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The Background and Core Conception of the Convention on the Rights of Persons with Disabilities: A Review
May 17,2019   By:CSHRS
The Background and Core Conception of the Convention on the Rights of Persons with Disabilities: A Review

LI Jianfei*
 
Abstract: The Convention on the Rights of Persons with Disabilities came into force on May 3, 2008. Reviewing the social background of the drafting of the Convention and reinterpreting its basic concepts and core provisions is of positive significance for the more comprehensive implementation of the Convention in China’s domestic law and the advancement of the rights protection of persons with disabilities in China. The preamble of the Convention on the Rights of Persons with Disabilities clearly confirms the value and foundation of the rights of persons with disabilities and establishes the guiding ideology and basic principles for the protection of the rights of persons with disabilities. China has actively implemented the Convention through legislative, administrative measures and other appropriate measures in accordance with the requirements of the Convention. In recent years, it has actively promoted the judicial protection of persons with disabilities by strengthening legal aid for persons with disabilities and strengthening judicial responsibility for handling cases of persons with disabilities.

Keywords: Convention on the Rights of Persons with Disabilities w disability w human rights
 
The Convention on the Rights of Persons with Disabilities (hereinafter referred to as the Convention) is regarded as one of the largest projects of the United Nations in the 21st century. After five years of negotiations, the UN Special Commission adopted the draft of the Convention on August 25, 2006.[1] On December 13, 2006, the 61st Session of the UN General Assembly passed the Convention.[2] Before that, there was no international convention specifically protecting the rights of persons with disabilities. Although the 1993 Standard Rules on the Equalization of Opportunities for Persons with Disabilities is referenced in the legislation of many countries, it is not as legally binding as the Convention. The Convention was opened for signatures on 30 March 2007 at the United Nations Headquarters in New York. Wang Guangya, China’s permanent representative to the United Nations, signed the Convention on behalf of China. Representatives of 81 countries and regional integration organizations attended the ceremony and signed the Convention that day. The Convention came into force on May 3, 2008.

On August 31, 2010, in accordance with the provisions of the Convention, the Chinese government submitted the performance report to the UN Committee on the Rights of Persons with Disabilities for the first time.[3] In order to implement the general obligations under the Convention and realize the human rights and freedom of persons with disabilities and make them free from any discrimination because of disability, the purposes and principles of the Convention are fully embodied and implemented in relevant laws, regulations and policies of China. In April 2008, China revised the Law of the People’s Republic of China on the Protection of Persons with Disabilities in which the concept of “prohibition of discrimination based on disability” was introduced for the first time. It enriched the content of equal participation of persons with disabilities in social life and strengthened the legal responsibility for infringement of the rights and interests of persons with disabilities. Special regulations such as the Regulations on the Education of Persons with Disabilities, the Regulations on Employment of Persons with Disabilities and the Regulations on the Construction of Accessible Environments provide clearer and more concrete provisions on the rights of persons with disabilities in education, employment, rehabilitation and accessibility.

2018 marked the 10th anniversary of the implementation of the Convention. It is of great importance for China to further implement the spirit and the provisions of the Convention by reviewing the background of the birth of the Convention and reinterpreting the text.

I. The Social Background of the Birth of the Convention

According to United Nations statistics, about 650 million people, accounting for 10 percent of the total number worldwide are persons with disabilities, which can be regarded as the largest minority group in the world.[4] The World Health Organization says that the number of persons with disabilities continues to grow with population growth, medical advancement, and an aging population. In countries with a life expectancy of more than 70 years, an average of 8 years, 11.5 percent of the life of a person is spent in disability.

These data show us that human disability is a social phenomenon that coexists with human beings, and that persons with disabilities are an inherent part of the social population. The types of disabilities and the number of persons with disabilities are positively proportional to the number of social populations, that is, the growth of population is synchronized with the growth of types of disabilities and the number of persons with disabilities; the extension of life expectancy per capita and the growth of types of disabilities and the number of persons with disabilities are synchronous. Moreover, the extension of life expectancy also means an increase in the types of disabilities and an increase in the number of persons with disabilities in society. Perhaps people can hope for the advancement of technology and the development of medicine. But in fact, neither disability can be eliminated nor the number of persons with disabilities can be reduced with the advancement in science, technology and medicine. There are only new types of disabilities and new disabled groups in different forms.

