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Confronting Discrimination and Inequality in China

 | 
Errol P. Mendes
, 
Sakunthala Srighanthan

Part three. Discrimination against the Disabled

Chapter Ten. A Study on Legislative Inhibition of Discrimination on the Basis of Disability

Wang Zhijiang

Texte intégral

I. DISCRIMINATION ON THE BASIS OF DISABILITY – AN OVERVIEW

(I) Definition

  • 1 Office of Dictionary Editing, Language Research Institute, China Academy of Social Sciences, Moder (...)
  • 2 Webster’s Dictionary of the English Language Unabridged, Encyclopaedic Edition, Publishers Interna (...)

1Discrimination is usually defined as a person or group being treated differently (usually worse) than others. Chinese1 and English2 language interpretations of discrimination are basically similar.

2Discrimination is a prejudice by its very nature. Although there may be different reasons for discriminatory behaviour, a commonality exists: the party who prejudices feels psychologically superior, so much so that it leads to a psychological imbalance that affects his behaviour and manifests itself in unfair treatment of other parties. Discrimination exists in many forms, including discrimination based on gender, race, ethnic group, disability, geography, religion, age and appearance.

3Discrimination against disability is prevalent in human history and has been ongoing. It arises out of fear or incomplete knowledge of disability, resulting in differential treatment against the disabled and other people. The most direct expression of discrimination is the rejection, exclusion and ostracism of the disabled by nondisabled people. From a broader perspective, it also includes the neglect of the disabled in legislation or policies, and the failure to provide accessible facilities for the physically disabled.

4The United Nations Convention on the Rights of Persons with Disabilities defines discrimination on the basis of disability as:

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 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.

(II) Causes of Discrimination on the Basis of Disability

5Discrimination on the basis of disability has historical origins and practical causes. In early human society, when human beings were less able to change or conquer nature and when living conditions were poor, a healthy body was a prerequisite for survival. Discrimination against disability was a natural reaction to this condition.

6With social progress and greater civilization, society has evolved from rejection of the disabled to being accepting and accommodating. There are at least four reasons that can be attributed to this change

7First, human beings are now better able to deal with and change the environment, society has lower expectations of human health conditions, and human labour is able to satisfy the basic requirements of all members of society. This implies that any forced displacement of the disabled is unnecessary.

8Second, acceptance of the disabled is integral to social progress. Civilization is the major element that differentiates human beings from animals. Disabled persons, being a part of human society, should enjoy the basic right to live. This is a concept that is gradually recognized and accepted by society.

9Third, acceptance of the disabled is the result of technological progress. For example, the invention and use of wheelchairs, hearing aids and other aids compensate for the inadequacies of the disabled to different degrees. This gradually eliminated any obstacles in communication between disabled persons and other people, so that disabled persons are able to integrate and become part of society.

10Finally, society’s standard of judgment of a person’s ability is no longer based on physique; rather, it has evolved into multiple standards, whereby intelligence becomes increasingly important. People who have disabilities in their appendages, hearing or sight show the ability to contribute to overall social well-being. Together, these reasons enable the disabled to be progressively recognized and accepted by society.

  • 3 Bonnie Poitras Tucker and Adam A. Milani, Federal Disability Law, 2004, West, p. 2.
  • 4 Ibid., p. 3.
  • 5 Protecting the Rights of Persons with Disabilities – International and Comparative Law and Practic (...)

11However, discrimination on the basis of disabilities has not been eradicated from modern society. There are a few major reasons for this. First, because people are still dependent on a healthy body to some extent, the original causes for discrimination against the disabled continue to exist. Second, non-disabled people do not have a complete understanding of disability, as well as the necessary means and techniques to communicate and interact with the disabled. “Able-bodied members of our society often feel discomfort and embarrassment around people with disabilities and do not know how to react toward them.”3 Such discomfort and embarrassment result in the exclusion of the disabled by the healthy, and the unwillingness of the disabled to integrate into society, and finally, to their estrangement. The third reason is the failure of the healthy to translate their will into action, despite being ready to help the disabled. Hence, although there is no emotional negligence as far as the disabled are concerned, discrimination does occur in practice. Many help the disabled out of sympathy, but often without respect and lack observance of their dignity. This is referred to as “benevolent paternalism.” In the case of Alexander v. Choate (US 1985), the Supreme Court observed that discrimination on the basis of handicap is “most often the product of...benign neglect,” and that “federal agencies and commentators on the plight of people with disabilities... have found that discrimination against people with disabilities is primarily the result of apathetic attitudes rather than affirmative animus.”4 The fourth reason is misunderstanding and worry about certain handicap attributes. “Many people are afraid of persons with disabilities, especially people who have mental disabilities.”5 The fifth reason is the neglect of the disabled. Some countries have failed to consider the special needs of the disabled in their legislation and formulation of policies. Laws and policies not only do not protect the rights of the disabled, but become the basis for discriminatory conduct.

(III) CLASSIFICATION OF FORMS OF DISCRIMINATION ON THE BASIS OF DISABILITY

1. Direct Discrimination and Indirect Discrimination

12Based on the different makeup of discriminatory behaviour, discrimination may be divided into direct discrimination and indirect discrimination.

13Direct discrimination refers to less favourable treatment received by the disabled compared to the non-disabled under similar circumstances. Generally, direct discrimination must fulfil the following three criteria: (1) treatment received by the disabled is less favourable than the non-disabled; (2) disability is the only cause of such differential treatment; and (3) the discriminating person cannot provide a justifiable reason for his behaviour.

14Indirect discrimination refers to additional requirements or conditions imposed on the disabled, without doing the same to the non-disabled, and these requirements or conditions are unjustifiable. Generally, indirect discrimination must fulfil the following three criteria: (1) the percentage of disabled persons who can fulfil these requirements or conditions is far smaller than that of non-disabled persons; (2) the requirement or condition seem unjustifiable from a practical standpoint; and (3) disabled persons are prejudiced by virtue of their failure to fulfil these requirements or conditions. In comparison, indirect discrimination is more latent, often discriminating disabled persons under the guise of fair play, and making the identification of discrimination against disability difficult.

