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Government Action on Disability Policy

A Global Survey
Part I

 


© Dimitris Michailakis 1997


General Policy

An officially recognized disability policy is essential for the attainment of equality of opportunity. The aim of this part of the questionnaire was to identify the existence of such policy and its form. The existence of a disability policy can be measured by the extent to which relevant legislation has been enacted, information campaigns undertaken etc.

In the first question the respondents were asked to indicate whether there is an officially recognized disability policy and in what way is it expressed. As Table 1 shows, the majority of the countries, i.e. 71 out of 82 providing information on this issue, have an officially recognized disability policy. Only 11 countries - Ghana, Israel, Namibia, S:t Kitts, S:t Lucia, South Africa, S:t Christopher, Madagascar, Malawi, Liechtenstein, Tanzania - report not having an officially recognized disability policy. With the exception of Liechtenstein all of them are developing countries.

Table 1 (Question No. 1)
Number of countries having an officially recognized disability policy expressed in:
Disability policy expressed in:FrequencyValid Percent
Reporting having an officially recognized policy7186,6
Reporting not having an officially recognized policy1113,4
Law6174,4
Guidelines adopted by the Government5061,0
Guidelines adopted by a disability council2631,7
Policy adopted by political parties1619,5
Policy adopted by NGO's2328,0
Total 82, No answer 3

In 10 countries - Malta, Sri Lanka, Denmark, Eritrea, Austria, the Maldives, Pakistan, Guinea, Barbados, Belgium (Francophone) - the officially recognized disability policy is not expressed in law but in guidelines and/or in different policy documents.

In question 2 respondents were asked to indicate, where the emphasis in national disability policy lies. The aim was to find out whether disability policy focuses on a welfare approach, or if it focuses on changes in the environment or towards the making of rules to eliminate discriminating conditions in society. As Table 2 indicates the highest ranking emphasis among countries is on rehabilitation and prevention, while there is less emphasis on accessibility measures and anti-discrimination law. Accessibility measures and anti-discrimination law are very seldom emphasized which could be explained by the difficulty of their organization and financing. Unquestionably, it is clear that the traditional approach to disability is still very widespread. Only a few industrialized countries have enacted laws which make various forms of discrimination, including those directed specifically against disabled persons, punishable offences. Anti-discrimination legislation, particularly the one referring specifically to disabled persons, is an appropriate way of combating certain reprehensible attitudes, particularly in so far it affords the possibility of suing persons who have been guilty of discrimination.

Table 2 (Question No. 2)
The emphasis of disability policy
Emphasis in national policyNumber of countries indicating respective emphasis
 12345
Prevention28109710
Rehabilitation16331171
Individual support151316128
Accessibility measures4816267
Anti-discrimination law12310727
1 = very strong emphasis, 5 = very weak emphasis

When individual support is given more emphasis than accessibility measures, it might indicate that disability policy has a welfare approach directed towards assisting persons with disabilities, while with the emphasis being on the accessibility measures or anti-discrimination law, the policy has a rights-based approach directed towards the creation of formal possibilities to equal opportunity. From the information available it can be concluded that disability policy in the majority of countries is characterised by a welfare approach. The policy aims at supporting the individual in order to reduce the functional limitations and to increase independence. More rarely the disability policy is characterised by a rights-based approach, i.e. an approach where aspects of society are regarded as the main obstacles impeding persons with disabilities to participate in society. Only lately this movement towards a rights-based approach to disability takes place. One major new development is the introduction of legislation protecting disabled persons against discrimination (e.g. in Australia, Canada, New Zealand, United Kingdom, United States).

In the third and last question of the general policy part respondents were asked to indicate if, since the adoption of the Rules, any measures had been taken by the Government to initiate and support information campaigns conveying the message of full participation for persons with disabilities. As is shown in Table 3, 63 out of 78 countries providing information on this question reported that through various methods the Government has conveyed the message.

Table 3 (Question No. 3)
Government action to convey the message of full participation
Conveying the message of full participationFrequencyValid Percent
Governments reporting action6380,8
Governments reporting no action1519,2
Total 78, No answer 7

Of course, the actions taken by the Governments vary. The most frequent measures being mentioned are the following: translation of the Rules; translation and publication into an easy reader version, development of educational materials in order to raise the awareness of the public; television and radio programmes conveying the message of full participation; support to research projects; support to NGO's that propagate the message of full participation; advertisements in newspapers; donations in order to support the work of the Special Rapporteur. Some Governments have in their answers stated that information campaigns had been supported to convey the message of full participation, but failed to specify the kind of support. As many as 15 countries report that the Government has not, since the adoption of the Rules, done anything to convey the message of full participation. This is rather astonishing, three years after the adoption of the Standard Rules by the Member States. To make the message known is after all the most essential and the least demanding action of them all.


