

188

Chapter Twelve

For matters related to education, the Ministry of Education has an inclusive education policy for students with special needs.29 In 1994, the Special Education Unit was established to assist in the planning, coordinating, and implementation of special education programs in schools for children with special educational needs (SEN).30 In delivering the services to students with special needs, the Special Education Unit gets support from the SchoolBased Team (SBT). This team includes Special Education Needs Assistance (SENA) or Home-Room (HR) Teachers, regular classroom teachers, teacher aides, resource teachers, special educators, psychologists, and other relevant specialist personnel.31 To ensure effective and integrated approach to protection of the right of persons with disabilities, a coordination meeting between the three ministries is held regularly.32 For instance, in addressing the special educational needs of children with disabilities, a regular monthly meeting is held between the CDC (MOH), social welfare (Department of Community Development), and Special Education Unit (Ministry of Education) to ensure that appropriate intervention measures are taken by the relevant agency to respond to the specific needs of children with disabilities.33 The three agencies take turns in hosting the meeting, which has created a good relationship among its members.34 Besides these three core ministries, a National Council on Social Issues was established to protect the rights of women, children, persons with disabilities, the elderly, and the poor.35 The Council was established in April 2008 to identify social issues, promulgate new legislation, or amend existing legislation pertaining to these social issues, and to coordinate with the relevant agencies in ensuring their implementation.36 Eleven social issues have been identified by the Council as pressing issues that need to be addressed including poverty, housing for the poor, unemployment, social security, community’s mentality, immoral behavior, crime, women issues, family institution, elderly issues, and issues of persons with disabilities. Six Special Committees have been established: the Special Committee on Poverty, Special Committee on Community’s Mentality, the Special Committee on Immoral Behaviour, the Special Committee on Crime Prevention, the Special Committee on Family Institution and Women, and the Special Committee on Persons with Disabilities and the Elderly.37 The Special Committee on Persons with Disabilities and the Elderly is chaired by the Minister of Culture, Youth and Sports (MCYS) while its Vice-Chair and Secretary are the Deputy Minister and Permanent Secretary at the MCYS, respectively.38 Members of the Special Committee include Permanent Secretaries at the Prime Minister’s Office, Ministries of Finance, Education, Health, Religious Affairs, Home Affairs, Communications and Development, as well as representatives from the Council of Welfare Brunei Darussalam and the Council of Community



Understanding CRPD Implementation in Brunei 189

Welfare.39 The Department of Community Development (DCD) is the Secretariat of this Committee.40 The mandates of the Committee include: 1. To recommend policies, legislations, and plans of actions are formulated to address issues on older persons and people with disabilities; 2. To coordinate and ensure that the plans of action and programs on older persons and people with disabilities are implemented by the relevant agencies; 3. To continuously review and analyze the effectiveness of plans of action and programs on older persons and people with disabilities; 4. To ensure that all pertaining issues on older persons and people with disabilities are identified before commissioning research to recommend strategies to address them; 5. To ensure that a database on older persons and people with disabilities is established; and 6. To ensure close cooperation between relevant stakeholders from Government and Non-Government agencies, including the private sector, voluntary organizations, corporate bodies, businesses, community and village leaders, parents as well as the general public in addressing issues on older persons and people with disabilities.41 Currently, this Committee is implementing its Action Plan on Persons with Disabilities that includes issues on advocacy; health; protection; education; employment; finance; participation in the community; volunteerism; accessibility; transportation; and database on persons with disabilities.42 ESTABLISHING THE INDEPENDENT MONITORING MECHANISM IN BRUNEI There has not been any independent monitoring mechanism of the CRPD implementation established in Brunei yet. INVOLVEMENT OF CIVIL SOCIETY AND IN CRPD IMPLEMENTATION IN CAMBODIA Various NGOs working on different disability issues are supporting and complementing the Brunei government’s efforts in promoting and protecting the rights of persons with disabilities in the country.43 Currently, the Department of Community Development of the Ministry of Culture, Youth, and Sports (MCYS) serves as the focal point for NGOs/DPOs.44 DPOs have been provided with a complimentary site to build permanent premises for their offices and service facilities.45 DPOs are also eligible to apply for financial assistance from the government to cover their operational and capacity building activities.46 The sources of financial support come from special allocation

190

Chapter Twelve

of government’s budget, voluntary salary deductions by public servants who wish to donate to the NGOs, and donation from public through the Short Messaging Service.47 Brunei Darussalam also works in cooperation with NGOs to organize various activities to commemorate the International Day for Persons with Disabilities; Autism Day; White Cane Day; International Deaf Day; and Down-Syndrome Day.48 Brunei is establishing its own Disability Council and has included persons with disabilities from Disabled People’s Organizations (DPOs) as members in this council.49 Currently, there are nine disabled people’s organizations (DPOs) operating in Brunei.50 CONCLUSION Although Brunei does not have a specific disability legislation that addresses disability issues from a human rights approach, there are many programs offering services and rehabilitation programs to help promote welfare of people with disabilities in the country. The welfare model of disability that has been adopted in the country will be gradually shifted to human rights model when the specific disability order is adopted and implemented. The ratification of CRPD recently will serve as impetus for Brunei to adopt various legislation, policies, and set up additional mechanisms to ensure effective implementation of the CRPD in the country. NOTES 1.  Hajah Sainah binti Haji Saim (2010), “Social Protection in Brunei Darusslam— Current State and Challenges,” in Social Protection in East Asia—Current State and Challenges, ed. Mukul G. Asher et al. Jakarta: ERIA, 2010. 125. 2.  Saim, “Social Protection in Brunei Darusslam—Current State and Challenges.” 3. United Nations Treaty Collection. Status on the Signatories and Ratification of the Convention on the Rights of Persons with Disabilities. Retrieved from https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV15&chapter=4&clang=_en#EndDec. 4. Rachel Thien, “Brunei Needs Laws to Protect Persons with Disabilities,” The Brunei Times, December 3, 2014, accessed June 28, 2015, http://m.bt.com. bn/news-national/2014/12/03/%E2%80%98brunei-needs-laws-protect-personsdisabilities%E2%80%99. 5.  Thien, “Brunei Needs Laws to Protect Persons with Disabilities,” 2014. 6. United Nations ESCAP, “Disability at a Glance 2015,” http://www.unescap. org/sites/default/files/SDD%20Disability%20Glance%202015_Final.pdf. 7.  “ASEAN-Japan Senior Officials Meeting on International Cooperation and Disability,” presented in Tokyo, Japan, August 31, 2015. http://www.apcdfoundation.



Understanding CRPD Implementation in Brunei 191

org/?q=system/files/ASEAN-Japan%20Senior%20Officials%27%20Meeting_Readable%20PDF.pdf.   8.  Brunei Darussalam Country Report, “Human Resource Development in the sectors of Welfare and Health—with a focus on capacity building of service providers and employability promotion of vulnerable people,” presented at The 9th ASEAN & Japan High Level Officials Meeting on Caring Societies, Tokyo, Japan, October 25–28, 2011. http://www.mhlw.go.jp/bunya/kokusaigyomu/asean/2011/dl/ Brunei_CountryReport.pdf.   9.  Brunei Darussalam Country Report, “Human Resource Development in the sectors of Welfare and Health,” 2011. 10.  Brunei Darussalam Country Report, “Human Resource Development in the sectors of Welfare and Health,” 2011. 11.  Disabled Peoples’ International Asia-Pacific Region, “People with disabilities entitled to equal rights.” Last modified February 7, 2014. http://www.dpiap.org/news/ detail.php?typeid=1&newsid=0001228. 12.  United Nations General Assembly, “National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Brunei Darussalam,” presented at the Human Rights Council, New York, New York, April 28–May 9, 2014. A/HRC/WG.6/19/BRN/1. 13.  United Nations General Assembly, “National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Brunei Darussalam,” 2014. 14.  United Nations General Assembly, “National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Brunei Darussalam,” 2014. 15.  Disabled Peoples’ International Asia-Pacific Region, “People with disabilities entitled to equal rights.” 16.  Disabled Peoples’ International Asia-Pacific Region, “People with disabilities entitled to equal rights.” 17.  United Nations General Assembly, “National report submitted in accordance with paragraph 15 (A) of the annex to Human Rights Council resolution 5/1 Brunei Darussalam,” presented at the Human Rights Council, Geneva, Switzerland, November 30–December 11, 2009. A/HRC/WG.6/6/BRN/1. 18.  Brunei Darussalam Country Report, “Human Resource Development in the Sectors of Welfare and Health,” 2011. 19. Brunei Darussalam’s Country Report, “‘Towards an Inclusive Society’ Strengthening the Collaboration between Social Welfare, Health, and Medical System,” presented at The 7th ASEAN and Japan High Level Officials Meeting on Caring Societies, Tokyo, Japan, August 31–September 3, 2009. 20.  Brunei Darussalam Country Report, “Human Resource Development in the Sectors of Welfare and Health,” 2011. 21.  Brunei Darussalam Country Report, “Human Resource Development in the Sectors of Welfare and Health,” 2011. 22. “ASEAN-Japan Senior Officials Meeting on International Cooperation and Disability.”

192

Chapter Twelve

23.  Brunei Darussalam Country Report, “Human Resource Development in the Sectors of Welfare and Health,” 2011. 24.  Brunei Darussalam Country Report, “Human Resource Development in the Sectors of Welfare and Health,” 2011. 25.  United Nations General Assembly, “National report submitted in accordance with paragraph 15 (A) of the annex to Human Rights Council resolution 5/1 Brunei Darussalam,” 2009. See also ASEAN-Japan Senior Officials Meeting on International Cooperation and Disability.” 26.  United Nations General Assembly, National report submitted in accordance with paragraph 15 (A) of the annex to Human Rights Council resolution 5/1 Brunei Darussalam,” 2009. 27. “ASEAN-Japan Senior Officials Meeting on International Cooperation and Disability.” 28. Brunei Darussalam’s Country Report, “‘Towards an Inclusive Society’ Strengthening the Collaboration between Social Welfare, Health, and Medical System,” 2009. 14. 29.  United Nations General Assembly, National report submitted in accordance with paragraph 15 (A) of the annex to Human Rights Council resolution 5/1 Brunei Darussalam,” 2009. 30. Brunei Darussalam’s Country Report, “‘Towards an Inclusive Society’ Strengthening the Collaboration between Social Welfare, Health, and Medical System.” See also “ASEAN-Japan Senior Officials Meeting on International Cooperation and Disability.” 31.  United Nations General Assembly, “National report submitted in accordance with paragraph 15 (A) of the annex to Human Rights Council resolution 5/1 Brunei Darussalam,” 2009. 32.  United Nations General Assembly, “National report submitted in accordance with paragraph 15 (A) of the annex to Human Rights Council resolution 5/1 Brunei Darussalam,” 2009. 33. Brunei Darussalam’s Country Report, “‘Towards an Inclusive Society’ Strengthening the Collaboration between Social Welfare, Health, and Medical System.” 34. Brunei Darussalam’s Country Report, “‘Towards an Inclusive Society’ Strengthening the Collaboration between Social Welfare, Health, and Medical System.” 35.  United Nations General Assembly, “National report submitted in accordance with paragraph 15 (A) of the annex to Human Rights Council resolution 5/1 Brunei Darussalam,” 2009. 36.  United Nations General Assembly, “National report submitted in accordance with paragraph 15 (A) of the annex to Human Rights Council resolution 5/1 Brunei Darussalam,” 2009. The Council is chaired by the Minister of Culture, Youth and Sports. Members of the Council include the Ministers of Education, Religious Affairs, Finance and Home



Understanding CRPD Implementation in Brunei 193

Affairs, the Chairman of the Sultan Haji Hassanal Bolkiah Foundation as well as the Deputy Minister from the Prime Minister’s Office. Ibid. 37.  United Nations General Assembly, “National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Brunei Darussalam,” 2014. 38.  United Nations General Assembly, “National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Brunei Darussalam,” 2014. 39.  United Nations General Assembly, “National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Brunei Darussalam,” 2014. 40.  United Nations General Assembly, “National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Brunei Darussalam,” 2014. 41. ASEAN-Japan Senior Officials Meeting on International Cooperation and Disability. 42.  United Nations General Assembly, “National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Brunei Darussalam,” 2014. 43.  United Nations General Assembly, “National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Brunei Darussalam,” 2014. 44.  Dr. Abang Muhammad Fahmy Awang Hepnie, Healthcare for PWD in a quest for an inclusive society in Brunei, available at http://www.mind.org.my/ftp_files/ BMCVI/3-Tier%201%20Healthcare%20for%20PWD%20in%20a%20Quest%20 for%20an%20Inclusive%20Society%20in%20Brunei%20-%20Dr.%20Abang.pdf. 45.  United Nations General Assembly, “National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Brunei Darussalam,” 2014. 46.  United Nations General Assembly, “National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Brunei Darussalam,” 2014. 47.  United Nations General Assembly, “National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Brunei Darussalam,” 2014. 48.  United Nations General Assembly, “National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Brunei Darussalam,” 2014. 49.  Hepnie, “Healthcare for PWD in a quest for an inclusive society in Brunei.” 50.  Hepnie, “Healthcare for PWD in a quest for an inclusive society in Brunei.” See also, United Department of State, “Brunei 2015 Human Rights Report,” http:// www.state.gov/documents/organization/252961.pdf.

194

Chapter Twelve

BIBLIOGRAPHY “ASEAN-Japan Senior Officials Meeting on International Cooperation and Disability,” presented in Tokyo, Japan, August 31, 2015. http://www.apcdfoundation.org/?q=system/files/ASEAN-Japan%20Senior%20Officials%27%20Meeting_Readable%20PDF.pdf. Brunei Darussalam’s Country Report, “‘Towards an Inclusive Society’ Strengthening the Collaboration between Social Welfare, Health, and Medical System,” presented at The 7th ASEAN and Japan High Level Officials Meeting on Caring Societies, Tokyo, Japan, August 31–September 3, 2009. Brunei Darussalam Country Report, “Human Resource Development in the sectors of Welfare and Health—with a focus on capacity building of service providers and employability promotion of vulnerable people,” presented at The 9th ASEAN & Japan High Level Officials Meeting on Caring Societies, Tokyo, Japan, October 25–28, 2011. http://www.mhlw.go.jp/bunya/kokusaigyomu/asean/2011/dl/Brunei_CountryReport.pdf Disabled Peoples’ International Asia-Pacific Region, “People with disabilities entitled to equal rights.” Last modified February 7, 2014. http://www.dpiap.org/news/ detail.php?typeid=1&newsid=0001228. Hepnie, Dr. Abang Muhammad Fahmy Awang. “Healthcare for PWD in a quest for an inclusive society in Brunei,” available at http://www.mind.org.my/ftp_files/ BMCVI/3-Tier%201%20Healthcare%20for%20PWD%20in%20a%20Quest%20 for%20an%20Inclusive%20Society%20in%20Brunei%20-%20Dr.%20Abang.pdf. Saim, Hajah Sainah binti Haji. “Social Protection in Brunei Darusslam—Current State and Challenges.” In Social Protection in East Asia—Current State and Challenges, edited by Mukul G. Asher et al. Jakarta: ERIA, 2010. Thien, Rachel. “Brunei Needs Laws to Protect Persons with Disabilities,” The Brunei Times, December 3, 2014, accessed June 28, 2015, http://m.bt.com. bn/news-national/2014/12/03/%E2%80%98brunei-needs-laws-protect-personsdisabilities%E2%80%99. United Nations ESCAP. “Disability at a Glance 2015.” Last modified 2015. http:// www.unescap.org/sites/default/files/SDD%20Disability%20Glance%202015_Final.pdf. United Nations General Assembly, “National report submitted in accordance with paragraph 15 (A) of the annex to Human Rights Council resolution 5/1 Brunei Darussalam,” presented at the Human Rights Council, Geneva, Switzerland, November 30–December 11, 2009. A/HRC/WG.6/6/BRN/1. United Nations General Assembly, “National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Brunei Darussalam,” presented at the Human Rights Council, New York, New York, April 28–May 9, 2014. A/HRC/WG.6/19/BRN/1. United Nations Treaty Collection. Status on the Signatories and Ratification of the Convention on the Rights of Persons with Disabilities. Retrieved from https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV15&chapter=4&clang=_en#EndDec.

Part III

META-ANALYSES, REGIONAL IMPLICATIONS, AND RECOMMENDATIONS

Chapter Thirteen

CRPD Implementation in ASEAN A Cross-Case Comparative Analysis Derrick L. Cogburn

In this chapter, we begin to broaden our focus by looking across our ten case studies to identify commonalities and differences in the implementation of Article 33 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in ASEAN. We will set this analysis within the context of ASEAN and Asia-Pacific strategies for the advancement of civil and political as well as economic, social, and cultural rights of persons with disabilities in Southeast Asia. Our conceptual framework presented in chapter 2 closely follows the structure of CRPD Article 33. It has four key parts, which was the basis for our detailed case studies of each country in the region presented in part II of this volume. As a reminder, these four broad components are: (1) Dynamics of Ratification; (2) Structuring the Focal Point and Coordination Mechanism; (3) Establishing the Independent Monitoring Mechanism; and (4) Involvement of Civil Society (especially DPOs) in CRPD Implementation. In each of these areas, the framework encourages us to focus our country case studies on certain key elements important to the ratification and implementation process. These areas have become our four broad research questions, with numerous subsidiary research questions, which may or may not be addressed in each case study. In this chapter, we focus on the meta-analysis of our ten case studies and try to understand CRPD implementation in Southeast Asia through our cross-case comparisons. Figure 13.1 below illustrates this crosscase comparative approach.

197

198

Chapter Thirteen

Figure 13.1.   Cross-Case Comparison of CRPD Implementation in ASEAN

REGIONAL AND SUB-REGIONAL POLICY FRAMEWORKS IN SOUTHEAST ASIA The context for CRPD implementation in ASEAN is quite complex. To begin, the ten countries of Southeast Asia are also part of the broader Asia Pacific region. This huge region, defined in large part by membership in the Bangkok-headquartered United Nations Economic and Social Commission for Asia and the Pacific (ESCAP), is one of the largest regions in the world. ESCAP is a regional commission of the United Nations Economic and Social Council (ECOSOC). It is comprised of fifty-three member states and nine associate members. It also includes France, the United States, the United Kingdom, and the Netherlands. It works with member states to address a range of pressing problems and challenges, some from a regional perspective, and others to contribute regional perspectives on global challenges. It focuses on capacity building to member states, and provides technical assistance. Over 4.5 billion people live in Asia Pacific, nearly 60 percent of the world’s population. However, some 650 million persons with disabilities live in the Asia Pacific.1



CRPD Implementation in ASEAN 199

In order to address this reality, ESCAP is now in its third coordinated decade on the rights of persons with disabilities. The first Asian and Pacific Decade of Persons with Disabilities was launched from 1993–2002. This was followed by the second from 2003–2012. The current focus is on the Third Decade Asian and Pacific Decade of Persons with Disabilities, 2013–2022. This third decade is structured by the comprehensive strategy, modeled on the style of targets and indicators of the Millennium Development Goals (MDGs), is called the Incheon Strategy to Make the Right Real for Persons with Disabilities in Asia and the Pacific.2 Of the ten goals in the Incheon Strategy, Goal 9 is designed to “Accelerate the ratification and implementation of the Convention on the Rights of Persons with Disabilities and the harmonization of national legislation with the Convention.” All ten countries in Southeast Asia are members of ESCAP, and have responsibilities to collect and report data on progress of all ten goals in the Incheon Strategy. In addition to this regional initiative, these ten countries are all members of the Association of Southeast Asian Nations, or ASEAN. Founded in 1967 and headquartered in Jakarta, Indonesia, ASEAN has been an exceptionally resilient, albeit underfunded and overburdened, regional intergovernmental organization. Indonesia, Malaysia, the Philippines, Singapore, and Thailand were all founding members of ASEAN, with Brunei Darussalam, Vietnam, Lao PDR, Myanmar, and Cambodia being added later. The ASEAN Charter3 includes a focus on human rights and describes how the organization is built on three “pillars,” which are: (1) Political-Security Community; (2) Economic Community; and (3) Socio-Cultural Community. While the first two of these communities normally receive most of the scholarly attention, the ASEAN Socio-Cultural Community is important to realizing the goals of a people-oriented and socially responsible region. ASEAN Vision 2020,4 adopted in 1997, includes an important focus on human resource development, equitable access to opportunities for all people, and special attention for the disadvantaged, disabled, and marginalized. One major reflection of this strategy is the 2011 ASEAN Bali Declaration on Persons with Disabilities.5 Here, the ASEAN governmental leaders recognized the important role for persons with disabilities in realizing the goals of the ASEAN sociocultural community. It also recognizes the Jakarta Declaration,6 which was adopted at the Regional Conference on ASEAN and Disability on 2 December 2010, which recognizes the necessity of persons with disabilities to actively participate in formulating, implementing, and evaluating policies related to disability issues in the ASEAN Region. In addition, the Biwako Millennium Framework7 and Biwako Plus Five for Action are designed to help build an inclusive, barrier-free, and rights-based society in Asia and the Pacific from 2003–2012. These various policy frame-

Chapter Thirteen

200

works and strategies helped to lay the foundation for ASEAN to proclaim the ASEAN Decade of Persons with Disabilities from 2011–2020.8 Finally, within the ASEAN Secretariat, the ASEAN Intergovernmental Commission on Human Rights (AICHR) was established in October 2009 and has the potential to be a critically important vehicle for monitoring human rights issues within Southeast Asia. Since the CRPD is both a human rights instrument and a development instrument, it does fit squarely within the substantive focus of AICHR and the broader ASEAN strategies for the region. From 29 June to 1 July 2016, ASEAN convened the 2nd AICHR Regional Dialogue on the Mainstreaming of the Rights of Persons with Disabilities in the ASEAN Community in Chiang Mai, Thailand. As we can see, the regional context for implementing the CRPD is quite textured. DYNAMICS OF CRPD RATIFICATION IN ASEAN Ratification Process The CRPD was adopted by the United Nations General Assembly on December 13, 2006, and available for signature on March 30, 2007.9 All ten countries in Southeast Asia have signed and ratified the CRPD with Indonesia and Thailand being the first to sign on the day the treaty was first available for signature. Singapore was the last to sign the convention on November 3, 2012. Only two countries in the region, Cambodia (October 1, 2007) and Thailand (September 2, 2016), have signed the Optional Protocol, which gives additional responsibilities to the Committee on the Rights of Persons with Disabilities, including their ability to hear individual complaints of violations by state parties of the Convention. While Indonesia and Thailand were first to sign, the Philippines was the first country in ASEAN to ratify the CRPD on April 15, 2008. Brunei Darussalam was last, ratifying the Convention on April 11, 2016. The country with the shortest duration between signing and ratifying was Myanmar (which signed and acceded/ratified on the same day), followed by four countries taking around one year (Philippines, Singapore, Thailand, and Lao PDR); and the longest was Brunei Darussalam taking almost nine years, with the average being 4.7 years. Table 13.1 below illustrates this progression within the region. Considering that all ASEAN states have finished the ratification process, Southeast Asia is an excellent region on which to focus and explain some of the key elements related to implementing Article 33. As such, we include a focus on the driving forces behind the ratification process. We try to understand why the state decided to ratify, and if the state had legislation support-



CRPD Implementation in ASEAN 201

Table 13.1.   CRPD Signatories and Ratification in ASEAN Philippines Signed: 25 September 2007 Ratified: 15 April 2008 Optional Protocol: No

Myanmar Signed: 7 December 2011 Ratified: 7 December 2011 Optional Protocol: No

Thailand Signed: 30 March 2007 Ratified: 29 July 2008 Optional Protocol: Yes (2 September 2016)

Cambodia Signed: 1 October 2007 Ratified: 20 December 2012 Optional Protocol: Yes (1 October 2007)

Lao PDR Signed: 15 January 2008 Ratified: 25 September 2009 Optional Protocol: No

Singapore Signed: 3 November 2012 Ratified: 18 July 2013 Optional Protocol: No

Malaysia Signed: 8 April 2008 Ratified: 19 July 2010 Optional Protocol: No

Vietnam Signed: 22 October 2007 Ratified: 3 December 2014 Optional Protocol: No

Indonesia Signed: 30 March 2007 Ratified: 30 November 2011 Optional Protocol: No

Brunei Darussalam Signed: 18 December 2007 Ratified: 11 April 2016 Optional Protocol: No

ing persons with disabilities before signing the CRPD, and if they were active in the negotiation of the Convention. State Reservations, Understandings, and Declarations As we discussed above, all countries ratifying the CRPD have the opportunity to submit Reservations, Understandings, and Declarations (RUDs). These mechanisms limit the state party’s commitment to the content of the treaty (Reservations), clarify how they will interpret certain aspects of the treaty (Understandings), and announce their intentions (Declarations) regarding the treaty. In Southeast Asia, four countries issued one or more RUDS, including: Malaysia, Singapore, Thailand, and Brunei Darussalam. Malaysia issued a Declaration about its intention to apply and interpret its Federal Constitution in a way that is not contravening specific articles in the Convention. It further states that the participation of persons with disabilities in cultural life, recreation, and leisure as provided in Article 30 is a matter for national legislation. Malaysia also expressed a Reservation that the Government of Malaysia does not consider itself bound by Articles 15 and 18 of the CRPD. Singapore issued Reservations related to its intent to continue to apply its “current legislative framework” and judicial bodies to provide a safeguard, oversight,

202

Chapter Thirteen

and supervision in lieu of Article 12, paragraph 4; to recognize that private insurers reserve rights related to providing insurance to persons with disabilities; and related to Article 29, subparagraph (a) (iii) its intention to “continue to apply its current electoral legislation which requires that assistance in voting procedures shall only be effected through a presiding officer who is appointed by the returning Officer and has signed an oath to safeguard voting secrecy.”10 Brunei Darussalam issued a reservation regarding provisions of the Convention that may be “contrary to the Constitution of Brunei Darussalam and to the beliefs and principles of Islam.”11 Thailand originally issued a Reservation indicating that “The Kingdom of Thailand hereby declares that the application of Article 18 of the Convention shall be subject to the national laws, regulations and practices in Thailand.” However, on 5 February 2015, the Government of the Kingdom of Thailand informed the United Nations Secretary-General, “it had decided to withdraw the Reservation.”12 Steps Preceding Ratification The second key component in our analysis of the dynamics of CRPD ratification is the steps that preceded ratification. We look to see what the environment was like in the country before ratification. Also, we try to determine the degree to which the country undertook a preliminary compliance assessment, in which they would determine the degree to which the existing legal and policy framework was in line with the commitments of the CRPD. If so, we want to highlight any incompatibilities between the existing legislation and policy environment and the CRPD. The Philippines had a relatively long history of public policies in support of persons with disabilities before the CRPD. By 1978, the Philippine government had already established the National Commission Concerning Disabled Persons (NCCDP), which formulated a long-term plan to support persons with disabilities. On April 15, 2008, the Philippines became the first country in Southeast Asia to ratify the Convention, almost four months before Thailand (July 29, 2008). Thailand has been one of the countries in Southeast Asia most engaged in supporting the rights of persons with disabilities. Along with Indonesia, it was the first country in the region to sign the CRPD, and had one of the shortest periods in the region between signing and ratifying, taking just over a year. It is also one of only two countries—along with Cambodia—to sign the Optional Protocol. In addition, it is one of the only countries in the region to have submitted its required State Report (and is drafting its second), and it is the only ASEAN member state to have one of its citizens elected to serve on the independent Committee on the Rights of Persons with Disabilities—



CRPD Implementation in ASEAN 203

Senator Montian Bunthan–who was subsequently reelected to a second term on the Committee. Like several other countries in the region, the attempts in the country to support the socioeconomic interests of persons with disabilities started long before signing the CRPD. As early as 1991, Thailand enforced the Rehabilitation of Persons with Disabilities Act, and in 2001 it received the FDR International Disability Award in commemoration of the tenth anniversary of the act. The Lao Peoples Democratic Republic—Lao PDR—has a high level of disability that can be attributed to its long history of internal and external military conflict. Unexploded Ordnance (UXO) and Exploded Remnants of War (ERW) both continue to contribute to increases in the number of persons with disabilities in the country. As early as 1991, shortly after the new Lao PDR constitution was adopted, the country became actively involved in the Asia Pacific Decade of Disabled Persons. These regional strategies developed by ESCAP helped to kick-start a policy focus on persons with disabilities in the country. This focus laid the foundation for Lao PDR to sign the Convention on January 15, 2008, and to ratify it almost two years later on September 25, 2009. Having signed the Convention on April 8, 2008, and then ratified on July 19, 2010, Malaysia was slightly behind some of the early adopters in the region but also not amongst the laggards. Our researchers see overall public awareness of disability issues in Malaysia to be low, and highlight how persons with disabilities themselves urged the government in 2002 to begin participating in the process of drafting the CRPD. The first Asian Pacific Decade of Disabled Persons (1993–2002) seems to have had an impact on the Malaysian government beginning to pay attention to disability issues. This was augmented in March 2007 when the Ministry of Women, Family and Community Development, Department of Social Welfare, and Japan International Cooperation Agency (JICA) together with the cooperation of the Malaysian Council for Rehabilitation (MCR) and Malaysia Confederation of Disabled (MCD) organized a seminar on the CRPD attended by over 400 persons with disabilities, representatives of government ministries and NGOs. Internal discussions within various ministries led to an eventual Declaration and Reservations issued by Malaysia as they ratified the CRPD, one of only four ASEAN countries to do so. A preliminary compliance assessment was made under the Universal Periodic Review (UPR). This review and other assessments show continued challenges with enforcing human rights in Malaysia, and their reservation to Article 15 (Freedom from torture or cruel, inhumane, or degrading treatment or punishment) illustrates these problems. Malaysia’s penal code allows for corporal punishment, which is incompatible with the CRPD and general human rights provisions. Malaysia’s reservation

204

Chapter Thirteen

to the CRPD shows a generally low commitment to human rights implementation. And, like most countries in the region, Malaysia did not sign the Optional Protocol. As the home of the ASEAN Secretariat and the largest Muslim country in the world, Indonesia is critical to understanding the implementation of the CRPD in the region. Prior to signing and ratifying the Convention, Indonesia wrestled with the issue of defining and accommodating persons with disabilities. For example, its 1997 law defines persons with disabilities as “individuals with defects.” Even though Indonesia was an active participant in the Biwako Millennium Framework and the first two Asia Pacific Decades for Persons with Disabilities, its early approaches to persons with disabilities also reflected the “medical model” of disability, rather than the rights-based model, and were heavily criticized by the national disability community, which attempted to insert new language and terms into the national discourse such as coining the term “Difabel” for Different Abilities. It took the disability advocacy community in Indonesia four years and a great deal of pressure to get the government to ratify the Convention on 30 November 2011. Myanmar signed and ratified the CRPD on the same day, December 7, 2011, making it the country with the shortest time in Southeast Asia between signing and ratifying the Convention. The political environment of Myanmar has undergone tremendous changes during the period of CRPD ratification and implementation. Led by a military junta, which effectively closed the country to foreigners, Myanmar was a country from which it was difficult to obtain information in any great detail. The breadth and scope of relief efforts needed to address the devastation caused by Cyclone Nargis helped to expedite the process of political transformation and opening up the country. However, it is clear that UNESCAP and its Make the Right Real campaign, as well as other key organizations, such as APCD, The Nippon Foundation, and the Myanmar Independent Living Initiative, have helped raise awareness about these important international initiatives to support the rights of persons with disabilities. Another important element has been the proliferation of international disabled persons organizations and other international civil society groups working in Myanmar. These organizations have contributed significantly to the development of disability rights in Myanmar. In Cambodia, the Cambodian Disabled People’s Organization (CDPO) seems to have played a critical role in the steps leading up to CRPD ratification, especially in their drafting of a position paper urging the Cambodian government to ratify the CRPD and to adopt the accompanying law for the protection of the rights of persons with disabilities. This position paper made several specific recommendations of strategies for the government to consider leading up to ratification and ensuring the alignment of the national le-