Such an understanding has important positive significance for human society to view disabilities and treat persons with disabilities. First of all, people’s disabilities and persons with disabilities, like other elements of society, are a normal part of human society. People with disabilities will not disappear because of people’s likes and dislikes, nor will they disappear because of human efforts. Therefore, all members of society, including persons with disabilities, should do and can do is try to create a better and more harmonious society accommodating both persons with disabilities and other members of society. The “better” here should be interpreted as the natural development of persons with disabilities in the social life. Second, disability can happen to anyone, and no one is not at risk. To say that “everyone is disabled” is an exaggerated, but it is reasonable to say that “any elderly person may ultimately be disabled.” In the UN Declaration on the Rights of Persons with Disabilities, “person with disabilities” refers to any person who cannot guarantee that he or she can obtain all or part of the necessities of normal personal life and/or social life due to congenital or non-congenital physical and mental defects. The Vocational Rehabilitation and Employment (Persons with disabilities) Convention passed by the International Labor Organization states that the term “person with disabilities” used in this Convention refers to those who have difficulty in obtaining appropriate occupations and maintaining and promoting prospects due to officially recognized physical or mental impairment.[5] In the Law of the People’s Republic of China on the Protection of Persons with Disabilities, persons with disabilities refer to those who have lost or partially lost certain ability for some activities resulting from the loss or abnormality of some parts or functions in psychology, physiology, and human body structure. Disabilities include visual disability, hearing disability, speech disability, physical disability, intellectual disability, mental disability, multiple disabilities and other sorts. The characteristics of these definitions are fit for the elderly, because the elderly are those who have lost all or part of their mental and/or physical capabilities which are indispensable to living an unaided life. Regardless of whether they are disabled because of the normal aging process or disabled due to unnatural aging factors, they are part of the disabled group. Moreover, as the population ages, the natural attributes of old age disability become increasingly prominent. In this sense, to show concern for the disabled aged is to pay attention to human beings, and is also that every member of society is concerned and caring for themselves. Third, as such a social phenomenon that is universal and long-standing and closely related to everyone, it is necessary for everyone to co-exist peacefully, and make great efforts to minimize the influence on the disabilities and persons with disabilities by making the best of social resources, creating a lovely social environment where each person with disabilities leads a life at ease.

According to the data of United Nations Development Programme, 80 percent of persons with disabilities live in developing countries. Among the member countries of the Organization for Economic Cooperation and Development, the proportion of persons with disabilities with low education attainment rate is large.
Moreover, persons with disabilities account for 19 percent of those who are less educated and 11 percent of those well-educated. The World Bank estimates that 20 percent of the world’s poorest people are disabled. Women with disabilities are the most disadvantaged. They suffer a lot from gender discrimination and disability. What is worse, women and girls with disabilities are particularly vulnerable to abuse. According to data of the United Nations International Children’s Emergency Fund (UNICEF), 30 percent of homeless youth are disabled; in some countries, the mortality rate of children under 5 years old falls below 20 percent, but the mortality rate of children with disabilities is as high as 80 percent. In China, “The income of disabled families is low, and the poverty problem among the disabled groups is outstanding, which shall be alleviated with urgency through the social security system; the loss of the traditional welfare model, the inadequacy of social security for the disabled, and the disorder of the social security system leading to the lack of an effective way for persons with disabilities to participate in sharing national development outcomes in the new era.”[6] These issues show that disabilities and persons with disabilities are associated with poverty and the population in poverty. “Disability and poverty have the same source and interact as both cause and effect. Poverty of the disabled is both due to economic factors and disability and social attitudes towards disability.”[7] Therefore, it is the primary task of human society to lift persons with disabilities out of poverty. It is an important task for the social system construction of human society to let social beings not live in poverty due to disability.

What is directly related to the above issues is employment opportunities for the disabled and the problems they face getting jobs. The International Labor Organization estimates that the unemployment rate of persons with disabilities in some countries is as high as 80 percent. There are more than 70 million persons with disabilities in India, but only 100,000 of which have access to employment. In the United States, only 35 percent of the working-age disabled population is at work, in contrast to the 78 percent of non-persons with disabilities in employment. The average investment on workplace facilities for the disabled is only $50. And 73 percent of employers claim that their employees do not need special facilities at all. According to the data of the second national sample survey of persons with disabilities in China, in urban areas, the number of persons with disabilities of working age employed is 2.97 million, and the number of persons with disabilities in working age unemployed is 4.7 million. Thus, the employment rate is only 38.7 percent, which means that more than 60 percent of the working age disabled population has no job. In light of the monitoring report on the situation of persons with disabilities in China, in urban areas, persons with disabilities of working age in 2010 accounted for 34.0 percent of the disabled population, and 49.2 percent  rural areas. But the registered unemployment rate of urban persons with disabilities still reaches 8.6 percent, twice the national rate.[8] Disability forges a chain that tightly binds people to unemployment and poverty. What we should do is to effectively break the chain so that poverty is no longer directly related to disability.