2. Discrimination in Politics, Education, Employment, Culture, Sports and Consumption

15Based on the different sectors in which discrimination against disability occurs discrimination may be classified into political, educational, employment, cultural and sports, and consumption discrimination.

  • 6 Michael Stein, Americans with Disabilities Act: Empirical Perspectives, Studies on the Legal Prote (...)

16Political discrimination refers mainly to the restriction of the right to vote and seek election, and the right to participate in and manage national affairs. Educational discrimination refers mainly to the refusal to allow disabled persons to go to school or the imposition of addition conditions on disabled persons in the management of school affairs, thereby resulting in the restriction or obstruction of the exercise of the right to education by disabled persons. A common discrimination against disability, employment discrimination is usually seen in the refusal to employ disabled persons or unfair treatment to such persons in training, promotion, salary and remuneration, and work conditions. Cultural and sports discrimination is discrimination against the disabled in the cultural, sports or recreational and leisure sectors. Consumption discrimination refers to discrimination against the disabled in the sale of commodities and the provision of services. Such discriminatory behaviour occurs everyday. According to a survey of 1,000 disabled persons submitted by the United States Congress when it conducted legislative hearing on the Americans with Disabilities Act, two-thirds of those surveyed are of employment age but were unemployed, and, of those seeking employment, two-thirds were not offered jobs due to employers’ attitudes. The survey also showed that in the one year before the public hearing, two-thirds of those surveyed had not watched a movie, three-quarters had not attended a theatre performance or concert, two-thirds had not watched a sports event, seventeen percent had not eaten at a restaurant, and 30 percent had never shopped in a shopping centre.6

3. Personal Discrimination, Organizational Discrimination and State Discrimination

17Based on the different discriminating entities, discrimination against disability may be classified into personal discrimination, organizational discrimination and State discrimination.

18Personal discrimination refers to discrimination against disabled persons on an interpersonal basis. Examples include an employer refusing to employ a handicapped person seeking employment, or a retailer refusing to sell its merchandise to a disabled person. Organizational discrimination refers to discrimination by a company or organization, such as schools refusing to allow disabled persons to attend, or an academic institution refusing the membership of a disabled person. State discrimination refers to the discrimination or neglect of a disabled person by his or her country. State discrimination usually manifests itself in legislation and policies. Some countries deny disabled persons the right to vote or seek elected office, or exclude disabled persons from participating in the formulation of policies closely related to them.

4. Discrimination against Disabled Persons and Discrimination against Related Persons

19Based on the different victims, discrimination against disability may be classified into discrimination against disabled persons and discrimination against associates.

  • 7 See http://www.eoc.org.hk/cc/home.com.

20Discrimination against persons with a disability is discrimination against disabled persons on the basis on their handicap. Discrimination against associates refers to the discrimination against persons associated with disabled persons on the basis of the handicap of disabled persons. The Disability Discrimination Act 1992 of Australia provides that an “associate,” in relation to another person, refers to a spouse, someone who is living with the person on a genuine domestic basis, a relative, a caregiver, or someone who is in a business, sporting or recreational relationship with the person. The term “associate,” used in the Disability Discrimination Ordinance of the Hong Kong Special Administrative Region, also has the same definition as its Australian counterpart. To cite an example, a Hong Kong SAR resident complained to the Hong Kong Equal Opportunities Commission when his application to become a relief worker was rejected. The answering party acknowledged that the application was rejected on the grounds that the residents father was a mental patient, and that, due to the highly dangerous nature of relief work, pressure may induce mental illness in its workers, all of which could be detrimental to relief work and public safety. Eventually, the parties arrived at a settlement. The answering party agreed to employ the resident and pay HKD$ 275,000 in compensation and interest for emotional damage and loss of income.7

II. INHIBITING DISCRIMINATION AGAINST PERSONS WITH DISABILITIES

(I) Reasons for Prohibition

1. Discrimination on the Basis of Disability is a Common Phenomenon

21Discrimination against persons with a disability is a common phenomenon. Disabled persons from every part of the world are discriminated against in different ways:

  • 8 Protecting the Rights of Persons with Disabilities – International and Comparative Law and Practic (...)

They are denied jobs, excluded from schools, are considered unworthy of marriage or partnership, and are even barred from certain religious practices. Millions of persons with disabilities around the world do not have access to the resources necessary to fulfil their basic needs, nor do they have influence over the policy decisions that affect their daily struggle for survival. Discrimination occurs in a range of arenas, including the workplace, schools, health care facilities, government, recreational facilities, as well as many more societal contexts. Moreover, as a result of discrimination, segregation from society, economic marginalization, and a broad range of other human rights violations, persons with disabilities have consistently been excluded from the decision-making fora where positive changes in law and policy can be developed and implemented.8

22Whether it is in developed or developing countries, or in the political, economic, social or cultural sectors, there are different levels of discrimination against disabled persons.

23Under most circumstances, these are discriminations by non-disabled people against the disabled; the more serious discrimination is the neglect of disabled people by the State. The result is a misguidance of society, such that discrimination against disabled persons becomes the norm. Children, women, or elderly people who are handicapped, or people with disabilities in movement, hearing, vision, mental state or mental ability, have invariably suffered discrimination during their lifetime. Many countries have adopted legislative, administrative or outreach measures to eliminate discrimination, and have seen some results in preventing and mitigating discrimination against people with disabilities. However, unless the fundamental cause of discrimination against disability is eradicated, disabled persons will continue to face prejudice.

2. Discrimination against Disability Leads to Serious Consequences

  • 9 Ibid., p. 45.
  • 10 Bonnie Poitras Tucker and Adam A. Milani, Federal Disability Law, 2004, West, p. 3.
  • 11 Protecting the Rights of Persons with Disabilities – International and Comparative Law and Practic (...)