CRPD Implementation in ASEAN 205

gal ecosystem and the requirements of the CRPD. CDPO also convened preratification workshops and meetings with relevant stakeholders in the country designed to raise awareness of the importance of ratification. In at least one instance, CDPO did this in conjunction with the ASEAN Disability Forum (ADF) and tried to link these issues to broader implementation of the ASEAN Decade for Persons with Disabilities. CDPO also linked these workshops and their activities with the ASEAN Summit and participated in the ASEAN Civil Society Conference and ASEAN Peoples Forum. CDPO is also a member of Disabled Peoples’ International (DPI) and worked with both DPI and the International Disability Alliance (IDA) to convene workshops in preparation for the Universal Periodic Review (UPR). Singapore was the last country in ASEAN to sign the Convention on November 30, 2012, but since it ratified on the same day, it was not the last to ratify. Singapore’s commitments to the CRPD took effect on August 18, 2013. Prior to making these commitments to the CRPD, Singapore supported the interests of persons with disabilities through three separate policy mechanisms from 1988 through 2004, including the inaugural speech of Prime Minister’s Lee Hsien Loong. True to its reputation for efficiency in public management and administration, these initial efforts to support persons with disabilities culminated in an Enabling Masterplan (EMP1), launched in 2007 and planned to span five years. The EMP1 was designed to enable persons with disabilities to be more fully integrated into society through this highly structured approach to mapping the programs and services in the disability sector. The goal was to create an “inclusive Singapore” where persons with disabilities could maximize their contribution to society. A new Enabling Masterplan (EMP2) was adopted in 2012 to expand and deepen these programs. Perhaps more than any other country in ASEAN, these Enabling Masterplans created a dense network of policies and services in support of persons with disabilities long before actually implementing the CRPD. Vietnam has one of the highest rates of disability in Southeast Asia. In many ways, persons with disabilities in Vietnam face tremendous difficulties especially in terms of housing, employment, and independent living. A concerted process to develop and consolidate its legislation and policies toward persons with disabilities in line with the Convention preceded its ratification of the CRPD on December 3, 2014. Prior to CRPD ratification, Vietnam law already required persons with disabilities to be treated on an equal basis and that the state should support their exercise of their political, social, economic, and cultural rights. The Vietnamese government was also fully aware of the importance of the CRPD in promoting human rights issues across the country, especially for persons with disabilities. Although the pre-existing legal and policy infrastructure in Vietnam reflected the “medical model” more

206

Chapter Thirteen

than the rights-based approach, it was fairly comprehensive. The signing and ratification of the CRPD has helped to shift that approach to the more modern social justice model. Vietnam has also linked its strategy to the international and regional organizations, such as the Make the Right Real campaign and the Incheon Strategy of UNESCAP, the Biwako Millennium Framework for Action Towards an Inclusive, Barrier-Free and Rights-Based Society for persons with disabilities in Asia and the Pacific 2003–2012, and the Bali Declaration on Enhancing the Roles and Participation of persons with disabilities in ASEAN Community and the ASEAN Decade 2011–2020. Like most other countries in the region, Brunei had policies in place to support persons with disabilities before signing the CRPD. Its “Old Age and Disability Pensions Act was enacted in 1954 and focused on providing a monetary stipend to persons with disabilities, with a focus on persons who are blind. Nonetheless, Brunei was the last country in ASEAN to ratify the CRPD. It took eight years from Brunei signing the Convention in 2007 to ratifying in 2016. STRUCTURING THE FOCAL POINT AND COORDINATION MECHANISMS As listed above, CRPD Article 33, Paragraph 1 requires each state party to designate one or more official focal point(s) within the country. This focal point is responsible for coordination within the government of the implementation of the convention, including efforts to facilitate action on the convention within different sectors and levels of the government. In each country, we want to identify the degree to which the coordination mechanism has been established, and which ministries and state actors are represented, how the coordination mechanism is governed, and its successes and failures. In the Philippines, the National Commission Concerning Disabled Persons (NCCDP), established in 1978, which in 2008 was transformed by Executive Order into the National Council on Disability Affairs (NCDA), is responsible for implementing the CRPD. The NCDA is attached to the Office of the president, with a goal to function as the lead agency on disability issues in the Philippines and to assist persons with disabilities to achieve their full participation in the nation-building activities of the country. A Governing Board, chaired by an NGO leader and appointed by the president, oversees the NCDA. Participating in the Governing Board are the heads of numerous government ministries, including: Department of Social Welfare and Development (DSWD), Department of Health (DOH), Department of Labor and Employment (DOLE), Department of Education (DepEd), Department of the



CRPD Implementation in ASEAN 207

Interior and Local Government (DILG), Department of Trade and Industry (DTI), Department of Public Works and Highways (DPWH), Department of Transportation and Communications (DOTC), Department of Foreign Affairs (DFA), Department of Justice (DOJ), Philippine Information Agency (PIA), and Technical Education and Skills Development Authority (TESDA). In addition, there are six members of civil society on the Governing Board representing different segments of the disability community. A Secretariat coordinates the work of the NCDA, and is headed by an Executive Director, assisted by a Deputy Director. In Thailand, the Focal Point and Coordination Mechanism for implementing the CRPD is the Department of Empowerment of Persons with Disabilities (DEP). It was established in September 2007 as the National Office for Persons with Disabilities. It is located under the Ministry of Social Development and Human Security (MSDHS). Also established within the Act is the National Committee for the Empowerment of Persons with Disabilities, which is chaired by the Prime Minister, and the Minister of Social Development and Human Security serves as Vice-Chair. The twenty-four-member National Committee has eleven ministries, seven national DPOs and CSOs, and six disability experts. All of the key government ministries are represented, including Finance, Transportation, Information and Communication Technology, Interior, Justice, Labor, Education, Tourism and Sport, and Health. In addition, all of the major national disabled peoples’ organizations are participating across multiple disability communities, including the blind, deaf, mobility impaired, autistic, and what they call “mentally retarded.” The Director General of DEP leads a secretariat to support the National Committee, which is responsible for overseeing the policies, related to persons with disabilities in Thailand. The DEP has five, clearly delineated responsibilities, including a research and data analysis function. Also, in addition to the National Committee, there are Provincial Subcommittees, chaired by provincial governors to oversee disability issues in their province. In Lao PDR, the Focal Point and governmental coordination mechanisms are still lacking. The National Committee for Disabled Persons (NCDP) was established in 1995 as a mechanism to integrate governmental structures in support of this community. It had an inter-ministerial structure between the Ministry of Labor and Social Welfare (MOLSW), Ministry of Health (MOH), and the Ministry of Education (MOE). Other ministries such as Defense and Foreign Affairs were also represented. By the year 2000, the NCDP had developed the Action Plan of National Strategy, which included crosscutting issues identified by their relevant ministry. Malaysia has structured its CRPD Focal Point through the National Council for Persons with Disabilities. Established in 2008 under the Persons with

208

Chapter Thirteen

Disabilities Act, the Council is housed under the Ministry of Women, Family, and Community Development. They are responsible to oversee the implementation, monitor, and review policies and national plan for persons with disabilities. The Act also establishes a Registrar General for Persons with Disabilities, which Malaysia sees as meeting the requirements of Article 31 for appropriate information and statistical data on persons with disabilities in the country. The Malaysian National Council for Persons with Disabilities has substantial representation from across government ministries, including: finance, transport, human resources, education, and health. Also participating are the Attorney General, and the vehicle licensing board. In addition, the Act allows for “no more than ten persons having appropriate experience, knowledge, and expertise” on matters relating to persons with disabilities to be appointed by the Minister. One of the biggest challenges facing CRPD implementation in Malaysia is the ongoing lack of awareness and appreciation of disability issues amongst government ministries. Financial constraints and lack of a long-term plan are seen as other major problems. After ratification of the CRPD in Indonesia, the Ministry of Social Affairs (MoSA) has been working with disabled persons’ organizations to structure the mechanisms for implementation, coordination, and monitoring. While the disability community expressed some concern around the role of MoSA, it remains the official focal point for implementing and coordinating the CRPD in Indonesia. However, it has taken an approach that substantially empowers the civil society community in its processes, including academics and universities (which most of the other ASEAN countries do not seem to do effectively). When Myanmar acceded to the CRPD, it did not go through the normal ratification processes. This lack of engagement by the parliament may hinder engagement in the implementation and monitoring processes. Overall the government implementation has been very slow in Myanmar. Some speeches have been made suggesting the National Plan of Action would focus on the social and economic development of persons with disabilities, but real action has been slow. However, there has been substantial activity in the international non-governmental organization (INGO), NGO, and DPO sectors, particularly the Asia Pacific Development Center on Disability (APCD), The Nippon Foundation, and locally, the Myanmar Independent Living Initiative (MILI). These organizations witnessed a good deal of rhetoric from government ministries supporting the ideas of support for persons with disabilities, which were to be incorporated into a new Rights of Persons with Disabilities Law in 2012. But at this time, there is still no law recognizing the broad rights of persons with disabilities designed to implement the CRPD in Myanmar.



CRPD Implementation in ASEAN 209

In Cambodia, the Disability Action Council (DAC) was designated as the national coordination mechanism and advisory mechanism on disability issues. The DAC was established through Ministerial Declaration and is located within the Ministry of Social Affairs, Veteran and Youth Rehabilitation (MoSVY). Included in the DAC are fifteen line-ministries, as well as five national and international non-governmental organizations. It is required to meet at least two times per year, and may meet more frequently (which in practice it does), and it may issue invitations, including to international experts, to participate as observers and resource persons in the meetings. The Honorary President of DAC is the Prime Minister of the Kingdom of Cambodia. In practice, the Minister in Charge of Social Affairs leads DAC. In total, it has fifty-eight members, who are all approved by the government. In Singapore, the focal point and coordination mechanism was able to benefit from a sustained effort in the country to support the rights of persons with disabilities and their integration into society and the economy. The second Enabling Master Plan (EMP2), scheduled from 2012–2016, was designed to implement Singapore’s commitment to the CRPD. For several years, the Ministry of Social and Family (MSF) has had responsibility for persons with disabilities in Singapore. Within MSF is the National Council of Social Services (NCSS), which is designed to provide leadership and enhance delivery in social services within the country. The Ministry of MSF sees the EMP2 as key to the progressive realization of the CRPD in Singapore, specifically through SG Enable, which is the renamed Center for Enabled Living. There are five ministries represented in the EMP2 subcommittee: Ministry of Education (MOE); Ministry of Manpower (MOM); Ministry of Community Development, Youth and Sports (MCYS); NCSS and Ministry of Health, along with representatives from various disabled persons’ organizations (DPOs) and Voluntary Welfare Organizations (VWOs). In Vietnam, Articles 49 and 50 of the 2010 Law on persons with disabilities describe state management on disability and responsibilities of ministries, ministerial agencies, and People’s Committees at all levels. In general, three key ministries responsible for state management on disability include the Ministry of Labor, Invalids, and Social Affairs (MOLISA), Ministry of Health (MOH), and Ministry of Education and Training (MOET). MOLISA is the primary ministry designated as the agency responsible for executing the state responsibilities related to persons with disabilities. Several other ministries are involved, including: Ministry of Culture, Sports and Tourism, Ministry of Construction, Ministry of Transport, Ministry of Information and Communication, Ministry of Science and Technology, Ministry of Finance, Ministry of Planning and Investment, and People’s Committees at all levels. The National Coordinating Council for Disabilities (NCCD) is established

210

Chapter Thirteen

under MOLISA, and is responsible for coordinating and monitoring the implementation of the CRPD. NCCD is chaired by the Vice-Minister of MOLISA. NCCD consists of twenty-three representatives from thirteen ministries, two organizations for people with disabilities, and three organizations of people with disabilities. In Brunei, since 1954, the Department of Community Development (DCD) has provided social welfare programs, rehabilitation and counseling services, as well as assistance to the vulnerable and people with disabilities. The DCD has established an institution called Centre for the Disabled to provide basic life-skills, income-generating skills training, and work attachment for disabled people of primary school age to forty years old so that they can participate and contribute meaningfully to the society. However, Brunei has designated the Department of Community Development (DCD) of the Ministry of Culture, Youth and Sports (MCYS) as the Focal Point for CRPD implementation. The DCD has four major divisions (1) pensions and welfare; (2) disabled training center; (3) family, counseling, and employment; and (4) protection and rehabilitation. The MCYS, as well as The Ministry of Health and Ministry of Education, have close coordination to promote the needs of persons with disabilities. These three ministries hold a regular “coordination meeting,” and each ministry takes turns hosting the meeting. The National Council on Social Issues also involves the protection of the rights of women, children, and persons with disabilities, elderly, and the poor. ESTABLISHING INDEPENDENT MONITORING MECHANISMS IN ASEAN In addition to the critical role played by the Focal Point and the Coordination Mechanism, Article 33, paragraph 2 requires the establishment of an Independent Monitoring Mechanism, in line with the Paris Principles for National Human Rights Institutions. In the Philippines, the National Council on Disability Affairs functions as the country’s lead steering agency concerning disability issues in the Philippines. The Council’s role and functions include the formulation of disabilityrelated policies, close coordination with key stakeholders, and monitoring of the implementation of national and international policies concerning the rights of the members of the disability community. The Council is composed of the Governing Board and a Secretariat. The Board is composed of representatives from multiple ministries, NGOs, and civil societies that join the effort to promote the works for persons with disabilities. In Thailand, the independent monitoring mechanism is the National Human Rights Commission (NHRC), which was established to be explicitly



CRPD Implementation in ASEAN 211

aligned with the Paris Principles. The NHRC has several sub-committees, with one focused specifically on the rights of persons with disabilities. In Lao PDR, while the National Committee of Persons with Disabilities (NCPD) was charged with promoting and coordinating disability activities, it had no authority as either an independent oversight mechanism nor could it be an independent mechanism as it remained under the auspices of the government via the Ministry of Labor and Social Welfare (MOLSW). As a result, there is essentially no independent monitoring mechanism for the CRPD in Lao PDR, especially not one that adheres to the Paris Principles. Regarding to independent monitoring activities for persons with disabilities in Malaysia, the Malaysian Human Rights Commission (SUHAKAM) is considered as an independent monitoring mechanism by the Malaysian government. The SUHAKAM plays an active role in promoting the rights of persons with disabilities through awareness-raising campaigns, research, and programs to strengthen persons with disabilities community in Malaysia. In Indonesia, many of the DPOs and civil society activists involved in planning for the independent monitoring mechanism have been exposed to international debates on human rights through the work of CBM, Handicapped International, Disability Rights Fund, and other international NGOs. They understand that a human rights body representing persons with disabilities should comply with the Paris principle of independency. The Ministry of Social Affairs was appointed the focal point for CRPD implementation in Indonesia. The MoSA has been actively assisting partners, such as the DPOs, particularly through the umbrella organization Indonesian Association of Persons with Disabilities (PPCI, now known as PPDI: Indonesian Disabled People Association) and related parties to plan for steps following the ratification of the CRPD. While the Ministry of Social Affairs is still the official focal point of disability affairs and implementation of the CRPD, the role of the ministry in drafting the law has been in the background, supporting the civil society movement. However, recently, the ministry has taken a more active role in mainstreaming disability within the social welfare sector. Since the new law on Disability is still being deliberated in the House of People’s Assembly, there is no legal mandate for an independent monitoring and reporting mechanism for the CRPD. While the new political leadership in Myanmar has been able to integrate disability issues into some of their speeches, actual establishment of the institutions to implement the CRPD have been sluggish. At the moment, there appears to be no independent monitoring mechanism set up in Myanmar. In Cambodia, there is currently no formal monitoring framework for the CRPD. However, Article 8 of LPPRPD states, “the Ministry in charge of Social Affairs shall establish the Disability Rights Administration . . . an entity

212

Chapter Thirteen

under the Department of Rehabilitation.” The Disability Rights Administration (DRA) was established by Prakas No. 056, dated January 28, 2010. The Secretariat General of DAC serves as the focal point to provide technical advice on disability and rehabilitation and coordinate with other institutions regarding policies and strategies for promoting the rights for persons with disability. CDPO is also a member of Disabled Peoples’ International (DPI) and worked with both DPI and the International Disability Alliance (IDA) to convene workshops in preparation for the Universal Periodic Review (UPR). In Singapore, the “Enabling Master Plan” (EMP) serves as a structural framework to implement CRPD. Of particular importance for monitoring progress of the commitment to the CRPD are two government-led committees, namely the Inter-Agency Standing Committee on Disability and the Enabling Master Plan Implementation Committee. The Ministry of Social and Family development (MSF) is the head ministry to guide and delegate responsibilities to other institutions, such as the ministry, DPOs, VWOs or NGOs. In Vietnam, there is currently no independent monitoring mechanism structured in the way it is outlined in CRPD Article 33, paragraph 2. The National Coordinating Council for Disabilities (NCCD) is located within the Ministry of Labor, Invalids and Social Affairs (MOLISA) and has no independent structure. Even though there is some suggestion that NCCD is supposed to be playing this independent monitoring role, it is not structured appropriately to carry out those functions. With its recent ratification of the CRPD in April 2016, Brunei has not yet established any form of an independent monitoring mechanism. This is an area that will be looked at very carefully by analysts and activists alike as Brunei attempts to meet these new responsibilities under the CRPD. INVOLVEMENT OF CIVIL SOCIETY AND DPOS IN CRPD IMPLEMENTATION PROCESSES IN ASEAN Finally, CRPD Article 33, paragraph 3 mandates that the process of implementing and monitoring the CRPD should be multi-stakeholder and include civil society in general, but in particular, should include persons with disabilities and their representative organizations, who should be enabled to “participate fully” in the CRPD monitoring process. In recent years in the Philippines, the Council has received recognition and positive result for their CRPD work on integrating civil society actors in the Philippines. Filipinos with disabilities are active in the public sphere and have been increasing every year. There are a total of 104 NGOs that focus



CRPD Implementation in ASEAN 213

their efforts to assist persons with disabilities and the elderly. However, the challenge remains that none of these organizations has full participation in the monitoring process. One of the main issues is lack of or incomplete data on persons with disability, which distorts the urgency of this matter. The presence of organizations for people with disabilities in the political arena has also been limited. However, in addition to the first time participation of people with disabilities in the election, their representation in the Commission on Election (COMELEC) has started to become more significant since the appointment of the first commissioner with disability. Though Thailand has progressed in the development of disability rights, only a few people have acknowledged the work of DPOs regarding disability rights advocacy and push for ratification of the CRPD. The seven national disabled people organizations played the most significant role: The Council of Disabled People of Thailand (CDPT) (umbrella for six organizations), the Thailand Association of the Blind, the National Association of the Deaf in Thailand, the Association of the Physically Handicapped of Thailand, the Association of Parents for Thai Persons with Autism, the Thailand Association of the Disabled, and the Association for the Mentally Retarded of Thailand. DPOs in Thailand are relatively well established, and are comparatively well organized in terms of coordination and collaboration. They have been able to have a significant impact on CRPD implementation and monitoring. International non-governmental organizations (INGOs), such as Handicap International and Leprosy Mission International, originally took the lead in raising issues related to disability in Lao PDR. However, after the National Committee for Disabled Persons (NCDP) was established in 1995, nationallevel disabled persons organizations (DPOs) such as the Lao Disabled People’s Association (LDPA), the Lao Handicapped Women and Children Association (LHWCA) started to develop. The creation of these DPOs signaled a shift in Lao PDR away from the medical model of disability toward the rights-based and social justice model. Currently, there are an estimated 180 DPOs active in Lao PDR, including local and international non-governmental organizations. In Malaysia, disabled persons’ organizations exist at both the national level and at the level of the state. As is the case in many countries, these organizations tend to be based on specific types of disabilities. There are also numerous support groups for persons with disabilities and their families. The Malaysian government regulates these organizations very carefully: they must all be registered with the Registrar of Societies and the Executive Committee members must be elected in Annual General Meetings. These organizations are also brought together under umbrella organizations such as the Malaysian Confederation of the Disabled. These organizations have helped to empower

214

Chapter Thirteen

persons with disabilities, and especially through the engagement of those DPOs involved with the National Council of Persons with Disabilities. Civil society, and especially DPO community in Indonesia, has been exceptionally active in advocating for the CRPD and now in the implementation and monitoring processes. Throughout the country, but especially in Jakarta and Yogyakarta, numerous disabled persons’ organizations are involved in drafting legislation, engaging in capacity building and awareness raising activities, and coordinating advocacy. The Indonesian Coalition of Women with Disabilities (HWDI) has taken on a very important national leadership role, especially to promote the accessibility of electoral politics. They have inspired DPOs across the country to get involved in monitoring CRPD implementation and in reporting human rights abuses. In addition, the National Consortium on Disability Rights has also promoted the CRPD nationwide, working with international organizations such as Handicapped International. In addition, Indonesia is one of the only countries in the region that has a very active academic involvement in these issues, led by the Center for Disability Studies at Universitas Indonesia. In Myanmar, the number of nongovernmental organizations grew rapidly after Cyclone Nargis. Some of this growth is attributed to international aid funding available after the cyclone. This was in contrast to the very strict regulation/limitations placed on the nongovernmental sector by the military junta. The overall increase in number and impact of NGOs opened the way for the establishment of DPOs focusing on disability rights. In addition, initiatives like the Myanmar Independent Living Initiative (MILI) and the fact that leaders with disability actively focus on capacity building and strengthening networks among DPOs had a positive impact on the feasibility for advocacy on disability rights. Cambodia has an extremely active civil society engaged in disability issues. The leading umbrella organization is the Cambodian Disabled People’s Organization (CDPO). It was established in 1994 as a movement of Cambodian persons with disabilities. CDPO does not provide goods or services to persons with disabilities directly, but advocates for the rights of persons with disabilities, and helps to build awareness and capacity for monitoring the implementation of the CRPD by the government. CDPO also collaborates effectively with several international networks. For examples, CDPO is a member of Disabled Peoples’ International. In 2013, DPI and the International Disability Alliance (IDA) joined CDPO in organizing a two-day workshop involving other disability organizations, which developed a report for the Universal Periodic Review. This intense integration of strong national DPOs, working within a national cross-disability umbrella organization, and linkages with regional and international disability organi-



CRPD Implementation in ASEAN 215

zations suggests an effective strategy that could serve as a model for other countries in the region. Since the ratification of the CRPD in Singapore, there has been a bigger involvement of the civil societies and DPOs. The “We Are Able” campaign received significant support from the public. Various organizations partnered together to organize awareness-raising campaigns, an entry into the Singapore Book of Records for most number of pledges collected to support inclusion. A lot of independent organizations, such as the Disabled People’s Association (DPA) and MARUAH, have achieved great representation. In Vietnam, both the domestic law and the CRPD recognize that DPOs legitimately represent persons with disabilities and as such, carry the responsibility to participate in planning, monitoring the implementation of disability laws, policies, programs and plans. Since the ratification of the CRPD, many more DPOs have been established with the goal to represent, protect, and promote disability rights and benefits, including the equal participation of persons with disabilities in society. One of the main issues has been the coordination of efforts as these DPOs function independently from one another. To address the problem, the Vietnam Federation on Disability (VFD) was formed in March 2011 as an umbrella coordinating organization among DPOs. The VFD is responsible for facilitating the coordination and collaboration among DPOs in Vietnam, for contributing to the development and implementing national disability laws and policies and the CRPD, and for representing organizations of and for persons with disabilities to attend international activities on disability. DPOs established by the government’s initiative tend to have more regular interaction with the government while self-organized DPOs have difficulties in gaining attention and support from the government due to their self-help categorization and low prioritization. These DPOs include: the Association of Support for Handicapped and Orphans, Vietnam Red Cross, Vietnam Blind Association, Hanoi Deaf Association, and Hanoi Disabled People Association. Participation is still unequal with the preference given to larger DPOs sponsored by the government and based in large cities. In Brunei, there are a number of NGOs working on disability issues, and are doing so in support of and complementing the efforts of the Brunei government. The Department of Community Development of the Ministry of Culture, Youth and Sports (MCYS) serves as the focal point for NGOs and DPOs. The DPOs are eligible to apply for financial assistance from the government to cover their operational and capacity building activities. Brunei Darussalam also works in cooperation with NGOs to organize activities to commemorate the International Day for Persons with Disabilities; Autism Day; White Cane Day; International Deaf Day; and Down-Syndrome Day.

216

Chapter Thirteen

Brunei is establishing its own Disability Council and has included persons with disabilities from Disabled People’s Organizations (DPOs) as members in this council. Currently, there are nine disabled people’s organizations (DPOs) operating in Brunei. CONCLUSION In this chapter, we have taken a holistic look, examining the progress and problems of implementing the UN Convention on the Rights of Persons with Disabilities throughout all ten countries of Southeast Asia. We have highlighted some of the key similarities across the region, such as the fact that most countries already developed some policy infrastructure to support persons with disabilities before the particular country became a state party to the CRPD. In most cases, there was also a corresponding infrastructure of civil society representation, and particularly disabled persons’ organizations, which were active in encouraging the government to sign and ratify the CRPD. In some cases, this took longer than in others, as the eight years it took Brunei to ratify illustrates; whereas in other cases such as Thailand, the commitment seemed exceptionally high and ratification followed shortly after signing the Convention. We also see that in every country in the region, with perhaps the exception of Myanmar, a Focal Point for CRPD implementation has been established, and in most cases the corresponding Coordination Mechanisms have been developed as well. In some cases—such as Vietnam and Cambodia–these focal points are set up to include the participation of the most senior governmental leadership, right up to the president and prime ministers. In other cases, the focal point seems part of bureaucracy and less prestigious. The degree of organizational sophistication of the focal point also varies across the region, with some appearing to be managed by a very competent staff, with layers of administrative redundancy and support, and various committee and sub-committee structures. Other focal points seem to be rather thin on infrastructure and financial, personnel, and political support. Similarly, some of the coordination mechanisms seem to have all of the relevant interdisciplinary government ministries represented in a formal, ongoing structure. Others seem to be set up almost ad hoc and meeting infrequently. In some cases, coordination mechanisms seem to be non-existent. With regards to independent monitoring mechanisms, some countries— such as Thailand—have established monitoring bodies explicitly according to the Paris Principles. In these cases, there are high hopes that the monitoring of the CRPD implementation will be able to function as required by the Conven-



CRPD Implementation in ASEAN 217

tion. However, in others, such as Lao PDR, where the independent mechanism is formally a part of the government, the principle of independence is not realized, which leads to great questions in terms of significance and functionality of the designated bodies. And further still, in some countries—like Brunei and Malaysia—the independent mechanism has either not yet been established, or is non-functioning. Malaysia, however, has great potential in its SUHAKAM organization to serve in this role if appointed. Every country in the region appears to have a robust civil society and disabled persons’ infrastructure community. This appears to be the case even in countries such as Myanmar, where the overall infrastructure of CRPD implementation is moving much slower. In the Philippines and Thailand, the DPO infrastructure played a pivotal role in motivating government officials to sign and ratify the CRPD and continue to play an equally important part in the ongoing monitoring and implementation. However, while international nongovernmental organizations seem to have played an important role in several countries in the region, there is less than expected reference to the ASEAN Disability Forum and other regional organizations. It will be interesting to assess the role of these regional organizations over the coming years. Also, even though all the case studies are led by academics based at universities in Southeast Asia, nearly all of the case studies, with the exception of Indonesia, do not mention any explicit role played by universities in the region in supporting or promoting disability rights. In the next few chapters, we will continue this regional approach, by looking at human rights, norm diffusion, and broader considerations for disability policy in ASEAN. NOTES 1. UNESCAP. Incheon Strategy to “Make the Right Real” for Persons with Disabilities in Asia and the Pacific. 2012. http://www.unescap.org/resources/incheonstrategy-“make-right-real”-persons-disabilities-asia-and-pacific. 2. UNESCAP, Incheon Strategy. 3. Association of Southeast Asian Nations, “The Asian Charter,” Jakarta: The ASEAN Secretariat: 2015, http://www.asean.org/wp-content/uploads/2012/05/11.October-2015-The-ASEAN-Charter-18th-Reprint-Amended-updated-on-05_-April2016-IJP.pdf. 4. “Kementerian PPN/Bappenas,” last modified 2016, http://Bappenas. go.id. “ASEAN Vision 2020,” http://bappenas.go.id/files/6913/6082/9897/ c6__20081123070254__1022__8.pdf. 5.  Association of Southeast Asian Nations, “Bali Declaration on the Enhancement of the Role and Participation of the Persons with Disabilities in ASEAN Community

218

Chapter Thirteen

and Mobilization Framework of the ASEAN Decade of Persons with Disabilities (2011-2020),” ASEAN Secretariat: 2013, http://www.asean.org/storage/images/2013/ resources/publication/2013%208.%20aug%20-%20bali%20declaration%20on%20 persons%20with%20disabilities.pdf.  6. Disabled Peoples’ International Asia-Pacific Region. “Jakarta Declaration: Regional Conference on ASEAN and Disability.” Paper presented at the Regional Conference on ASEAN and Disability, Jakarta, Indonesia, December 1–2, 2010.   7.  UNESCAP. “Biwako Millennium Framework for Action Towards an Inclusive, Barrier-Free and Rights-Based Society for Persons with Disabilities in Asia and the Pacific.” Paper presented at the High-level Intergovernmental Meeting to Conclude the Asian and Pacific Decade of Disabled Persons, 1993–2002), Shiga, Japan, October 25–28, 2002.   8.  Association of Southeast Asian Nations. “Bali Declaration on the Enhancement of the Role and Participation of the Persons with Disabilities in ASEAN Community and Mobilization Framework of the ASEAN Decade of Persons with Disabilities (2011–2020).”   9.  UN General Assembly resolution 61/106, Convention on the Rights of Persons with Disabilities, A/RES/61/106 (13 December 2006), undocs.org/A/RES/61/106. 10. United Nations Treaty Collections, Chapter IV, Human Rights, 15. Convention on the Rights of Persons with Disabilities, Declarations and Reservations. https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV15&chapter=4&clang=_en#EndDec. 11. United Nations Treaty Collections, Chapter IV, Human Rights, 15. Convention on the Rights of Persons with Disabilities, Declarations and Reservations. https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV15&chapter=4&clang=_en#EndDec. 12.  United Nations Treaty Collections, Chapter IV, Human Rights, 15. Convention on the Rights of Persons with Disabilites, Endnote 11. https://treaties.un.org/ pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_ en#EndDec.

BIBLIOGRAPHY Association of Southeast Asian Nations, “Bali Declaration on the Enhancement of the Role and Participation of the Persons with Disabilities in ASEAN Community and Mobilization Framework of the ASEAN Decade of Persons with Disabilities (2011–2020),” ASEAN Secretariat: 2013, 2016, http://www.asean.org/storage/ images/2013/resources/publication/2013%208.%20aug%20-%20bali%20declaration%20on%20persons%20with%20disabilities.pdf. Association of Southeast Asian Nations, “The Asian Charter,” Jakarta: The ASEAN Secretariat: 2015. http://www.asean.org/wp-content/uploads/2012/05/11.-October2015-The-ASEAN-Charter-18th-Reprint-Amended-updated-on-05_-April-2016IJP.pdf.



CRPD Implementation in ASEAN 219

Disabled Peoples’ International Asia-Pacific Region, “Jakarta Declaration: Regional Conference on ASEAN and Disability.” Paper presented at the Regional Conference on ASEAN and Disability, Jakarta, Indonesia, December 1–2, 2010. Kementerian PPN/Bappenas, last modified 2016, http://Bappenas.go.id. “ASEAN Vision 2020.” http://bappenas.go.id/files/6913/6082/9897/ c6__20081123070254__1022__8.pdf. UNESCAP. “Biwako Millennium Framework for Action Towards an Inclusive, Barrier-Free and Rights-Based Society for Persons with Disabilities in Asia and the Pacific.” Paper presented at the High-level Intergovernmental Meeting to Conclude the Asian and Pacific Decade of Disabled Persons, 1993–2002), Shiga, Japan, October 25–28, 2002. UNESCAP. Incheon Strategy to “Make the Right Real” for Persons with Disabilities in Asia and the Pacific. 2012. http://www.unescap.org/resources/incheon-strategy“make-right-real”-persons-disabilities-asia-and-pacific. United Nations General Assembly resolution 61/106, Convention on the Rights of Persons with Disabilities, A/RES/61/106 (13 December 2006), available from undocs.org/A/RES/61/106. United Nations Treaty Collections, Chapter IV, Human Rights, 15. Convention on the Rights of Persons with Disabilities, Declarations and Reservations. Found on the Internet on October 31, 2016, at: https://treaties.un.org/pages/ViewDetails. aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en#EndDec. United Nations Treaty Collections, Chapter IV, Human Rights, 15. Convention on the Rights of Persons with Disabilities, Declarations and Reservations. https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV15&chapter=4&clang=_en#EndDec. United Nations Treaty Collections, Chapter IV, Human Rights, 15. Convention on the Rights of Persons with Disabilities, Endnote 11. https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en#EndDec.