Legislation

Law forms the fundamental framework from which mechanisms for equality of opportunity can be established. The term human rights refers to rights that pertain to individuals simply because they are human. "They are, as it were, innate rights, not rights that are acquired through achievement or qualification." (Aubert 1989:413) Since human rights inhere in all human beings by virtue of their humanity alone, they are inalienable and universal rights. From this distinguishing characteristic follows that we cannot discriminate between different individuals in respect of their human rights: neither functional impairment nor talent entitles any individual to any more or any fewer human rights than any one else (Sieghart 1985:75).
A human rights approach implies legal reasoning. The task consists in finding authoritative principles to underpin, by a deductive method, the imposition of an obligation upon some agency capable of fulfilling the demand. For instance, one authoritative principle states that human life is of equal value; each man is infinite worth. To regard the life of a man with a physical or mental impairment as being of less value than that of a man without impairment is a violation of this principle. Thus, the human rights approach implies, among other things, the creation of a legislation giving persons with disabilities and their organizations the lever to ensure that there is effective advocacy for their rights. It offers an overall approach to the problems of disability involving all sectors of society. Structural transformation, involving redistribution of economic and political power is implicit in any application of the human rights' strategy. As in the struggle against racism, discrimination based on sex or ethnicity, advocates and policy-makers chose to combat discrimination against persons with disabilities by reference to human rights.

In order to present a broad picture of national legislation concerning the rights of disabled persons, the present study reviews general aspects of such legislation in various countries. The aim of question 4 was to find out whether the Government has enacted laws on rights to protect individuals and groups from discrimination on the basis of disability. This can be done either by general legislation, special legislation or a combination of the these two types. The provisions in general legislation intend to apply equally to all persons, regardless of ability or disability. Special legislation draws attention to the particular relevance of disability and creates specific protections. Special legislation is advocated when general legislation fails to provide the protection for which it is intended. Special legislation could be said to be a stronger legislation, since it specifically refers to the rights of disabled people.

As Table 4 shows the most common type of legislation is to use both special and general legislation or a combination of these two types as done by 56 countries, i.e. they make specific amendments specifically referring to the rights of disabled persons within the general legislation. While 8 countries report that the rights of persons with disabilities are protected only by special legislation and 18 countries - Ghana, Malta, Oman, Namibia, Hungary, S:t Kitts and Nevis, S:t Lucia, Eritrea, Yemen, the Maldives, Luxembourg, S:t Christopher and Nevis, Switzerland, Holy See, Guinea, Qatar, Tanzania - report that their rights are protected only by general legislation. The great diversity among these countries indicates that the level of socio-economic development or law tradition cannot play an essential role in the choice of legislation.

Table 4 (Question No. 4)
Types of legislation to protect the rights of persons with disabilities
Types of legislationFrequencyValid Percent
Countries reporting having only special legislation89,8
Countries reporting having only general legislation1822,0
Countries with a combination of these two types5668,3
Total 82, No answer 3

In question 5 the aim was to find out whether there are mechanisms to protect disabled people's citizenship rights. Judicial mechanisms as well as administrative and other non-judicial bodies are the institutional arrangements through which citizenship is realised, i.e. citizens have the right to bring actions before a law court or to a special agency dealing with anti-discrimination issues in order to defend their rights. The protection of the rights of disabled people thereby to a large extent depends on the enforcement mechanism build into the legislation. Laws remain ineffective, unless there are judicial mechanisms and/or other non-judicial bodies to object against their infringement or neglect. In other words, the efficacy of the legislative framework to protect the rights of persons with disabilities largely hinges on the capacity of disabled people to benefit from the law's protections and benefits. This means usually gaining access to the court system and providing testimony. As Table 5 shows, the status of persons with disabilities in relation to the enforcement mechanisms is not always clear.

Table 5 (Question No. 5)
Mechanisms to protect citizenship rights
Judicial/non-judicial mechanismsFrequencyValid Percent
Due process6272,9
Recourse procedure1315,3
Ombudsman2428,2
Governmental body (administrative)4957,6
Expert bodies1517,6
Arbitration/conciliation body1011,8
Total 85, No answer 0

Table 5 shows that in the majority of the countries mechanisms have been adopted to protect the rights of persons with disabilities. The most usual judicial mechanism adopted is legal remedy through the courts, while the most usual non-judicial is a Governmental body (administrative). 16 countries report lacking judicial mechanism. It is a discouraging fact that only 28% of the countries reviewed have promoted national legislation ensuring people with disabilities to have access to an ombudsman who can receive complaints about abuse of human rights and take corrective action.. In two countries there is neither a judicial nor any non-judicial mechanism/arrangement to protect the rights of disabled people. In these cases they do not even have access to the court system, i.e. their testimony is not regarded as valid because of their disability. This is a serious infringement of the human rights.