24The state of human rights of disabled persons due to discrimination against them is astonishing. Leandro Despouy, the United Nations Special Rapporteur on Disability, observed in 1991, “[people with disabilities] frequently live in deplorable condition... As a result, millions of children and adults throughout the world are segregated and deprived of virtually all their rights and lead a wretched marginal life.”9 Disabled persons are prevented from integrating into mainstream society, and are living in segregation, exclusion and neglect. At the same time, discrimination against disability often results in the abilities of disabled persons being neglected: “[a]ll of these factors contribute to the second-class citizenship status of Americans with disabilities”10; “[p]ersons with disabilities are often thought of as worthless members of society or as helpless people who cannot have a job or otherwise contribute in a meaningful way...11 Such negation of persons with disabilities based on their handicap will become a vicious cycle that affects the behaviour and decisions of persons with disabilities:

  • 12 Ibid.

“[o]ppressed groups who have been systematically denied power and influence in the society in which they live internalize negative messages about their abilities and so often come to accept them as their “truth.” Internalized oppression works in combination with economic and social contexts and serves to restrict options that people perceive as open to them and legitimate for them.12

25What happens is that people with disabilities grow accustomed to living in isolated environments. The healthy, on the other hand, will take discrimination for granted over time, and begin to ignore, neglect and forget about disabled persons. Discrimination against disability thus results in serious consequences.

3. Discrimination against Disability will not Disappear Naturally

  • 13 Deng Bufang. The Call for Humanitarianism (ren dao zhu yi de hu huan), 3rd collection, Huaxia Publ (...)
  • 14 Protecting the Rights of Persons with Disabilities – International and Comparative Law and Practic (...)

26Facts have proven that civility and the protection of human rights are not natural outcomes of technological advancement and wealth accumulation.13 The same applies to discrimination against disability – rights must be fought for. Even the voting rights of disabled people living in the United States have been fundamentally infringed upon: “[i]n the 2000 elections in the United States, in at least 18 states, disabled voters found inaccessible polling places, confusing ballots and a lack of privacy and independence in voting.”14 These occurrences did not arise because of technical or financial problems; instead, they happened because of the neglect of and indifference toward persons with disabilities by the State and society at large. Congress also stated that society had historically isolated and segregated

  • 15 Bonnie Poitras Tucker and Adam A. Milani, Federal Disability Law, 2004, West, p. 1.

individuals with disabilities and discrimination persisted in critical areas such as employment, housing, public accommodations, transportation, communication, education, recreation, institutionalisation, health services, voting and access to public services, etc. The discrimination occurs in various forms including outright intentional exclusion.15

27Hence, socio-economic progress and technological advancement do not necessarily imply the elimination of discrimination against disabilities, especially when under many circumstances the discrimination results from deliberate exclusion. Passive waiting will not therefore eliminate discrimination against disabilities. Aggressive and effective inhibitive methods and measures are the answer.

4. Discrimination against Disability is an Abnormal Social Phenomenon

28Jean-Jacques Rousseau proposed during the mid-18th century that all human beings are free and equal, and everybody has “natural rights,” which are an innate part of being a human being and cannot be denied by society. Any form of discrimination is scorn and impropriety against human liberty and equality. Article 7 of the United Nations Universal Declaration of Human Rights states that “[a]ll are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” Discrimination against disabilities is an abnormal social phenomenon that shows deep-rooted human flaws. Any discrimination against persons with disabilities is infringement of their basic human rights. Elimination of such discrimination not only demonstrates the progress of human civilization, it is also a requisite for the protection of the rights and fundamental freedom of disabled persons. Many countries have gradually realized the socially detrimental discrimination against disabilities, and have imposed strict prohibitions on such discriminatory behaviour via various avenues, and have appealed and encouraged society to combat any discrimination against disabled persons.

(II) Legislative Inhibition of Discrimination against Disabled Persons

29Legislation is an effective means that the State may use to prohibit and eliminate discrimination against disabled persons. The legislative reforms of many countries aim to provide equal opportunities for disabled persons and eliminate discrimination against them, in order to resolve the problem of ostracism and exclusion that often co-occur with disabilities. At present, approximately 40 countries have passed laws against discrimination on the basis of disability.

30Human society experienced three phases of change of attitude towards disability and persons with disabilities. During the first phase, disabled persons were regarded as passive, sickly, dependent, and needing medical treatment and relief. This traditional perception was usually known as the “medical model of disability,” This model classifies social activities into those carried out by “normal persons” and those carried out by “persons living with disability.” It proffered that material wealth and spiritual wealth in society is created by social activities carried out by “normal persons.” Persons living with disability were “abnormal persons” who were social baggage and troublemakers, and who only consume but do not create material and spiritual wealth. Thus, education, employment, cultural and transportation facilities and services were designed for normal people, and disabled persons were not to be part of them. In this phase, some countries established progressive legislation targeted at helping those living with disability; however, legislation alone could not fundamentally change their status. The value of persons living with disability continued to be neglected, and even negated.

31In the second phase, along with social progress and improvements in civilization came peoples’ gradual realization that the exclusion and ostracism of people living with disabilities by society is not the result of the handicap, but rather of the decision to exclude the handicapped. Consequently, the belief was that removal of these obstacles would allow such persons to create material culture and life just like other people, and thus that a more conducive environment must be created for the disabled, rather than expecting them to adapt to society. This is called the “social model of disability.” During this phase, society not only accepted people living with disability, but believed as well that they could be creators of material and spiritual wealth, and, therefore, that those with disabilities should be able to participate in social activities without discrimination. The nature of the relevant legislation during this phase is mainly social law, and partly civil law.

  • 16 See Wang Zhijiang. Protection of the Rights of Persons with Disability – The Chinese and Internati (...)