Chapter Fourteen

CRPD Implementation in ASEAN Implications for Human Rights Tina Kempin Reuter

INTRODUCTION Persons with disabilities are the world’s largest minority group.1 The challenges they face are manifold, including systematic discrimination, exclusion from society, poverty, and obstacles in their everyday lives.2 Persons with disabilities are statistically more likely to have unfinished primary education, face unemployment or less pay if employed, and to have limited access to public services than other individuals in their societies.3 Similarly, poor people have a higher chance to be or become disabled because they are more vulnerable in the face of diseases, tend to live in poor housing and sanitary conditions, engage in hazardous work, suffer from malnutrition, and lack access to safe drinking water.4 The Convention on the Rights of Persons with Disabilities (CRPD)5 was designed to change these circumstances. In the words of the UN Secretary General on the day that the CRPD was adopted in 2006: “Today promises to be the dawn of a new era—an era in which disabled people will no longer have to endure the discriminatory practices and attitudes that have been permitted to prevail for all too long.”6 This chapter discusses the opportunities and challenges of the implementation of the CRPD in general and specifically in the ASEAN region. Part I starts with a discussion of the underlying principles of the CRPD and its impact on the international human rights discourse. Part II briefly reviews the content of the CRPD with a particular focus on the provisions dealing with implementation and monitoring. Part III examines the challenges and opportunities of implementing international human rights treaties and critically reflects on the ASEAN context and the case studies presented in this book. The chapter concludes with an overview of 221

222

Chapter Fourteen

lessons learned from CRPD implementation in ASEAN and beyond and ends with implications for human rights and disability policy. UNDERLYING PRINCIPLES OF THE CPRD The CRPD demonstrates the increasing importance of human rights in political, economic, and social relations. First, human rights treaties and institutions have become more and more detailed in design and administrative complexity, not only with regards to the rights represented but also concerning implementation, monitoring, and adjudication. Second, the CRPD continues the trend to protect and promote the rights of specific vulnerable groups such as children, women, refugees, migrant workers, and others.7 The CRPD is the first comprehensive international treaty that focuses specifically on the rights of persons with disabilities and has opened the debate on the status of disabled persons and their rights in the world’s societies. In many ways, the CRPD is based on the same premises as other international human rights treaties. These embrace the understanding that human rights are universal, indivisible, inalienable, interdependent, and interrelated. Key principles include equality and non-discrimination, participation and inclusion, and accountability and the rule of law.8 The Convention’s goal is to effectively protect and realize human rights for persons with disabilities by ensuring that all persons with disabilities enjoy human dignity, the highest extent of human rights, and full participation in society.9 Most scholars point out that the CRPD represents a fundamental shift on how we think about disability and affected persons, from objects of charity to subjects of human rights.10 Traditionally disability was seen as a phenomenon in need of rehabilitation and therapy, based on the understanding that a person with a disability is different from other people in society and in need of support and care.11 The focus of attention in this case is the individual with the disability, the reason for action the person’s impairment, and the perceived need to look for cures for the person’s disability.12 This so-called medical approach to disability has been under scrutiny by persons with disabilities, practitioners, and scholars.13 The medical model has been criticized for two reasons. First and foremost, scholars have argued that this approach reflects perceptions of disability as negative, describing persons with disabilities “as useless, marginal, abnormal, a burden on society, and perhaps most offensively, as living a life that is not worth living.”14 Individuals are assessed in terms of their limited abilities and of what they contribute to society financially and economically.15 As a result, society has developed a highly paternalistic approach to dealing with persons with disabilities16 and a



CRPD Implementation in ASEAN 223

preference for people without physical, developmental, or psychological disabilities.17 Some scholars have made the case that in order to raise awareness for this problem we should replace the term “disability discrimination” with “ableism” in the political discourse, which should be treated similarly to other discriminatory policies such as racism or sexism.18 Second and related, scholars have claimed that the medial approach leads to exclusionary policies,19 which manifest themselves in inferior education,20 work opportunities,21 and access to public transportation and other public spaces.22 In other words, the medical model or charity approach “[tries] to ‘improve’ a person’s physical or mental state rather than focusing on other important public issues such as the removal of environmental barriers in society or providing support to enable the person to exercise other rights.”23 Because of these far-reaching negative consequences, persons with disabilities, organizations representing them, and disability rights activists have advocated for different approaches to their integration and status in society. Deaf people who use sign language, for example, have argued that they are a linguistic minority and should not be treated as persons with disabilities.24 Other groups of persons with disabilities have long pointed out that the medical model does not recognize that a person with a disability can live a fulfilled life with and despite a physical and/or mental impairment. The social model, which provides the basis for the human rights approach to disability reflected in the CRPD,25 is thus an answer to the criticism of the medical approach. Instead of concentrating on the individuals with impairments, it views disability as a social and political problem. The focus of attention is therefore the society, not the individual, and the reason for action is human rights violations, not the intent to change or cure the individual.26 As a result, the meaning of disability is determined by societal interaction rather than a pre-existing attribute of that individual itself.27 The social approach was originally developed in the U.K.28 and is now relatively widely used across Europe and North America.29 It focuses on universal design and removal of barriers largely by instituting non-discrimination laws based on the understanding that it is not the person’s impairment that makes them disabled, but the structure of society and cultural views of disability.30 Impairment, the physical or mental attribute of the individual affected, is thus separately from disability, which is determined mainly by social and environmental factors.31 In other words, the social model “casts the ‘What is wrong with you?’ question on the asker—on the one staring rather than on the one observed.”32 If the environment lacks support and fosters stereotypes that hinder individuals with disabilities to fully participate in society, social barriers and discrimination become inherently part of disability.33 The social model therefore aims at shifting the view of persons with disabilities from perceiving them as defective to including them as full members of society.34

224

Chapter Fourteen

This approach expresses the very core values of human rights, namely the focus on human dignity and equality of all human beings.35 Human rights, or the enjoyment of human rights, “do not presume non-disability.”36 In the words of Jack Donnelly: “Human rights are, literally, the rights that one has simply because one is a human being. . . . Human rights are equal rights: one either is or is not a human being, and therefore has the same human rights as everyone else (or none at all).” 37 This begs the question: if human rights necessarily apply to persons with disabilities, why do we need special convention? Similarly to special protections of other vulnerable groups, disability rights are part of an overall universal human rights framework, but at the same time specific to persons with disabilities.38 The problem for persons with disabilities is not necessarily that they do not possess human rights, but that their rights have been neglected and that their claims have been invisible within the existing human rights framework.39 The Convention and its implementation has made these rights visible and has thus changed the context within which the disability policy is crafted.40 The goal of the CRPD is to achieve equal opportunity, and not just equal treatment.41 The human rights approach taken in the CRPD is thus “inspired by the values that underpin human rights: the inestimable dignity of each and every human being, the concept of autonomy or self-determination that demands that the person be placed at the centre of all decisions affecting him/her, the inherent equality of all regardless of difference, and the ethic of solidarity that requires society to sustain the freedom of the person with appropriate social supports.”42 Some scholars have criticized this strong focus on the social model in the drafting, language, and implementation of the CRPD. Their argument is based on the understanding that even if societal barriers were removed, persons with disabilities will be obstructed by their impairments. In other words, even if one creates an environment in which the impact of impairment is minimized, it does not necessarily mean that disabled and non-disabled people are equal.43 In addition, some have argued that the perception of disability provided by the CRPD makes the treaty only applicable in cases in which impairments result in negative social consequences and discrimination for persons with disabilities and not in cases of disability without societal response.44 A number of experts contend that the shift from the medical to the social model becomes a problem if underlying structures of support created by the welfare model are removed.45 They point out that in order to make disabled persons equal, disability advocates should “support individuals to deal with the impact of their impairment while also fighting to stop society from creating barriers.”46 This requires an approach stressing connections, particularly regarding education, economic development, community participation, and positive attitudes.47



CRPD Implementation in ASEAN 225

The CRPD is thus located within a human rights context that understands the need for an evolving interpretation of disability and its societal barriers. Some scholars see the CRPD’s real value in the “ability to trigger a new kind of disability politics worldwide.”48 THE CONTENT OF THE CRPD FROM AN INTERNATIONAL HUMAN RIGHTS PERSPECTIVE The CRPD is based on respect for dignity, non-discrimination, inclusion, diversity, equality of opportunity, and accessibility. It is the first legally binding treaty focusing on people with disabilties and succeeds the non-binding Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1994) and World Programme of Action concerning Disabled Persons (1982). The CRPD was adopted with wide support, getting more signatures on the first day than any other UN Convention before.49 The Convention identifies people with disabilities to be “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”50 Interestingly, the terms “disability” and “accessibility” remain undefined in the CRPD. Some scholars have argued that drafters could not agree on compromise definitions.51 Others explained the lack of definitions to be a political move, giving states the option of interpreting these terms according to their legal and social cultures.52 The CRPD represents the last step in the aforementioned shift toward social inclusion of persons with disabilities by recognizing them as subjects of human rights, not just objects.53 This recognition is evident throughout the Convention. The Preamble acknowledges “the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices” and states that “persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them.” Article 3 specifies “respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons” and “full and effective participation and inclusion in society.” Article 5 calls for non-discrimination and equality and obligates states to “take appropriate steps to ensure reasonable accommodation is provided.” Similarly, Article 19 asks that persons with disabilities have the right to “live in the community, with choices equal to others,” and Article 23 gives full and equal rights to disabled people “in all matters relating to marriage, family, parenthood and relationships.” Article 12 requires equal recognition before the

226

Chapter Fourteen

Table 14.1.   Rights Included in the CRPD Equality before the law without discrimination (Article 5) Right to life, liberty, and security of the person (Article 10, 14) Equal recognition before the law and legal capacity (Article 12) Freedom from torture (Article 15) Freedom from exploitation, violence, and abuse (Article 16) Right to respect for physical and mental integrity (Article 17) Freedom of movement and nationality (Article 18) Right to live in the community (Article 19)

Freedom of expression and opinion (Article 21) Respect for privacy (Article 22) Respect for home and the family (Article 23) Right to education (Article 24) Right to health (Article 25) Right to work (Article 27)
 Right to an adequate standard of living (Article 28) Right to participate in political and public life and to participate in cultural life (Article 29 and 30)

law and recognizes legal capacity of persons with disabilities.54 Table 14.1 displays the rights included in the Convention.55 These rights are represented in all major human rights documents56 and are not necessarily new with regards to content.57 Nevertheless, the CRPD expands the understanding and development of human rights in two important ways. First, the Convention is the first international treaty to include an extensive list of both negative and positive human rights. Civil and political rights, also known first-generation human rights, are formulated in negative terms (“freedom from”) and are aimed at prohibiting or limiting interference by the state. Positive or second-generation human rights (“right to”), usually economic, social, and cultural rights, are rights that require action on behalf of the state. While civil and political rights generally have to be implemented once a treaty is ratified, economic, social, and cultural rights are usually expected to be progressively realized depending on the state’s resources. The level of integration of the two types of rights in the CRPD is unusually high: not only are both types of rights present within same treaty, but also within same articles. The CRPD is thus the first human rights treaty that fully embraces the indivisibility and universality of human rights and reflects the understanding that the full enjoyment of human rights requires both civil and political as well as economic, social, and cultural rights.58 Second, the CRPD specifically focuses on implementation of the treaty to a much larger extent than any other treaty before. Article 4 requires that state



CRPD Implementation in ASEAN 227

parties “adopt all appropriate legislative, administrative and other measures for the implementation of the rights” in the CRPD and “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities.” Most significant and detailed is Article 33, which obligates that: 1. States Parties, in accordance with their system of organization, shall designate one or more focal points within government for matters relating to the implementation of the present Convention, and shall give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels. 2. States Parties shall, in accordance with their legal and administrative systems, maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to promote, protect and monitor implementation of the present Convention. When designating or establishing such a mechanism, States Parties shall take into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights. 3. Civil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process.

The innovations in Article 33 are exceptional: the Article calls for the establishment of focal points to coordinated disability policy based on the experience that disability policy is often fragmented along department lines and lacks a concerted effort aimed at persons with disabilties.59 For example, education for children with disabilities is regulated by the Ministry of Education, while their medical support is regulated by the Ministry dealing with health care policy. The independent mechanisms are designed to oversee monitoring and implementation and to include impartial review and data presentation. The inclusion of civil society actors speaks of the acknowledgment of the increased importance of NGOs for human rights implementation. No other treaty establishes these many specific institutions for implementation or describes them in greater detail. Finally, Article 34 creates an expert committee, the Committee on the Rights of Persons with Disabilities, to review, explain, and monitor implementation on the international level. States are required to send in periodic reports (Article 35). The Committee on the Rights of Persons with Disabilities is required to consult with other bodies (Art. 38b).60 Article 40 calls for a conference of state parties to consider matters regarding the

228

Chapter Fourteen

implementation of the CRPD. In addition, the Optional Protocol establishes an individual and group complaints mechanism. CHALLENGES AND OPPORTUNITIES OF CRPD IMPLEMENTATION Challenges Legal rights themselves do not create movement or progress on human rights implementation.61 Specific steps need to be taken to ensure full compliance with human rights treaties on the international level. While the CRPD’s provisions on implementation are exceptionally far-reaching and detailed, the Convention faces some of the general challenges of implementation.62 Human rights treaties are hard to enforce because there are no ways to hold states responsible on the international level in case of violations.63 While periodic review and recommendations by the treaty bodies have been considered partially effective, scholars have criticized the effectiveness and efficiency of the treaty monitoring system, particularly regarding lack of adequate funding, independence of experts, bureaucratic procedures, and challenges by governments in failure or delays of submitting reports on effective implementation of recommendations.64 In addition, it is a complicated and lengthy process to determine how to define the specific content of a right, how to navigate the relationship between international law and domestic law, how to prove if a right has been violated, how to report human rights violations, how to monitor implementation, how to establish appropriate judicial processes, and how to acquire adequate human and financial resources. 65 With regards to the CRPD, experts generally agree that the last point has been the biggest challenge for CRPD implementation. Because of the high standards in the CRPD and the specific requirements for implementation, states will face difficult decisions regarding distribution of limited resources and priority setting.66 Some of the key questions include: is it more efficient to focus on targeted services for the disabled or is it better to include persons with disabilities in mainstream developments in human rights? 67 Should states invest in infrastructural changes or provide assistive devices that allow individuals to succeed in less accessible environments? Which rights should be implemented first, civil and political rights or economic, social, and cultural rights? Should each state decide priority setting or should there be a more systematic approach dictated or guided by the international community? Should states focus on implementing human rights of a particularly vulnerable group first (e.g., children or women with disabilities)?



CRPD Implementation in ASEAN 229

It is therefore important to recognize that disability right implementation is an incredibly complex and difficult matter. Persons with disabilities do not all have the same concerns or needs and great diversity in terms of gender, socio-economic status, rural/urban living situations, and geographical location exist. While this lack of homogeneity increases social diversity, it has been a problem for human rights advocacy68 and has led to limited unified strategies and disadvantages for disabled people.69 A flexible approach to CRPD implementation might allow for adaptable, need-based responses, but it can also result in huge discrepancies in realization standards for people with disabilities around the world. There is tension between short-term and longterm implementation goals, different cultural and legal approaches to disability, financial resources, progress made toward implementation, integration of stakeholders, and how to assess this progress.70 The case studies presented in this book have to be viewed against this background. They show that progress has been made in all of the countries studied and that the adoption of the CRPD has influenced disability policy in all states observed. In some cases, particularly Cambodia and the Philippines, the progress has been substantial, especially considering the short time frame since signature and ratification of the CRPD. Successes can be seen particularly with regards to integration of the CRPD into domestic law, the setup of institutions and focal points within the government, and the integration of civil society actors and DPOs. Nevertheless, countless challenges remain. Most countries have serious gaps in the administrative infrastructure for the provision of disability services and struggle with implementation. The urgency of the matter seems distorted because the number of persons with disabilities is significantly underreported or there are discrepancies in statistical data on disabled people in all of the ASEAN countries examined in this book. Studies have shown that states tend to underestimate the number of persons with disabilities due to stigma, negative social attitudes, issues related to measurement, and gathering of census data.71 The fact that the CRPD does not include a clear definition of disability is an additional obstacle. While the drafters of the CRPD have recognized this dilemma by including Article 31 requiring states to gather information on the status of the disabled,72 without robust data there are no benchmarks for allocating enough funds and services toward disabled people or mechanisms to hold governments accountable, even if these governments have signed and ratified the CRPD.73 A second challenge presents itself in the question on how to assess and evaluate human rights-based approaches.74 Even though the integration of the CRPD into the domestic legal systems and the realization of the institutional setup required by the Convention have progressed relatively well in ASEAN,

230

Chapter Fourteen

it is apparent that most states struggle with continued discrimination of persons with disabilities, especially in education and employment. The lack of a unified approach to measure discrimination and its implications has farreaching consequences, especially for particularly vulnerable groups such as women and children. For example, while it is generally understood that persons with disabilities are at high risk of experiencing poverty (Cambodia serves as a case in point), there is little statistical evidence, only anecdotal.75 Furthermore, most studied countries lack social protection programs for people with disabilities, thereby exacerbating the negative dynamics that exist between poverty and disability. While some suggestions have been made on how to evaluate the level of implementation, no common standards have been adopted.76 The importance of developing indicators and a worldwide evaluation framework can thus not be overstated.77 Limited resources make it additionally difficult for ASEAN states to decide on setting priorities with regards to rights implemented, subgroups of disabled people accommodated, and investments made. Most case studies cite lack of accessibility to public services, including education, as one of the key issues facing persons with disabilities. In many ASEAN states, disabled children do not enjoy the same access or level of education as non-disabled children, most clearly in Singapore where the Compulsory Education Act specifically excludes children with disabilities from public school programs. Moreover, limited awareness for disability policy among government officials and lack of knowledge about their human rights among the disabled population has further hindered CRPD implementation. In Indonesia, for example, pre-existing domestic laws do not comply with the CPRD or laws are only partially or insignificantly enforced (Malaysia). Institutions set up for implementation and monitoring lack independence, overlap in mandate, or leave significant gaps in disability policy. Monitoring is not a decentralized process and the same institutions serve as enforcers, implementers, and administrators, thereby creating accountability issues. It is therefore possible for states to have signed and ratified the Convention, have proof of elaborate laws, forward-looking policies, and at least the beginnings of an institutional setup, but not to have the administrative infrastructure or political support needed for effective implementation of the CRPD, making the progress made insignificant. Finally, it is apparent that the premises of the social model of disability policy, the idea of social inclusion, and the human rights approach to disability policy have not been fully embraced in ASEAN. The focus of disability policy is mainly on dealing with physical issues of impairment and not on integrative approaches and/or the removal of societal barriers and discrimination promoted by the CRPD. While the CRPD might be supported by the hu-



CRPD Implementation in ASEAN 231

man rights community and by disability advocates, it might not have support of public, policy makers, and health care professionals. In this case, advocacy for the CPRD ideal is potentially counterproductive and implementation unattainable. To explain this finding, one has to consider the general human rights context of ASEAN states. The relationship between ASEAN states and human rights is complicated and contentious.78 The ASEAN region has generally been perceived as unfavorable and resistant to human rights. Traditionally, the ASEAN approach to international affairs has been guided by three principles: little institutional development, consensus politics and little public disagreement, and non-intervention into domestic politics of member states.79 While publicly embracing democratic governance and human rights,80 the “ASEAN way” has tolerated, if not accepted, the existence of authoritarian regimes and human rights abuses.81 Considering that human rights specifically focus on the relationship between the state and its citizens and that human rights language serves as a way to express critique on this relationship, this insight is significant. In addition, ASEAN states have always argued that development deserves higher priority than human rights82 and that Asian society is concerned more with citizens’ responsibilities toward the state as opposed to duties of the state guaranteeing the rights of its citizens.83 It is therefore the “[r]esistance to the universal concept of human rights, a trade-off between two categories of rights as well as rights and duties, and the strict principle of non-interference in internal affairs [that] have prevented ASEAN from setting out any clear human rights policies or including any human rights elements in their cooperation agenda.”84 This perception has slightly changed with the inclusion of human rights in the ASEAN Charter (2007)85 and the adoption of the ASEAN Human Rights Declaration (2012).86 While generally considered significant steps forward, scholars have questioned the reasons and motives behind these policies and documents. Realist scholars see it as yet another expression of the region’s preoccupation with security concerns,87 constructivists and liberalists see it as a document with the potential to reunify the region and reshape its identity on the basis of common human rights language.88 A third group of scholars sees the ASEAN human rights approach as nothing more than an attempt to bring legitimacy to the organization and strengthening its reach and influence internationally without a real commitment to human rights per se.89 Article 40 of the Human Rights Declarations serves as a good example of ASEAN’s ambiguous approach to human rights. Article 40 states that “[n]othing in this Declaration may be interpreted as implying for any State, group or person any right to perform any act aimed at undermining the purposes and principles of ASEAN.” This basically “undercuts” the very premise of the Human Rights

232

Chapter Fourteen

Declaration as the traditional “purposes and principles” of ASEAN were state-centric, culturally determined, and non-interventionist.90 ASEAN member states are extremely diverse in terms of governmental, social, and economic systems, ranging from absolute monarchy to authoritarian regimes, from military dictatorships to democracies. Complex cultures, languages, and religions complement the impression of a greatly heterogeneous region.91 It is therefore not surprising that ASEAN member states have highly divergent attitudes and approaches toward human rights and different ideas on how to implement them domestically.92 Generally, ASEAN states can be split in three groups:93 the so-called progressives, namely Indonesia and the Philippines, which have embraced democratic liberalism and pluralism to varying degrees. The second group, which includes Singapore, Malaysia, and Thailand, is more cautious in its approach. While focusing on democratic approaches and the rule of law, at least on paper, states in this group have been reluctant to fully embrace human rights, particularly civil and political rights. The last group is the most reluctant to implement human rights and includes Brunei, Cambodia, Laos, Myanmar, and Vietnam. In their extremes, progressive states, both because of their political systems and as a result of pressures by the societies, see human rights as a moral expression of their own values. Reluctant states, on the other hand, focus more on statecentered interpretations and see humans as a “necessary burden” and not part of their traditional value system.94 Human rights implementation in ASEAN is therefore strongly correlated with the type of governance, namely the influence of the government on public life, the capability and level of integration and empowerment of civil society organizations, the interest and ability of a state’s government to attract international attention, and the involvement of UN human rights organizations in the countries.95 The perception that human rights are shaped by each society’s culture, history, and traditions continues to dominate the human rights discourse in ASEAN.96 A good illustration is Article 7 of the ASEAN Human Rights Declaration, which begins by stating that “[a]ll human rights are universal, indivisible, interdependent and interrelated.” However, the last sentence of the same article reads: “At the same time, the realisation of human rights must be considered in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds.” This so-called “Asian values debate”97 began in the 1990s and is based on the claim that international human rights law should not apply to Asian states because it is a purely Western concept and thus foreign to Asian culture.98 What exactly Asian values are is contested, but in most cases it means loosely Confucian philosophy, respect for elders, emphasis on



CRPD Implementation in ASEAN 233

order and social harmony, citizens’ welfare, collective approaches, and group focus.99 Proponents of Asian values argue that human rights cause unrest and are thus diametrically opposed to the Asian welfare practices. This is also the reason why Asian countries have focused human rights efforts mainly on economic and social rights and have denied the importance of political rights.100 In addition, Asian countries have seen international human rights laws and institutions as a way to interfere into their domestic politics, thereby violating the principle of non-intervention.101 Critics of the Asian values approach have argued that Asian values presume homogeneity, static culture (no dynamic development), and unified attitudes toward political, social, and economic issues. 102 It fails to recognize regional, generational, social, economic, and political differences and supports the generation of stereotypes.103 Given the obvious diversity of ASEAN states, scholars have maintained that the Asian values argument lacks funding and is therefore not useful.104 From a human rights perspective, the Asian values debate represents a form of cultural relativism. The international human rights community clearly dismissed cultural relativism as an argument against implementation of human rights.105 While it is important to take cultural differences into consideration, it is crucial not to overstate them or use them as a justification for non-implementation of human rights standards.106 Regional interpretations cannot challenge the principle of universality of human rights and allow “for broad and all-encompassing limitations on rights, including those that may never be restricted in international law.”107 CRPD implementation in ASEAN and the struggles that states have faced thus need to be seen against this background. The reluctance to acknowledge the need for human rights realization and the discrepancies between CRPD standards and actual implementation that have been pointed out by the case studies in this book can be partially explained by the greater context of the discussion of the value and status of human rights in ASEAN and Asian culture. The issues are particularly prevalent with regards to the implementation of civil and political rights of disabled persons, at least partially because many states have not implemented these standards for the general population.108 Discrimination, abuses of persons with disabilities, particularly women and children, are widespread, and violations go largely unpunished. At the same time, the increased concern for human rights, both with regards to the ASEAN-specific human rights documents but also and most importantly because of international treaties like the CRPD with its focus on implementation and monitoring, raises hope that that human rights protection and promotion will become a focus of international policy in ASEAN.109

234

Chapter Fourteen

OPPORTUNITIES One of the great advantages of the CRPD with the potential to overcome some of these challenges is the integration of non-state actors in the implementation process. Unlike other international human rights treaties, DPOs and persons with disabilities have played a crucial part in lobbying for the Convention, the drafting process, and are given an important role in its implementation and monitoring process.110 This increased integration of civil society actors in international processes has been called “new diplomacy.”111 Scholars have observed that international NGOs have played a more and more important role in international politics and have gained influence at the UN. They attribute this development to two reasons: first, what used to be purely domestic matters (e.g., treatment of persons with disabilities) has increasingly significant international implications both with regards to the applicable laws and consequences of implementation (in this case, the CRPD). Second, international NGOs have successfully demonstrated that they serve as efficient intermediaries between the states and international law/organizations.112 NGOs have been cited as a way to shrink the “democratic deficit” of global governance by creating “hybrid-plurilateral forms” of governing with “multi-stakeholder dialogues and partner-state actors.”113 The traditional approach to international law making and enforcement is characterized by state action, focusing on the legal outcomes that need to be achieved. Allowing NGOs to play an important role in global governance has created an environment that encouraged the formation of a relational and developmental approach that “allows for greater accommodation of community interests in international decision making.”114 Despite some criticisms,115 NGOs are important international actors today and hold the key to innovative approaches to public policy. The integration of NGOs in the CRPD processes is particularly interesting and with far-reaching impact. The CRPD is based on the understanding that rights not only need to be put down in an international treaty, but that they have to be incorporated into national law, implemented, and monitored to develop their full effect. This is more likely to happen if there are strong advocacy initiatives, and engagement and real interest in the community, ideally by a specifically designated core group,116 in this case DPOs. These should be included in the lawmaking, policymaking, education, and implementation processes and focus on the empowerment of individuals and communities, thereby establishing links between disability community and human rights institutions.117 DPOs have demonstrated that they play important roles in calling for law reform, reporting differences between CRPD obligations and state conduct, initiating litigation, developing and enhancing capacity



CRPD Implementation in ASEAN 235

of DPOs.118 They have also successfully bridged the gap between the human rights community, which has traditionally interpreted disability rights in view of existent international law, and the disability community, which pushed for a more progressive and developmental interpretation.119 Allowing DPOs a crucial stake in the process further “ensure[s] ongoing respect for human rights through social commitment, monitoring processes, and watchdog institutions.”120 In other words, by including civil society actors in the process of implementation, the CRPD successfully achieved a partial separation of responsibilities: while the bearer of rights is the individual with the disability, states, civil society organizations, and the UN share the burden of implementation and monitoring. The roles given to DPOs in the CRPD can serve as a model for international law making and implementation in that the “negotiation, conclusions, and implementation [of international human rights treaties] have to truly encapsulate the lives and human rights of those they aim to protect.”121 In the ASEAN context, DPOs have played an important role in lobbying governments toward adoption of the CRPD, advocating for disability rights (Singapore’s “We Are Able!” campaign comes to mind), and raising awareness (e.g., as part of the ASEAN Disability Forum). They were important driving factors in setting up the Asian and Pacific Decade of Disabled Persons (initially set to last from 1993–2002, but then extended to 2012), which was instrumental in shifting the focus of disability policy from the medical model to the social model. Because they might be less constrained by government policies, cultural perceptions, or institutional restrictions, DPOs will continue to be the driving force behind CRPD implementation in ASEAN. As the case studies show, many of them have already made significant progress and have played an important role in realizing human rights for persons with disabilities. IMPLICATIONS FOR DISABILITY POLICY AND HUMAN RIGHTS The CRPD represents both a continuation of and break from traditional international human rights law. It expands international law as it specifies, clarifies, and develops human rights and adapts them for a special, vulnerable group. At the same time, it moves on from traditional international law by focusing less on law making and more on implementation and the important and innovative role of civil society actors. This “new diplomacy” of human rights has the potential to change human rights approach fundamentally by shifting it from a purely international organization and state concern to an issue involving all levels of international governance.

236

Chapter Fourteen

All assessments, including the case studies in this book, conclude that there is a continuing gap between the rights and obligations agreed to in the Convention and the actual implementation on the ground. Member states of ASEAN continue to define the states’ interests predominantly in terms of public order, political stability, and economic welfare and promote instruments to maintain the state’s sovereignty against the “international intervention” of human rights. These considerations currently trump concern for human rights, but steps have been taken that demonstrate that human rights are an increasingly more important item on the agenda of ASEAN states. These types of fundamental changes require time, resources, and education and training of stake holders and policy makers, which includes not only government officials, but also disabled people, health care professionals, lawyers, and the business community, namely anyone who comes in contact with disability. Persons with disability need to be involved in research and advocacy for their rights.122 It is important to take a broad approach, highlighting the interconnection between different areas of public policy. Disability is a crosscutting issue which includes education, social and economic policy, employment, protection, and universal design. It is also significant to carefully assess and evaluate approaches and adjust them if needed. The CRPD should be used to critique domestic disability laws and policies and to empower civil society. It serves as roadmap for transformation of societal attitudes toward persons with disabilities. For policy recommendations, two suggestions will be made. From a social perspective, a greater focus on a capabilities-centered approach might bring opportunity to deal with some of the challenges discussed above. This approach was developed by Amartya Sen123 and emphasizes a person’s capability to function, which means to focus on “what the person can do or can be as opposed to opulence (the person’s real income) or utility (as in traditional welfare economics).”124 It is based on the premise that a person has a right to a good life,125 which is based on “equity and efficiency of the substantive opportunities that people can enjoy.”126 The capability of a person to have such a good life is generally reviewed in relation to the person’s physical, political, social, and economic context and takes diversity (e.g., race, gender, nature of impairment) into account.127 A social environment of solidarity is thus crucial. “Disabled people—as is true for all people—belong to family, community and groups that influence their choices, thus potentially limiting their freedom. However, such networks can also provide support and the opportunity to lead the life they want with social capabilities, resulting from the interaction within their social groups and networks.”128 The ASEAN situation seems to be particularly well suited to incorporate this approach, considering collective values and traditions that lie at the core of Asian traditions that could give rise for some of these networks.