II. The “Preamble” of the Convention Establishes the Value and Basis of the Rights of Persons with Disabilities

In the common writing style, the “preamble” is used to explain the author’s writing intentions and process. However, in legal texts, especially in important legal documents, preamble and texts with integrality and indivisibility, together constitute legal documents and produce legal effects. The preamble of the legal text is also dominant and guiding to the legal provisions. The legal provisions are the concrete presentation of the values and principles of the preamble. In this sense, the preamble of the legal text is not only an important basis for interpreting the guiding ideology and basic principles carried by the legal text, but also the starting point and guidance for understanding the legal provisions.

The “preamble” of the Convention, explicitly requires the “State parties” review the principles proclaimed in the Charter of the United Nations which affirmed the inherent dignity, value and the equality and inalienability of all members of the human family, and it emphasizes that this is the foundation of freedom, justice and peace in the world. The Convention affirms that the United Nations declares and recognizes that everyone has the right to enjoy all the rights and freedoms without any distinction recorded in such documents as the Universal Declaration of Human Rights and international human rights conventions. It reaffirms that all human rights and fundamental freedoms are universal, indivisible, interdependent and interrelated and that persons with disabilities must be guaranteed these rights and freedoms. In this case, there should be no disparity in the rights enjoyed by disabled and non-disabled people, which tells us that these undifferentiated rights are the foundation of “freedom, justice and peace”, and emphasizes that discrimination against a person because of disability is a violation of the inherent dignity and value of human beings. In other words, any words and actions that attempt to differentiate or exclude persons with disabilities are not to be tolerated and accepted by the world, as those discriminations do fundamental damage to the “basis for freedom, justice and peace” in the world.

Furthermore, the “preamble” calls for a review of the International Covenant on Economic, Social and Cultural Rights(ICESCR); 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 United Nations 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. And the preamble again reaffirmed that the disabled should be able to live together with all in equality, and that the rights of all persons are the rights of the disabled. If the disabled have special rights that are necessary for their physical or psychological reasons, these special rights are also rights above and based on other rights enjoyed by everyone, and an integral part of other rights enjoyed by everyone.

On the premise of a rights cognition and treatment of “persons with disabilities”, the “preamble” recognizes that disability is an evolving concept. Disability is the outcome of various environmental barriers and attitudes that hinder the disabled to the full participation in social activities on an equal basis with others. Such descriptions and expressions should be the basis and premise for us to recognize and treat people’s disabilities and persons with disabilities. “Disability” is not inherent or self-formed and unchangeable. Moreover, “person with disabilities” is not a mark of the person him/herself. On the contrary, people’s disability and persons with disabilities are formed by the disabled and other members of society. People’s cognition of disability and the persons with disabilities in society, and the various environments created by this cognition work together to cause obstacles and difficulties of persons with disabilities. [9]

Therefore, the “preamble” recognizes the principles and policies recorded in the World Programme of Action Concerning Persons with Disabilities and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities and requires the implementation of these guidelines at the national, regional and international levels to influence the legislation and evaluation of national policies and laws, thereby increasing the opportunities for persons with disabilities to realize their rights.

The “preamble” recognizes the diversity of persons with disabilities, confirms that self-independence and self-reliance are essential for them, believes that persons with disabilities can make contributions to the overall well-being and diversity of their communities, and thinks that promoting the full exercising of the human rights and fundamental freedoms of persons with disabilities and their full participation in social activities will benefit human and socio-economic development of society as a whole. At the same time, the “preamble” also acknowledges that despite the existence of many legal instruments and commitments, the participation of persons with disabilities as members of an equal society continues to meet obstacles. The human rights of persons with disabilities continue to be violated throughout the world. For example, because of race, color, gender, language, religion, political or other opinions, national origin, ethnicity, indigenous identity or social origin, property, birth, age or other status persons with disabilities are subject to multiple or aggravated forms of discrimination, and face a more difficult situation; women or girls with disabilities often suffer greater risks inside and outside the home and are more vulnerable to violence, injury or abuse, neglect or exploitation; it is difficult for children with disabilities to fully enjoy all human rights and fundamental freedoms on an equal basis with other children. [10] These descriptions not only illustrate the great significance of the participation of persons with disabilities in society, but also reveal the possibility, reality and long-term nature of discrimination against persons with disabilities in society. It shows that it is a long-term, comprehensive and continuous process for the protection and assertion of rights for persons with disabilities.