32In the third phase, society came to believe that persons living with disability should enjoy basic innate rights, being social actors, and that they are not only regular participants in society, but should also be entitled to different rights. People living with disability are thus conceived as subjects with rights which the State should provide, such as those to education, employment, voting, transportation and cultural rights, including relief and measures in the event of infringement of such rights. Also, it is believed that persons living with disability should participate in the legislative process and in making policies related to them, rather than leaving such decisions in the hands of other people. This is known as the “rights model of disability. ” In this phase, people living with disability are entitled to rights, while the State takes measures to ensure that such rights are exercised. The legislative nature is under the human rights law or constitution, focusing on the protection of the equality of rights for people living with disability. Of course, such legislation does not exclude provisions for social, welfare and civil considerations.16

Historical Phases

Attitude Toward Disability

Status of the Disabled

Nature of Legislation

Phase 1

Medical Model of Disability

Object of Relief

Welfare Law

Phase 2

Social Model of Disability

Social Actor

Social Law

Phase 3

Rights Model of Disability

Subject with Rights

Human Rights Law

33Along with the paradigm shift from one model to another is the change of the social status of people living with disability, from being “object of relief” to “social actor” to “right-owner.” The same process of change was seen in the nature of legislation for disability, from “welfare legislation” to “social legislation” to “human rights legislation.” Although the nature of the present legislation for disability is human rights-based, it contains multi-dimensional aspects, including welfare and social legislation, thereby providing comprehensive and complete protection for people living with disability.

III. UNITED NATIONS’LEGISLATIVE INHIBITION OF DISCRIMINATION AGAINST DISABILITY

(I) United Nations Efforts

  • 17 See http://www.un.org/chinese/esa/social/disabled/.

34Since its inception, the United Nations (UN) has been seeking to elevate the status of people living with disability, to improve their lives, and to eliminate discrimination against persons living with disability. The UN’s concern with the issue of people living with disability originates from its recognition that disabled persons often suffer from discrimination, because of prejudice or ignorance, and may also lack access to essential services. This is a “silent crisis” which affects not only disabled persons and their families, but also the economic and social development of entire societies, where a significant reservoir of human potential often goes untapped. Considering that disabilities are frequently caused by human activities, or simply by lack of care, assistance from the entire international community is needed to put this “silent emergency” to an end.17 Founded to promote human rights, basic freedom and peace initiatives, the UN should ensure that persons living with disabilities can exercise their civic, political, social and cultural rights on an equal basis. It was because of this belief that the United Nations Assembly, the United Nations Educational, Scientific and Cultural Organization (UNESCO), the World Health Organization (WHO), the United Nations Children’s Fund (UNICEF), the International Labour Organization (ILO) and other special agencies have driven to create the conditions for the equal and effective protection for the rights of persons living with disability.

35The UN’s work for people living with disability shifted from being simple to multidimensional, and from being welfare to human rights-driven. During the 1950s, the UN’s efforts in this respect were mainly on rehabilitation plans and programmes. During the 1960s, issues concerning disabled people were viewed as social welfare problems; the UN employed a social model in its operations, encouraging full social participation of people living with disability. The 1970s marked a new era for efforts towards building up people with disabilities. On 20 December 1971, the United Nations General Assembly adopted the Declaration on the Rights of Mentally Retarded Persons, and the concept of rights for persons living with disability became generally accepted internationally.

36The UN legislative inhibition against discrimination on the basis of disability took time to evolve. On 9 December 1975, discrimination against persons living with disability was first mentioned in the Declaration on the Rights of Disabled Persons. There were several propositions in the United Nations World Programme of Action Concerning Disabled Persons adopted on December 3, 1982 relating to the inhibition of discrimination against persons living with disability. On 17 December 1991, the UN General Assembly passed a resolution against discrimination on the grounds of mental illness under the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, and defined the meaning of “discrimination.” The Standard Rules on the Equalization of Opportunities for Persons with Disabilities, adopted by the UN General Assembly on 20 December 1993, also provided for the inhibition of discrimination on the basis of disability. The Convention on the Rights of Persons with Disabilities adopted by the UN General Assembly is a comprehensive instrument that specified not only the relevant concepts of discrimination against disability, but also provided for many measures and means to prohibit such discrimination in its main provisions.

(II) Legislative Inhibition of Discrimination on the Basis of Disability under the UN Convention on the Rights of Persons with Disabilities

37The Convention on the Rights of Persons with Disabilities is a legislative inhibition by the UN of discrimination against persons living with disabilities as well as an instrument of authority. The key aspects of the Convention are as follows. First, the Convention embodies non-discrimination and equal protection of persons living with disabilities in both its basic principles and its main provisions. Other conventions do not provide for anti-discrimination for disabled persons in the same depth and breadth. Second, the Convention is a legally binding international treaty formulated by the members of the UN. Upon signing and ratification by State Parties, signatories must drive the work for persons living with disability according to the provisions of the Convention. This means employing all resources to ensure that disabled persons enjoy and exercise their rights. Any violation of the Convention will be subject to serious consequences.

1. Inhibitive Legislative Institution Provided under the Convention

38The relevant provisions concerning the legislative inhibition of discrimination against persons with disability under the Convention on the Rights of Persons with Disabilities includes the following aspects. First, “non-discrimination” is the basic principle of the Convention. Article 3 of the Convention provided for eight general principles and “nondiscrimination” is one of them with high priority. Second, the purpose of the Convention is to eliminate discrimination, in order to provide equal protection for persons living with disability. Article 1 of the Convention sets forth the purpose of the Convention in the following terms: “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.” Thus, the Conventions purpose is to eliminate discrimination against persons living with disability and to ensure equal protection for such persons. Third, the Convention provided a definition for discrimination on the basis of disability. Under Article 2, “discrimination on the basis of disability” was clearly defined. Fourth, the Convention clearly provided under its “General Obligations” that “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.” Fifth, the Convention contains special provisions for non-discrimination. Article 5 of the Convention specially provided for “equality and non-discrimination,” under which 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. Finally, all provisions under the Convention have directly or indirectly provided for the inhibition of discrimination on the basis of disability.