CRPD Implementation in ASEAN 237

From a legal perspective, human rights in general and disability rights in particular could benefit greatly from a regional court for human rights. Asia is the only main part of the world without a human rights court. Calls have been made for a regional human rights court in Asia and some scholars see it as a matter of time.129 Regional courts have proven important for implementation of human rights, particularly for vulnerable groups like minorities.130 Persons with disabilities would benefit from such a court if they could bring claims directly before the court in case the state is unable or unwilling to respond to their claims. It might also strengthen the implementation of the UN Convention, disability rights laws and institutions, and disability policy in ASEAN by establishing clear standards, setting benchmarks, and by overcoming some of the diversity issues mentioned above. NOTES 1.  Over a billion people, about 15 percent of the world’s population, have some form of disability. World Health Organization. 2015. “Disability and Health.” Last modified December 2015. http://www.who.int/mediacentre/factsheets/fs352/en/. 2. See Michael Ashley Stein and William P. Alford. “Youngberg v. Romeo.” In Encyclopedia of American Disability History, ed. Susan Burch. New York: Facts on File, 2009. 988–89. Stein and Alford discuss the systemic discrimination confronted by persons with disabilities. See also Paul Harpur. “Time to Be Heard: How Advocates Can Use the Convention on the Rights of Persons with Disabilities to Drive Change.” Valparaiso University Law Review 45 (2010–2011): 1271–96; Peter Beresford. “Poverty and Disabled People: Challenging Dominant Debates and Policy.” Disability and Society 11 (1996): 553–67; Jeanine Braithwaite and Daniel Mont. “Disability and Poverty: A Survey of World Bank Poverty Assessments and Implications.” ALTER, European Journal of Disability Research (2009): 219–32; Jean-François Trani and Mitchell Loeb “Disability and Poverty: A Vicious Circle?” Journal of International Development, 12 (2009). 3.  Sophie Mitra and Usha Sambamoorthi. “Wage Differential by Disability Status in an Agrarian Labor Market in India.” Applied Economics Letters 16/4 (2009): 1393–98.
 Trani and Loeb. “Disability and Poverty.” 4. Raymond Lang, Maria Kett, Nora Groce, and Jean-François Trani. “Implementing the United Nations Convention on the Rights of Persons with Disabilities: Principles, Implications, Practice and Limitations.” ALTER, European Journal of Disability Research 5 (2011): 213. 5.  Convention on the Rights of Persons with Disabilities (CRPD), 2515 UNTS 3 (adopted December 13, 2006, entered into force May 3, 2008). 6.  UN Secretary-General, Secretary-General Hails Adoption of Landmark Convention on Rights of People with Disabilities, U.N. Doc. SG/SM/10797 (Dec. 13, 2006), available at http://www.un.org/News/Press/docs//2006/sgsm10797.doc.htm.

238

Chapter Fourteen

  7.  For example, the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the Convention on the Elimination of All Forms of Discrimination against Women (1979), Convention on the Rights of the Child (1989), International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), and the International Convention for the Protection of All Persons from Enforced Disappearance (2006).   8.  UN Common Understanding on the Human Rights Based Approach to Development (2003). http://hrbaportal.org/the-human-rights-based-approach-to-development-cooperation-towards-a-common-understanding-among-un-agencies and http:// www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx.   9.  Joel Anderson and Jos Philips. “Editor’s Introduction.” In Disability and Universal Human Rights: Legal, Ethical, and Conceptual Implications of the Convention on the Rights of Persons with Disabilities, ed. Joel Anderson and Jos Philips. SIM Special 35 (2012). Utrecht: Netherlands Institute of Human Rights, 2012. 10.  See for example Theresia Degener and Gerard Quinn. Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability. New York and Geneva: United Nations, 2002; Rosemary Kayess and Phillip French. “Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities.” Human Rights Law Review 8 (2008); Anderson and Philips, “Editor’s Introduction”; Peter Bartlett. “Implementing a Paradigm Shift: Implementing the CRPD in the Context of Mental Disability Law.” In Torture in Healthcare Settings: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report. Washington: Centre for Human Rights and Humanitarian Law, American University Washington College of Law, 2014. 169–80. Valentin Aichele, “Die UN-Behindertenrechtskonvention und ihr Fakultativprotokoll: Ein Beitrag zur Ratifikationsdebatte.” Deutsches Institut für Menschenrechte, Policy Paper 9 (August 2008).
 11. Theresia Degener. “Die UN-Konvention: Menschenrechtsschutz für behinderte Menschen” (presented at Fachtagung NW Art. 3 / DGRW / IMEW, Berlin, January 14, 2010), 14. http://netzwerk-artikel-3.de/dokum/degener%20vortrag%20 15-1-s.pdf. 12. Deborah Kaplan. “The Definition of Disability: Perspective of the Disability Community.” Journal of Health Care Law and Policy 3 (2000): 352–64.
Laura L. Rovner. “Disability, Equality, and Identity.” Alabama Law Review 55 (2004): 1043–105. 13. See, among others, Mike Oliver and Colin Barnes. “Discrimination, Disability and Welfare: From Needs to Rights.” In Equal Rights for Disabled People: The Case for a New Law, ed. Ian Bynoe, Mike Oliver, and Colin Barnes. London: Institute for Public Policy Research, 1991. 9–17. Liz Crow. “Including All of Our Lives: Renewing the Social Model of Disability.” In Exploring the Divide: Illness and Disability, ed. Colin Barnes and Geof Mercer. Leeds: Women’s Press, 1996. 55-72. Colin Barnes. Disabled People in Britain and Discrimination: A Case for Anti-Discrimination Legislation. London: Hurst with British Council of Organisations of Disabled People, 1991. Mike Oliver. The Politics of Disablement. London: MacMillan, 1990. Colin Barnes and Geof Mercer. “The Politics of Disability and the



CRPD Implementation in ASEAN 239

Struggle for Change.” In Disability, Politics and the Struggle for Change, ed. Len Barton. London: David Fulton, 2001. 11–23. 14.  Sagit Mor. “Between Charity, Welfare, and Warfare: A Disability Legal Studies Analysis of Privilege and Neglect in Israeli Disability Policy.” Yale Journal of Law and the Humanities 18 (2006): 63–155. 69. 15.  Harlan Hahn. “The Political Implications of Disability Definitions and Data.” In The Psychosocial and Social Impact of Disability, ed. Robert P. Marinelli and Arthur E Dell Orto. New York: Springer, 1999. 3–11. 16.  Tom Shakespeare. “Cultural Representation of Disabled People: Dustbins for Disavowal?” Disability and Society 9/3 (1994): 287–89. 17.  Fiona Campbell. “Inciting Legal Fictions: Disability’s Date with Ontology and the Ableist Body of the Law.” Griffith Law Review 10 (2001): 42–62. Fiona Campbell. Frontiers of Ableism. Melbourne, Australia: Palgrave Macmillan, 2009. Paul Harpur. “Sexism and Racism: Why not Ableism? Calling for a Cultural Shift in the Approach to Disability Discrimination.” Alternative Law Journal 35, no. 3 (2009): 163–7. Gerard Quinn, “The United Nations Convention on the Rights of Persons with Disabilities: Toward a New International Politics of Disability.” Texas Journal on Civil Liberties & Civil Rights 15 (2009): 33–53. 18.  Harpur. “Sexism and Racism,” 163–67. 19.  Paul Harpur. “Embracing the New Disability Rights Paradigm: The Importance of the Convention on the Rights of Persons with Disabilities.” Disability & Society 27/1 (January 2012): 11. 20. Thomas Hehir. New Directions in Special Education: Eliminating Ableism. Cambridge, MA: Harvard University Press, 2005. 21.  Harpur, “Embracing the New Disability Rights Paradigm,” 3. Michael Gill. “The Myth of Transition: Contractualizing Disability in the Sheltered Workshop.” Disability and Society 20/6 (2005): 613–23.
 22.  Paul Harpur and Richard Bales. “ADA Amendments Issue: The Positive Impact of the Convention on the Rights of Persons with Disabilities: A Case Study on the South Pacific and Lessons from the U.S. Experience.” Northern Kentucky Law Review 37 (2010): 363–98. 23.  Harpur, “Embracing the New Disability Rights Paradigm,” 2–3. 24.  Mairian Corker. Deaf and Disabled, or Deafness Disabled? Toward a Human Rights Perspective. Buckingham: Open University Press, 1998. 6. He discusses the debate between the label of linguistic minority and disabled. Paddy Ladd. Understanding Deaf Culture: In Search of Deafhood. Clevedon: Multilingual Matters, 2003. 14.
 See also Harpur. “Time to Be Heard.” 25.  See for example the Preamble, which states “(e) Recognizing that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.” 26.  Mike Oliver. “Understanding Disability: From Theory to Practice.” London: Palgrave MacMillan, 1996. 37. 27.  World Health Organization, World Report on Disability, 4. United Nations, “UN Enable: Promoting the Rights of Persons with Disabilities.”


240

Chapter Fourteen

28.  Colin Barnes, Geof Mercer, and Tom Shakespeare. Exploring Disability: A Sociological Introduction. Cambridge: Polity Press, 1999. Oliver. The Politics of Disablement. 
Mike Oliver and Colin Barnes. Disabled People and Social Policy: From Exclusion to Inclusion. London: Longman, 1998.
 29.  Examples include the Rehabilitation Act of 1973, 29 U.S.C. § 701 (2006 & Supp. 1112009); Americans with Disabilities Act, 42 U.S.C. § 12111(8) (2006).
 See also Jared D. Cantor. “Defining Disabled: Exporting the ADA to Europe and the Social Model of Disability.” Connecticut Journal of International Law 24 (2009): 409. For examples of statutes that adopt this approach see the Disability Discrimination Act 1992 (Cth) (Australia); Disability Discrimination Act, 1995, c. 50 (U.K.); Equality Act, 2010, c. 15 (U.K.). 30. Oliver, The Politics of Disablement, 11. Harpur explains: “Using this distinction a person would have impairment if they had no eyesight or was in a wheelchair. The disability is caused when society elects not to permit books in accessible digital formats to be available on the Internet or decides to put steps outside a building rather than a ramp.” Harpur, “Embracing the New Disability Rights Paradigm,” 3. 31. Anita Silvers, David Wasserman, and Mary B. Mahowald. Disability, Difference, Discrimination: Perspectives on Justice in Bioethics and Public Policy. Lanham etc.: Rowman & Littlefield, 1998. 75. Harpur. “Time to Be Heard,” 1278. 32.  Carrie Griffin Basas. “Back Rooms, Board Rooms—Reasonable Accommodation and Resistance under the ADA.” Berkeley Journal of Employment and Labor Law 28 (2008): 59–128. 104. 33. Sigrid Graumann. Assistierte Freiheit: Von einer Behindertenpolitik der Wohltätigkeit zu einer Politik der Menschenrechte.Frankfurt: Campus, 2011. 34–35. In the original: “Beeinträchtigt [impaired] sind Menschen durch körperliche, geistige oder psychische Schädigungen, behindert [disabled] aber werden sie durch gesellschaftliche Barrieren, fehlende Unterstützung und negative Stereotypen.” 34.  Caroline Harnacke and Sigrid Graumann. “Core Principles of the UN Convention on the Rights of Persons with Disabilities: An Overview.” In Disability and Universal Human Rights: Legal, Ethical, and Conceptual Implications of the Convention on the Rights of Persons with Disabilities, ed. Joel Anderson and Jos Philips. SIM Special 35 (2012). Utrecht: Netherlands Institute of Human Rights, 2012. 37. See also CRPD, Art. 3 c., stating the goal to ensure “full and effective participation and inclusion in society” for persons with disabilities. 35. David Beyleveld and Roger Brownsword, Human Dignity in Bioethics and Biolaw. Oxford: Oxford University Press, 2001. 36.  “Menschenrechte setzen Nichtbehinderung nicht voraus.” Theresia Degener, “Die UN-Konvention: Menschenrechtsschutz für behinderte Menschen,” (presented at Fachtagung NW Art. 3 / DGRW / IMEW, Berlin, January 14, 2010), 14. http:// netzwerk-artikel-3.de/dokum/degener%20vortrag%2015-1-s.pdf. 37.  Jack Donnelly, Universal Human Rights in Theory and Practice. New York: Cornell University Press, 2003. 10. 38.  Frédéric Mégret, “The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?” Human Rights Quarterly 30 (2008): 
516. 39.  Bartlett. “Implementing a Paradigm Shift,” 170.



CRPD Implementation in ASEAN 241

40.  Degener and Quinn, Human Rights and Disability, 4.
 41. Michael Ashley Stein and Penelope J.S. Stein. “Beyond Disability Civil Rights.” Hastings Law Journal 58 (2007).
 1206. 42.  Degener and Quinn, Human Rights and Disability, 1 43.  Tom Shakespeare. Disability Rights and Wrongs. Abingdon: Routledge, 2006.
 51. 44.  Bartlett, “Implementing a Paradigm Shift,” 175. 45. See for example Ani B. Satz. “Disability, Vulnerability, and the Limits of Antidiscrimination,” Washington Law Review 83 (2008).
 560. 46.  Harpur, “Embracing the New Disability Rights Paradigm,”4. 47.  Peter Blanck, “The Right to Live in the World”: Disability Yesterday, Today, and Tomorrow.” Texas Journal on Civil Liberties and Civil Rights 13 (2008): 400. 48. Gerard Quinn. “International Impact of the United Nations Convention on mthe Rights of Persons with Disabilities—A New Engine of Reform.” Jacobusten Broek Disability Law Symposium, Baltimore, Maryland, April 17, 2009), available http://www.nuigalway.ie/cdlp/documents/publications/NFB%20paper%20final.pdf. 49.  Convention on the Rights of Persons with Disabilities, 2515 UNTS 70 and Optional Protocol to the Convention on the Rights of Persons with Disabilities, GA Res. A/RES/61/106 (December 13, 2006) were adopted December 13, 2006, opened for signature March 30, 2007 with 82 signatories, 44 for the Optional Protocol, entered into force May 3, 2008.
At the time of writing the Convention has 187 signatories and 166 ratifications; the Optional Protocol has 92 signatories and 86 ratifications. http:// www.un.org/disabilities/index.asp. 50.  CRPD, Art. 1. 51.  See Maya Sabatello. “A Short History of the International Disability Rights Movement.” In Human Rights and Disability Advocacy, ed. Maya Sabatello and Marianne Schulze. Phildaelphia: University of Pennsylvania Press, 2014. 17–20. 52.  Michael Ashley Stein. “Disability Human Rights.” California Law Review 95 (2007): 85. 53.  For a summary of these steps, see Esther van Weele. “The UN Convention on the Rights of Persons with Disabilities in the Context of Human Rights Law.” In Disability and Universal Human Rights: Legal, Ethical, and Conceptual Implications of the Convention on the Rights of Persons with Disabilities, ed. Joel Anderson and Jos Philips. SIM Special 35 (2012). Utrecht: Netherlands Institute of Human Rights, 2012. 9–30. 54.  For a detailed description of Article 12 and its meaning, see Robert Dinerstein. “Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road from Guardianship to Supported Decision-Making.” Human Rights Brief 19/2 (2012). 55.  For a detailed discussion of rights represented in the CRPD see for example Mégret, “The Disabilities Convention,” 262–63. 56.  Most importantly, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

242

Chapter Fourteen

57.  See for an overview of arguments for and against the novelty of rights Kayess and French, “Out of Darkness into Light,” 1–34. 58.  See Colm O’Cinneide. “Extracting Protection for the Rights of Persons with Disabilities from Human Rights Frameworks: Established Limits and Possibilities.” In The UN Convention on the Rights of Persons with Disabilities, ed. Oddný Mjöll Arnardóttir and Gerard Quinn. Leiden and Boston: Martinus Nijhoff, 2009. 59.  Gerard Quinn. “Resisting the Temptation of Elegance: Can the Convention on the Rights of Persons with Disabilities Socialise States to Right Behaviour?” In The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives, ed. Oddný Mjöll Arnardóttir and Gerard Quinn. Leiden: Martinus Nijhoff, 2009. 254.
 60.  Harmonized Guidelines on Reporting under the International Human Rights Treaties, Including Guidelines on a Common Core Document and Treaty Specific Targeted Documents, HRI/MC/2005/3, 1 June 2005. 61.  See for example Jean Grugel and Nicola Piper. “Do Rights Promote Development?” Global Social Policy 9/1 (2009): 79–98.
 62.  For an overview see Eilionóir Flynn. From Rhetoric to Action: Implementing the UN Convention on the Rights of Persons with Disabilities. Cambridge: Cambridge University Press, 2011. Raymon Lang. “The United Nations Convention on the Rights and Dignities of Persons with Disability: A Panacea for Ending Disability Discrimination?” ALTER-European Journal of Disability Research, 3/3 (2009): 266–85. Gerard Quinn. Implementing the UN Convention on the Rights of Persons with Disabilities: The Institutional Architecture of Change. New York: Keynote speech at the Conference of State Parties to the UN Convention on the Rights of Persons with Disabilities, UN Headquarters, October 31, 2008.
 63.  See for an overview Oona Hathaway. “Why Do Countries Commit to Human Rights Treaties?” Journal of Conflict Resolution 51/4 (2007): 588–621. 64.  Helen Keller, Geir Ulfstein, and Leena Grover. UN Human Rights Treaty Bodies: Law and Legitimacy. Vol. 1. Cambridge University Press, 2012. Philip Alston and James Crawford. The Future of UN Human Rights Treaty Monitoring. Cambridge University Press, 2000. Jasper Krommendijk. “The Domestic Effectiveness of International Human Rights Monitoring in Established Democracies: The Case of the UN Human Rights Treaty Bodies.” The Review of International Organizations (2015): 1–24. Anne F. Bayefsky (ed.), The UN Human Rights System in the 21st Century. The Hague: Kluwer, 2000. 65.  See UNDP. Indicators for the Human Rights-based Approaches to Development in UNDP Programming: a User’s Guide. New York: UNDP, 2006. Office of the High Commissioner for Human Rights (OHCHR). Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General. Thematic study by the Office of the United Nations High Commissioner for Human Rights on enhancing awareness and understanding of the Convention
on the Rights of Persons with Disabilities. A/ HRC/10/48 (January 26, 2009). para. 23. http://www2.ohchr.org/english/bodies/ hrcouncil/docs/10session/A.HRC.10.48.pdf. See also Lang, Kett, Groce, and Trani,



CRPD Implementation in ASEAN 243

“Implementing the United Nations Convention on the Rights of Persons with Disabilities.” 66.  For more information see Anderson and Philips, “Editor’s Introduction,” 2. 67.  See for a detailed discussion Hisayo Katsui. “Towards Participation of Persons with Disabilities in the South: Implications of Article 32 of the Convention.” In United Nations Convention on the Rights of Persons with Disabilities, ed. Jukka Kumpuvori and Martin Scheinin. Helsinki: The Center for Human Rights for Persons with Disabilities, 2009. Frédéric Mégret. “The Disabilities Convention: Towards a Holistic Concept of Rights.” International Journal of Human Rights 30/2 (2008): 261–77. 68.  Harpur, “Time to Be Heard,” 1293. 69.  For example, disability groups have less success in SCOTUS as compared to women, racial minorities, etc. See David B. Wilkins, Michael Ashley Stein, and Michael E. Waterstone. “Cause Lawyering for People with Disabilities.” Harvard Law Review 123 (2010): 1661. 70.  Lang, Kett, Groce, and Trani, “Implementing the United Nations Convention on the Rights of Persons with Disabilities,” 209. See also Amartya K. Sen. “Human Rights and Capabilities.” Journal of Human Development, 6/2 (2005): 151–66.
Amartya K. Sen. The Idea of Justice. London: Penguin, Allen Lane, 2009.
 71.  See Barbara Altman, Jennifer H. Madans, and Elizabeth K. Rasch. “Disability Measurement Matrix: A Tool for the Coordination of Measurement Purpose and Instrument Development.” In International Views on Disability Measures: Moving toward Comparative Measurement, ed. Barbara M. Altman and Sharon N. Barnartt. Oxford: Elsevier Jai, 2006. 263–84. 72.  Article 31 of the CRPD, for example, requires state to “collect appropriate information, including statistical and research data, to enable them to formulate and implement policies to give effect to the present Convention.” 73.  Lang, Kett, Groce, and Trani, “Implementing the United Nations Convention on the Rights of Persons with Disabilities,” 214. 74.  Maria Green. “What We Talk About When We Talk About Indicators: Current Approaches to Human Rights Measurement.” Human Rights Quarterly 23/4 (2001): 1062–1097. Sital Kalantry, Jocelyn Getgen, and Steven A. Koh. “Enhancing Enforcement of Economic, Social and Cultural Rights Using Indicators: A Focus on the Right to Education in the ICESCR.” Human Rights Quarterly 32/2 (2010): 253–310. 75.  Maria Kett, Raymond Lang, and Jean-François Trani. “Disability, Development and the Dawning of a New Convention: A Cause for Optimism?” Journal of International Development 21/5 ((2008): 649–61. See also Trani and Loeb, “Disability and Poverty.” 76.  See for example Holger Kallehauge. “General Themes Relevant to the Implementation of UN Disability Convention in Domestic Law: Who Is Responsible for the Implementation and How Should it Be Performed?” In The UN Convention on the Rights of Persons with Disabilities, ed. Oddný Mjöll Arnardóttir and Gerard Quinn. Leiden and Boston: Martinus Nijhoff, 2009. 211–12. Kallehauge suggests a worldwide index of ten parameters that are measured on a scale from 1 to 10, with

244

Chapter Fourteen

ten indicating full implementation. The ten parameters should be non-discrimination, education, employment, accessibility, habilitation and rehabilitation, health, standard of living, home and family life, participation in political and public life, and legal capacity and access to justice. 77. Human Rights Council. Report on Indicators for Promoting and Monitoring the Implementation of Human Rights. HRI/MC/2008/3. Geneva 23–25 June, 2008. Retrieved from http://www2.ohchr.org/english/bodies/icm-mc/docs/HRI. MC.2008.3EN.pdf UNDP. Indicators for the Human Rights-based Approaches to Development in UNDP Programming: a User’s Guide. New York: UNDP, 2006. 78. The evolution of ASEAN human rights framework has been discussed in greater detail in: Mathew Davies. “An Agreement to Disagree: The ASEAN Human Rights Declaration and the Absence of Regional Identity in Southeast Asia.” Journal of Current Southeast Asian Affairs 3/2014: 107–129; William J. Jones. “Theorising Human Rights: An Analytical Framework for ASEAN.” Journal of Alternative Perspectives in Social Sciences 6/4 (2015): 461–492; Tan Hsien-Li. The ASEAN Intergovernmental Commission on Human Rights: Institutionalising Human Rights in Southeast Asia. Cambridge: Cambridge University Press, 2011. Sriprapha Petcharamesree. “The ASEAN Human Rights Architecture: Its Development and Challenges.” The Equal Rights Review 11 (2013); Amitav Acharya. “The Association of Southeast Asian Nations: “Security Community” or “Defence Community”?” Pacific Affairs 64/ 2 (1999): 159–178. 162; Etel Solingen. “ASEAN, Quo Vadis? Domestic Coalitions and Regional Co-operation?” Contemporary Southeast Asia 21/1 (1999): 30–53; Alice Ba. (Re)negotiating East and Southeast Asia: Region, Regionalism, and the Association of Southeast Asian Nations, Stanford: Stanford University Press, (2009).
Hilary Stauffer. “ASEAN and the Evolving State of Human Rights.” Social Space (2011): 68–75: Abul Bashar Mohammad Abu Noman. “Regional Mechanism in the ASEAN Region for Strengthening Human Rights Protection: An Analysis.” The Chittagong University Journal of Law 12 (2007): 139–57. 79. Ba, (Re)negotiating East and Southeast Asia; Tobias Nischalke. “Insights from ASEAN’s Foreign Policy Co-operation: The “ASEAN Way,” a Real Spirit or a Phantom?” Contemporary Southeast Asia 22/1 (2000): 89–112; Robin Ramcharan. “ASEAN and Non-Interference: A Principle Maintained?” Contemporary Southeast Asia 22/1 (2000): 60–88; Richard Stubbs. “The ASEAN Alternative? Ideas, Institutions and the Challenge to “Global” Governance?” The Pacific Review 21/4 (2008): 451–68; 
Lee Jones. ASEAN, Sovereignty and Intervention in Southeast Asia, Basingstoke, Hampshire: Palgrave Macmillan, 2011. 80. ASEAN Charter, Preamble. Retrieved from http://www.asean.org/archive/ publications/ASEAN-Charter.pdf 81.  Erik M. Kuhonta. “Walking a Tightrope: Democracy versus Sovereignty in ASEAN’s Illiberal Peace.” The Pacific Review 19/3 (2006): 337–58. 339–40. James Munro. “The Relationship Between the Origins and Regime Design of the ASEAN Intergovernmental Commission on Human Rights (AICHR).” The International Journal of Human Rights 10/2 (2010): 1–30. 2. 82.  Thio Li-ann. “Implementing Human Rights in ASEAN Countries.” Yale Human Rights and Development Law Journal 2 (1999).



CRPD Implementation in ASEAN 245

83.  Petcharamesree, “The ASEAN Human Rights Architecture,” 56. 84.  Ibid., 57. 85.  ASEAN Charter. See also Yuval Ginbar. “Human Rights in ASEAN—Setting Sail or Treading Water?” Human Rights Law Review (2010). Hiro Katsumata. “ASEAN and human rights: resisting Western pressure or emulating the West?” The Pacific Review 22/5 (2009): 619–37. 86. ASEAN Human Rights Declaration http://aichr.org/?dl_name=ASEAN-Human-Rights-Declaration.pdf. For an overview see Catherine Renshaw. “The ASEAN Human Rights Declaration 2012.” Human Rights Law Review (2013). 87.  Amitav Acharya. “Do Norms and Identity Matter? Community and Power in Southeast Asia’s Regional Order.” The Pacific Review, 18/1 (2005): 95–118; Amitav Acharya and Richard Stubbs. “Theorizing Southeast Asian Relations: An Introduction.” The Pacific Review 19/2 (2006): 125–134. Michael Leifer. ASEAN and the Security of Southeast Asia. London: Routledge, 1989; Amitav Acharya. “Ideas, Identity, and Institution-building: From the ‘ASEAN Way’ to the ‘Asia-Pacific Way’?” Pacific Review 10/ 3 (1997): 319–46. 88.  Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink. The Persistent Power of Human Rights: From Commitment to Compliance. Cambridge: Cambridge University Press, 1997; Joann Fagot Aviel. “Placing Human Rights and Environmental Issues on ASEAN’s Agenda: The Role of Non-Governmental Organisations.” Asian Journal of Political Science 8/2 (2000): 17–34; Mathew Davies. “Explaining the Vientiane Action Programme: ASEAN and the Institutionalisation of Human Rights.” The Pacific Review 26/3 (2013): 385–406. 89.  See for example Katsumata, “ASEAN and Human Rights.” Mathew Davies. “ASEAN and Human Rights Norms: Constructivism, Rational Choice, and the Action-Identity Gap.” International Relations of the Asia-Pacific 13/2 (2013): 207–31; Munro, “The Relationship Between the Origins and Regime Design.” 90.  ART. 2(2) of ASEAN Charter: respect for independence, sovereignty, equality, territorial integrity and national identity of ASEAN member states; non-interference into domestic affairs; respect for the right of each state to lead its national existence free from external interference, subversion, or coercion. Davies, “Agreement to Disagree,” 114. 91.  Kenneth Christie and Denny Roy. The Politics of Human Rights in East Asia. London: Pluto Press, 2001. 92.  For example, when looking at signature and ratification of international human rights documents, an interactive overview of which can be found here http://indicators.ohchr.org. 93.  Davies, “Agreement to Disagree,” 112. Mathew Davies. “The ASEAN Synthesis: Human Rights, Non-Intervention and the ASEAN Human Rights Declaration.” Georgetown Journal of International Affairs 14/2 (2013): 51–59. 52–53. Mathew Davies. “States of Compliance? Global Human Rights Treaties and ASEAN Member States.” Journal of Human Rights 13/4 (2014). 94.  Davies, “Agreement to Disagree,” 119. 95.  Theodor Rathgeber. “Human Rights and the Institutionalisation of ASEAN: An Ambiguous Relationship.” Journal of Current Southeast Asian Affairs 3(2014): 131–65. 132.

246

Chapter Fourteen

  96.  “[B]asic human rights, while universal in character, are governed by the distinct culture and history of, and socioeconomic conditions in each country and that their expression and application in the national context are within the competence and responsibility of each country.” Joint Communiqué of the 26th ASEAN Ministerial Meeting, Singapore, 23–24 July 1993, Para18.   97.  Davis, “Agreement to Disagree,” 107–8.   98.  Karen Engle. “Culture and Human Rights: The Asian Values Debate in Context.” NYU Journal for International Law and Politics 32 (2000): 291–333.   99.  Same Varayudej. “Right to Democracy in International Law: Its Implications for Asia.” Annual Survey of International and Comparative Law 12 (Spring, 2006): 13. 100. Richard Klein. “Cultural Relativism, Economic Development and International Human Rights in the Asian Context.” Touro International Law Review 9 (Spring, 2001).
 101.  Randall Peerenboom. “Beyond Universalism and Relativism: The Evolving Debates About ‘Values in Asia.’” Indiana International and Comparative Law Review 14 (2003). 41. 102.  Michael C. Davis. “Constitutionalism and Political Culture: The Debate Over Human Rights and Asian Values.” Harvard Human Rights Journal 109 (1998): 148.
 103.  Simon S.C. Tay. “Human Rights, Culture and the Singapore Example.” McGill Law Journal 41 (1996).
 758 104.  Engle, “Culture and Human Rights,” 313. See also Peerenboom, “Beyond Universalism and Relativism,” 41. 105.  Joel Paul. “Cultural Resistance to Global Governance.” Michigan Journal of International Law 27 (2000). 106.  See Ann-Belinda S. Preis. “Human Rights as Cultural Practice: An Anthropological Critique.” Human Rights Quarterly 18 (1995)—rejecting cultural relativism; on deploying cross-cultural perspectives in this inquiry, see Man Yee Karen Lee. “Universal Human Dignity: Some Reflections in the Asian Context.” Asian Journal of Comparative Law 3 (2008). 107. International Commission of Jurists, ICJ condemns fatally flawed ASEAN Human Rights Declaration, November 19, 2012. 108. See Rathgeber for an overview of the implementation of general human rights treaties in ASEAN. Rathgeber, “Human Rights and the Institutionalisation of ASEAN.” 109.  Rathgeber for example asserts that “there is a trend toward creating a constitutional state that is based on the rule of law, providing common ground for the increasing participation of non-state actors and offering minimum guarantees for their personal integrity as well as for their participation as citizens in policy-making.” Rathgeber, “Human Rights and the Institutionalisation of ASEAN,” 159. See also Carole J. Petersen. “ASEAN and the Convention on the Rights of Persons with Disabilities: Using International Law to Promote Social and Economic Development.” Jurnal Hukum Internasional 10/1 (2012): 1–22. 110.  See Maya Sabatello. “The New Diplomacy.” In Human Rights and Disability Advocacy, ed. Maya Sabatello and Marianne Schulze. Philadelphia, PA: University of Pennsylvania Press, 2013. 239–58.