III. The “General Obligations” of the States Parties and the Practice in China

In the “general obligations” of the Convention on the Rights of Persons with Disabilities, the State Parties are first required to commit themselves to ensuring and promoting the full realization of all human rights and fundamental freedoms of all persons with disabilities from any discrimination based on disability. To this end, the State Parties should take all appropriate legislative, administrative and other measures to implement the rights recognized in this Convention; take all appropriate measures, including legislation, to amend or repeal existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities.
In the First Report of the People’s Republic of China on the Implementation of the Convention on the Rights of Persons with Disabilities, it clearly states “First, the law”. China’s Constitution, General Principles of Civil Law, Tort Liability Law, Civil Procedure Law and Compulsory Education Law all provide for the protection of the rights and interests of the disabled. In April 2008, China amended the Law of the People’s Republic of China on the Protection of Persons with Disabilities to introduce for the first time the “prohibition of discrimination on disability” and to “highlight the concept of safeguarding the legitimate rights and interests of persons with disabilities.”[11] The “prohibition of discrimination on disability” stipulates in Article 3 of the current Law of the People’s Republic of China on the Protection of Persons with Disabilities, that is, “Persons with disabilities enjoy equal rights with other citizens in political, economic, cultural, social and family life. The civil rights and dignity of persons with disabilities are protected by law. Discrimination based on disability is prohibited. It is forbidden to insult or infringe upon persons with disabilities. It is forbidden to degrade or impair the personality of persons with disabilities through mass media or other means.” The prohibition of discrimination on disability is based on the principle of prohibition of discrimination.” The prohibition of discrimination on disability is one of the key issues in the revision of this Law. The original law only stipulates the prohibition of discrimination, insults and infringement of the rights of the disabled. The China Disabled Persons’ Federation, the National People’s Congress Supervisory and Judicial Affairs Committee and some members of the Standing Committee of the National People’s Congress have proposed to add the content of ‘prohibiting discrimination based on disability. This opinion was adopted by the Standing Committee of the National People’s Congress. The main reason for making this change is that the prohibition of discrimination based on disability is more significant than the prohibition of discrimination against persons with disabilities, and the object of protection is more comprehensive.[12] “Discrimination based on disability” means any distinction, exclusion or limitation based on disability, damaging or eliminating the equality of persons with disabilities on the basis of equality on a political, economic, social, cultural or any other basis, for all human rights and fundamentals and freedom of recognition, enjoyment or exercise. Discrimination based on disability includes both all forms of discrimination and refusal to provide “reasonable accommodation.”[13] “Prohibition of discrimination on disability” not only prohibits discrimination against persons with disabilities, but also prohibits discrimination against persons who have been disabled and persons or organizations with disabilities, such as spouses of persons with disabilities, relatives of persons with disabilities, caregivers of persons with disabilities, colleagues of persons with disabilities, working units of persons with disabilities, support and support institutions for persons with disabilities, organizations of persons with disabilities, etc.

The “general obligations” of the Convention on the Rights of Persons with Disabilities also states: “With regard to economic, social and cultural rights, each State Party undertakes the responsibility to make the best use of available resources and, where necessary, to take measures within the framework of international cooperation with a view to progressively and fully realizing these rights. However, it does not hinder the obligations of this Convention that are immediately applicable under international law. To this end, for the sake of the right to employment of persons with disabilities, the Chinese government stipulates that employers should select appropriate types of jobs and positions for persons with disabilities. Special care and protection are given in accordance with the law, according to the type of disability and the degree of disability. By eliminating or mitigating external barriers, providing persons with disabilities with jobs and positions that are appropriate for their disability category, and avoiding insurmountable barriers for persons with disabilities due to loss of some abilities.

For example, the types of jobs and positions provided for the employee with hearing deficiency should not be executed through hearing or with hearing as the main means. Therefore, it is forbidden for employers to dismiss or refuse to arrange employment for persons with disabilities with excuse that it is difficult for persons with disabilities to meet the needs of the job, so as to safeguard the disabled in employment. After the revision of the Law of the People’s Republic of China on the Protection of Persons with Disabilities, various localities also revised the implementation measures of the Law of the People’s Republic of China on the Protection of Persons with Disabilities, focusing on strengthening the relevant regulations on the proportion of employment of persons with disabilities and the relevant provisions for providing services and support for the employment of persons with disabilities. For example, the revised implementation measures of Guangdong Province have made specific provisions on the proportion of employers’ proportions of employment for persons with disabilities and the criteria for the collection of employment security funds, which are also based on changes in the form of employment, the employment by means of labor dispatch is also stipulated. The stipulations: If labor is employed in the form of labor dispatch, the employer shall perform the obligation to arrange the employment of the disabled or pay the employment security funds for the disabled in proportion; the labor dispatch unit may agree with the employing unit on the employment security funds for the disabled in the labor dispatch agreement. The revised implementation measures of Beijing require that the state organs, institutions, state-owned and state-holding enterprises of this city the failure to meet the prescribed proportions of employment of persons with disabilities should list a certain number of posts to recruit some persons with disabilities who meet the requirements of the post in accordance with principles of openness, equality, competition and superiority.[14]
The “general obligations” of the Convention on the Rights of Persons with Disabilities also provide for “accessibility information for persons with disabilities, introduction of mobility aids, supplies and assistive technologies, including new technologies, and introduction of other forms of assistance, support services and facilities. “, and in the Article 9 special “accessibility” clause. In order to enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties should take appropriate measures to ensure that persons with disabilities have access to the physical environment, use of vehicles, information and telecommunications on an equal basis with others, as well as access to other facilities and services that are open or available to the public in urban and rural areas.