Human rights implies rights and freedom to which every human being is entitled. The United Nations Universal Declaration of Human Rights (1948) spells out most of the principal rights that must be protected. There are two international Covenants binding the parties having ratified them: the 1966 International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

In question 6 the aim was to find out whether general legislation applies to persons with disabilities and if they enjoy equal protection under the law, or is disability is a cause for differential treatment. Question 6 is dealing with the interest or the privilege recognized and protected by law and the freedom to exercise power conferred by law. Citizenship exists only when a person has duties and rights implying the power to exercise these rights/duties. In many countries persons with disabilities are not considered as full-fledged citizens, as is shown in Table 6, that is, general legislation does not apply to one or several rights e.g. the right to vote, property rights, right to privacy etc. However, in the majority of the countries disability is not used as a basis for differential treatment.

Table 6 (Question 6)
Civil and political rights of persons with disabilities
Countries reporting that general legislation
does not apply with respect to:
FrequencyValid Percent
Education1012,5
Employment1012,5
The right to marriage1822,5
The right to parenthood/family1721,3
Political rights1417,5
Access to law court1822,5
Right to privacy1822,5
Property rights1822,5
Total 80, No answer 5

As it is indicated in the Table 6, in 10 countries out of 80 providing information the right to education and the right to employment is not by law guaranteed to disabled people; in 18 countries the right to marriage is not guaranteed by law; in 18 counties the rights to parenthood/family, access to law court, privacy, property are not guaranteed by law, and in 14 countries persons with disabilities have no political rights. In countries where persons with disabilities have no political rights they have no permission to vote or stand for election. When disaggregating the data according to kind of disability, it can be inferred that these legal barriers are most evident in the sphere of mental disability. There is a general agreement that persons with mental disabilities are among the most discriminated groups. The findings of the present study fully confirm this view. As regards exclusion from the right to marriage, to parenthood/family, access to law courts, property and political rights, they are all examples of the factual discrimination occurring through legislation and regulations. Legislation may actually prohibit disabled people (in particular those with mental disabilities) to exercise these rights, based on perceptions about their capacities and role in society. For instance, the laws in some countries governing property exclude disabled persons from owning property. There may also be legal provisions forbiding disabled persons from entering into contracts in their own name. This is a de jure (as a matter of law) segregation - legally sanctioned discrimination - which these Governments are rectifying in their legislation. Such laws sanction prejudices and give grounds for devaluation of persons with disabilities. Such laws sanction a kind of direct discrimination occurring when in comparable circumstances a person with a disability is treated less favourably than a non-disabled person.

In question 7 the aim was to find the existence of any legislation giving attention to the wider availability of health services and institutionalized social security. Social citizenship is meant to be realized through the rights of health and medical care, financial security (income maintenance/insurance), independent living, participation in decisions affecting the interested persons etc. The right to employment, health and medical care etc. are not to be seen as indicators measuring the present socio-economic conditions of disabled people, nor their quality of life. They are to be seen as indicators measuring how well institutional arrangements have been worked out in establishing social and economic conditions for persons with disabilities. When a certain country replies that one, or all, of these benefits are guaranteed by law to persons with disabilities, this does not mean that the rights are being implemented, it only indicates the existence of a legal basis for these benefits. On the other hand, when nothing or little is guaranteed by law, persons with disabilities are really a disadvantageous group; the prevalence of handicap is high.

Many persons with disabilities are socially and economically marginalised. Reforms at system level are necessary in many countries in order to assuring persons with disabilities more equitable possibilities to partake in education, employment, decisions affecting them. Individuals who, for whatever reason, are unable to provide for their own financial security (income maintenance/insurance) should by law be guaranteed financial security providing them with adequate levels of support. They can thus avoid living in unequal social and economic position, in comparison with the non-disabled part of the population.

As Table 7 shows, in 9 countries out of 81 providing information on this issue, the right to health/medical care is not guaranteed by law. In 13 countries the right to training, rehabilitation and counselling is not guaranteed by law. In 23 countries the right to financial security, in 26 the right to employment, in 34 the right to independent living and the right to participation in decisions affecting the persons concerned. In 4 countries no benefits at all are guaranteed by law to persons with disabilities. In 33 countries all of the above mentioned is guaranteed by law, while for the remaining 49 countries one or several of the above mentioned are not guaranteed by law. Thus, in most countries one or several of the above mentioned social security and welfare services are, not even within the legal framework, guaranteed to all citizens.