2. Means of Legislative Prohibition Provided under the Convention

39Typical measures and methods of legislative inhibition provided in the Convention on the Rights of Persons with Disabilities include the following:

Participation in Political and Public Life: to guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, State Parties shall (1) ensure that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use; (2) ensure persons with disabilities may 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; (3) guarantee the free expression of the will of persons with disabilities as electors and to this end, where necessary, and at the request of such persons, allow assistance in voting by a person of their own choice; (4) encourage the participation of persons with disabilities 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; (5) encourage persons with disabilities to form and join organizations, so as to ensure their representation at international, national, regional and local levels.
Education: for the purpose of realizing the right of persons with disabilities to education without discrimination and on the basis of equal opportunity, States Parties shall: (1) ensure an inclusive education system at all levels and life-long learning directed to the development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential; (2) ensure 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; (3) ensure persons with disabilities can access an inclusive, quality and free primary and secondary education on an equal basis with others in the communities in which they live; (4) provide reasonable access for persons living with disability to fulfil their personal requirements, and enable persons with disabilities to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others; (5) enable persons with disabilities to receive the support required, within the general education system, to facilitate their effective education; (6) provide persons with disability environments which maximize academic and social development, which in fact is a provision for special education; (7) facilitate learning by persons with disability, use of alternative communication methods, such as Braille and sign language.
Work and Employment: To ensure the right of persons with disabilities to work, on an equal basis with others, the Convention provides that States Parties shall take appropriate steps, including through legislation, to, inter alia (1) 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; (2) 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; (3) ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others; (4) enable persons with disabilities to have effective access to general technical and vocational guidance programs, placement services and vocational and continuing training; (5) 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; (6) promote opportunities for self-employment, entrepreneurship, the development of cooperatives and starting one’s own business; (7) employ persons with disabilities in the public sector; (8) 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; (9) ensure that reasonable accommodation is provided to persons with disabilities in the workplace; (10) promote the acquisition by persons with disabilities of work experience in the open labour market; (11) promote vocational and professional rehabilitation, job retention and return-to-work programs for persons with disabilities. (12) ensure that persons with disabilities are not held in slavery or in servitude, and are protected from forced or compulsory labour.
Health: to ensure that that persons with disabilities have the right to the enjoyment of the highest attainable standard of health, States Parties shall: (1) 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; (2) 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; (3) provide these health services as close as possible to peoples own communities; (4) provide care of the same quality to persons with disabilities as to others; (5) prohibit discrimination against persons with disabilities in the provision of health insurance, and life insurance; (6) prevent discriminatory denial of health care or health services on the basis of disability.
Social Protection: to ensure that persons with disabilities have an adequate standard of living and social protection for themselves and their families, State Parties shall: (1) take appropriate steps to safeguard the right of persons with disabilities to have adequate food, clothing and housing, and to the continuous improvement of living conditions; (2) 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; (3) ensure access by persons with disabilities to social protection programmes and poverty reduction programmes; (4) ensure access by persons with disabilities and their families living in situations of poverty to assistance from the State with disability-related expenses, including adequate training, counselling, financial assistance and respite care; (5) ensure access by persons with disabilities to public housing programmes; (6) ensure equal access by persons with disabilities to retirement benefits and programmes.
Family, to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, States Parties shall take effective and appropriate measures to ensure that: (1) 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; (2) 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; (3) persons with disabilities, including children, retain their fertility on an equal basis with others; (4) render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities; (5) children with disabilities have equal rights with respect to family life. State Parties shall provide early and comprehensive information, services and support to children with disabilities and their families; (6) a child shall not be separated from parents on the basis of a disability; (7) where the immediate family is unable to care for a child with disability, provide alternative care within the wider family.

3. Monitoring of the Conventions Implementation

40The Convention on the Rights of Persons with Disabilities provides that State 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 Convention. Also, to facilitate related action in different sectors and at different levels, State Parties shall give due consideration to the establishment or designation of a coordination mechanism within government to facilitate implementation of the Convention. At the same time, the Convention also requires a State-level implementation mechanism and a UN implementation mechanism. These are to ensure that the Convention follows through in its implementation, in order to eliminate discrimination against persons with disability, and to render equal protection for those persons.

IV. LEGISLATIVE PROHIBITION ON THE DISCRIMINATION AGAINST DISABILITY IN THE UNITED STATES

41During the 1960s and 1970s, the US Congress enacted a series of disability rights laws to cope with the rising disability movement. The most famous were the Rehabilitation Act of 1973, the Individual with Disabilities Education Act (IDEA) and the Architectural Barriers Act (ABA). The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors. The Individual with Disabilities Education Act (IDEA) requires the State to provide early intervention, special education, and related services to children with disabilities. The Architectural Barriers Act requires that facilities designed, built, altered, or leased with funds supplied by the US Federal Government be accessible to the public. Subsequently, the US Congress further enacted a series of laws to eliminate unequal treatment to persons living with disability, including the Air Carrier Access Act of 1986, prohibiting discrimination against persons with disabilities by air carriers; the Fair Housing Amendments Act of 1988, which extended the scope of application of the Fair Housing Act, which prohibits discrimination on the basis of disability in all types of housing transactions; the Child Abuse Amendments of 1984, which prevents the refusal of medical treatment for children with disabilities. According to a recent study, its full effectiveness is still ambiguous:

  • 18 Bonnie Poitras Tucker and Adam A. Milani, Federal Disability Law, 2004, West, p. 6.

The Americans with a Disability Act (ADA) was enacted in 1990 to assist in
remedying the problems related to access by persons with disabilities to public facilities, employment and transportation services. While the full effects of the ADA are still being worked out over a decade after its passage, it is still widely hoped that the law will live up to its potential and assist in alleviating much of the discrimination against people with disabilities.18

42The ADA is a wide-ranging civil rights law that prohibits discrimination based on disability under various areas. Key areas include employment, public services, public accessibility accommodations and services operated by private entities, and telecommunications. Tide I, Section 102 of the Act includes a detailed provision strictly prohibiting discrimination against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. To prevent discrimination against persons with disability, the said Article prohibits employers from conducting a medical examination or making inquiries of a job applicant as to whether the applicant has a disability or as to the nature or severity of such disability. An employer may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of the applicant; however, the results of the medication examination shall be kept confidential. Section 202 under Title II of the Act provides that no individual with a disability shall be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity. The section provided for accessible service in bus, rail, and intercity or commuter rail transportation in great detail, including ensuring accessible dining in single-level and double-level cars. Title III provides for the inhibition of discrimination against people with disability in public accommodations and services operated by private entities, under which, the definition of discrimination is divided into general and specific prohibitions. General prohibition is classified into activities, integrated settings, opportunity to participate, administrative methods and association. Activities are further divided into denial of participation, participation in unequal benefit, separate benefit, etc., or which detail explanations are provided. In setting forth the specific prohibitions, the provisions explain the five specific discriminatory behaviours, as well as discriminatory behaviours in a fixed route system, demand responsive system and over-the-road buses. Title IV provides for accessible telecommunication services for hearing-impaired and speech-impaired individuals. Title V contains miscellaneous provisions, including amendments to the Rehabilitation Act of 1973, litigation costs and technical assistance.