China has stipulated the provision of accessible environments in the Law on the Protection of Persons with Disabilities, which covers all aspects of barrier-free buildings, roads, vehicles, information and communication, etc. In addition, China has also promulgated and implemented the Regulations on the Construction of Accessible Environments, and has successively issued more than 30 standard specifications and technical requirements, such as the Code for the Design of Barrier-free Urban Roads and Buildings, Code for Design of Barrier-free Design Railway Passenger Stations, Standards for Barrier-free Equipment for Passenger Terminal Areas of Civil Airports, Standards for Comprehensive Service Facilities for Persons with Disabilities, Design for Barrier-free Building — Design Atlas of National Architectural Standards and Barrier-free Construction Guide. Accessibility requirements are included in the General Rules for Civil Architectural Design, Code for Design of Sports Buildings, Code for Design of Store Buildings, Code for Design of Subways, Code for the Design of Automobile Passenger Stations, Requirements for Services Quality of Waterway Passenger Transport, Air Transport Methods for Persons with disabilities (Trial), Standards for the Design of Urban Public Toilets and so on.

Over the past five years since the implementation of the Regulations on the Construction of Accessible Environments, the home environments of nearly 1.4 million persons with disabilities have been improved to varying degrees, including building ramps, leveling the ground, installing safety grab bars, installing toilets, water heaters, and bath stools, reducing the height of kitchen stoves, equipping with gas leak alarm devices. Over the past five years, the relevant departments have issued more than 20 accessibility related policies and service initiatives, including the barrier-free construction and transformation of highway and waterway transport facilities and the provision of barrier-free equipment on public transport vehicles promoted by the Ministry of Transport, and the Measures for the Administration of Air Transport for Persons with Disabilities revised and implemented by the Civil Aviation Administration of China, the installation of special seats for persons with disabilities on trains by the competent departments in charge of railways, and the Ministry of Public Security jointly issued the Notice on Driving Cars for Persons with Monocular Visually Impairment and Persons with Disabilities of Upper Limbs. By the end of 2016, 58,600 banking and financial institutions had set up wheelchair ramps. A total of 850 Braille and Braille audio reading rooms were set up in the provincial, prefectural and county public libraries. In 2017, 5,626 disabled candidates applied for reasonable facilities for college entrance examination.[15]

IV. Practice of the Norms on “Judicial Protection” of the Convention in China

Article 13 of the Convention stipulates that persons with disabilities have the right to “access to judicial protection”. State Parties are required to ensure that persons with disabilities have effective access to judicial protection on an equal basis with others and provide appropriate training for personnel in the judicial field, including police and prison staff.

In China, the provision of effective judicial protection for persons with disabilities involves, first and foremost, judicial assistance for persons with disabilities, which is also one of the highlights of the revision of the Law on the Protection of Persons with Disabilities. The target of legal aid is, in its original sense, the needy, which covers but is not completely equivalent to the disabled. Due to their own physical and psychological reasons, persons with disabilities will inevitably encounter difficulties in participating in legal affairs such as litigation, and they are in a weak position in safeguarding their legitimate rights and interests, so corresponding legal aid shall be given. However, neither the Law on the Protection of Persons with Disabilities nor the Legal Aid Regulations previously stipulated the relevant content of legal aid for persons with disabilities.