CRPD Implementation in ASEAN 247

111. See Andreas Paulus. “Legalist Groundwork for the International Criminal Court.” European Journal of International Law 14 (2003): 843. See also Sabatello and Schulze (ed.), Human Rights and Disability Advocacy. 112.  See for example Barbara K. Woodward. Global Civil Society in International Law Making and Global Governance: Theory and Practice. Leiden: Nijhoff Publishers, 2010. 78–103. Kerstin Martens. “NGOs in the United Nations System: Evaluating Theoretical Approaches.” Journal of International Development 18 (2006): 691–700. 113. Woodward, Global Civil Society, 213. 114.  Janet E. Lord. “On the Possibilities and Limitations of NGO Participation in International Law and Its Processes.” ASIL Proceedings 95 (2001): 295. 115. Concerns with NGO participation in international negotiation and implementation of treaty, particularly regarding accountability, representation, and the historical domination by the West See Ebrahim Alnoor. “Accountability in Practice: Mechanisms for NGOs.” World Development 31/5 (2003): 813–29; Patrick Kilby. “Accountability for Empowerment: Dilemmas Facing Non-governmental Organizations.” World Development 34/6 (2006): 951–63. Sabatello, “New Diplomacy.” 116.  Lang, Kett, Groce, and Trani, “Implementing the United Nations Convention on the Rights of Persons with Disabilities,” 211. 117.  Janet. E. Lord and Michael Ashley Stein. “The Domestic Incorporation of Human Rights Law and the United National Convention on the Rights of Persons with Disabilities.” Washington Law Review 83 (2008): 467. 118.  Hapur, “Time to Be Heard,” 1292. 119.  Bartlett, “Implementing a Paradigm Shift,” 176. 120.  Marcia E. Greenberg. “NGO Participation in International Law and Its Process.” ASIL Proceedings 95 (2001): 301. See also Stein and Stein. “Beyond Disability Civil Rights,” 1240. 121.  Sabatello, “New Diplomacy,” 256. 122.  Sarah Beazley, Michele Moore, and David Benzie. “Involving Disabled People in Research: A Study of Inclusion in Environmental Activities.” In Doing Disability Research, ed. Colin Barnes and Geof Mercer. Leeds: The Disability Press, 1997. 123.  Amartya K. Sen. Commodities and Capabilities. Oxford: Oxford University Press, 1985. 124.  Sophie Mitra. “The Capability Approach and Disability.” Journal of Disability Policy Studies 16/4 (2006): 2316–247. 236. 125.  Amartya K. Sen. “Capability and Well-being.” In The Quality of Life, ed. M. Nussbaum and Amartya Sen. New Delhi: Oxford University Press, 1993.
 126.  Amartya K. Sen. “Human Rights and Capabilities.” Journal of Human Development (2005) 6/2 (2005): 151–66.
 156. 127.  Barbara M. Altman. “Disability Definitions, Models, Classification Schemes, and Applications.” In Handbook of Disability Studies , ed. Gary L. Albrecht, Katherine D. Seelman, and Michael Bury. Thousand Oaks, CA: Sage, 2001. 97–122. 128.  Séverine Deneulin and Frances Stewart. “A Capability Approach for People Living Together.” Cambridge: Conference ‘Justice and Poverty: Examining Sen’s Capability Approach.’ St Edmunds College, 2001. Frances Stewart. “Groups and Capabilities.” Journal of Human Development 6 (2005): 185–204; Jean-Luc Dubois

248

Chapter Fourteen

Jean-François Trani. “Extending the Capability paradigm to Address the Complexity of Disability.” ALTER-European Journal of Disability Research, 3(2009): 192–218. 129.  Hao Duy Phan. “A Blueprint for a Southeast Asian Court of Human Rights.” Asian-Pacific Law and Policy Journal 10 (2009);
See Michael L. Perlin. “Why a Regional Tribunal is Needed to Implement the CRPD.” New York Law School Legal Studies, Research Paper Series 10/11 #8: 1–23; Noman, “Regional Mechanism in the ASEAN Region.” Andrea Durbach, Catherine Renshaw, and Andrew Byrnes. “A Tongue but No Teeth: The Emergence of a Regional Human Rights Mechanism in the Asia Pacific Region.” Sydney Law Review 31 (2009). 130.  Christina M. Cerna. “Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different Socio-Cultural Contexts.” Human Rights Quarterly (1994): 740–52. James L. Cavallaro and Stephanie E. Brewer. “Reevaluating Regional Human Rights Litigation in the Twenty-first Century: The Case of the Inter-American Court.” American Journal of International Law (2008): 768–827.

BIBLIOGRAPHY Abu Noman, Abul Bashar Mohammad. “Regional Mechanism in the ASEAN Region for Strengthening Human Rights Protection: An Analysis.” The Chittagong University Journal of Law 12 (2007): 139–57. Acharya, Amitav. “Ideas, Identity, and Institution-building: From the ‘ASEAN Way’ to the ‘Asia-Pacific Way’?” Pacific Review 10/ 3 (1997): 319–46. Acharya, Amitav. “The Association of Southeast Asian Nations: ‘Security Community’ or ‘Defence Community’?” Pacific Affairs 64/ 2 (1999): 159–78. Acharya, Amitav. “Do Norms and Identity Matter? Community and Power in Southeast Asia’s Regional Order.” The Pacific Review, 18/1 (2005): 95–118. Acharya, Amitav and Richard Stubbs. “Theorizing Southeast Asian Relations: An Introduction.” The Pacific Review 19/2 (2006): 125–34. Aichele, Valentin. “Die UN-Behindertenrechtskonvention und ihr Fakultativprotokoll: Ein Beitrag zur Ratifikationsdebatte.” Deutsches Institut für Menschenrechte, Policy Paper 9 (August 2008).
 Alnoor, Ebrahim. “Accountability in Practice: Mechanisms for NGOs.” World Development 31/5 (2003): 813–29. Alston, Philip and James Crawford. The Future of UN Human Rights Treaty Monitoring. Cambridge University Press, 2000. Altman, Barbara M. “Disability Definitions, Models, Classification Schemes, and Applications.” In Handbook of Disability Studies, ed. Gary L. Albrecht, Katherine D. Seelman, and Michael Bury. Thousand Oaks, CA: Sage, 2001. 97–122. Altman, Barbara, Jennifer H. Madans and Elizabeth K. Rasch. “Disability Measurement Matrix: A Tool for the Coordination of Measurement Purpose and Instrument Development.” In International Views on Disability Measures: Moving toward Comparative Measurement, ed. Barbara M. Altman and Sharon N. Barnartt. Oxford: Elsevier, 2006. 263–284.



CRPD Implementation in ASEAN 249

Americans with Disabilities Act, 42 U.S.C. § 12111(8) (2006) Anderson, Joel and Jos Philips. “Editor’s Introduction.” In Disability and Universal Human Rights: Legal, Ethical, and Conceptual Implications of the Convention on the Rights of Persons with Disabilities, ed. Joel Anderson and Jos Philips. SIM Special 35 (2012). Utrecht: Netherlands Institute of Human Rights, 2012. ASEAN Charter, http://www.asean.org/archive/publications/ASEAN-Charter.pdf. ASEAN Human Rights Declaration http://aichr.org/?dl_name=ASEAN-HumanRights-Declaration.pdf. Aviel, Joann Fagot. “Placing Human Rights and Environmental Issues on ASEAN’s Agenda: The Role of Non-Governmental Organisations.” Asian Journal of Political Science 8/2 (2000): 17–34. Ba, Alice. (Re)negotiating East and Southeast Asia: Region, Regionalism, and the Association of Southeast Asian Nations, Stanford: Stanford University Press, (2009).
 Barnes, Colin. Disabled People in Britain and Discrimination: A Case for AntiDiscrimination Legislation. London: Hurst with British Council of Organisations of Disabled People, 1991. Barnes, Colin, Geof Mercer, and Tom Shakespeare. Exploring Disability: A Sociological Introduction. Cambridge: Polity Press, 1999. Barnes, Colin and Geof Mercer. “The Politics of Disability and the Struggle for Change.” In Disability, Politics and the Struggle for Change, ed. Len Barton. London: David Fulton, 2001. 11–23. Bartlett, Peter. “Implementing a Paradigm Shift: Implementing the CRPD in the Context of Mental Disability Law.” In Torture in Healthcare Settings: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report. Washington: Centerfor Human Rights and Humanitarian Law, American University Washington College of Law, 2014. 169–80. Basas, Carrie Griffin. “Back Rooms, Board Rooms—Reasonable Accommodation and Resistance under the ADA.” Berkeley Journal of Employment and Labor Law 28 (2008): 59–128. Bayefsky, Anne F. (ed.), The UN Human Rights System in the 21st Century. The Hague: Kluwer, 2000. Beazley, Sarah, Michele Moore, and David Benzie. “Involving Disabled People in Research: A Study of Inclusion in Environmental Activities.” In Doing Disability Research, ed. Colin Barnes and Geof Mercer. Leeds: The Disability Press, 1997. Beresford, Peter. “Poverty and Disabled People: Challenging Dominant Debates and Policy.” Disability and Society 11 (1996): 553–67. Beyleveld, David and Roger Brownsword, Human Dignity in Bioethics and Biolaw. Oxford: Oxford University Press, 2001. Blanck, Peter. “The Right to Live in the World: Disability Yesterday, Today, and Tomorrow.” Texas Journal on Civil Liberties and Civil Rights 13 (2008). Braithwaite, Jeanine and Daniel Mont. “Disability and Poverty: A Survey of World Bank Poverty Assessments and Implications.” ALTER, European Journal of Disability Research (2009): 219–32. Campbell, Fiona. “Inciting Legal Fictions: Disability’s Date with Ontology and the Ableist Body of the Law.” Griffith Law Review 10 (2001): 42–62.

250

Chapter Fourteen

Campbell, Fiona. Frontiers of Ableism. Melbourne, Australia: Palgrave Macmillan, 2009. Cantor, Jared D.. “Defining Disabled: Exporting the ADA to Europe and the Social Model of Disability.” Connecticut Journal of International Law 24 (2009). Cavallaro, James and Stephanie E. Brewer. “Reevaluating Regional Human Rights Litigation in the Twenty-first Century: The Case of the Inter-American Court.” American Journal of International Law (2008): 768–827. Cerna, Christina M. “Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different Socio-Cultural Contexts.” Human Rights Quarterly (1994): 740–52. Christie, Kenneth and Denny Roy. The Politics of Human Rights in East Asia. London: Pluto Press, 2001. Convention on the Rights of Persons with Disabilities (CRPD), 2515 UNTS 3 (adopted 13 December 2006, entered into force 3 May 2008). Convention on the Rights of Persons with Disabilities, Optional Protocol, GA Res. A/ RES/61/106 (13 December 2006). Corker, Mairian. Deaf and Disabled, or Deafness Disabled? Toward a Human Rights Perspective. Buckingham: Open University Press, 1998. Crow, Liz. “Including All of Our Lives: Renewing the Social Model of Disability.” In Exploring the Divide: Illness and Disability, ed. Colin Barnes and Geof Mercer. Leeds: Women’s Press, 1996. 55–72. Davies, Mathew. “ASEAN and Human Rights Norms: Constructivism, Rational Choice, and the Action-Identity Gap.” International Relations of the Asia-Pacific 13/2 (2013): 207–31. Davies, Mathew. “Explaining the Vientiane Action Programme: ASEAN and the Institutionalisation of Human Rights.” The Pacific Review 26/3 (2013): 385–406. Davies, Mathew. “The ASEAN Synthesis: Human Rights, Non-Intervention and the ASEAN Human Rights Declaration.” Georgetown Journal of International Affairs14/2 (2013): 51–59. Davies, Mathew. “States of Compliance? Global Human Rights Treaties and ASEAN Member States.” Journal of Human Rights 13/4 (2014). Davies, Mathew. “An Agreement to Disagree: The ASEAN Human Rights Declaration and the Absence of Regional Identity in Southeast Asia.” Journal of Current Southeast Asian Affairs 3 (2014): 107–29. Davis, Michael C. “Constitutionalism and Political Culture: The Debate Over Human Rights and Asian Values.” Harvard Human Rights Journal 109 (1998).
 Degener, Theresia “Die UN-Konvention: Menschenrechtsschutz für behinderte Menschen,” (presented at Fachtagung NW Art. 3 / DGRW / IMEW, Berlin, January 14, 2010). http://netzwerk-artikel-3.de/dokum/degener%20vortrag%2015-1-s.pdf. Degener, Theresia and Gerard Quinn. Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability. New York and Geneva: United Nations, 2002. Deneulin, Séverine and Frances Stewart. “A Capability Approach for People Living Together.” Cambridge: Conference ‘Justice and Poverty: Examining Sen’s Capability Approach.’ St Edmunds College, 2001.



CRPD Implementation in ASEAN 251

Dinerstein, Robert. “Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road from Guardianship to Supported Decision-Making.” Human Rights Brief 19/2 (2012). Disability Discrimination Act 1992 (Cth) (Australia) Disability Discrimination Act, 1995, c. 50 (U.K.) Donnelly, Jack. Universal Human Rights in Theory and Practice. New York: Cornell University Press, 2003. Dubois, Jean-Luc and Jean-François Trani. “Extending the Capability Paradigm to Address the Complexity of Disability.” ALTER-European Journal of Disability Research, 3(2009): 192–218. Durbach, Andrea, Catherine Renshaw, and Andrew Byrnes. “A Tongue but No Teeth: The Emergence of a Regional Human Rights Mechanism in the Asia Pacific Region.” Sydney Law Review 31 (2009). Engle, Karen. “Culture and Human Rights: The Asian Values Debate in Context.” NYU Journal for International Law and Politics 32 (2000): 291–333. Equality Act, 2010, c. 15 (U.K.) Flynn, Eilionóir. From Rhetoric to Action: Implementing the UN Convention on the Rights of Persons with Disabilities. Cambridge: Cambridge University Press, 2011. Gill, Michael. “The Myth of Transition: Contractualizing Disability in the Sheltered Workshop.” Disability and Society 20/6 (2005): 613–23.
 Ginbar, Yuval. “Human Rights in ASEAN—Setting Sail or Treading Water?” Human Rights Law Review (2010). Graumann, Sigrid. Assistierte Freiheit: Von einer Behindertenpolitik der Wohltätigkeit zu einer Politik der Menschenrechte.Frankfurt: Campus, 2011. Green, Maria. “What We Talk About When We Talk About Indicators: Current Approaches to Human Rights Measurement.” Human Rights Quarterly 23/4 (2001): 1062–97. Greenberg, Marcia E. “NGO Participation in International Law and Its Process.” ASIL Proceedings 95 (2001). Grugel, Jean and Nicola Piper. “Do Rights Promote Development?” Global Social Policy 9/1 (2009): 79–98.
 Hahn, Harlan. “The Political Implications of Disability Definitions and Data.” In The Psychosocial and Social Impact of Disability, ed. Robert P. Marinelli and Arthur E Dell Orto. New York: Springer, 1999. 3–11. Harmonized Guidelines on Reporting under the International Human Rights Treaties, Including Guidelines on a Common Core Document and Treaty Specific Targeted Documents, HRI/MC/2005/3, 1 June 2005. Harnacke, Caroline and Sigrid Graumann. “Core Principles of the UN Convention on the Rights of Persons with Disabilities: An Overview.” In Disability and Universal Human Rights: Legal, Ethical, and Conceptual Implications of the Convention on the Rights of Persons with Disabilities, ed. Joel Anderson and Jos Philips. SIM Special 35 (2012). Utrecht: Netherlands Institute of Human Rights, 2012. Harpur, Paul. “Sexism and Racism: Why not Ableism? Calling for a Cultural Shift in the Approach to Disability Discrimination.” Alternative Law Journal 35, no. 3 (2009): 163–67.

252

Chapter Fourteen

Harpur, Paul and Richard Bales. “ADA Amendments Issue: The Positive Impact of the Convention on the Rights of Persons with Disabilities: A Case Study on the South Pacific and Lessons from the U.S. Experience.” Northern Kentucky Law Review 37 (2010): 363–98. Harpur, Paul. “Time to Be Heard: How Advocates Can Use the Convention on the Rights of Persons with Disabilities to Drive Change.” Valparaiso University Law Review 45 (2010–2011): 1271–96. Harpur, Paul. “Embracing the New Disability Rights Paradigm: The Importance of the Convention on the Rights of Persons with Disabilities.” Disability & Society 27/1 (January 2012). Hathaway, Oona. “Why Do Countries Commit to Human Rights Treaties?” Journal of Conflict Resolution 51/4 (2007): 588–621. Hehir, Thomas. New Directions in Special Education: Eliminating Ableism. Cambridge, MA: Harvard University Press, 2005. Hsien-Li, Tan. The ASEAN Intergovernmental Commission on Human Rights: Institutionalising Human Rights in Southeast Asia. Cambridge: Cambridge University Press, 2011. Human Rights Council. Report on Indicators for Promoting and Monitoring the Implementation of Human Rights. HRI/MC/2008/3. Geneva 23–25 June, 2008. Retrieved from http://www2.ohchr.org/english/bodies/icm-mc/docs/HRI. MC.2008.3EN.pdf UNDP. Indicators for the Human Rights-based Approaches to Development in UNDP Programming: A User’s Guide. New York: UNDP, 2006. International Commission of Jurists, ICJ condemns fatally flawed ASEAN Human Rights Declaration, November 19, 2012. Joint Communiqué of the 26th ASEAN Ministerial Meeting, Singapore, 23–24 July 1993. Jones, Lee. ASEAN, Sovereignty and Intervention in Southeast Asia, Basingstoke, Hampshire: Palgrave Macmillan, 2011. Jones, William J. “Theorising Human Rights: An Analytical Framework for ASEAN.” Journal of Alternative Perspectives in Social Sciences 6/4 (2015): 461–92. Kalantry, Sital, Jocelyn Getgen, and Steven A. Koh. “Enhancing Enforcement of Economic, Social and Cultural Rights Using Indicators: A Focus on the Right to Education in the ICESCR.” Human Rights Quarterly 32/2 (2010): 253–310. Kallehauge, Holger. “General Themes Relevant to the Implementation of UN Disability Convention in Domestic Law: Who Is Responsible for the Implementation and How Should It Be Performed?” In The UN Convention on the Rights of Persons with Disabilities, ed. Oddný Mjöll Arnardóttir and Gerard Quinn. Leiden and Boston: Martinus Nijhoff, 2009. Kaplan, Deborah. “The Definition of Disability: Perspective of the Disability Community.” Journal of Health Care Law and Policy 3 (2000): 352–64. Katsui, Hisayo. “Towards Participation of Persons with Disabilities in the South: Implications of Article 32 of the Convention.” In United Nations Convention on the Rights of Persons with Disabilities, ed. Jukka Kumpuvori and Martin Scheinin. Helsinki: The Center for Human Rights for Persons with Disabilities, 2009.



CRPD Implementation in ASEAN 253

Katsumata, Hiro. “ASEAN and Human Rights: Resisting Western Pressure or Emulating the West?” The Pacific Review 22/5 (2009): 619–37. Kayess, Rosemary and Phillip French. “Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities.” Human Rights Law Review 8 (2008). Keller, Helen, Geir Ulfstein, and Leena Grover. UN Human Rights Treaty Bodies: Law and Legitimacy. Vol. 1. Cambridge University Press, 2012. Kett, Maria, Raymond Lang, and Jean-François Trani. “Disability, Development and the Dawning of a New Convention: A Cause for Optimism?” Journal of International Development 21/5 ((2008): 649–61. Kilby, Patrick. “Accountability for Empowerment: Dilemmas Facing Non-governmental Organizations.” World Development 34/6 (2006): 951–63. Klein, Richard. “Cultural Relativism, Economic Development and International Human Rights in the Asian Context.” Touro International Law Review 9 (Spring, 2001).
 Krommendijk, Jasper. “The Domestic Effectiveness of International Human Rights Monitoring in Established Democracies: The Case of the UN Human Rights Treaty Bodies.” The Review of International Organizations (2015): 1–24. Kuhonta, Erik M.. “Walking a Tightrope: Democracy versus Sovereignty in ASEAN’s Illiberal Peace.” The Pacific Review 19/3 (2006): 337–58. Ladd, Paddy. Understanding Deaf Culture: In Search of Deafhood. Clevedon: Multilingual Matters, 2003. Lang, Raymond. “The United Nations Convention on the Rights and Dignities of Persons with Disability: A Panacea for Ending Disability Discrimination?” ALTEREuropean Journal of Disability Research, 3/3 (2009): 266–85. Lang, Raymond, Maria Kett, Nora Groce, and Jean-François Trani. “Implementing the United Nations Convention on the Rights of Persons with Disabilities: Principles, Implications, Practice and Limitations.” ALTER, European Journal of Disability Research 5 (2011). Lee, Man Yee Karen. “Universal Human Dignity: Some Reflections in the Asian Context.” Asian Journal of Comparative Law 3 (2008). Leifer, Michael. ASEAN and the Security of Southeast Asia. London: Routledge, 1989. Li-ann, Thio. “Implementing Human Rights in ASEAN Countries.” Yale Human Rights and Development Law Journal 2 (1999). Lord, Janet E. “On the Possibilities and Limitations of NGO Participation in International Law and Its Processes.” ASIL Proceedings 95 (2001). Lord, Janet E. and Michael Ashley Stein. “The Domestic Incorporation of Human Rights Law and the United National Convention on the Rights of Persons with Disabilities.” Washington Law Review 83 (2008). Martens, Kerstin. “NGOs in the United Nations System: Evaluating Theoretical Approaches.” Journal of International Development 18 (2006): 691–700. Mégret, Frédéric. “The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?” Human Rights Quarterly 30 (2008). 
516.

254

Chapter Fourteen

Mégret, Frédéric. “The Disabilities Convention: Towards a Holistic Concept of Rights.” International Journal of Human Rights 30/2 (2008): 261–77. Mitra, Sophie and Usha Sambamoorthi. “Wage Differential by Disability Status in an Agrarian Labor Market in India.” Applied Economics Letters 16/4 (2009): 1393–98.
 Mitra, Sophie. “The Capability Approach and Disability.” Journal of Disability Policy Studies 16/4 (2006): 2316–247. Mor, Sagit. “Between Charity, Welfare, and Warfare: A Disability Legal Studies Analysis of Privilege and Neglect in Israeli Disability Policy.” Yale Journal of Law and the Humanities 18 (2006): 63–155. Munro, James. “The Relationship Between the Origins and Regime Design of the ASEAN Intergovernmental Commission on Human Rights (AICHR).” The International Journal of Human Rights 10/2 (2010): 1–30. 2. Nischalke, Tobias. “Insights from ASEAN’s Foreign Policy Co-operation: The ‘ASEAN Way,’ a Real Spirit or a Phantom?” Contemporary Southeast Asia 22/1 (2000): 89–112. Noman, Abul Bashar Hohammad. “Regional Mechanism in the ASEAN Region for Strengthening Human Rights Protection: An Analysis.” The Chittagang University Jouranl of Law 12 (2007): 139–57. O’Cinneide, Colm. “Extracting Protection for the Rights of Persons with Disabilities from Human Rights Frameworks: Established Limits and Possibilities.” In The UN Convention on the Rights of Persons with Disabilities, ed. Oddný Mjöll Arnardóttir and Gerard Quinn. Leiden and Boston: Martinus Nijhoff, 2009. Office of the High Commissioner for Human Rights (OHCHR). Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General. Thematic study by the Office of the United Nations High Commissioner for Human Rights on enhancing awareness and understanding of the Convention
on the Rights of Persons with Disabilities. A/HRC/10/48 (January 26, 2009). http://www2.ohchr.org/english/bodies/ hrcouncil/docs/10session/A.HRC.10.48.pdf Oliver, Mike. The Politics of Disablement. London: MacMillan, 1990. Oliver, Mike and Colin Barnes. “Discrimination, Disability and Welfare: From Needs to Rights.” In Equal Rights for Disabled People: The Case for a New Law, ed. Ian Bynoe, Mike Oliver, and Colin Barnes. London: Institute for Public Policy Research, 1991. 9–17. Oliver, Mike. “Understanding Disability: From Theory to Practice.” London: Palgrave MacMillan, 1996. Oliver, Mike and Colin Barnes.. Disabled People and Social Policy: From Exclusion to Inclusion. London: Longman, 1998.
 Paul, Joel. “Cultural Resistance to Global Governance.” Michigan Journal of International Law 27 (2000). Paulus, Andreas. “Legalist Groundwork for the International Criminal Court.” European Journal of International Law 14 (2003).



CRPD Implementation in ASEAN 255

Peerenboom, Randall. “Beyond Universalism and Relativism: The Evolving Debates About ‘Values in Asia.’” Indiana International and Comparative Law Review 14 (2003). Perlin, Michael L. “Why a Regional Tribunal is Needed to Implement the CRPD.” New York Law School Legal Studies, Research Paper Series 10/11 #8: 1–23. Petcharamesree, Sriprapha. “The ASEAN Human Rights Architecture: Its Development and Challenges.” The Equal Rights Review 11 (2013). Petersen, Carole J. “ASEAN and the Convention on the Rights of Persons with Disabilities: Using International Law to Promote Social and Economic Development.” Jurnal Hukum Internasional 10/1 (2012): 1–22. Phan, Hao Duy. “A Blueprint for a Southeast Asian Court of Human Rights.” AsianPacific Law and Policy Journal 10 (2009). Preis, Ann-Belinda S. “Human Rights as Cultural Practice: An Anthropological Critique.” Human Rights Quarterly 18 (1995) Quinn, Gerard. Implementing the UN Convention on the Rights of Persons with Disabilities: The Institutional Architecture of Change. New York: Keynote speech at the Conference of State Parties to the UN Convention on the Rights of Persons with Disabilities, UN Headquarters, 31 October 2008.
 Quinn, Gerard. “The United Nations Convention on the Rights of Persons with Disabilities: Toward a New International Politics of Disability.” Texas Journal on Civil Liberties & Civil Rights 15 (2009): 33–53. Quinn, Gerard. “International Impact of the United Nations Convention on the Rights of Persons with Disabilities—A New Engine of Reform.” Jacobusten Broek Disability Law Symposium, Baltimore, Maryland, April 17, 2009), available http:// www.nuigalway.ie/cdlp/documents/publications/NFB%20paper%20final.pdf. Quinn, Gerard. “Resisting the Temptation of Elegance: Can the Convention on the Rights of Persons with Disabilities Socialise States to Right Behaviour?” In The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives, ed. Oddný Mjöll Arnardóttir and Gerard Quinn. Leiden: Martinus Nijhoff, 2009.
 Ramcharan, Robin. “ASEAN and Non-Interference: A Principle Maintained?” Contemporary Southeast Asia 22/1 (2000): 60–88. Rathgeber, Theodor. “Human Rights and the Institutionalisation of ASEAN: An Ambiguous Relationship.” Journal of Current Southeast Asian Affairs 3(2014): 131–65. 132. Rehabilitation Act of 1973, 29 U.S.C. § 701 (2006 & Supp. 1112009) Renshaw, Catherine. “The ASEAN Human Rights Declaration 2012.” Human Rights Law Review (2013). Risse, Thomas, Stephen C. Ropp, and Kathryn Sikkink. The Persistent Power of Human Rights: From Commitment to Compliance. Cambridge: Cambridge University Press, 1997. Rovner, Laura L. “Disability, Equality, and Identity.” Alabama Law Review 55 (2004): 1043–105.

256

Chapter Fourteen

Sabatello, Maya. “A Short History of the International Disability Rights Movement.” In Human Rights and Disability Advocacy, ed. Maya Sabatello and Marianne Schulze. Phildaelphia: University of Pennsylvania Press, 2014. 17–20. Sabatello, Maya. “The New Diplomacy.” In Human Rights and Disability Advocacy, ed. Maya Sabatello and Marianne Schulze. Philadelphia, PA: University of Pennsylvania Press, 2013. 239–58. Satz, Ani B.. “Disability, Vulnerability, and the Limits of Antidiscrimination” Washington Law Review 83 (2008).
 Sen, Amartya K. Commodities and Capabilities. Oxford: Oxford University Press, 1985. Sen, Amartya K. “Capability and Well-being.” In The Quality of Life, ed. M. Nussbaum and Amartya Sen. New Delhi: Oxford University Press, 1993.
 Sen, Amartya K. “Human Rights and Capabilities.” Journal of Human Development, 6/2 (2005): 151–66.
 Sen, Amartya K. The Idea of Justice. London: Penguin, Allen Lane, 2009.
 Shakespeare, Tom. “Cultural Representation of Disabled People: Dustbins for Disavowal?” Disability and Society 9/3 (1994): 287–89. Shakespeare, Tom. Disability Rights and Wrongs. Abingdon: Routledge, 2006.
 Silvers, Anita, David Wasserman, and Mary B. Mahowald. Disability, Difference, Discrimination: Perspectives on Justice in Bioethics and Public Policy. Lanham etc.: Rowman & Littlefield, 1998. Solingen, Etel. “ASEAN, Quo Vadis? Domestic Coalitions and Regional Co-operation?” Contemporary Southeast Asia 21/1 (1999): 30–53. Stauffer, Hilary. “ASEAN and the Evolving State of Human Rights.” Social Space (2011): 68–75. Stein, Michael Ashley and Penelope J.S. Stein. “Beyond Disability Civil Rights.” Hastings Law Journal 58 (2007).
 Stein, Michael Ashley. “Disability Human Rights.” California Law Review 95 (2007): 85. Stein, Michael Ashley Stein and William P. Alford. “Youngberg v. Romeo.” In Encyclopedia of American Disability History, ed. Susan Burch. New York: Facts on File, 2009. Stewart, Frances. “Groups and Capabilities.” Journal of Human Development 6 (2005): 185–204. Stubbs, Richard. “The ASEAN Alternative? Ideas, Institutions and the Challenge to “Global” Governance?” The Pacific Review 21/4 (2008): 451–68. Tay, Simon S.C. “Human Rights, Culture and the Singapore Example.” McGill Law Journal 41 (1996).
 Trani, Jean-François and Mitchell Loeb “Disability and Poverty: A Vicious Circle?” Journal of International Development, 12 (2009). UN Common Understanding on the Human Rights Based Approach to Development (2003). http://hrbaportal.org/the-human-rights-based-approach-to-developmentcooperation-towards-a-common-understanding-among-un-agencies and http:// www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx.



CRPD Implementation in ASEAN 257

UN Secretary-General, Secretary-General Hails Adoption of Landmark Convention on Rights of People with Disabilities, U.N. Doc. SG/SM/10797 (Dec. 13, 2006), available at http://www.un.org/News/Press/docs//2006/sgsm10797.doc.htm. UNDP. Indicators for the Human Rights-based Approaches to Development in UNDP Programming: a User’s Guide. New York: UNDP, 2006. van Weele, Esther. “The UN Convention on the Rights of Persons with Disabilities in the Context of Human Rights Law.” In Disability and Universal Human Rights: Legal, Ethical, and Conceptual Implications of the Convention on the Rights of Persons with Disabilities, ed. Joel Anderson and Jos Philips. SIM Special 35 (2012). Utrecht: Netherlands Institute of Human Rights, 2012. 9–30. Varayudej, Same. “Right to Democracy in International Law: Its Implications for Asia.” Annual Survey of International and Comparative Law 12 (Spring, 2006). Wilkins, David B., Michael Ashley Stein and Michael E. Waterstone. “Cause Lawyering for People with Disabilities.” Harvard Law Review 123 (2010). Woodward, Barbara K. Global Civil Society in International Law Making and Global Governance: Theory and Practice. Leiden: Nijhoff Publishers, 2010. 78–103. World Health Organization. 2015. “Disability and Health.” Last modified December 2015. http://www.who.int/mediacentre/factsheets/fs352/en/.

Chapter Fifteen

Norm Diffusion and CRPD Implementation and ASEAN Robert Dinerstein

As the UN Convention on the Rights of Persons with Disabilities (CRPD) celebrates its tenth anniversary, commentators have focused on how States are complying or seeking to comply with some of its key substantive provisions, such as Article 12 (Equal recognition before the law), 14 (Liberty and security of person), 19 (Living independently and being included in the community), and 24 (Education), to name just a few. Yet for the CRPD to lead to real change in the lives of people with disabilities, compliance with Article 33, National implementation and monitoring, will be critical. For it is adherence to that article that will determine not the content of the rights of people with disabilities under the CRPD but rather the States’ commitment to monitor and enforce those rights. Rights without enforcement become at best paper rights. Or, as Michael Lottman wrote many years ago in the context of implementing court orders in United States institutional reform litigation, once the court order is entered “Now comes the hard part.”1 Laws, including international treaties, are not self-executing. The best systems present a combination of statutes, regulations, and constitutional provisions (including treaties) that are substantively sound and enforced vigorously by government agencies, with outside pressure from civil society. In the area of disability rights, civil society consists of non-governmental organizations, specifically disabled people’s organizations (DPOs), as well as people with disabilities themselves. These individuals and organizations should be empowered to bring enforcement actions (including, where applicable, lawsuits) to make the promise of legislation a reality.