At least in the advanced market economies social security and welfare services are funded through taxes. With rising unemployment, and efforts to keep the inflation low, state expenditure in social services is reduced. In the social and health budget the lion's share is consequently taken up by other objectives than disability measures. In particular, economic recession in many developed and developing countries has had a negative impact on disabled persons' employment. There is a reciprocity between poverty and the incidence/prevalence of disability. Poor people run the risk to become disabled because of their living conditions. On the other hand economic marginalization contributes to the increasing number of disabled people.

Table 7 (Question No. 7)
Economic and social rights of persons with disabilities
Countries reporting that the following benefits are not guaranteed by law:
does not apply with respect to:
FrequencyValid Percent
Health/medical care911,1
Rehabilitation1316,0
Financial security2328,4
Employment2632,1
Independent living3442,0
Participation in decisions affecting themselves3340,7
Total 81, No answer 4

Despite efforts to strengthen their citizenship, their low economic and social living conditions, and exclusion from participating in decisions affecting themselves have made social citizenship rights to an inadequate basis for the equalization of opportunities for persons with disabilities. When comparing the information in Table 6 with the information in Table 7 it can be concluded that Governments have progressed more regarding the enactment of laws which guarantee civil and political rights than social and economic rights. Many countries operate without either adequate free medical care or a social security system that guarantees a minimum of dignity and welfare to the disabled. Persons with disabilities are in many societies at a significant disadvantaged position. Many of the social and economic conditions facing them reflect a basic lack of equality which, in turn, can be traced to a weak legal basis regarding their economic and social rights.

When comparing questions 6 and 7 with question 4 it can be concluded that a correlation exists between general legislation and a weaker protection of citizenship rights for persons with disabilities. Consequently, when the rights of persons with disabilities are protected only by general legislation there are several citizenship rights (political rights, the right to marriage, the right to parenthood/family), as well as several social and economic rights (financial security, employment, independent living) that are not guaranteed by law. This tendency could be found in 13 countries - Malta, Israel, Namibia, Hungary, S:t Kitts and Nevis, S:t Lucia, South Africa, Yemen, the Maldives, S:t Christopher and Nevis, Guinea, Qatar, Tanzania - of a total 17 reporting having only general legislation. Only in four countries exceptions could be noticed from the tendency of general legislation being sufficient to protect the citizenship rights of persons with disabilities. In those countries where general legislation fails to provide sufficient protection is special legislation preferable, specifically referring to the rights of disabled people.

In question 8 the aim was to find out whether, since the adoption of the Rules, new legislation concerning disability has been enacted. Table 8 shows that in the majority of the countries - 44 out of 83 providing information on this issue - no new legislation concerning disability has been enacted since the adoption of the Rules. This is a curious result. Firstly, the responsibility of presenting legislative proposals lies with the Government. Secondly, the Standard Rules being so advanced, it is highly unlikely that a majority of the respondents already had a legislation, equal with the Standard Rules in intention and demands. On the contrary, a country well-known for its advanced and progressive handicap policy, Sweden, has enacted two major laws since the Standard Rules were adopted (one on functional impairment wholly inspired by the definition set down in the Standard Rules of disability as environment-based, the other about the right to individual assistance for those with severe disability, in order to live as active a life as possible). Many problems are encountered in the implementation of the Standard Rules: economic problems foremost (since almost everything from the bottom is a question of resources), there are attitudinal problems, problems of co-ordination and planning, and so on, but the problem of the standard set by the nations themselves not being realized where it could be so, but let to remain a good intention on the paper alone, is disheartening for all of us. It gives cause for the public to hold the efforts of the UN in low esteem. According to the Rules, Governments must accept a major responsibility and play a principal role in the development of policies aiming at the equalization of opportunities for all persons with physical and mental disabilities. It is a hopeful sign, however, that several Governments (47%) have recently adopted legislation which protects persons with disabilities against discrimination and other forms of unjust treatment having adverse effects on equality of opportunity for participation for disabled people. The right of access in the physical environment and access to information and communication is also the subject of legislation. The implementation of this right will lead to the removal of architectural barriers in buildings, transport and other public facilities as well as to access to information and communication, being necessary preconditions for an active social and working life.

Table 8 (Question No. 8)
New legislation concerning disability since the adoption of the Rules
Legislation on disabilityFrequencyValid Percent
Countries reporting enactment of new legislation3947,0
Countries reporting no enactment of new legislation4453,0
Total 83, No answer 2


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