43The Americans with a Disability Act has provided for relevant legal relief proceedings for any violation thereof. Take Public Accommodations and Services operated by Private Entities under Title III for example. (1) Persons who have been discriminated against or have reasonable cause to believe that they will be discriminated against as provided hereunder may apply the relief and procedures as set forth under the Civil Rights Act of 1964. Injunctive relief is available for certain discriminatory behaviour. (2) The attorney general shall investigate alleged violations of the subchapter. The attorney general may, if he has reasonable cause to believe that there has been discrimination practice, commence a civil action in any appropriate United States district court. A court may grant any equitable relief, including granting temporary, preliminary, or permanent relief; providing an auxiliary aid or service, modification of policy, practice, or procedure, or alternative method; and making facilities readily accessible to and usable by individuals with disabilities. The court may award such other relief as the court considers appropriate, including monetary damages to persons aggrieved when requested by the attorney general. To vindicate the public interest, the court may assess a civil penalty against the violating entity in an amount not exceeding US$ 50,000 for a first violation, and not exceeding US$ 100,000 for any subsequent violation. Article 513 of the said Act provided that where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, fact-finding, mini-trials, and arbitration, is encouraged to resolve disputes arising under the chapter. The Equal Employment Opportunity Commission in the US helps an individual decide if a complaint should be raised. After raising a complaint, the Commission will notify the employer that a complaint has been lodged against him. Under the law, the Commission will recommend mediation as a means of dispute settlement between the parties. Of course, mediation is voluntary, free of charge and confidential. If no mediation is carried out or where mediation fails, the Commission will deem no infringement has been committed, and the complaint will be overruled, and the complainant may be free to commence legal action. On the other hand, if the Commission believes that discrimination exists, non-official resolution methods will be proposed. If, however, such resolution fails, the Commission will decide if legal action should be instituted, or may recommend that the complainant commences legal action as an individual.

V. THE LEGISLATIVE INHIBITION OF DISCRIMINATION ON THE BASIS OF DISABILITY IN HONG KONG

44The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China is the main law applicable to persons with a disability in Hong Kong, China. Under its provisions, all permanent residents and non-permanent residents of Hong Kong are equal before the law, and enjoy the basic rights and freedom under the protection of the law. The Disability Discrimination Ordinance prohibits the discrimination and harassment of persons with disability, guarantees equal opportunities for persons with a disability, and facilitates their integration into the society as much as possible. Under the Inland Revenue Ordinance, taxpayers who take care of family members with a disability may apply for a corresponding tax exemption. The Crimes Ordinance, Criminal Procedure Ordinance, Enduring Powers of Attorney Ordinance, Legislative Council Ordinance, Mental Health Ordinance and High Court Ordinance provide legal protection for persons who are mentally ill or mentally handicapped and for their caregivers. The Buildings Ordinance provided for the relevant design standards to ensure that buildings are accessible to persons with disabilities. The Cross-Harbour Tunnel (Passage Tax) Ordinance, Dutiable Commodities Ordinance, Motor Vehicles (First Registration Tax) Ordinance and the Road Traffic Ordinance provided for the various tax exemptions during the use of motor vehicles by persons with a disability. Although the Education Ordinance, Employment Ordinance, Employees’ Compensation Ordinance, Guardianship of Minors Ordinance, Legal Aid Ordinance, Occupational Safety and Health Ordinance and the Protection of Children and Juveniles Ordinance have no special provisions for persons with disabilities, the provisions specify their applicability to all persons, which includes disabled persons.

45The Disability Discrimination Ordinance is the main legal basis for the elimination and inhibition of discrimination on the basis of disability. The Ordinance provides that any discrimination, harassment or vilification of persons with a disability or the associate of this person are unlawful. “Discrimination” is defined as any person: (1) who, on the ground of that other persons disability, treats such person less favourably than he treats or would treat a person without a disability; (2) who applies to that other person a requirement or condition which he applies or would apply equally to a person without a disability but which is such that the proportion of persons with a disability who can comply with it is considerably smaller than the proportion of persons without a disability who can comply with it; and which he cannot show to be justifiable irrespective of the disability or absence of the disability of the person to whom it is applied; and which is to that person’s detriment because he cannot comply with it; (3) who, on the ground of the disability of an associate of that other person, treats such person less favourably than he treats or would treat a person without such a disability. The interpretation of discrimination on the basis of disability includes direct discrimination, indirect discrimination and discrimination against associates. Harassment is any unwelcome conduct towards a person or an associate of the person on account of that person’s disability, where it can be reasonably anticipated by a reasonable person who has considered all circumstances that such conduct could cause the said disabled person or his associate to feel offended, humiliated or intimidated. Simply put, harassment is unwelcome behaviour towards persons with disabilities or their associates. It is unlawful for a person, by any activity in public, to incite hatred towards, serious contempt for, or severe ridicule of, another person with a disability or members of a class of persons with a disability. The Disability Discrimination Ordinance ensures that persons with disability or their associates are free from discrimination in the following areas: (1) employment, including partnerships, trade union memberships, qualifying bodies, vocational training, employment agencies and commission agents, etc.; (2) education; (3) access to, and disposal and management of premises; (4) goods, services and facilities; (5) the practice of barristers; and (6) clubs and sports.