Article 11 of the Declaration on the Rights of Persons with Disabilities specifies: “Persons with disabilities who do need qualified legal aid to protect themselves and property and they shall be able to receive such assistance; if persons with disabilities are prosecuted according to law, their physical and mental conditions should be fully considered when adopting the legal procedures.” Article 9 of the Declaration on the Rights of the Deaf-blind Persons stipulates: “Deaf-blind persons shall have the following rights: they shall be consulted in all matters directly related to them; they shall have access to legal advice and protection to prevent their rights from being unduly diminished because of physical disability.” The “Basic Freedom and Fundamental Rights” section of the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care adopted by the UN General Assembly in 1991 stipulates: “Only after a fair hearing by an independent and impartial court established by domestic law can a person be rendered incapable of legal action because of such incapability, and any decision that a private representative should be appointed, if there is a problem for the person to obtain such a representative himself or herself, such representative shall be provided free of charge within the scope of his or her inability to pay”.

Principle 18 on “Procedural safeguards” states: “The patient has the right to choose and appoint a lawyer to represent the patient’s interests, including his or her complaint or appeal. If the patient is unable to obtain such services, a lawyer shall be provided to him or her free of charge to the extent that he or she is unable to pay.”[16]

In view of this, in the amendment of the Law on the Protection of Persons with Disabilities, it has become a consensus to add the relevant provisions of “Legal Aid”. Previously, persons with disabilities received relatively insufficient information and less legal aid, which prevented their legitimate rights and interests from being effectively maintained. The legal aid system was needed to provide necessary assistance and support. Article 59 of “Legal Liability” chapter of the current Law on the Protection of Persons with Disabilities stipulates: “If the lawful rights and interests of persons with disabilities are violated, they may lodge complaints to organizations of persons with disabilities. And organizations of persons with disabilities shall safeguard the legitimate rights and interests of persons with disabilities and also, they have the right to request relevant departments or units to investigate and deal with them. Relevant departments or units shall investigate and deal with them according to law, and respond to them. Organizations of persons with disabilities shall provide support for persons with disabilities who need help in defending their legitimate rights and interests through litigation. Organizations of persons with disabilities have the right to request relevant departments to investigate and deal with violations that infringe on the interests of specific groups of persons with disabilities in accordance with the law.

Article 60 stipulates: “If the lawful rights and interests of persons with disabilities are infringed upon, they have the right to request the relevant departments to deal with them according to law, or to apply for arbitration to the arbitration institution according to law, or to bring proceedings to the people’s court in accordance with the law. Local legal aid agencies or people’s courts shall provide legal aid or judicial assistance to persons with disabilities who are in need of legal aid or judicial assistance due to economic difficulties or other reasons. “Since the enactment and implementation of the newly revised Law on the Protection of Persons with Disabilities, the Ministry of Justice, the NPC Internal Committee and the China Disabled Persons’ Federation and relevant departments have jointly convened three national conferences on the legal system for persons with disabilities, with a view to deploying and requiring the strengthening of legal aid and services for persons with disabilities. The Coordination Group for Legal Relief Work of Persons with Disabilities shall coordinates relevant departments to jointly carry out the legal aid work for persons with disabilities in their respective regions, the responsibilities include: (1) to study and draft policies, projects and plans for legal aid work for persons with disabilities; (2) to urge the relevant departments to carry out legal aid work for persons with disabilities according to law; (3) to coordinate relevant departments to properly handle and solve major cases, typical cases and mass cases that infringe on the rights and interests of persons with disabilities; (4) to summarize and promote the experience of legal aid work for persons with disabilities .[17]

On December 3, 2015, the Supreme People’s Procuratorate and the China Disabled Persons’ Federation jointly issued the Opinions on Effectively Protecting the Legal Rights and Interests of Persons with Disabilities in Procuratorial Work (hereinafter referred to as the Opinions). According to the relevant provisions of the amended Criminal Procedure Law, the Civil Procedure Law and the Administrative Procedure Law, combined with the statutory duties of the People’s Procuratorate and all aspects of in handling all aspects of a the case, detailed provisions have been made on the relevant procedures for handling cases involving persons with disabilities, and the crackdown on various criminal offences against the rights and interests of persons with disabilities has been intensified. The Opinions clearly stipulates: “Criminal offences against the safety of lives and property of persons with disabilities, especially major cases that seriously infringe on the rights and interests of persons with disabilities, in which the arrest and prosecution shall be strictly and promptly conducted in accordance with the law, and the criminal charges shall be intensified.” At the same time, we will crack down severely on cases of forced labor for persons with intellectual disabilities, abduction and trafficking in women and children with disabilities, organization of beggars with disabilities by violence and coercion, organization of beggars after intentional injury and disability, and criminal activities of persons with disabilities by coercion and instigation in accordance with the law.