259

260

Chapter Fifteen

In this chapter, I offer observations about some of the challenges ASEAN countries are facing in their implementation of Article 33. My observations are based on the presentations and papers (now chapters) on ASEAN compliance with Article 33 prepared by the chapter authors in this volume,2 supplemented by, in one case, the concluding observations of the Committee on the Rights of Persons with Disabilities with regard to the one ASEAN State that has appeared before it, Thailand.3 All ten ASEAN countries have now ratified the CRPD,4 so it is a propitious time to review the current status of implementation. Article 33 establishes three critical requirements for national implementation and monitoring of the CRPD: • Designation of one or more focal points within government for implementation of the CRPD; • Establishment of a framework, including one or more independent mechanisms, to “promote, protect, and monitor implementation” of the CRPD; and • Involvement and full participation of people with disabilities and their representative organizations in the monitoring process.5 Implementation of the CRPD needs to be consistent with the eight guiding principles that are set out in Article 3, General principles: (a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; (b) Non-discrimination; (c) Full and effective participation and inclusion in society; (d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; (e) Equality of opportunity; (f) Accessibility; (g) Equality between men and women; (h) Respect for the evolving capacities of children with disabilities and respect for the rights of children with disabilities to preserve their identities.6 In addition to these criteria, the instant review revealed the importance of producing accurate information regarding the number of people with disabilities within the individual States; the extent to which the States have conceptualized disability rights as human rights; and the degree to which the rights under the CRPD and domestic legislation are enforceable.



Norm Diffusion and CRPD Implementation and ASEAN 261

IDENTIFYING THE SCOPE OF THE PROBLEM: HOW MANY PEOPLE WITH DISABILITIES ARE THERE? According to the World Health Organization (WHO), approximately 15 percent of the world’s population has one or more disabilities.7 Yet a number of the ASEAN countries appear to be using estimates of disability prevalence that are well below this estimate. For example, Malaysia estimates 1.3 percent of its population are people with disabilities; Cambodia, 1.44 percent; Philippines, 1.57 percent. In contrast, Vietnam, using two separate surveys, provided estimates of 15.3 percent (in a 2006 survey) and 7.8 percent (in a 2009 survey). Indonesia, which originally estimated its percentage of people with disabilities at under 1 percent, recognized that the disparity between its estimate and that of WHO was based on different definitions of disability. Using a more functional (as opposed to medical) definition, Indonesia revised its estimate of people with disabilities to be between 10–15 percent of its population. There may be a number of reasons why these estimates vary so substantially, including countries with low estimates relying on census data, which are often unreliable, or on self-reporting by people with disabilities. The stigma associated with disability may well suppress self-identification of the condition in many societies. But to have a sense of how extensive programs for people with disabilities need to be, it is critical that estimates be accurate and that they be based on clear, defensible criteria. Even though the CRPD itself intentionally does not define disability, it does provide in Article 1, Purpose, that: Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.8

This statement, with its focus on seeing disability as a product of the interaction between the person with an impairment and the various barriers the person might face, reflects a social model of disability that permeates the CRPD throughout. Overly medicalized definitions of disability thus not only are inconsistent with the thrust of the CRPD but may significantly understate the number of people potentially affected by a country’s disability policies. ASSESSING WHETHER DOMESTIC LEGISLATION IS CONSISTENT WITH THE CRPD As perhaps might be expected in an organization comprising ten countries, the ASEAN countries span the domestic legislative spectrum, from countries

262

Chapter Fifteen

with long-standing disability rights legislation that preceded ratification of the CRPD to those that are still in the process of considering disability-rights legislation. Under Article 4 of the CRPD, General Obligations: States Parties undertake: (a) To adopt all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention; (b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs, and practices that constitute discrimination against persons with disabilities. . . . 9 One might think that countries with older disability-rights legislation would be more likely to have laws inconsistent with the CRPD given the paradigm shift in thinking about disability that the CRPD represents. But even some of the newer laws, such as Cambodia’s Law on the Protection and Promotion of the Rights of Persons with Disabilities, adopted in 2009 after that country had signed the CRPD, may not be compliant with the Convention. In particular, the Cambodian legislation adopts a medical or impairment view of disability and does not recognize some rights that are in the CRPD, such as the rights of women and children with disabilities; access to justice; freedom from exploitation, violence, and abuse; freedom of expression and access to information; and protection of people with disabilities during emergencies. Vietnam’s 2010 Law on Persons with Disabilities also relies on a medical model to define disability. Countries with older disability-rights legislation, such as Indonesia (1997) and the Philippines (1992), are also struggling with reconciling their legislation with the dictates of the CRPD. In Indonesia, for example, efforts to change disability terminology from “handicap” to “differently abled” are part of an effort to emphasize that disability exists on a continuum. Still other countries, such as Myanmar, have not been able to enact disability-rights legislation despite consideration over an extended period of time (1998–2015). Domestic legislation that is consistent with the CRPD is a necessary if not sufficient condition for full implementation of the rights identified in the Convention. Each ASEAN country must analyze carefully the extent to which its legislation and policies are inconsistent with the CRPD and take the appropriate steps to reconcile them. EVEN IF THE DISABILITY RIGHTS LAW IS ADEQUATE ON ITS FACE, ARE THE RIGHTS PRIVATELY ENFORCEABLE? In Malaysia, for example, the Persons with Disabilities Act of 2008, a relatively recent piece of legislation, does not provide any mechanism for people with disabilities to enforce the rights in the statute. In a number of the



Norm Diffusion and CRPD Implementation and ASEAN 263

ASEAN countries, it is not at all clear if individual people with disabilities or DPOs can use the law to enforce its provisions against those persons or entities who violate the law. Countries have different legal traditions, of course, and in some cases there may be no history or tradition of private enforcement of substantive rights, whether in courts, agencies, or other fora. But it seems fair to say that it is highly unlikely that any governmental enforcement scheme alone, no matter how powerful and well-resourced the agency, could root out all or most of the discrimination faced by any marginalized group, including people with disabilities. In the United States, the concept of the private attorney general posits that lawsuits brought by individuals can and must supplement governmental enforcement of domestic civil rights laws. The ASEAN countries need to examine not only what rights they seek to protect but how they can assure that violations will be identified and redressed. THE ASEAN COUNTRIES NEED TO HAVE A STRONGER COMMITMENT TO NON-DISCRIMINATION AND EQUALITY FOR PEOPLE WITH DISABILITIES TO GIVE MEANING TO THE RIGHTS IN THE CRPD As noted above, non-discrimination and equality are two of the core principles animating the CRPD, and, indeed, Article 5, Equality and non-discrimination, establishes these rights as important substantive provisions of the Convention. Consequently, national disability-rights legislation should provide robust recognition of these rights (and the ability to enforce them). Malaysia’s disability-rights legislation does not contain a statement regarding equality and non-discrimination. Singapore’s legislation fails to provide a legal framework to enforce anti-discrimination principles. The Philippines also fails to provide such protections. A legislative commitment to non-discrimination and equality is especially critical because of the persistence of the medical model of disability within national policy and practice. People with disabilities need to be seen as rightsholders and not people to be pitied, and non-discrimination and equality language can be important in reinforcing that message. Implementation of CRPD principles and provisions can also be threatened by reservations States interpose at the time of ratification.10 Particularly troubling are Malaysia’s reservations that it does not consider itself bound by Article 15, Freedom from torture or cruel, inhuman, or degrading treatment or punishment, and Article 18, Liberty of movement and nationality, and Singapore’s reservations on Article 12 (4), Equal recognition before the

264

Chapter Fifteen

law, Article 25, Health (regarding the obligations of private health insurers), and Article 29 (a) (iii), Participation in political and public life.11 Malaysia’s reservation on Article 15 appears to be related to its belief that ratification of this article would require it to exempt people with disabilities from such punishments as whipping, which are otherwise permissible. Singapore fails to assure that its voting places are accessible to people with mobility and sensory impairments and does not recognize the violations of the privacy of the voter with a disability that can be caused when the person is unable to choose the person who will help him or her vote. (Article 29 (a) (iii) requires States Parties to undertake “Guaranteeing . . . where necessary, at their request, allowing assistance in voting by a person of their own choice.”). Singapore’s reservation on Article 12 is almost certain to generate criticism from the Committee on the Rights of Persons with Disabilities when Singapore appears before it in light of the Committee’s strict interpretation of Article 12 and its view that it bans all forms of surrogate decision making.12 LOCATION OF THE STATE’S FOCAL POINT AGENCY FOR CRPD ENFORCEMENT IN HEALTH OR SOCIAL WELFARE MINISTRIES MAY UNFORTUNATELY PERPETUATE A MEDICAL MODEL VIEW OF DISABILITY Virtually all of the ASEAN States have satisfied Article 33’s requirement that they identify a “focal point” within the government for CRPD implementation efforts. However, in all cases—with the partial exception of Philippines—the focal point agencies are located in government ministries for health or social welfare and not in justice-based agencies. So, for example, in Myanmar, the focal point is the Department of Social Welfare, which is part of the Ministry of Social Welfare, Reform, and Resettlement. In Singapore, the focal point is under the purview of the Ministry of Social and Family Development. In Malaysia, the focal point agency, the National Council for Persons with Disabilities, is under the Ministry of Women, Family, and Community Development, which is also in charge of social welfare issues. The theme is similar in the other ASEAN countries. In Indonesia, the focal point is in the Ministry of Social Affairs, but there is a recommendation that it be shifted to the Ministry of Law & Human Rights. In the Philippines, the National Council on Disability Affairs, the lead steering agency, was in the Department of Social Welfare and Development. In 2007, the National Council was moved to the Office of the President, but it has since moved back to the welfare agency. Although there is nothing inherently problematic about having the focal point agency in a social welfare ministry—and, to be sure, such placement



Norm Diffusion and CRPD Implementation and ASEAN 265

does not violate any provision of the CRPD—the unfortunate message that may be conveyed is that disability issues are not rights-based but rather are matters of social welfare. In such an environment, accommodations to the interests and concerns of people with disabilities may be seen as less related to equality and non-discrimination and more a matter of paternalistic concern. Further, such placement may make it easier to conceive of disability rights as subject to delayed enforcement, or progressive realization, rather than having immediate effect. One of the most powerful aspects of the CRPD is its embrace of the social model of disability, the legal equivalent of which is the human rights model of disability rights. Locating the focal point agency in a social welfare or health ministry may suppress that identification in ways that can delay if not defeat implementation of the provisions of the CRPD. In addition to ensuring that the focal point agency be located in an appropriate ministry, the agency must have adequate resources to perform its functions. The Committee on the Rights of Persons with Disabilities, in one of its Concluding Observations, expressed its concern that Thailand’s Department for the Empowerment of Persons with Disabilities “lacks sufficient capacity and resources to fulfill its mandate.”13 MONITORING—A WORK IN PROGRESS A number of ASEAN countries are struggling with how to establish a monitoring mechanism under Article 33 that is both independent and effective. In several instances, the monitoring entity is either the same as the focal point agency (mixing, therefore, implementation with monitoring) or a part of the State’s government apparatus, raising questions about the monitoring entity’s independence. For a monitoring entity to be effective, it must be independent and be able to make critical observations and call for necessary corrections without fear of its recommendations being buried within a recalcitrant bureaucracy. In Vietnam, the National Coordinating Council for Disabilities (NCCD) is charged with both implementation of the CRPD and monitoring. This conflation of functions, coupled with the NCCD’s placement within the Department of Social Protection, makes the monitoring “ineffective and lacking” in the words of the Vietnam chapter author. In Indonesia, there is, at present, no national institution or entity that monitors compliance; such monitoring as exists is at the local or provincial level. Malaysia also lacks an independent monitoring mechanism and while the Malaysian Human Rights Commission [SUHAKAM] might be able to take on that role, it has not been asked to do so as yet. In Thailand, the shadow report from Disabilities Thailand and Network of Disability Rights Advocates (DTN) expressed its concern

266

Chapter Fifteen

that the National Human Rights Commission, the independent mechanism charged with monitoring CRPD implementation, is unduly passive and lacks the necessary expertise to perform its monitoring functions adequately.14 The Committee on the Rights of Persons with Disabilities also noted that the status of the National Human Rights Commission had been downgraded, and urged Thailand to ensure that the Commission “fulfills the principles relating to the status of national institutions for the promotion and protection of human rights.”15 Having an independent and effective monitoring mechanism to assess CRPD compliance is important. But even if such a mechanism exists, it will be critical to ensure that when the monitoring entity uncovers problems with implementation there is some meaningful process in place to assure that the appropriate entity takes steps to address those problems. The best monitoring agency in the world will be rendered toothless if its recommendations can be ignored with impunity. There is much work to be done to assure that monitoring of the CRPD is robust, substantive, and transparent. The independence of the monitoring entity is critical to it having credibility in the recommendations for action that it makes. ENSURING THAT PEOPLE WITH DISABILITIES AND DPOS PLAY AN ACTIVE ROLE IN IMPLEMENTING AND MONITORING THE CRPD The final key component of Article 33 is that people with disabilities and DPOs be actively involved in monitoring compliance with the CRPD. Relatedly, people with disabilities and DPOs should be included in the implementation stage as well. ASEAN countries appear to be struggling to meet this requirement, and, in a number of instances, people with disabilities do not have a meaningful role (or at least in sufficient numbers) in implementation and monitoring. In Singapore, for example, representation is more likely to extend to professionals, caregivers, and stakeholders than to people with disabilities themselves. In Malaysia, despite some involvement by people with disabilities, there is no formal coordination between the focal point agency and DPOs. Some of the people with disabilities involved in implementation and monitoring are not associated with DPOs. That is not necessarily a problem, though it is important that people with disabilities involved in these processes be knowledgeable about the issues and have connections with other people with disabilities so that they can be effective advocates.



Norm Diffusion and CRPD Implementation and ASEAN 267

Expertise of people with disabilities in the CRPD and its interpretations can be an issue. In Malaysia, some of the DPO representatives have been perceived as lacking expertise, leading them to make unsound recommendations to governmental officials. The Committee on the Rights of Persons with Disabilities stated its concern about the process by which Thailand selected the people with disabilities who would be involved in monitoring implementation of the Convention and urged the government to consult with DPOs to establish standardized criteria for their appointment.16 In some countries, DPOs with official recognition, or in urban areas, have access to the monitoring process but it is much more difficult in rural areas to facilitate their involvement. This problem seems to exist in Vietnam and Myanmar. People with disabilities and DPOs have played an active role in advocating for signing and ratification of the CRPD in Cambodia, but notwithstanding that activism, their role in implementation and monitoring could be enhanced. Although the Philippines has a long record of legislative achievement in the disability rights area, and even has a political party for people with disabilities, consultation between the government and DPOs is not as extensive as it could be. One productive role that DPOs can play is in the submission of shadow reports when the State Party submits its report to the Committee on the Rights of Persons with Disabilities. DPOs prepared two such reports in connection with Thailand’s appearance before the Committee. Interestingly, several countries whose State reports have been due have not yet submitted them to the Committee, which can make production of a shadow report problematic. In Indonesia, for example, the country’s report to the Committee has been delayed, and a shadow report is being prepared, but it is not clear when it will be submitted. Malaysia’s report was due in 2012 but has not yet been submitted. Indeed, in the ASEAN region as a whole, only Thailand (which, as noted, has gone through the entire process through Concluding Observations), the Philippines, Myanmar, and Laos have submitted State reports.17 One important role DPOs can play in countries whose reports are due is to lobby the focal agency or other appropriate entity to file its report so that Committee consideration can proceed. The mantra of the disability rights movement, fully reflected in the CRPD, is “Nothing About Us Without Us.” That phrase plainly must extend to active involvement of people with disabilities and DPOs in the implementation and monitoring of the CRPD. This is their Convention and any implementation and monitoring process that does not include them is bound to fail.

268

Chapter Fifteen

CONCLUSION As Gauthier de Beco has observed, the CRPD stands apart from other human rights treaties in its prescriptive provisions for determining how the human rights at issue should be implemented.18 Article 33’s requirements reflect a keen appreciation for the proposition that rights are not self-executing and that even where States have the best of intentions it is critical for dedicated state agencies and civil society to be involved in implementation and monitoring of those rights. The ASEAN countries are experiencing some growing pains in achieving the goals of Article 33 but there appears to be increasing recognition of the value and importance of this Article if the promise of the CRPD is to become a reality for people with disabilities. NOTES  1. Michael Lottman. “Enforcement of Judicial Decrees: Now Comes the Hard Part.” Mental Disability Law Reporter 1/1 (JULY-AUGUST 1976): 69–76.  2. References to State-specific information in the balance of this chapter are based on the papers presented at the “Presidential Theme Panel—The Global ‘Grand Challenge’ Of Disability and Development: Comparative Implementation Of The Convention On The Rights Of Persons With Disabilities in ASEAN” International Studies Association Annual Meeting, New Orleans, Louisiana, February 20, 2015. Papers on Myanmar and Indonesia were written at a later date.  3. The Committee issued its Concluding Observations on Thailand at the end of its 15th Session, March 29–April 21, 2016, on May 12, 2016. No other ASEAN country has yet appeared before the Committee.   4.  The Philippines was the first ASEAN country to ratify the CRPD, on April 15, 2008; Brunei Darussalam was the most recent country to do so, on April 11, 2016. See https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV15&chapter=4&clang=_en (last visited October 30, 2016).   5.  Convention on the Rights of Persons with Disabilities (CRPD), 2515 UNTS 3, Art. 33.   6.  CRPD, Art. 3.   7.  World Health Organization (and World Bank), World Report on Disability, 2011. http://www.unicef.org/protection/World_report_on_disability_eng.pdf   8.  CRPD, Art. 1.   9.  CRPD, Art. 4 (1) (a), (b). 10.  Note that Thailand originally had issued interpretative declarations on Article 18, Liberty of movement and nationality, but passed legislation in 2015 to withdraw them, an action that earned the praise of the Committee on the Rights of Persons with Disabilities when it considered Thailand’s State Report. Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report on Thailand.



Norm Diffusion and CRPD Implementation and ASEAN 269

CRPD/C/THA/CO/1 (May 12, 2016) at 2, parapraph II. 4. (f) http://tbinternet.ohchr. org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD%2fC%2fTHA% 2fCO%2f1&Lang=en. 11. See CRPD Declarations and Reservations, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en. 12.  See Committee on the Rights of Persons with Disabilities, General Comment No. 1 (2014), Article 12: Equal recognition before the law, CRPD/C/GC/1, 11th Sess. (May 19, 2014), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/031/20/ PDF/G1403120.pdf?OpenElement; Robert Dinerstein, Esmé Grant Grewal and Jonathan Martinis. “Emerging International Trends and Practices in Guardianship Law for People with Disabilities.” ILSA Journal of International and Comparative Law 22/2 (2016). 13.  Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report in Thailand, 10, para. 67. 14. Disabilities Thailand and Network of Disability Rights Advocates (DTN). Thailand CRPD Alternative Report 69, March 2016. Issue: National Human Rights Commission of Thailand (NHRC) lacks proactive policy measures and Sub-Committee to Monitor the Implementation of Rights of Persons with Disabilities. http:// tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=INT%2 fCRPD%2fCSS%2fTHA%2f23388&Lang=en. 15.  Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report in Thailand, 10, para. 68. 16.  Ibid., para. 67–68. 17. http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang= en&TreatyID=4&DocTypeID=29. 18.  Gauthier de Beco. Article 33 of the UN Convention on the Rights of Persons with Disabilities: National Structures for the Implementation and Monitoring of the Convention. Leiden: Martinus Nijhoff Publishers, 2013.

BIBLIOGRAPHY Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report on Thailand. CRPD/C/THA/CO/1 (12 May 2016) at 2, parapraph II. 4. (f) http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?s ymbolno=CRPD%2fC%2fTHA%2fCO%2f1&Lang=en. Committee on the Rights of Persons with Disabilities, General Comment No. 1 (2014), Article 12: Equal recognition before the law, CRPD/C/GC/1, 11th Sess. (May 19, 2014), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/031/20/ PDF/G1403120.pdf?OpenElement. Convention on the Rights of Persons with Disabilities (CRPD), 2515 UNTS 3, Art. 33. de Beco, Gauthier. Article 33 of the UN Convention on the Rights of Persons with Disabilities: National Structures for the Implementation and Monitoring of the Convention. Leiden: Martinus Nijhoff Publishers, 2013.

270

Chapter Fifteen

Dinerstein, Robert, Esmé Grant Grewal, and Jonathan Martinis. “Emerging International Trends and Practices in Guardianship Law for People with Disabilities.” ILSA Journal of International and Comparative Law 22/2 (2016). Disabilities Thailand and Network of Disability Rights Advocates (DTN). Thailand CRPD Alternative Report 69, March 2016 http://tbinternet.ohchr.org/_layouts/ treatybodyexternal/Download.aspx?symbolno=INT%2fCRPD%2fCSS%2fTHA% 2f23388&Lang=en. Lottman, Michael. “Enforcement of Judicial Decrees: Now Comes the Hard Part.” Mental Disability Law Reporter 1/1 (JULY-AUGUST 1976): 69–76. “Presidential Theme Panel—The Global ‘Grand Challenge’ Of Disability and Development: Comparative Implementation Of The Convention On The Rights Of Persons With Disabilities in ASEAN.” International Studies Association Annual Meeting, New Orleans, Louisiana, February 20, 2015. World Health Organization (and World Bank), World Report on Disability, 2011. http://www.unicef.org/protection/World_report_on_disability_eng.pdf.

Chapter Sixteen

Conclusion Norm Diffusion, Human Rights, and CRPD Implementation to “Make the Right Real” for Persons with Disabilities in ASEAN Tina Kempin Reuter and Derrick L. Cogburn AN HISTORIC MOMENT FOR THE GRAND CHALLENGE OF DISABILITY AND DEVELOPMENT Ten years after the CRPD first opened for signature, all ten countries of the ASEAN region have ratified the treaty. This is a major achievement, considering the heterogeneity of the region with regards to socio-economic development status, political systems, religions, and the history of relative resistance to human rights. It shows that the concern for the grand challenge of disability rights has entered mainstream discussions in Southeast Asia. While the question of disability policy is not necessarily new to the member states of the ASEAN region, the arrival of the CRPD has in many ways streamlined the efforts and given them a common basis as a starting point for disability rights implementation. NATIONAL LEVEL LEGAL INFRASTRUCTURE TO SUPPORT CRPD IMPLEMENTATION As discussed in the case studies, great progress has been made both with regards to the development of a legal infrastructure to support the rights of persons with disabilities in the region, but also in terms of building appropriate institutions to facilitate the implementation, coordination, and monitoring of the national commitments made under the convention. With regards to laws, all states examined in our study have domestic laws that offer protections for persons with disabilities. In most cases, these laws either already reflected the content of the CRPD before the state became a party to the treaty or, more commonly, domestic laws were specifically 271

272

Chapter Sixteen

adapted or established to fulfill the requirements of the CRPD on the national level. One of the main challenges of implementation has been that a majority of states have used the “medical model” of disability in their laws concerning persons with disability. The medical approach to disability focuses on the impairment and treats the person with the disability as a case of charity or in need of medical assistance. The shift to the “rights-based” or “social model” of disability, which is the approach taken by the CRPD, includes major changes not only in the thinking and the attitude toward disability, but also in terms of how laws are formulated, implemented, and monitored, and how the rights contained therein are realized. As these case studies show, this shift in perception and perspective continues to pose major challenges to many of the ASEAN states. INSTITUTIONS TO SUPPORT CRPD IMPLEMENTATION With regards to institutions, the Convention is very specific in what the institutional setup of CRPD implementation should look like. The CRPD calls for one or more focal points within the government that is responsible for implementation and asks member states to establish a coordination mechanism to address disability-related issues across multiple sectors (Article 33, paragraph 1). The case studies show that this has been the point of least contention and much progress has been made in all states examined. All ASEAN states have institutions that qualify to fulfill the requirements stipulated in Article 33. Part of the reason for the apparent success and progress in this matter is related to the fact that most states were able to designate already established institutions for this purpose. However, states have struggled with setting up independent mechanisms to promote, protect, and monitor the implementation (Article 33, paragraph 2). Only a small number of countries have been able to establish truly independent mechanisms that follow the Paris Principles of independence. In most cases, the alleged independent mechanism lacks true autonomy because it is either housed in one of the government ministries or set up in a way that allows significant government interference. In some cases, no independent mechanisms have been established, which severely weakens the implementation of the CRPD and the impact of international laws. Interestingly, the integration of civil society actors and DPOs in the monitoring and implementation process, the third stipulation of Article 33 (detailed in paragraph 3), has been very successful. Part of this finding can be attributed to the fact that DPOs played an integral role in the development of the CRPD and thus were able to shape and influence the final text and im-



Conclusion 273

pact of the treaty. In addition to their role in preparatory works on the treaty and in the developments leading up to the final Convention, DPOs and other civil society actors were able to successfully demonstrate their importance in documenting, raising awareness, and dealing with human rights abuses of persons with disabilities and in monitoring compliance with national and international laws. Even in cases in which the implementation of the CRPD has been slow, national DPOs, sometimes in collaboration or with the backing of international NGOs, have been at the frontlines of raising awareness and pressuring governments into action. CHALLENGING TRENDS IN HUMAN RIGHTS IMPLEMENTATION These developments reflect a general trend in human rights implementation. While laws on the international level are still made by states in the context of the United Nations, they are heavily influenced by civil society actors that bear the brunt of investigation, documentation, and reporting of human rights violations and supervise application and monitoring of international treaties. This has changed the approach to human rights implementation and shifted the focus of responsibility for realization of international laws away from states to include civil society actors. The CRPD serves as a perfect example of this shift: it acknowledges the importance of non-state actors in international human rights implementation and assigns them a specific role. This strengthens the influence of these actors on international law, which is one of the reasons why the CRPD is truly ground-breaking. As our case studies show, the levels of actual implementation vary greatly among the ASEAN member states. One reason for these discrepancies is that the times of ratification vary between 2008 and 2016. A second reason is the multitude of cultural approaches to human rights and international law in Southeast Asia. Not all states in the ASEAN region acknowledge the importance of human rights. In fact, many of them have argued in the past that human rights are an essentially foreign concept to their culture. The fact that the CRPD enjoys such broad support is thus in itself an achievement, even if there are disparities in implementation. Third, persons with disabilities face stigma and marginalization in many of the states studied in this book. The level of marginalization depends of cultural interpretations and the history of disability policy. Interestingly, it seems that persons with disabilities face the least degree of stigmatizations in countries that have been affected by wars, which also seem the ones with the strongest disability rights institutions before the CRPD. Overcoming the deep cultural barriers, prejudice, and bias

274

Chapter Sixteen

against persons with disabilities takes time and effort and requires investments in raising awareness, educating, and promoting the CRPD. Fourth, the heterogeneity of political systems in the region, ranging from liberal democracies to monarchies to authoritarian regimes, impacts the way in which laws are negotiated, enacted, and enforced. The political system also influences the institutional setup for CRPD implementation, which explains why some processes have taken longer than others or why some laws and institutions enjoy greater support by the public than others (e.g., if the public was consulted in the law making and institution building process, the duration is longer, but the laws/bodies more effective in their implementation and enforcement efforts). Fifth, different levels of economic development have additionally affected implementation levels. While most rights in the CRPD are supposed to be implemented with immediate effect after the ratification of the treaty, others are more aspirational, especially for states with low economic development. Infrastructure changes, the implementation of the right to work, the right to health, the right to adequate standard of living, and other economic, social, and cultural rights cannot be realized at the same rate in all of the member states. Some of these rights, however, are the ones with the highest impact on the lives of persons with disabilities, which is why states should be urged to focus on implementation of even aspirational rights and make them a priority. One way to do this is to have ASEAN or other international organizations allocate funding for these purposes to equalize the playing field and to give states incentives to implement the CRPD to its fullest potential. RECOMMENDATIONS AND FUTURE RESEARCH Out of this study, we see several issues that would lend themselves to further research. Some of the leading issues include: (1) the question if physical and mental disabilities are treated differently not only in terms of stigmatization and marginalization, but also with regards to CRPD implementation efforts; (2) the question of gender disparities in CRPD implementation, as interestingly, it seems addressing women’s rights issues is often combined with disability rights (e.g., the same body is in charge of monitoring and implementation); (3) what the various levels of budget allocation directed toward CRPD implementation in each country are, and how many professional staff are directed toward this endeavor; (4) which countries have submitted their required state reports, the content of those reports, and the country’s own assessment of how well it is doing toward implementation, and the relationship between the official reports and the shadow reports; (5) what the status of capacity building and training is to engage with disability policy issues at



Conclusion 275

national, regional, and global levels, especially for persons with disabilities themselves; (6) producing a deeper understanding of the role and potential of the ASEAN Intergovernmental Commission on Human Rights (AICHR) to support CRPD implementation and the Incheon Strategy, including regional level evaluations and reports; (7) more research on the linkages between national, regional, and global level civil society and DPOs involved in the advocacy, implementation, and monitoring of the CRPD; and finally (8) a discussion of what can be done to strengthen the growth and development of independent monitoring mechanisms in the region. Our final recommendations flow from these research opportunities. First, we recommend that governments in the region continue to strengthen their CRPD Focal Points and enhance the authority of their coordination mechanisms. Both of these institutions need to have the highest level of visibility, sufficient authority, budgetary resources, and human resources to carry out their important responsibilities. These institutions need to be formal, and the intergovernmental collaboration envisioned by the coordination mechanism should be supported at the highest levels of the government. When the head of state participates actively in these coordination activities, it sends a very strong signal about the degree to which the government values disability and development issues. Second, we recommend that each country find the time to finalize and submit their state report. At the moment, several countries in the region have not submitted their first report, and some are due to have submitted a second. We also encourage civil society, DPOs, and universities in the region to become more involved in these issues. Empirical research will help to strengthen the evidence-based policy formulation practices that will substantially enhance CRPD implementation in the region. ASEAN should continue to encourage its members to submit these reports and work on submitting regional reports as well. Third, there should be a much higher focus on capacity building and training for citizens of the region to understand these disability policy issues, and their intersection with the major global development initiatives of Habitat III and the New Urban Agenda, the SDGs, the Sendai Framework on Disaster Risk Reduction, WSIS+10 Outcome Document, the Internet Governance Forum, and others. However, there should be particularly close attention paid to ensuring that persons with disabilities are able to participate effectively in all these venues, and are able to represent themselves and their interests. This recommendation includes the kind of work we have done in the IDPP over the past seven years, with a focus on master’s degree training in disability and public policy, but also training for NGO/DPO leadership, and community members as well. This training could also include how to network effectively

276

Chapter Sixteen

within the region, and to link with transnational advocacy networks to affect changes in global governance. As a contribution toward this need for capacity building and training, we have developed the IDPP CRPD Advocacy Toolkit as mobile application on the iOS platform. This app was launched and Friday, 2 December, 2016 as the United Nations as part of the commemoration of the tenth anniversity of the CRPD and in celebration of the International Day for Persons with Disabilities. For more information about the CRPD app, please see: http://www.idppglobal.org/advocacy. Fourth, ASEAN should ensure that AICHR should become even more involved in taking up CRPD and Incheon Strategy implementation. Recently, AICHR has started to move more in this direction, initially focusing on the accessibility of elections, but it should take on the broader role of strengthening the independent monitoring mechanisms, and supporting them to reflect the expectations of the Paris Principles. CONCLUSION This project has been a fantastic experience. We have been honored to work with such a stellar group of scholars, most of whom have never met faceto-face. We hope this volume makes a contribution to understanding where ASEAN stands at the moment in terms of confronting the grand challenge of disability policy, and points to ways forward for a most prosperous, inclusive, barrier-free, and rights-based society for all people in Southeast Asia.