46The Equal Opportunities Commission is a statutory body established under the Sex Discrimination Ordinance, responsible for enforcing Hong Kong’s Sex Discrimination Ordinance, Family Status Discrimination Ordinance and the Disability Discrimination Ordinance. According to the provisions under the Disability Discrimination Ordinance, the Commission focuses on eliminating discrimination, promoting equal opportunities between persons with and without disabilities, eliminating harassment and vilification, and encouraging conciliation of parties to any unlawful behaviour through mediation. The Commission also carries out continued monitoring of the state of observance of the ordinances, prepares proposals for amendments to the ordinances for submission to the chief executive, and executes duties of the Commission as prescribed by ordinances or other statutes. After submission of written complaints to the Commission by persons with disabilities who are subject to discrimination or harassment, the Commission conducts investigations, and attempts to seek resolution via mediation, unless the Commission exercises its discretionary powers to terminate the investigation. The Commission may terminate its investigation under the provisions of the ordinances, by ensuring prudent exercise of its powers in terminating the investigation and balancing the complainant and respondent’s rights. The Commission shall exercise independence and fairness during its investigation and mediation to ensure equal treatment for both parties. The Commission is not an advocate for any party in a complaint, nor does it deliver judgment in any specific complaint. Delivery of a judgment is the function of the court. Mediation allows the parties concerned to find a way to settle their dispute together. Through mediation, the parties can find a satisfactory common ground on which to resolve their disputes. Mediation allows the parties to air their views, and enables them to better understand each other’s standpoint; for example, the parties can clear up misunderstanding arising from wrong inferences or inaccurate data. Mediation can fundamentally change the attitudes of the parties. Data presented during mediation is strictly confidential, and will not be presented in court during legal action. Mediation is free and saves time with respect to going to court. It is also carried out in a less formal environment, and the parties are not exposed to the media. Because of its voluntary nature, the parties to a mediation process will sign a legally-binding mediation agreement upon arriving at an agreement. Conciliation conditions could involve an apology, a change of policy or operating methods, a review of procedures, a reinstatement or monetary compensation, etc. If mediation fails, the complainant may institute civil proceedings, or apply to the Commission for legal aid, including providing opinions, and arranging for advocates or barristers to render opinion or help.

VI. THE CHINESE LEGISLATIVE MECHANISM PROHIBITING DISCRIMINATION ON THE BASIS OF DISABILITY

(I) The Chinese Legislative Framework on the Inhibition of Discrimination against Persons with a Disability

47A second sampling survey on disabled persons in China conducted in 2006 discovered that the total number of persons with various disabilities in the country stood at 82.96 million or 6.34 percent of the population. With protection of the rights of persons with disabilities high on its agenda, China has tried to eliminate discrimination on the basis of disability through legislation and policy enactment so that such persons may be fully integrated into society. At present, China has established a sound constitution-based legal system that protects the rights of persons with disability and that facilitates equalization of opportunities and full participation of disabled persons. Developed from criminal, civil and administrative laws and focusing on the protection of persons with disabilities, its legal system consists of administrative regulations governing the education and employment of disabled persons and supplemented by local legislation that provides for privileges and assistance for persons with disability. As elimination and inhibition of discrimination against persons with disabilities is one of the key objectives of Chinese legislation, more than 60 laws in the country contain provisions directly relating to the protection of disabled persons’ rights.

1. The Constitution of the People’s Republic of China

48The Constitution of the Peoples Republic of China is the fundamental and paramount law of the nation. Article 33 of the Constitution provides that “the citizens of the Peoples Republic of China are equal before the law” and that “the State respects and protects human rights.” Persons living with disabilities enjoy the same rights as others, as well as the equal protection by State laws. The Constitution also provides for the basic rights and freedom of Chinese citizens, including the right to vote and seek election, freedom of speech, the press, assembly, association, procession, demonstration and religion; the non-infringement of personal freedom, dignity and residence; the freedom of communication and confidentiality in communication; the right to criticize, propose, complain, sue, report and compensation; as well as labour rights, the right to rest and right to education, etc. Persons with disabilities enjoy all of these rights on an equal basis with others citizens, and no other person may infringe upon them.

49Of particular note is Article 45 of the Constitution of the People’s Republic of China, which provides that “the citizens of the People’s Republic of China shall have the right to receive material assistance from the State and the society during old age, when they suffer from illness, or when they lose their capacity to work. The State shall develop the social insurance, social relief as well as medical and health benefits to be enjoyed by its citizens.” The Constitution also provides that “the State and the society shall provide guarantees for the lives of military personnel suffering from disability, and shall support family members of martyrs and provide privileges for family members of military officers”; and that “the State and the society shall help with the labour, livelihood and education arrangements of citizens who are blind, deaf, mute or are handicapped in other manners.” According to those provisions, persons living with disabilities shall receive labour, livelihood and education assistance from the State, and shall be entitled to receive material aid from the State and the society. Also, military officers who are disabled will be protected by the State and society. Few constitutions in the world contain special provisions for the protection of the rights of disabled persons.

2. Law on the Protection of Persons with Disabilities

50China is one of the earliest countries to enact special legislation for persons with disability. The Law ofthe People’s Republic of China on the Protection of Persons with Disabilities was adopted on 28 December 1990, the amended Law of the People’s Republic of China on the Protection of Persons with Disabilities was adopted on 24 April 2008 and effective as of 1 July 2008. The Law of the People’s Republic of China on the Protection of Persons with Disabilities provides comprehensive protection of the rights of disabled persons in China; it plays an important role in facilitating the equalization of opportunities and the full participation of disabled persons in society, as well as in the elimination of discrimination on the basis of disability.

51Article 3 of the Law of the People’s Republic of China on the Protection of Persons with Disabilities provides that “Persons with disabilities shall enjoy equal rights with other citizens in political, economic, cultural and social respects and in family life as well”; and that “Discrimination on the basis of disability shall be prohibited. Insult of and disservice to persons with disabilities shall be prohibited. Disparagement of and infringement upon the dignity of persons with disabilities by means of mass media or any other means shall be prohibited.” Article 38 of the Law of the People’s Republic of China on the Protection of Persons with Disabilities provides that “No discrimination shall be practiced against persons with disabilities in recruitment, employment, obtainment of permanent status, promotion, determining technical or professional titles, payment, welfare, holidays and vacations, social insurance or in other aspects.”