It is a necessary condition for the realization of judicial justice to protect the litigants’ litigation rights in accordance with the law. More attention and help shall be given to criminal suspects and victims with disabilities because of their special physical and psychological aspects, such as their incomplete understanding of the relevant legal provisions or poor communication and expression, and weak ability to defend their rights and so on in criminal proceedings. [18]In the examination and arrest of suspects with disabilities, the procuratorial organs should embody the criminal policy of combining leniency with strictness, strictly grasp the conditions for arrest, and make arrests only if necessary. In addition to examining whether there are conditions for arrest in accordance with the law, it also should be considered whether arrest is necessary in the light of factors such as the nature, circumstances, subjective malignancy of the crime and whether the suspect’s physical condition is suitable for custody. If necessary, a social investigation can be carried out on the criminal causes and living environment of the suspects with disabilities for reference.

A variety of funds, expenditures and materials issued by the state for the disabled are important guarantees for the disabled to maintain their basic livelihoods, thus the misappropriation, deduction, interception and encroachment of the above-mentioned items seriously affect the normal life of the disabled. The Opinion calls for greater investigation and prevention of occupational crimes against the rights and interests of persons with disabilities. Severe punishments should be handed down for such crimes as misappropriation, withholding, interception, embezzlement of funds and materials for education, rehabilitation, employment and social security of persons with disabilities, as well as the occupational crimes committed in the procurement of equipment and construction of projects involving the undertakings of the persons with disabilities in accordance with the law. The People’s Procuratorate shall promptly handle cases of complaints, reports and appeals of persons with disabilities in accordance with the law, and shorten the period of handling cases; if the cases of persons with disabilities applying for state compensation is in conformity with the conditions for acceptance it shall be handled promptly according to law; in the course of handling cases and handling letters and visits involving the law and litigation, they shall take the initiative to understand the family living conditions of the disabled parties, and persons with disabilities who meet the conditions for national judicial assistance should be informed that they have the right to apply for assistance; and initiate the rescue procedure ex officio if they meet the conditions of assistance but fail to apply for it. The Opinion also made specific provisions on the legal aid for the persons with disabilities in accordance with the law, and put forward clear requirements for the construction of the barrier-free facilities by the procuratorial organs, and stipulates that the new reception halls of the People’s Procuratorates at all levels should meet the relevant requirements of the barrier-free facilities and if there is a meeting place that does not meet the barrier-free requirements, it should be gradually modified to facilitate the access of the persons with disabilities.

Strengthening the protection of the legitimate rights and interests of the persons with disabilities is also reflected in the trial and execution of the people’s courts. Those who refuse to carry out the effective judgments of the people’s courts and seriously damage the legal property rights and interests of the persons with disabilities shall be resolutely punished according to law. There is a typical case in this regard, which is briefly introduced as follows. In 2000, when Cao was in the process of dismantling a residential building commissioned by a grain management agency, he was injured in an accident, resulting in paraplegia. Because of the fault of Huang and Fan of the grain management office, the court ruled that the three defendants should bear joint and several liabilities. After 2004, the three defendants paid a follow-up treatment fees to the plaintiff Cao every two years until his death. In 2007 and 2014, Cao sued the court twice for the follow-up medical expenses, both of which were all supported by the court. After the reform of the grain management agency, the People’s Court also changed the restructured grain purchase and marketing company to be liable for compensation for the executor. In the past 15 years, the people’s court has never interrupted the execution of Cao’s case, and all of them have been put in place, and the execution funds have been sent to Cao’s home.[19]

(Translated by LI Man)
 