Appendix A Convention on the Rights of Persons with Disabilities1

Preamble The States Parties to the present Convention (a) Recalling the principles proclaimed in the Charter of the United Nations which recognize the inherent dignity and worth and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world, (b) Recognizing that the United Nations, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, has proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, (c) Reaffirming the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination, (d) Recalling the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, (e) Recognizing that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others, 277

278

Appendix A

(f)  Recognizing the importance of the principles and policy guidelines contained in the World Programme of Action concerning Disabled Persons and in the Standard Rules on the Equalization of Opportunities for Persons with Disabilities in influencing the promotion, formulation and evaluation of the policies, plans, programmes and actions at the national, regional and international levels to further equalize opportunities for persons with disabilities, (g) Emphasizing the importance of mainstreaming disability issues as an integral part of relevant strategies of sustainable development, (h) Recognizing also that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person, (i) Recognizing further the diversity of persons with disabilities, (j) Recognizing the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support, (k)  Concerned that, despite these various instruments and undertakings, persons with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights in all parts of the world, (l) Recognizing the importance of international cooperation for improving the living conditions of persons with disabilities in every country, particularly in developing countries, (m) Recognizing the valued existing and potential contributions made by persons with disabilities to the overall well-being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in their enhanced sense of belonging and in significant advances in the human, social and economic development of society and the eradication of poverty, (n) Recognizing the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices, (o) Considering that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them, (p) Concerned about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other



Appendix A 279

opinion, national, ethnic, indigenous or social origin, property, birth, age or other status, (q) Recognizing that women and girls with disabilities are often at greater risk, both within and outside the home, of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, (r) Recognizing that children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children, and recalling obligations to that end undertaken by States Parties to the Convention on the Rights of the Child, (s) Emphasizing the need to incorporate a gender perspective in all efforts to promote the full enjoyment of human rights and fundamental freedoms by persons with disabilities, (t) Highlighting the fact that the majority of persons with disabilities live in conditions of poverty, and in this regard recognizing the critical need to address the negative impact of poverty on persons with disabilities, (u) Bearing in mind that conditions of peace and security based on full respect for the purposes and principles contained in the Charter of the United Nations and observance of applicable human rights instruments are indispensable for the full protection of persons with disabilities, in particular during armed conflicts and foreign occupation, (v) Recognizing the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms, (w) Realizing that the individual, having duties to other individuals and to the community to which he or she belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the International Bill of Human Rights, (x) Convinced that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State, and that persons with disabilities and their family members should receive the necessary protection and assistance to enable families to contribute towards the full and equal enjoyment of the rights of persons with disabilities, (y) Convinced that a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities will make a significant contribution to redressing the profound social disadvantage of persons with disabilities and promote their participation in the civil, political, economic, social and cultural spheres with equal opportunities, in both developing and developed countries,

280

Appendix A

Have agreed as follows: Article 1—Purpose The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. Article 2—Definitions For the purposes of the present Convention: “Communication” includes languages, display of text, Braille, tactile communication, large print, accessible multimedia as well as written, audio, plain-language, human-reader and augmentative and alternative modes, means and formats of communication, including accessible information and communication technology; “Language” includes spoken and signed languages and other forms of nonspoken languages; “Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation; “Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; “Universal design” means the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. “Universal design” shall not exclude assistive devices for particular groups of persons with disabilities where this is needed.



Appendix A 281

Article 3—General principles The principles of the present Convention shall be: (a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; (b) Non-discrimination; (c) Full and effective participation and inclusion in society; (d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; (e) Equality of opportunity; (f) Accessibility; (g) Equality between men and women; (h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities. Article 4—General obligations 1.  States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake: (a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention; (b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities; (c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes; (d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention; (e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise; (f) To undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in article 2 of the present Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines;

282

Appendix A

(g) To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost; (h) To provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities; (i) To promote the training of professionals and staff working with persons with disabilities in the rights recognized in this Convention so as to better provide the assistance and services guaranteed by those rights. 2.  With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights, without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law. 3.  In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations. 4.  Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of persons with disabilities and which may be contained in the law of a State Party or international law in force for that State. There shall be no restriction upon or derogation from any of the human rights and fundamental freedoms recognized or existing in any State Party to the present Convention pursuant to law, conventions, regulation or custom on the pretext that the present Convention does not recognize such rights or freedoms or that it recognizes them to a lesser extent. 5.  The provisions of the present Convention shall extend to all parts of federal states without any limitations or exceptions. Article 5—Equality and non-discrimination 1.  States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.



Appendix A 283

2.  States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3.  In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 4.  Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention. Article 6—Women with disabilities 1.  States Parties recognize that women and girls with disabilities are subject to multiple discrimination, and in this regard shall take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms. 2.  States Parties shall take all appropriate measures to ensure the full development, advancement and empowerment of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out in the present Convention. Article 7—Children with disabilities 1.  States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children. 2.  In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration. 3.  States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and ageappropriate assistance to realize that right. Article 8—Awareness-raising 1.  States Parties undertake to adopt immediate, effective and appropriate measures: (a) To raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities;

284

Appendix A

(b) To combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life; (c) To promote awareness of the capabilities and contributions of persons with disabilities. 2.  Measures to this end include: (a) Initiating and maintaining effective public awareness campaigns designed: (i) To nurture receptiveness to the rights of persons with disabilities; (ii) To promote positive perceptions and greater social awareness towards persons with disabilities; (iii) To promote recognition of the skills, merits and abilities of persons with disabilities, and of their contributions to the workplace and the labour market; (b) Fostering at all levels of the education system, including in all children from an early age, an attitude of respect for the rights of persons with disabilities; (c) Encouraging all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the present Convention; (d) Promoting awareness-training programmes regarding persons with disabilities and the rights of persons with disabilities. Article 9—Accessibility 1.  To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia: (a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces; (b) Information, communications and other services, including electronic services and emergency services. 2.  States Parties shall also take appropriate measures to: (a) Develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public;

Appendix A 285



(b) Ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities; (c) Provide training for stakeholders on accessibility issues facing persons with disabilities; (d) Provide in buildings and other facilities open to the public signage in Braille and in easy to read and understand forms; (e) Provide forms of live assistance and intermediaries, including guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public; (f) Promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information; (g) Promote access for persons with disabilities to new information and communications technologies and systems, including the Internet; (h) Promote the design, development, production and distribution of accessible information and communications technologies and systems at an early stage, so that these technologies and systems become accessible at minimum cost. Article 10—Right to life States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others. Article 11—Situations of risk and humanitarian emergencies States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters. Article 12—Equal recognition before the law 1.  States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2.  States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3.  States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

286

Appendix A

4.  States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. 5.  Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property. Article 13—Access to justice 1.  States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. 2.  In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff. Article 14—Liberty and security of the person 1.  States Parties shall ensure that persons with disabilities, on an equal basis with others: (a) Enjoy the right to liberty and security of person; (b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty. 2.  States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others,



Appendix A 287

entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation. Article 15—Freedom from torture or cruel, inhuman or degrading treatment or punishment 1.  No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation. 2.  States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment. Article 16—Freedom from exploitation, violence and abuse 1.  States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects. 2.  States Parties shall also take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of gender- and age-sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognize and report instances of exploitation, violence and abuse. States Parties shall ensure that protection services are age-, gender- and disability-sensitive. 3.  In order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities. 4.  States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person and takes into account gender- and age-specific needs. 5.  States Parties shall put in place effective legislation and policies, including women- and child-focused legislation and policies, to ensure that instances

288

Appendix A

of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted. Article 17—Protecting the integrity of the person Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others. Article 18—Liberty of movement and nationality 1.  States Parties shall recognize the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others, including by ensuring that persons with disabilities: (a) Have the right to acquire and change a nationality and are not deprived of their nationality arbitrarily or on the basis of disability; (b) Are not deprived, on the basis of disability, of their ability to obtain, possess and utilize documentation of their nationality or other documentation of identification, or to utilize relevant processes such as immigration proceedings, that may be needed to facilitate exercise of the right to liberty of movement; (c) Are free to leave any country, including their own; (d) Are not deprived, arbitrarily or on the basis of disability, of the right to enter their own country. 2.  Children with disabilities shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by their parents. Article 19—Living independently and being included in the community States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: (a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;



Appendix A 289

(b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; (c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs. Article 20—Personal mobility States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by: (a) Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost; (b) Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost; (c) Providing training in mobility skills to persons with disabilities and to specialist staff working with persons with disabilities; (d) Encouraging entities that produce mobility aids, devices and assistive technologies to take into account all aspects of mobility for persons with disabilities. Article 21—Freedom of expression and opinion, and access to information States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice, as defined in article 2 of the present Convention, including by: (a) Providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost; (b) Accepting and facilitating the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions;

290

Appendix A

(c) Urging private entities that provide services to the general public, including through the Internet, to provide information and services in accessible and usable formats for persons with disabilities; (d) Encouraging the mass media, including providers of information through the Internet, to make their services accessible to persons with disabilities; (e) Recognizing and promoting the use of sign languages. Article 22—Respect for privacy 1.  No person with disabilities, regardless of place of residence or living arrangements, shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence or other types of communication or to unlawful attacks on his or her honour and reputation. Persons with disabilities have the right to the protection of the law against such interference or attacks. 2.  States Parties shall protect the privacy of personal, health and rehabilitation information of persons with disabilities on an equal basis with others. Article 23—Respect for home and the family 1.  States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that: (a) The right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognized; (b) The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided; (c) Persons with disabilities, including children, retain their fertility on an equal basis with others. 2.  States Parties shall ensure the rights and responsibilities of persons with disabilities, with regard to guardianship, wardship, trusteeship, adoption of children or similar institutions, where these concepts exist in national legislation; in all cases the best interests of the child shall be paramount. States Parties shall render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities.



Appendix A 291

3.  States Parties shall ensure that children with disabilities have equal rights with respect to family life. With a view to realizing these rights, and to prevent concealment, abandonment, neglect and segregation of children with disabilities, States Parties shall undertake to provide early and comprehensive information, services and support to children with disabilities and their families. 4.  States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents. 5.  States Parties shall, where the immediate family is unable to care for a child with disabilities, undertake every effort to provide alternative care within the wider family, and failing that, within the community in a family setting. Article 24—Education 1.  States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and lifelong learning directed to: (a) The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity; (b) The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential; (c) Enabling persons with disabilities to participate effectively in a free society. 2.  In realizing this right, States Parties shall ensure that: (a) Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability; (b) Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live; (c) Reasonable accommodation of the individual’s requirements is provided;

292

Appendix A

(d) Persons with disabilities receive the support required, within the general education system, to facilitate their effective education; (e) Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion. 3.  States Parties shall enable persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community. To this end, States Parties shall take appropriate measures, including: (a) Facilitating the learning of Braille, alternative script, augmentative and alternative modes, means and formats of communication and orientation and mobility skills, and facilitating peer support and mentoring; (b) Facilitating the learning of sign language and the promotion of the linguistic identity of the deaf community; (c) Ensuring that the education of persons, and in particular children, who are blind, deaf or deafblind, is delivered in the most appropriate languages and modes and means of communication for the individual, and in environments which maximize academic and social development. 4.  In order to help ensure the realization of this right, States Parties shall take appropriate measures to employ teachers, including teachers with disabilities, who are qualified in sign language and/or Braille, and to train professionals and staff who work at all levels of education. Such training shall incorporate disability awareness and the use of appropriate augmentative and alternative modes, means and formats of communication, educational techniques and materials to support persons with disabilities. 5.  States Parties shall ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. To this end, States Parties shall ensure that reasonable accommodation is provided to persons with disabilities. Article 25—Health States Parties recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall take all appropriate measures to ensure access for persons with disabilities to health services that are gendersensitive, including health-related rehabilitation. In particular, States Parties shall:



Appendix A 293

(a) Provide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes; (b) Provide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, including among children and older persons; (c) Provide these health services as close as possible to people’s own communities, including in rural areas; (d) Require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent by, inter alia, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care; (e) Prohibit discrimination against persons with disabilities in the provision of health insurance, and life insurance where such insurance is permitted by national law, which shall be provided in a fair and reasonable manner; (f) Prevent discriminatory denial of health care or health services or food and fluids on the basis of disability. Article 26—Habilitation and rehabilitation 1.  States Parties shall take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life. To that end, States Parties shall organize, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services, in such a way that these services and programmes: (a) Begin at the earliest possible stage, and are based on the multidisciplinary assessment of individual needs and strengths; (b) Support participation and inclusion in the community and all aspects of society, are voluntary, and are available to persons with disabilities as close as possible to their own communities, including in rural areas. 2.  States Parties shall promote the development of initial and continuing training for professionals and staff working in habilitation and rehabilitation services.

294

Appendix A

3.  States Parties shall promote the availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities, as they relate to habilitation and rehabilitation. Article 27—Work and employment 1.  States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia: (a) Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions; (b) Protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances; (c) Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others; (d) Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training; (e) Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment; (f)  Promote opportunities for self-employment, entrepreneurship, the development of cooperatives and starting one’s own business; (g) Employ persons with disabilities in the public sector; (h) Promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures; (i) Ensure that reasonable accommodation is provided to persons with disabilities in the workplace; (j) Promote the acquisition by persons with disabilities of work experience in the open labour market;



Appendix A 295

(k) Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities. 2.  States Parties shall ensure that persons with disabilities are not held in slavery or in servitude, and are protected, on an equal basis with others, from forced or compulsory labour. Article 28—Adequate standard of living and social protection 1.  States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability. 2.  States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures: (a) To ensure equal access by persons with disabilities to clean water services, and to ensure access to appropriate and affordable services, devices and other assistance for disability-related needs; (b) To ensure access by persons with disabilities, in particular women and girls with disabilities and older persons with disabilities, to social protection programmes and poverty reduction programmes; (c) To ensure access by persons with disabilities and their families living in situations of poverty to assistance from the State with disabilityrelated expenses, including adequate training, counselling, financial assistance and respite care; (d) To ensure access by persons with disabilities to public housing programmes; (e) To ensure equal access by persons with disabilities to retirement benefits and programmes. Article 29—Participation in political and public life States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to: (a) Ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:

296

Appendix A

(i) Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use; (ii) Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate; (iii) Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice; (b) Promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including: (i) Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties; (ii) Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels. Article 30—Participation in cultural life, recreation, leisure and sport 1.  States Parties recognize the right of persons with disabilities to take part on an equal basis with others in cultural life, and shall take all appropriate measures to ensure that persons with disabilities: (a) Enjoy access to cultural materials in accessible formats; (b) Enjoy access to television programmes, films, theatre and other cultural activities, in accessible formats; (c) Enjoy access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services, and, as far as possible, enjoy access to monuments and sites of national cultural importance. 2.  States Parties shall take appropriate measures to enable persons with disabilities to have the opportunity to develop and utilize their creative, artistic and intellectual potential, not only for their own benefit, but also for the enrichment of society. 3.  States Parties shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not



Appendix A 297

constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials. 4.  Persons with disabilities shall be entitled, on an equal basis with others, to recognition and support of their specific cultural and linguistic identity, including sign languages and deaf culture. 5.  With a view to enabling persons with disabilities to participate on an equal basis with others in recreational, leisure and sporting activities, States Parties shall take appropriate measures: (a) To encourage and promote the participation, to the fullest extent possible, of persons with disabilities in mainstream sporting activities at all levels; (b) To ensure that persons with disabilities have an opportunity to organize, develop and participate in disability-specific sporting and recreational activities and, to this end, encourage the provision, on an equal basis with others, of appropriate instruction, training and resources; (c) To ensure that persons with disabilities have access to sporting, recreational and tourism venues; (d) To ensure that children with disabilities have equal access with other children to participation in play, recreation and leisure and sporting activities, including those activities in the school system; (e) To ensure that persons with disabilities have access to services from those involved in the organization of recreational, tourism, leisure and sporting activities. Article 31—Statistics and data collection 1.  States Parties undertake to collect appropriate information, including statistical and research data, to enable them to formulate and implement policies to give effect to the present Convention. The process of collecting and maintaining this information shall: (a) Comply with legally established safeguards, including legislation on data protection, to ensure confidentiality and respect for the privacy of persons with disabilities; (b) Comply with internationally accepted norms to protect human rights and fundamental freedoms and ethical principles in the collection and use of statistics. 2.  The information collected in accordance with this article shall be disaggregated, as appropriate, and used to help assess the implementation of States Parties’ obligations under the present Convention and to identify and address the barriers faced by persons with disabilities in exercising their rights.

298

Appendix A

3.  States Parties shall assume responsibility for the dissemination of these statistics and ensure their accessibility to persons with disabilities and others. Article 32—International cooperation 1.  States Parties recognize the importance of international cooperation and its promotion, in support of national efforts for the realization of the purpose and objectives of the present Convention, and will undertake appropriate and effective measures in this regard, between and among States and, as appropriate, in partnership with relevant international and regional organizations and civil society, in particular organizations of persons with disabilities. Such measures could include, inter alia: (a) Ensuring that international cooperation, including international development programmes, is inclusive of and accessible to persons with disabilities; (b)  Facilitating and supporting capacity-building, including through the exchange and sharing of information, experiences, training programmes and best practices; (c) Facilitating cooperation in research and access to scientific and technical knowledge; (d) Providing, as appropriate, technical and economic assistance, including by facilitating access to and sharing of accessible and assistive technologies, and through the transfer of technologies. 2.  The provisions of this article are without prejudice to the obligations of each State Party to fulfil its obligations under the present Convention. Article 33—National implementation and monitoring 1.  States Parties, in accordance with their system of organization, shall designate one or more focal points within government for matters relating to the implementation of the present Convention, and shall give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels. 2.  States Parties shall, in accordance with their legal and administrative systems, maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to promote, protect and monitor implementation of the present Convention. When designating or establishing such a mechanism, States Parties shall take into account the principles relating to the status



Appendix A 299

and functioning of national institutions for protection and promotion of human rights. 3.  Civil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process. Article 34—Committee on the Rights of Persons with Disabilities 1.  There shall be established a Committee on the Rights of Persons with Disabilities (hereafter referred to as “the Committee”), which shall carry out the functions hereinafter provided. 2.  The Committee shall consist, at the time of entry into force of the present Convention, of twelve experts. After an additional sixty ratifications or accessions to the Convention, the membership of the Committee shall increase by six members, attaining a maximum number of eighteen members. 3.  The members of the Committee shall serve in their personal capacity and shall be of high moral standing and recognized competence and experience in the field covered by the present Convention. When nominating their candidates, States Parties are invited to give due consideration to the provision set out in article 4.3 of the present Convention. 4.  The members of the Committee shall be elected by States Parties, consideration being given to equitable geographical distribution, representation of the different forms of civilization and of the principal legal systems, balanced gender representation and participation of experts with disabilities. 5.  The members of the Committee shall be elected by secret ballot from a list of persons nominated by the States Parties from among their nationals at meetings of the Conference of States Parties. At those meetings, for which two thirds of States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting. 6.  The initial election shall be held no later than six months after the date of entry into force of the present Convention. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit the nominations within two months. The Secretary-General shall subsequently prepare a list in alphabetical order of all persons thus nominated, indicating the State Parties which have nominated them, and shall submit it to the States Parties to the present Convention.

300

Appendix A

7.  The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election once. However, the term of six of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these six members shall be chosen by lot by the chairperson of the meeting referred to in paragraph 5 of this article. 8.  The election of the six additional members of the Committee shall be held on the occasion of regular elections, in accordance with the relevant provisions of this article. 9.  If a member of the Committee dies or resigns or declares that for any other cause she or he can no longer perform her or his duties, the State Party which nominated the member shall appoint another expert possessing the qualifications and meeting the requirements set out in the relevant provisions of this article, to serve for the remainder of the term. 10.  The Committee shall establish its own rules of procedure. 11.  The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention, and shall convene its initial meeting. 12.  With the approval of the General Assembly, the members of the Committee established under the present Convention shall receive emoluments from United Nations resources on such terms and conditions as the Assembly may decide, having regard to the importance of the Committee’s responsibilities. 13.  The members of the Committee shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations. Article 35—Reports by States Parties 1.  Each State Party shall submit to the Committee, through the SecretaryGeneral of the United Nations, a comprehensive report on measures taken to give effect to its obligations under the present Convention and on the progress made in that regard, within two years after the entry into force of the present Convention for the State Party concerned. 2.  Thereafter, States Parties shall submit subsequent reports at least every four years and further whenever the Committee so requests. 3.  The Committee shall decide any guidelines applicable to the content of the reports.



Appendix A 301

4.  A State Party which has submitted a comprehensive initial report to the Committee need not, in its subsequent reports, repeat information previously provided. When preparing reports to the Committee, States Parties are invited to consider doing so in an open and transparent process and to give due consideration to the provision set out in article 4.3 of the present Convention. 5.  Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Convention. Article 36—Consideration of reports 1.  Each report shall be considered by the Committee, which shall make such suggestions and general recommendations on the report as it may consider appropriate and shall forward these to the State Party concerned. The State Party may respond with any information it chooses to the Committee. The Committee may request further information from States Parties relevant to the implementation of the present Convention. 2.  If a State Party is significantly overdue in the submission of a report, the Committee may notify the State Party concerned of the need to examine the implementation of the present Convention in that State Party, on the basis of reliable information available to the Committee, if the relevant report is not submitted within three months following the notification. The Committee shall invite the State Party concerned to participate in such examination. Should the State Party respond by submitting the relevant report, the provisions of paragraph 1 of this article will apply. 3.  The Secretary-General of the United Nations shall make available the reports to all States Parties. 4.  States Parties shall make their reports widely available to the public in their own countries and facilitate access to the suggestions and general recommendations relating to these reports. 5.  The Committee shall transmit, as it may consider appropriate, to the specialized agencies, funds and programmes of the United Nations, and other competent bodies, reports from States Parties in order to address a request or indication of a need for technical advice or assistance contained therein, along with the Committee’s observations and recommendations, if any, on these requests or indications. Article 37—Cooperation between States Parties and the Committee 1.  Each State Party shall cooperate with the Committee and assist its members in the fulfilment of their mandate.

302

Appendix A

2.  In its relationship with States Parties, the Committee shall give due consideration to ways and means of enhancing national capacities for the implementation of the present Convention, including through international cooperation. Article 38—Relationship of the Committee with other bodies In order to foster the effective implementation of the present Convention and to encourage international cooperation in the field covered by the present Convention: (a) The specialized agencies and other United Nations organs shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite the specialized agencies and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite specialized agencies and other United Nations organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities; (b) The Committee, as it discharges its mandate, shall consult, as appropriate, other relevant bodies instituted by international human rights treaties, with a view to ensuring the consistency of their respective reporting guidelines, suggestions and general recommendations, and avoiding duplication and overlap in the performance of their functions. Article 39—Report of the Committee The Committee shall report every two years to the General Assembly and to the Economic and Social Council on its activities, and may make suggestions and general recommendations based on the examination of reports and information received from the States Parties. Such suggestions and general recommendations shall be included in the report of the Committee together with comments, if any, from States Parties. Article 40—Conference of States Parties 1.  The States Parties shall meet regularly in a Conference of States Parties in order to consider any matter with regard to the implementation of the present Convention.



Appendix A 303

2.  No later than six months after the entry into force of the present Convention, the Conference of the States Parties shall be convened by the Secretary-General of the United Nations. The subsequent meetings shall be convened by the Secretary-General of the United Nations biennially or upon the decision of the Conference of States Parties. Article 41—Depositary The Secretary-General of the United Nations shall be the depositary of the present Convention. Article 42—Signature The present Convention shall be open for signature by all States and by regional integration organizations at United Nations Headquarters in New York as of 30 March 2007. Article 43—Consent to be bound The present Convention shall be subject to ratification by signatory States and to formal confirmation by signatory regional integration organizations. It shall be open for accession by any State or regional integration organization which has not signed the Convention. Article 44—Regional integration organizations 1.  “Regional integration organization” shall mean an organization constituted by sovereign States of a given region, to which its member States have transferred competence in respect of matters governed by this Convention. Such organizations shall declare, in their instruments of formal confirmation or accession, the extent of their competence with respect to matters governed by this Convention. Subsequently, they shall inform the depositary of any substantial modification in the extent of their competence. 2.  References to “States Parties” in the present Convention shall apply to such organizations within the limits of their competence. 3.  For the purposes of article 45, paragraph 1, and article 47, paragraphs 2 and 3, any instrument deposited by a regional integration organization shall not be counted. 4.  Regional integration organizations, in matters within their competence, may exercise their right to vote in the Conference of States Parties, with a

304

Appendix A

number of votes equal to the number of their member States that are Parties to this Convention. Such an organization shall not exercise its right to vote if any of its member States exercises its right, and vice versa. Article 45—Entry into force 1.  The present Convention shall enter into force on the thirtieth day after the deposit of the twentieth instrument of ratification or accession. 2.  For each State or regional integration organization ratifying, formally confirming or acceding to the Convention after the deposit of the twentieth such instrument, the Convention shall enter into force on the thirtieth day after the deposit of its own such instrument. Article 46—Reservations 1.  Reservations incompatible with the object and purpose of the present Convention shall not be permitted. 2.  Reservations may be withdrawn at any time. Article 47—Amendments 1.  Any State Party may propose an amendment to the present Convention and submit it to the Secretary-General of the United Nations. The SecretaryGeneral shall communicate any proposed amendments to States Parties, with a request to be notified whether they favour a conference of States Parties for the purpose of considering and deciding upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of two thirds of the States Parties present and voting shall be submitted by the SecretaryGeneral to the General Assembly for approval and thereafter to all States Parties for acceptance. 2.  An amendment adopted and approved in accordance with paragraph 1 of this article shall enter into force on the thirtieth day after the number of instruments of acceptance deposited reaches two thirds of the number of States Parties at the date of adoption of the amendment. Thereafter, the amendment shall enter into force for any State Party on the thirtieth day following the deposit of its own instrument of acceptance. An amendment shall be binding only on those States Parties which have accepted it. 3.  If so decided by the Conference of States Parties by consensus, an amendment adopted and approved in accordance with paragraph 1 of this article

Appendix A 305



which relates exclusively to articles 34, 38, 39 and 40 shall enter into force for all States Parties on the thirtieth day after the number of instruments of acceptance deposited reaches two thirds of the number of States Parties at the date of adoption of the amendment. Article 48—Denunciation A State Party may denounce the present Convention by written notification to the Secretary-General of the United Nations. The denunciation shall become effective one year after the date of receipt of the notification by the Secretary-General. Article 49—Accessible format The text of the present Convention shall be made available in accessible formats. Article 50—Authentic texts The Arabic, Chinese, English, French, Russian and Spanish texts of the present Convention shall be equally authentic. In witness thereof the undersigned plenipotentiaries, being duly authorized thereto by their respective Governments, have signed the present Convention. NOTES 1.  The United Nations. “Convention on the Rights of Persons with Disabilities.” Treaty Series 2515 (December 2006).

Appendix B Optional Protocol to the Convention on the Rights of Persons with Disabilities1

The States Parties to the present Protocol have agreed as follows: Article 1 1.  A State Party to the present Protocol (“State Party”) recognizes the competence of the Committee on the Rights of Persons with Disabilities (“the Committee”) to receive and consider communications from or on behalf of individuals or groups of individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of the provisions of the Convention. 2.  No communication shall be received by the Committee if it concerns a State Party to the Convention that is not a party to the present Protocol. Article 2 The Committee shall consider a communication inadmissible when: (a) The communication is anonymous; (b) The communication constitutes an abuse of the right of submission of such communications or is incompatible with the provisions of the Convention; (c) The same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement; (d) All available domestic remedies have not been exhausted. This shall not be the rule where the application of the remedies is unreasonably prolonged or unlikely to bring effective relief; 307

308

Appendix B

(e) It is manifestly ill-founded or not sufficiently substantiated; or when (f) The facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for the State Party concerned unless those facts continued after that date. Article 3 Subject to the provisions of article 2 of the present Protocol, the Committee shall bring any communications submitted to it confidentially to the attention of the State Party. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State. Article 4 1.  At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State Party concerned for its urgent consideration a request that the State Party take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation. 2.  Where the Committee exercises its discretion under paragraph 1 of this article, this does not imply a determination on admissibility or on the merits of the communication. Article 5 The Committee shall hold closed meetings when examining communications under the present Protocol. After examining a communication, the Committee shall forward its suggestions and recommendations, if any, to the State Party concerned and to the petitioner. Article 6 1.  If the Committee receives reliable information indicating grave or systematic violations by a State Party of rights set forth in the Convention, the Committee shall invite that State Party to cooperate in the examination of the information and to this end submit observations with regard to the information concerned. 2.  Taking into account any observations that may have been submitted by the State Party concerned as well as any other reliable information available to it, the Committee may designate one or more of its members to conduct



Appendix B 309

an inquiry and to report urgently to the Committee. Where warranted and with the consent of the State Party, the inquiry may include a visit to its territory. 3.  After examining the findings of such an inquiry, the Committee shall transmit these findings to the State Party concerned together with any comments and recommendations. 4.  The State Party concerned shall, within six months of receiving the findings, comments and recommendations transmitted by the Committee, submit its observations to the Committee. 5.  Such an inquiry shall be conducted confidentially and the cooperation of the State Party shall be sought at all stages of the proceedings. Article 7 1.  The Committee may invite the State Party concerned to include in its report under article 35 of the Convention details of any measures taken in response to an inquiry conducted under article 6 of the present Protocol. 2.  The Committee may, if necessary, after the end of the period of six months referred to in article 6.4, invite the State Party concerned to inform it of the measures taken in response to such an inquiry. Article 8 Each State Party may, at the time of signature or ratification of the present Protocol or accession thereto, declare that it does not recognize the competence of the Committee provided for in articles 6 and 7. Article 9 The Secretary-General of the United Nations shall be the depositary of the present Protocol. Article 10 The present Protocol shall be open for signature by signatory States and regional integration organizations of the Convention at United Nations Headquarters in New York as of 30 March 2007. Article 11 The present Protocol shall be subject to ratification by signatory States of this Protocol which have ratified or acceded to the Convention. It shall be subject

310

Appendix B

to formal confirmation by signatory regional integration organizations of this Protocol which have formally confirmed or acceded to the Convention. It shall be open for accession by any State or regional integration organization which has ratified, formally confirmed or acceded to the Convention and which has not signed the Protocol. Article 12 1.  “Regional integration organization” shall mean an organization constituted by sovereign States of a given region, to which its member States have transferred competence in respect of matters governed by the Convention and this Protocol. Such organizations shall declare, in their instruments of formal confirmation or accession, the extent of their competence with respect to matters governed by the Convention and this Protocol. Subsequently, they shall inform the depositary of any substantial modification in the extent of their competence. 2.  References to “States Parties” in the present Protocol shall apply to such organizations within the limits of their competence. 3.  For the purposes of article 13, paragraph 1, and article 15, paragraph 2, any instrument deposited by a regional integration organization shall not be counted. 4.  Regional integration organizations, in matters within their competence, may exercise their right to vote in the meeting of States Parties, with a number of votes equal to the number of their member States that are Parties to this Protocol. Such an organization shall not exercise its right to vote if any of its member States exercises its right, and vice versa. Article 13 1.  Subject to the entry into force of the Convention, the present Protocol shall enter into force on the thirtieth day after the deposit of the tenth instrument of ratification or accession. 2.  For each State or regional integration organization ratifying, formally confirming or acceding to the Protocol after the deposit of the tenth such instrument, the Protocol shall enter into force on the thirtieth day after the deposit of its own such instrument. Article 14 1.  Reservations incompatible with the object and purpose of the present Protocol shall not be permitted. 2.  Reservations may be withdrawn at any time.



Appendix B 311

Article 15 1.  Any State Party may propose an amendment to the present Protocol and submit it to the Secretary-General of the United Nations. The SecretaryGeneral shall communicate any proposed amendments to States Parties, with a request to be notified whether they favour a meeting of States Parties for the purpose of considering and deciding upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favour such a meeting, the SecretaryGeneral shall convene the meeting under the auspices of the United Nations. Any amendment adopted by a majority of two thirds of the States Parties present and voting shall be submitted by the Secretary-General to the General Assembly for approval and thereafter to all States Parties for acceptance. 2.  An amendment adopted and approved in accordance with paragraph 1 of this article shall enter into force on the thirtieth day after the number of instruments of acceptance deposited reaches two thirds of the number of States Parties at the date of adoption of the amendment. Thereafter, the amendment shall enter into force for any State Party on the thirtieth day following the deposit of its own instrument of acceptance. An amendment shall be binding only on those States Parties which have accepted it. Article 16 A State Party may denounce the present Protocol by written notification to the Secretary-General of the United Nations. The denunciation shall become effective one year after the date of receipt of the notification by the SecretaryGeneral. Article 17 The text of the present Protocol shall be made available in accessible formats. Article 18 The Arabic, Chinese, English, French, Russian and Spanish texts of the present Protocol shall be equally authentic. In witness thereof the undersigned plenipotentiaries, being duly authorized thereto by their respective Governments, have signed the present Protocol.

