Human Rights and Disability Advocacy

3. Living in the Community, Access to Justice: Having the Right Makes All the Difference

CHAPTER 3 Living in the Community, Access to Justice: Having the Right Makes All the Difference Tirza Leibowitz The right of all persons with disabilities to live in the community is central to the Convention on the Rights of Persons with Disabilities. Yet this right was only incorporated into Article 19 at the last possible negotiating session in January 2006, as a result of extensive groundwork spanning one-and-a-half years and four negotiating sessions. Why was this right almost left out, and why was it finally incorporated? What are the implications of this right for persons with disabilities, and what may we learn from the process that will aid in its implementation? This chapter explores these questions from the perspective of Bizchut, the Israel Human Rights Center for People with Disabilities. The following account reflects my experience as legal counsel to Bizchut and one of its representatives at the treaty negotiations. The story of how the right to live in the community made its way into the CRPD is closely linked with the broader issue of making the Convention relevant in cases where persons with disabilities experience the most acute marginalization. It is precisely such marginalization that prevents those affected to speak up and challenge it, particularly persons with psychosocial and intellectual disabilities. Communities around the globe still question the entitlement of these individuals to enjoy the basic rights of personhood and inclusion in the community. Eliminating discrimination against them 46 Tirza Leibowitz necessitates a fundamental change in social structure, including changes in deep-seated legal constructs. A common thread in Articles 12, 13, and 19 of the CRPD is their profound impact on personhood in both a legal and physical sense. Article 12 addresses the long-standing practice of denying legal consequences to decisions and actions taken by persons with disabilities. It restores legal personhood by proscribing limits on legal capacity and requiring that support be provided to enable its exercise. Article 13 eliminates barriers within the justice system that prevent individuals from accessing justice in order to counter the negation of their legal personhood. Finally, Article 19, which requires providing support to enable independent living and inclusion in the community, is the antithesis to segregation either by the absence of support to partake in the life of the community, resulting in people geographically located in society but effectively isolated, or by the practice of placing individuals in institutions, which effectively removes the individual from society. Interestingly, Article 12 was the most debated article of the CRPD negotiations , taking center stage throughout the negotiations and beyond, while the more subtle drama around Articles 13 and 19—the story told here—took place largely behind the scenes. The formulators took a major step when they embedded these rights in the framework of the CRPD; the next step is to upgrade their prominence in the arena of implementation. Society still has a long way to go to make Articles 13 and 19 key components of basic compliance with the CRPD. Disability Rights in Israel Bizchut (literally “by right”) is the leading advocacy organization in Israel for the rights of persons with disabilities. By the time negotiations on the actual CRPD text began in 2004, multiple developments in the field of disability rights were already underway in Israel. In 1996, the Supreme Court issued the first precedent addressing disability from a human rights perspective and requiring that accessibility accommodations be made in schools. Israel’s disability rights law, initiated and supported by Bizchut, was passed in 1998. After the legislation of the disability rights law, additional cases were argued and decided: polling stations and voting procedures were to be made accessible , and import of inaccessible public buses were halted. The first cases challenging discrimination in employment were brought before the court Living in the Community 47 beginning in 2001. In 2000, the Commission for Equal Rights of Persons with Disabilities was formed. Also that year, a law was implemented that detailed the entitlement of persons with psychosocial disabilities to community-based rehabilitation services. In 2002, the Special Education Law was amended to create an explicit entitlement to support services enabling inclusive education , and gaps in the law’s implementation were challenged in court. One highlight in the progress was in the area of access to justice. As in most, if not all countries around the world, investigative and judicial procedures in Israel did not previously meet the needs of persons with intellectual , psychosocial, or communications disabilities. The police did not...