* LI Jianfei ( 黎建飞 ), professor and doctoral tutor at the Law School of Renmin University of China.
[1] The Convention on the Rights of Persons with Disabilities, accessed May 4, 2018, http://www.sina.com.cn.
[2] The Convention on the Rights of Persons with Disabilities was adopted by resolution of the General Assembly, accessed May 4, 2018, https://news.un.org/zh/story/2006/12/66932.
[3] “Implementation of the International Covenant on the Rights of Persons with Disabilities Initial Reports Submitted by States Parties under Article 35 of the Covenant China”, accessed May 4, 2018, http://www. enablecn. org/nd. jsp? Id = 50.
[4] “China has adopted stricter standards for disability identification. Even so, the number of persons with disabilities in China hasexceeded 85 million, accounting for 6.34% of the total population, involving nearly 300 million households.” Wang Zhijiang, Research on the Anti-discrimination Legislation for the Employment of Persons with Disabilities (Beijing: Huaxia Publishing House, 2014), 2.
[5] The United Nations Development Programme Office in China, the Office of the United Nations High Commissioner for Human Rights, commonly known as the Office of the High Commissioner for Human Rights (OHCHR) and the China Disabled Persons’ Federation, et.al, Protecting the Rights of Persons with Disabilities International and Cooperative Law and Practice (Beijing: Huaxia Publishing House, 2003), 10.
[6] Zheng Gongcheng, “The Status Quo and Policy Evaluation of Social Security for Persons with disabilities in China” Paper presented at the “Disability Discrimination Ordinance: ten years of efforts, to open up the future” seminar, Hong Kong, 2008.
[7] Cheng Kai, “Targeted Poverty Alleviation Strategy Brings Opportunities to Poverty-Stricken People,” Administrative Management Reform 6 (2016): 4. The article also mentions: “In terms of the monitoring of the well-being process for the disabled, in 2013, the per capita disposable income of disabled families in the country was 10,541.1 yuan, which was 56.7% of the per capita disposable income of the national households. At present, more than 30 million persons with disabilities across the country have disability certificates, and more than 80% of them live in rural areas. The living standards of impoverished persons with disabilities are far below the average level of society and the poverty level is relatively large.”
[8] Wang Zhijiang, Research on the Anti-discrimination Legislation for the Employment of Persons with Disabilities, 22.
[9] “Disability should not be seen as an issue that should be addressed by individuals with disabilities. The thinking of society and the social environment should be adjusted to ensure that everyone can participate in social life. The old tendency is that the only way for persons with disabilities to participate in social activities is to give special services, help or charity to them. Now, according to the new model, the core is to seek a rights-based approach to find ways to eliminate discrimination, to ensure that the society is open to the disabled, so that persons with disabilities can work, receive education, have housing, take part in sports and recreational activities and other activities that non-disabled people can do. The United Nations Development Programme Office in China, OHCHR and the China Disabled Persons’ Federation, et.al, Protecting the Rights of Persons with Disabilities International and Cooperative Law and Practice, 2.
[10] “Despite such laws, discrimination due to disability will definitely happen. Discrimination can be direct or indirect. In the same or similar circumstances, direct discrimination is manifested as worse treatment for persons with disabilities than for non-persons with disabilities. For example, a person with disabilities is denied access to a restaurant because of his/her disability and using a wheelchair, but people who do not use wheelchairs are allowed in, which is a direct discrimination. Indirect discrimination occurs when a requirement, condition, or practice is the same for all, but has unfair effect on persons with disabilities. For example, an employee with hearing deficiency is required to attend a meeting, but without any aid to help the employee to understand what the speaker is saying.” Ibid., 18.
[11] The First Report of the People’s Republic of China on the Implementation of the Convention on the Rights of Persons with Disabilities, accessed May 5, 2018, http://blog.sina.com.cn/s/blog_725747370100p04q.htm1.
[12] The National People’s Congress Supervisory and Judicial Affairs Committee, the National People’s Congress Standing Committee Legal Work Committee, the State Council Legal Office, the Ministry of Civil Affairs, and the China Disabled Persons’ Federation, Interpretation of Law of the People’s Republic of China on the Protection of Persons with disabilities (Beijing: China Democracy and Legal Publishing House, 2008), 26.
[13] “Reasonable accommodation” means making necessary and appropriate modifications and adjustments, depending on specific needs, without causing excessive or undue burden, to ensure that persons with disabilities enjoy or exercise all human rights and fundamental freedoms on an equal basis with others. Ibid., 27.
[14] National People’s Congress Supervisory and Judicial Affairs Committee and the China Disabled Persons’ Federation, The Post-Legislative Evaluation Report of Law on the People’s Republic of China on the Protection of Persons with disabilities (Beijing: Huaxia Publishing House, 2012), 115.
[15] Luo Zhengguang, Barrier-free Improvement of Home Environment for Nearly 1.4 million Persons with disabilities in China in the Past Five Years, accessed May 5, 2018, http://home.xinhua-news.com/rss/newsdetail/7e63bc88acef89al/1501579670915.
[16] Ministry of Human Rights Protection of the China Disabled Persons’ Federation, the Research Report on the Revision of the Law of the People’s Republic of China on the Protection of Persons with disabilities (Beijing: Huaxia Publishing House, 2008), 297.
[17]What are the main measures to protect persons with disabilities from legal aid, accessed May 9, 2018, https://www.1688.com/ask/908999451541081254510706.htm1.  
[18] Xu Ridan, “Let the Judiciary Sunshine Illuminate Every Person with Disabilities and the Responsible Persons of the Relevant Departments of the Supreme People’s Procuratorate and the China Disabled Persons’ Federation to Answer the Reporters’ Question on the Opinion,” Prosecution Daily, December 4, 2015.
[19] 10 typical cases of Protection of the Rights and interests of Persons with Disabilities, Supreme people’s Court, 14 May 2016.

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