312

Appendix B

NOTES 1.  UN General Assembly, Optional Protocol to the Convention on the Rights of Persons with Disabilities, December 13, 2006, A/RES/61/106, Annex II.

Index

ADF. See ASEAN Disability Forum AICHR. See ASEAN Intergovernmental Commission on Human Rights APCD. See Asia Pacific Development Center on Disability ASEAN Charter, 8, 9, 199, 231 ASEAN Civil Society Conference, 132, 205 ASEAN Decade for Persons with Disabilities, 93, 131–32, 172, 205 ASEAN Disability Forum, xx, 8, 131, 132, 205, 217, 235 ASEAN Human Rights Declaration, 231, 232 ASEAN Intergovernmental Commission on Human Rights, 200, 275, 276, ASEAN People’s Forum, 8, 132 ASEAN Socio-Cultural Community, 199 ASEAN Studies Center at American University, xxii ASEAN. See Association of Southeast Asian Nations Asia Pacific Development Center on Disability, 8, 124, 126, 175, 24, 208 Association of Southeast Asian Nations: Secretariat, 200, 204

Bali Declaration, 9, 122, 123, 172, 199, 206 Biwako Millennium Framework for Action Towards an Inclusive, Barrier-Free and Rights-Based Society for Persons with Disabilities in Asia and the Pacific, 8, 93, 95, 172, 175, 199, 204, 206; Biwako Decade Review, 95, 316 Brunei Darussalam, 185; Department of Community Development (DCD), 186–187; ESCAP, 185; International Day for Persons with Disabilities, 190; Ministry of Culture, Youth and Sports (MCYS), 145, 146, 147, 152, 160, 186–187, 188, 189, 209, 210, 215; Ministry of Education, 188; Ministry of Health (MOH), 187; ratified the CRPD, 185; School Based Team (SBT), 188; signed the CRPD, 185; special educational needs (SEN), 188; Special Education Needs Assistance (SENA), 188 Cambodia, 129; ASEAN Disability Forum in Cambodia, 131, 132; Cambodia Demographic and Health Survey, 130; Cambodia Disabled 313

314

Index

People’s Organization (CDPO), 131, 132, 136; Cambodian Human Rights Committee (CHRC), 136; Cambodia Trust, 132; Disability Action Commission (DAC), 132; Disability Action Council (DAC), 132; Disabled People’s Organizations (DPOs) involvement, 130, 136; Handicap International in Cambodia, 132; implementation of CRPD, 129, 130, 132, 133, 134, 135, 136, 137; Jesuit Relief in Cambodia, 132, 212; Law on the Protection and Promotion on the Rights of Persons with Disabilities (LPPRPD), 131, 135, 211; Ministry of Social Affairs, Veteran and Youth Rehabilitation (MoSVY), 132, 135, 209; Ministry of Social Affairs, Vocational Training and Youth Rehabilitation (MOSALVY), 132; National Assembly Commission on Human Rights (NACHR), 136; National Center for Disabled Persons (NCDP), 62, 66, 67, 132, 207, 213; National Institute of Statistics, 130; ratified the CRPD, 129; signed the CRPD, 130; Universal Periodic Review (UPR), 66, 68, 69, 77, 82, 109, 137, 203, 205, 212 Chalklen, Shuaib, 102, 112 Comparative and International Disability Program, xxi, 314, 315; at American University School of International Service, xxi; Committee on the Rights of Persons with Disabilities (CRPD), 9, 56, 77, 129, 200, 202, 227, 260, 264, 265, 266, 267 Conference of States Parties to the CRPD, 48, 227, 302–3, 304 Convention on the Rights of Persons with Disabilities (CRPD): Advisory

Board, 17; Article 33, 4, 7, 13, 14, 15, 16, 17, 19, 26, 42, 45, 48, 73, 78, 81, 83, 85, 123, 129, 138, 155, 161, 177, 180, 197, 200, 206, 210, 212, 225–27, 259, 260, 264, 265, 266, 268, 272, 298; challenges to implementation, 228; DPOs and ratification, 15; focal point, 263, 275; Monitoring, 265; non-discrimination, 263; Optional Protocol, 77, 99; opportunities for implementation, 234; ratification, xix, 14; steps preceding ratification, 14; state reservations understandings and declarations (RUDs), 15, 73, 76, 77, 78, 123, 147, 148, 150, 201, 203, 263, 304, 310 COSP. See Conference of States Parties to the CRPD CRPD. See Convention on the Rights of Persons with Disabilities Cross-Case Comparison of CRPD Implementation, 197–98 de Beco, Gauthier, 14, 43, 48, 82, 83, 268 disability: medical model, xix, 7, 16, 92, 120, 131, 137, 171, 204, 205, 213, 222–23, 235, 262, 263, 264, 272; rights based, xix, 7, 8, 16, 41, 43, 45, 64, 65, 66, 68, 93, 97, 113, 120, 126, 130, 171, 172, 186, 199, 204, 206, 213, 229, 265, 272, 276; social model, 99, 222–23, 224, 230, 235, 261, 265, 271; social justice, xix, 7, 16, 206, 213 Disability Rights Fund, 99, 211 Disabled Peoples International, xxi, 15, 132, 137, 205, 212, 214 DPI. See Disabled Peoples International future research, 272, 274 grand challenges, 3–9, 271



Index 315

Habitat III. See United Nations Conference on Housing and Sustainable Urban Development Handicapped International, 99, 102, 211, 214 human rights, 221; advocacy, 229; civil and political rights, 226; economic, social and cultural rights, 226 IDPP. See Institute on Disability and Public Policy IGF. See United Nations Internet Governance Forum IHR. See Institute for Human Rights Indonesia, 91; Center for Disability Studies, University of Indonesia, 101, 102, 111, 112, 113, 214; Dr. Mansour Fakih, 93; Ministry of Social Affairs (MoSA), 93, 95, 96, 98, 99–100, 101, 103, 112, 113, 208, 211; National Bureau of Statistics, 91; National Plan of Action 2004– 2013, 97; Presidential Regulation for National Human Rights Plan of Action, 109; ratified the CRPD, 91, 98; Tifa Foundation, 99; Universal Periodic Review, 99 Institute for Human Rights at University of Alabama at Birmingham, 13 Institute on Disability and Public Policy, 13 ICF. See International Classification of Functioning, Disability, and Health International Classification of Functioning, Disability, and Health, 92, 110 International Disability Alliance (IDA), 137, 205, 212, 214 International Labor Organization, 96, 122, 175 Incheon Strategy to “Make the Right Real” for Persons with Disabilities in Asia and the Pacific, xix, xv, xvi, 4, 8, 9, 104, 107, 172, 199, 204, 206, 271, 276

Japan International Cooperation Agency, 67, 68, 69, 76, 120, 121, 122, 125, 126, 203 JICA. See Japan International Cooperation Agency, 68, 121 Lao PDR, 61; Association for Autism, 68; Association for the Blind, 68; Association for the Deaf, 68; civil society involvement in implementation, 67; Lao Disabled Peoples Association (LDPA), 64, 67–68, 213; Ministry of Labor and Social Welfare (MOLSW), 63, 64–65, 66, 207, 211; National Committee of Persons with Disabilities (NCPD), 64, 65–66, 211; Universal Periodic Review, 68–69 Make the Right Real. See UNESCAP Incheon Strategy Malaysia, 73; disability statistics, 74; DPOs and ratification, 77; focal point, 78, 79; Human Rights Commission of Malaysia Act 1999, 82; implementation of CRPD, 78, 84; Malaysian Bar Council, 73; Malaysian Confederation of the Disabled, 84; Malaysian Council for Rehabilitation (MCR), 76, 84, 203; Malaysian Human Rights Commission (SUHAKAM), 76, 77, 81–83, 211, 217, 265; National Council for Persons with Disabilities, 78, 79, 84, 207, 208, 264; ratified the CRPD, 75–76; Senator Bathmavathi Krishnan, 79; state reservations, 77–78; Women, Family and Community Development Ministry, 76 MDGs. See Millennium Development Goals methodology, 21 Millennium Development Goals, 5–6, 8, 97, 102, 170, 199

316

Index

Myanmar, 119; Cyclone Nargis, 119, 122, 124, 125, 204, 214; Department of Social Welfare, 126; JICA, 121–22; Ministry of Education, 125; Ministry of Health, 121; Ministry of Social Welfare, Relief and Resettlement, 121; Myanmar Council of People with Disabilities, 126; National Action Plan, 124; Persons with Disabilities Law, 123; The Leprosy Mission International (TLMI), 122 New Urban Agenda of Habitat III, xix, 275 The Nippon Foundation, 13, 124, 204 norm diffusion, 259 “Nothing About Us Without Us,” xxi, 15, 267 NUA. See New Urban Agenda of Habitat III Open Society Foundation, 99 OSTP. See United States Office of Science and Technology Policy persons with disabilities: as minority group, 221 Philippines, 25; Commission on Election (COMELEC), 31, 33, 35, 213; Department of Education (DepEd), 29, 31, 206; Department of Health, 29; Department of Interior and Local Government (DILG), 29, 31, 207; Department of Justice (DOJ), 29, 207; Department of Labor and Employment (DOLE), 29, 206; Department of Social Welfare and Development (DSWD), 29, 33, 35, 37, 38, 206; Department of Trade and Industry (DTI), 29, 207; Department of Transportation and Communication (DOTC), 29, 207; employment, 33; focal point, 28; identification cards, 32; inclusive

education, 32–33; local government units (LGUs), 31, 32, 36, 37, 38; National Council on Disability Affairs (NCDA), 27, 29, 30, 31, 32, 34, 35, 37, 38, 206, 207, 210; National Commission Concerning Disabled Persons (NCCDP), 27, 29, 202, 206; National Rehabilitation Plan (NRP), 27, 29; National Statistics Office (NSO), 31; Office of the President, 29; Philippine Information Agency (PIA), 29; ratified the CRPD, 25; signed the CRPD, 25; Technical Education and Skills Development Authority (TESDA), 29, 33, 207 PWD. See persons with disabilities recommendations, 274 research questions, 20–21 SDGs. See Sustainable Development Goals Sen, Amartya, 236 Sendai Framework. See also United Nations World Conference on Disaster Risk Reduction, 4, 275 shift from “medical model” to “rights based” or “social justice” model, 272 Singapore, 143; Communication Access Real-time Translation (CART), 154; Center for Enabled Living, 151; Disabled People’s Association (DPA), 155; disabled persons organizations (DPOs), 152, 154; Enabling Masterplans (EMP, EMP1, EMP2), 143, 146, 151, 151, 152, 153, 212; Election Commission Handbook, 148; education and disability, 156; gender and disability, 155, 156, 157; implementation of CRPD, 152, 153, 155, 156, 158, 161; Inter-Agency Standing Committee on Disability, 153; MARUAH, 155, 215; Mental Capacity Act



Index 317

(MCA), 149; MediShield Life, 150; Ministry of Social Affairs, 144, 151; Ministry of Culture and Social Affairs, 144; Ministry of Community Development (MCD), 144, 145, 152, 209; Ministry of Community Development, Youth and Sports (MCYS), 145, 152; Ministry of Education (MOE), 152, 159, 160, 209; Ministry of Health (MOH), 152;Ministry of Manpower (MOM), 152, 209; Ministry of National Development (MND), 152; Ministry of Transport (MOT), 152; National Council of Social Service (NCSS), 151, 152; National Voluntary and Philanthropy Centre (NVPC), 152; Prime Minister Goh Chok Tong, 145; Prime Minister Lee Hsien Loong, 143, 145, 205; ratified the CRPD, 143; signed the CRPD, 143; Voluntary Welfare Organizations (VWO), 144, 151, 152 Standard Rules on the Equalization of Opportunities for Persons with Disabilities, 225 Sustainable Development Goals, xx, 3, 8, 104, 106–7, 275 Thailand, 41; Association for the Mentally Retarded of Thailand, 47, 50; Association of Parents for Thai Persons with Autism, 50; Association of the Physically Handicapped of Thailand, 50; Bureau of Budget, 47; Council of Disabled People of Thailand (CDPT), 47, 50, 213; Department of Empowerment of Persons with Disabilities (DEP), 42; disability statistics in Thailand, 42; focal point, 45; Mental Disability Advocacy Center (MDAC), 48; Ministry of Education, 47; Ministry of Finance, 46; Ministry of Health, 47; Ministry

of Information Communication Technology, 46–47; Ministry of Interior, 47; Ministry of Justice, 47; Ministry of Labour, 47; Ministry of Tourism and Sport, 46; Ministry of Transportation, 46; Monthian Buntan, 43, 44, 45; National Association of the Deaf in Thailand, 47, 50; National Human Rights Commission (NHRC), 49, 210; Namsiripongpun, 45; Rehabilitation of Persons with Disabilities Act, 41, 43; Thailand Association of the Blind, 47, 50; Thailand Association of the Disabled, 50 TNF. See The Nippon Foundation UDHR. See Universal Declaration of Human Rights UNESCAP. See United Nations Economic and Social Commision for Asia and the Pacific UNGA. See United Nations General Assembly United Nations; Incheon Strategy to “Make the Right Real” for Persons with Disabilities in Asia and the Pacific, 104, 124, 199; United Nations Conference on Housing and Sustainable Urban Development, xix, 3, 19, 275; United Nations Economic and Social Commission for Asia and the Pacific, xix, xx, 4, 8, 20, 62, 63, 64, 67, 95, 124, 175, 176, 185, 198, 199, 203, 204, 206; United Nations Economic and Social Council (ECOSOC), 198; United Nations General Assembly, xix, 4; United Nations Internet Governance Forum, 4; United Nations World Conference on Disaster Risk Reduction, 4, 106, 275; United Nations World Summit on the Information Society, 4, 275 United States; AGENDA—ASEAN General Election Network for

318

Index

Disability Access, 101, 112; United States Agency for International Development, 3, 5, 101, 112, 126, 175, 176, 179, 180; United States Office of Science and Technology Policy Universal Declaration of Human Rights, 6 Universal Periodic Review, 66, 68, 69, 77, 82, 99, 137, 203, 205, 212, 214 UPR. See Universal Periodic Review USAID. See United States Agency for International Development Utami, Risnawati, 103 Vietnam, 167; Asia Pacific Development Center on Disability (APCD), 175; Asia Pacific Disability Forum (APDF), 175; ASEAN Decade in Vietnam, 172; Association of Support for Handicapped and Orphans, 175, 180, 215; Bali Declaration, 172; Barrier Free Codes and Standards for Public Constructions, 170; Barrier Free Codes and Standards for Public Transportation, 170; Biwako Millennium Framework, 172; Catholic Relief Services (CRS), 176; disability statistics, 167; Education Law, 170; German Organization for Technical Cooperation (GTZ), 176; Hanoi Deaf Association, 175, 180, 215; Hanoi Disabled People Association, 175, 180, 215; Health Volunteers Overseas (HVO), 176; Incheon Strategy, 172; independent mechanism, 177; Information and Technology Law, 170; International

Labour Organization (ILO), 175; Law on Child Protection, Care and Education, 170; Legal Aid Law, 170; Medical COmmittee NetherlandsVietnam (MCNV), 176; Millennium Development Goals, 170; Ministry of Labor, Invalids and Social Affairs (MOLISA), 167, 173, 174, 175, 176, 177, 179, 209, 210, 212; Ministry of Health (MOH), 173, 174, 176; Ministry of Education and Training (MOET), 173, 174, 176, 209; National Assembly, 168; National Action Plan to Support People with Handicap for 2006–2010, 170; National Coordinating Council for Disabilities (NCCD), 174, 175, 176, 177, 180, 202, 206, 209, 210, 212, 265; signed the CRPD, 170; UNDP, 175; UNESCAP, 175; UNICEF, 175; USAID, 175, 176, 179; Viet Nam Assistance for the Handicapped (VNAH), 176; Vietnam Blind Association, 175, 178, 179; Vietnam Federation on Disability (VFD), 177; Vietnam Red Cross, 175, 179; Vocational Training Law, 170; World Bank, 175; ratified the CRPD, 168 WHO. See World Health Organization World Health Organization, 8, 42, 91–92, 110, 150, 261; World Report on Disability, 8, 261 World Programme of Action Concerning Disabled Persons, 225 WSIS. See United Nations World Conference on the Information Society

About the Contributors

Paula Appelhans Paula Appelhans has a BA in Business from University of Redlands, a Juris Doctorate law degree from Washburn University School of Law, and a PG Diploma in Health Care Law and Human Rights from the University of Essex (UK). As a researcher with the Singapore civil society, Association of Women for Action and Research (AWARE), Paula has extensively researched Singapore’s health care models including clinical, financial and community-based projects, care-giving roles and their effect on the life cycle of women, as well as contributed to corporate anti-discrimination policies and training in Singapore’s workplace. Paula continues to contribute to AWARE’s annual Budget recommendations on health care financing, budget transparency, and access to health under current and proposed models. Derrick L. Cogburn Dr. Derrick L. Cogburn is a pioneer in the study of Information and Communication Technologies for Development (ICT4D) and is an Associate Professor in the School of International Service at American University, working with both the International Communication and International Development programs. He also serves as Executive Director of the American University Institute on Disability and Public Policy (IDPP). He holds several visiting appointments at universities in ASEAN, including the University of Malaya, Ateneo de Manila University, Multimedia University, and the University of Brunei Darussalam. Dr. Cogburn is editor of the book series Information Technology and Global Governance, published by Palgrave McMillan. He also directs the Center for Research on Collaboratories and Technology 319

320

About the Contributors

Enhanced Learning Communities (COTELCO), an award-winning social science research collaboratory investigating the social and technical factors that influence geographically distributed collaborative knowledge work, particularly between developed and developing countries. COTELCO is an affiliated center of the Burton Blatt Institute, Centers of Innovation on Disability at Syracuse University, where Dr. Cogburn serves on the Leadership Council and was a tenured associate professor in the School of Information Studies and Senior Research Associate in the Moynihan Institute on Global Affairs where he served as Co-Principal Investigator on a National Science Foundation grant exploring NGOs as Agents of Change. To date, Dr. Cogburn has secured over $10 million in externally funded research as PI or Co-PI. Cogburn is the past president of the Information Technology and Politics section of the American Political Science Association (APSA) as well as past president of the International Communication section of the International Studies Association (ISA). Professor Cogburn received his Ph.D. in political science (International Relations, Political Economy, and Comparative Politics) and an MA in political science (Comparative Politics Africa, Political Economy) from Howard University and his BA in history (Ancient Near Eastern and Africa)/political science (International Relations) from the University of Oklahoma. John Paul Cruz Mr. John Paul Cruz is a Fulbright fellow and a visiting scholar at the Boalt School of Law at the University of California, Berkeley, where he conducts research on the effectiveness of electoral systems for voters with disabilities in the United States in comparison with the member states of the Association of South East Asian Nations (ASEAN). He also serves as Research Associate with World Enabled where he is involved in the organization’s Inclusive Cities project, which focuses on the impact of global cities on the meaningful participation of people with disabilities in the society. He works closely with the Institute on Disability and Public Policy where he previously served as the regional research coordinator. John Paul is a Salzburg Global Seminar fellow on “People, Peace, and Planet in 2030: Shaping Inclusive and Sustainable Growth.” He holds a MA in International Affairs with a concentration in Comparative and International Disability Policy (CIDP) from the School of International Service at American University and a bachelor’s degree in Public Administration from the National College of Public Administration and Governance at the University of the Philippines.



About the Contributors 321

Robert Dinerstein Robert Dinerstein is professor of law, associate dean for experiential education, and director of the Disability Rights Law Clinic at AU’s Washington College of Law, where he has taught since 1983. He was the law school’s associate dean for academic affairs from 1997–2004 and, before coming to the Washington College of Law, was a trial attorney in the Department of Justice, Civil Rights Division, Special Litigation Section. He specializes, and has made numerous presentations, in the fields of clinical education and disability law (in particular on issues of legal capacity/consent and non-discrimination for people with disabilities). Dinerstein is the author/editor of two books and numerous articles and book chapters. From 1994-2001, he served on President Bill Clinton’s President’s Committee on Mental Retardation (now called the President’s Committee on People with Intellectual Disabilities). Among his many awards, Dinerstein has received the Paul G. Hearne Award for Disability Rights; the Egon Guttman Casebook Award (with Shalleck); the William Pincus Award for his contributions to clinical legal education; and the American University Award for Scholar-Teacher of the Year (2013). He has an A.B. degree from Cornell University and a J.D. degree from Yale Law School. Khy Huy Mr. Khy Huy serves as Research Coordinator for the Institute on Disability and Public Policy (IDPP). Previously, he worked as senior program officer for the Cambodian Disabled People’s Organization (CDPO) advocating for the implementation of the Convention on the Rights of Persons with Disabilities and the Law on the Protection and Promotion on the Rights of Persons with Disabilities in Cambodia. His work mostly focuses on employment, access to election, and access to information for persons with disabilities. Mr. Huy earned his Bachelor of Laws from Royal University of Law and Economics (RULE) and Bachelor of Arts in English for Translation and Interpreting from Institute of Foreign Languages at Royal University of Phnom Penh. Under a Fulbright Scholarship, he graduated from American University’s Washington College of Law with a Master of Laws in International Legal Studies, specializing in International Human Rights Law in 2010. He received a Masters of International Affairs degree with a concentration in Comparative and International Disability Policy (CIDP) from American University’s School of International Service in December 2013.

322

About the Contributors

Irwanto Dr. Irwanto is a professor at the Faculty of Psychology, Universitas Katolik Indonesia Atma Jaya and a co-director of the Center on Child Protection, in the Faculty of Social and Political Sciences, Universitas Indonesia. He was part of the evaluation team of Indonesian performance during the BIWAKO decade review of people with disabilities (Tokyo, 2002). He has been actively involved in a number of important studies such as the rights to health, inclusive education, access to social protection for PwDs, and Stigma Reduction intervention for people affected by leprosy. He also plays a key role in the ratification of UNCRPD and the formulation and enactment of Law No. 8 Year 2016 on Persons with Disabilities. He is actively promoting the Investment of Ability Framework to the Ministry of National Development and in mainstreaming disability into all social protection and poverty alleviation programs. Rohana Binti Jani Dr. Rohana Binti Jani is an Associate Professor with the Department of Applied Statistics at the University of Malaya. Dr. Rohana is currently the College Master of the Za’ba Seventh Residential College for the University of Malaya, where IDPP Fellows reside. She has previously served as Head of the Department of Applied Statistics and Dean of the Faculty of Economics and Administration at the University of Malaya. Dr. Rohana is the author of numerous publications and has spoken at many conferences. In 2011, she was a presenter at the International Conference on Intellectual and Developmental Disabilities. She received her PhD from Macquire University in Sydney, Australia. Naparat Kranrattanasuit Naparat Kranrattanasuit, S.J.D., is lecturer at the Institute of Human Rights and Peace Studies (IHRP) at Mahidol University, Thailand. While she studied for her Doctor of Juridical Science degree (SJD) from American University Washington College of Law, she interned at United Nations Inter-Agency Project on Human Trafficking (UNIAP), Bangkok, Thailand in 2011. Her responsibilities included in-depth research conduct and legal memoranda on national anti-human trafficking laws and bilateral agreements of COMMIT Mekong Member Parties, namely Cambodia, China, Thailand, and Vietnam. In addition, she completed her dissertation entitled “A Proposal to Strengthen ASEAN’s Role in the Fight Against Trafficking in Persons” for her SJD. After her graduation, she has continually conducted research in various hu-



About the Contributors 323

man rights issues. For instance, since 2013 she has conducted a research project entitled The Development of Learning Process to Prevent Children of Migrant Workers from Human Trafficking. She and her research team have designed numerous teaching tools for teachers in Samut Sakhon. Her publications also include Inaccessible Public Services in Thailand and Lessons for Prospective Elderly in Thailand: Economic Insecurity. Her research interests include: International Human Rights Law, ASEAN and Human Trafficking, and Human Rights of Marginalized Groups of People. Low Jarn May Low Jarn May is a chartered accountant by training and an active advocate of deaf language and education rights. In her twenty years of active deaf work, May has served on the Singapore Association for the Deaf’s Executive Council, represented Singapore at the World Federation of the Deaf (WFD) Asia Pacific meetings. She also represented Singapore at the International Forum on Disabilities in Osaka, Japan in 2002. As outreach to deaf youths, May founded YouthBeat—the youth volunteer arm of the Singapore Association for the Deaf—in 2000. Education for the deaf children and lifelong learning are a few of issues close to her heart. May has devoted much of her time and talent to teaching the deaf, young and old. In her youth, she served as a senior instructor in the Singapore Association for the Deaf’s Adult Outreach Programme, teaching illiterate deaf adults basic English and survival skills. She has also tutored deaf students in Mathematics and Principles of Accounts, and been a Sign Language tutor for more than fifteen years. Currently, May is teaching undergraduate sign linguistics module at the Nanyang Technological University. She presently leads the committee on sign linguistic research in SADeaf. Ruzita Mohd. Amin Dr. Ruzita Mohd. Amin obtained her B. Economics (Hons.) from the International Islamic University Malaysia (IIUM), her M.A. (Economics) from Northwestern University, USA, and her Ph.D. (Managerial Economics), from Rensselaer Polytechnic Institute, USA. She has served at the IIUM since 1987, and currently she is a Professor at the Department of Economics, IIUM. She was Deputy Dean (Academic) of the Kulliyyah of Economics & Management Sciences from 2005 to 2007 and currently she is the Head of the Disability Services Unit, IIUM. Her research interests include disability studies, social economics, development economics, economic integration, and economic theory from the Islamic perspective.

324

About the Contributors

She was presented with the Special Award (for Academic Achievement) for Persons with Disabilities in Conjunction with the International Persons with Disabilities Day, by the Ministry of Women, Family and Community Development (MWFCD), Malaysia, for the Year 2012. She is currently a Member of the National Council of the Persons with Disabilities (January 2013 to December 2016). As of August 2014, she was appointed as the Co-Chairman of the Committee on Universal Design and the Built Environment of the National Council of the Persons with Disabilities. She is also a member of the Panel of Access Audit Inspectors of the Kuala Lumpur City Hall facilities for the disabled, and was a member of the Panel of Juries for the KL Mayor Universal Design Built Environment Award – KL Mayor UDBE Award, 2013. Giang Phan Giang Phan earned her B.A. in English of Science and Technology from Hanoi University of Technology in Vietnam in 2008. After graduation, she spent four years working on issues of environmental conservation in Vietnam. She received a Master’s degree in Global Environmental Policy in the School of International Service at American University (AU) in December 2014. Since August 2013, she has served as a part-time research associate at COTELCO and its Institute on Disability and Public Policy (IDPP). Within IDPP, she is involved in the project on Comparative Implementation of the UN Convention on the Rights of Persons with Disabilities (CRPD) in the Association of Southeast Asian Nations (ASEAN). Tina Kempin Reuter Dr. Tina Kempin Reuter is the Director of the Institute for Human Rights and Associate Professor of human rights, peace studies, and international politics at the University of Alabama at Birmingham (UAB). Her research focuses on human rights with a particular emphasis on the struggle of vulnerable and marginalized populations, including minorities, refugees, women, children, persons with disabilities, and people dealing with the consequences of poverty. She is also an expert on ethnic conflict and peacemaking with a geographical focus on Europe and the Middle East. Dr. Reuter is a Senior Faculty Associate at the Institute on Disability and Public Policy (IDPP) at American University. Before joining UAB, Dr. Reuter was the Director of the Reiff Center for Human Rights and Conflict Resolution and Associate Professor of international and comparative politics at Christopher Newport University. She was formerly associated with the Solomon Asch Center for



About the Contributors 325

the Study of Ethnopolitical Conflict, University of Pennsylvania, the Institute of Public International Law at the University of Zurich and the Center for Security Studies at the Swiss Federal Institute of Technology. Dr. Kempin Reuter holds a Ph.D. in International Relations and International Law and an M.A. in Contemporary History, Economics, and International Law from the University of Zurich, Switzerland. She is the author of numerous publications in her field and has been awarded multiple prizes and grants to expand her research and teaching. Issavara Sirirungruang Dr. Issavara Sirirungruang is an instructor of the Department of Rehabilitation for Persons with Disabilities at Ratchasuda College, Mahidol University, Thailand. A person with visual impairment herself, she has conducted and supervised research in various aspects related, but not limited, to persons with visual impairment. Her research includes, for instances the effectiveness of massage therapy by practitioners with visual impairment, the students with visual impairment’s right to access textbooks, and the daily living of persons with disabilities in urban areas. Dr. Sirirungruang’s research interests include: inclusive education; access to information, media and technology; disability rights; disability studies; and blind and low vision studies. Apart from her academic work, Dr. Sirirungruang also takes part in the work of Disabled People’s Organizations (DPOs): namely, Thailand Association of the Blind (TAB), Thai Graduate Society of the Blind (TGSB), and the Association of Blind Women in Thailand (ABWT). In 2016, she was one of the representatives of the Civil Society Organisations (CSOs) to present a parallel report to the Committee on the Rights of Persons with Disabilities in Thailand’s first constructive dialogue with the Committee. Nantanoot Suwannawut Dr. Nantanoot Suwannawut is a researcher at the Bureau of Special Education Administration, Thailand Ministry of Education where she has beenn working on the issues of inclusive education and access technologies for persons with disabilities. She also guides academic researchers and practitioners in areas of disability employment and barrier-free society and inclusion. Dr. Suwannawut has served in several advisory committees such as The Promotion of Information Access for Persons with Visual Impairments and Print Disability project. Her areas of specialization are information accessibility, especially educational media production and Human Computer Interaction (HCI). In addition, she has delivered lectures and presented several papers at national and international conferences.

326

About the Contributors

Slamet Thohari Slamet Thohari is an activist in the disability movement, a lecturer, and a researcher in Sociology Department, Brawijaya University in Malang. He has been a staunch advocate for democracy and justice especially for people with disabilities. He received his BA in Philosophy from Gadjah Mada University in 2006 and MA in Sociology from University of Hawaii at Manoa. He also co-founded the Center for Disability Studies and Services (CDSS) at Brawijaya University, which promotes affirmative action for students with disabilities to access higher education, receive scholarships, and inclusive (disability supports) services. Slamet plays a key role in launching an online and open access Indonesian Journal of Disability Studies (www.ijds.ub.ac. id). The CDSS also plays significant role to push for some of regional regulations on disability rights. In 2013, the Indonesian Minister of Education and Culture recognized CDSS with “inclusive award” for their initiatives to promote inclusion and affirmative action for people with disabilities. Meng Ee Wong Dr. Meng Ee Wong is assistant professor at the Early Childhood and Special Needs Education Academic Group at the National Institute of Education, Nanyang Technological University in Singapore. He teaches courses in special and general education. His research interests include inclusive education, disability sociology, assistive technology, support for students with visual impairments, support for students with disabilities in higher education and teacher education. He is a member of the Board of SG Enable, chairs iC2PrepHouse, member of the SPD Services Committee, and serves on the Steering Committee for the 8th ASEAN Para Games 2015. Norhayati Zakaria Dr. Norhayati Zakaria is an Associate Professor at School of International Studies at College of Law, Government, and International Studies, Universiti Utara Malaysia. Dr. Zakaria earned her Ph.D. in Information Science and Technology and MPhil. of Information Transfer, both at Syracuse University and MSc. Management at Rensselaer Polytechnic Institute, Troy. Her research expertise combines several interdisciplinary fields, including crosscultural management, international business, and computer-mediated communication technology. For more than a decade, Dr. Zakaria has established international research collaborations with global scholars from the United States, Japan, and Canada and obtained international research grants from the Asian Office of Aerospace Research & Development (AOARD). From 2006



About the Contributors 327

till now, she serves as a Senior Research Faculty Associate at the Center for Research on Collaboratories and Technology Enhanced Learning Communities (COTELCO) under American University where she led projects using global virtual teams. Additionally, she has worked at two universities in the Gulf region (four years)—University of Wollongong in Dubai and Saudi Electronic University, Riyadh. Hence, being trained in the Western educational system, actively engaged in international research collaborations and grants, and exposed to the Middle Eastern teaching and learning culture, she has developed eminent cross-cultural competencies with vast global experiences.