52The Law ofthe People’s Republic of China on the Protection of Persons with Disabilities has developed many specific measures to protect the rights of people with disabilities. For instance, the Law of the People’s Republic of China on the Protection of Persons with Disabilities provides for compulsory measures and incentive measures that address different issues relating to the employment of disabled persons. Article 33 is an example of a compulsory measure. The provisions are as follows:

Government agencies, social organizations, enterprises, public institutions, and private-run non-enterprise entities shall, in accordance with the quota stipulated in relevant regulations, arrange job opportunities for persons with disabilities, and offer them appropriate work and positions. Those who cannot reach the quota as prescribed in relevant regulations shall fulfil their obligation to guarantee job opportunities for persons with disabilities in accordance with relevant state regulations. The State encourages employers to over fulfil their obligation to employ more persons with disabilities.

53Article 36, which exemplifies incentive measures, provides that:

The State shall implement preferential tax treatment, according to law, for enterprises and employers who have fulfilled or over fulfilled their quota obligations to employ workers with disabilities, welfare institutions that have a significant staff of persons with disabilities, and self-employed disabled workers, and shall provide them with assistance in production, management, technology, capital, materials and workplace, etc. [...] The State shall exempt administrative fees for self-employed disabled workers. [...] Local peoples governments and departments above county level shall identify certain products and businesses suitable for people with disabilities, give priority to welfare enterprises for persons with disabilities to work on such businesses and determine which products are to be produced exclusively by such enterprises on the basis of their special features [...] The government in procurement shall give priority to products and services made by welfare enterprises for persons with disabilities, when other conditions are the same [...] Competent authorities shall, in verifying and issuing business licenses, give priority to persons with disabilities who apply for such licenses for self-employment [...] Departments concerned shall provide assistance for persons with disabilities engaged in various kinds of labour in rural areas by ways of production services, technical guidance, supply of farm materials, purchasing and marketing of farm and sideline products and credit issuance, etc.

54The Law of the People’s Republic of China on the Protection of Persons with Disabilities also provided for a series of legal liabilities for discriminatory behaviour towards persons with disability. Based on the degree of discrimination, offenders shall be subject to administrative, civil or criminal liabilities.

3. Regulations on the Employment of Persons with Disabilities

55The Regulations on the Employment of the Persons with Disabilities is formulated on the basis of the Law of the People’s Republic of China on the Protection of Persons with Disabilities. Therefore, it contains the relevant provisions of the Law, and includes more specific provisions on the discrimination against the employment of the disabled based on the principles of the Law and practical socio-economic needs. In many respect, the Regulations is a breakthrough and shows creativity.

Article 4 of the Regulations provides that
the State encourages social organizations and individuals to help and support disabled persons to obtain employment through multiple channels and various forms, and disabled persons are encouraged to obtain employment by themselves through various forms such as job interview. No discrimination shall be practiced against disabled persons in their employment.

Article 13 provides that
Employing units shall provide disabled employees with working conditions and labour protection suitable for their physical conditions. No discrimination shall be practiced against disabled persons in promotion, determining technical or professional titles, payment, labour insurance, welfare or in other aspects.

56In terms of actual protection, the Regulations on the Employment of Persons with Disabilities has made greater progress than the Law of the People’s Republic of China on the Protection of Persons with Disabilities. For example, in terms of the ratio of persons with disability to be employed in every organization, Article 8 clearly sets forth that “The proportion of disabled employees shall not be lower than 1.5 percent of the overall employees.” Employers that fail to meet the target proportion shall pay into the employment security fund for disabled persons. The Regulations on the Employment of Persons with Disabilities expanded on the scope by which enterprises benefit from employing disabled persons through tax incentives. Previously restricted only to welfare enterprises for the disabled, tax reduction and exemption benefits are now extended to all entities that organize mass employment for persons with disability. In addition, the ratio of disabled persons has also been specified. Article 11 provides that “In employing units with concentrative employment of disabled persons, disabled employees engaged in all-day work shall account for more than 25 percent of the overall current employees.”

4. Regulations on the Education of Persons with Disabilities

57Formulated based on the Law of the People’s Republic of China on the Protection of Persons with Disabilities, the Regulations elaborates and supplements the provisions concerning education contained in the Law. The Regulations on the Education of Persons with Disabilities places a heavy focus on the protection of the education rights of disabled persons, and prohibits any enrolment discrimination. Article 26 of the Regulations provides that “Ordinary schools of vocational education must enrol persons with disabilities who meet the States admission requirements, while ordinary institutions of vocational training shall make efforts to enrol persons with disabilities.” Article 29 provides that “Ordinary senior middle schools, institutions of tertiary education and institutions of adult education must enrol students with disabilities who meet the State’s admission requirements and shall not deny them enrolment on account of their disabilities.” For those who refuse to recruit persons with disabilities according to the relevant State regulations, the same Article has set forth the legal liabilities; persons responsible for the violation shall be subject to administrative penalties imposed by the relevant authorities.

58Chinese authorities are commencing the legislative process on the Regulations on the Rehabilitation of Persons with Disabilities and the Regulations on Accessible Facilities. The regulations aim to progressively build a sound legal system that govern the protection of the rights of disabled persons to eliminate completely the different discriminations against persons with disability and facilitate the full integration and equal participation of such persons in the society and in life.

(II) Chinese Organizations that Inhibit Discrimination against Persons with Disability

(1) Disabled Persons’ Work Committee

59In September 1993, building on Chinas organizing committee for the United Nations Decade of Disabled Persons (1983-1992), the Chinese government established the Disabled Persons’ Work Coordination Committee of the State Council. Later renamed the Disabled Persons’ Work Committee of the State Council on 6 April 2006, it is an advisory and coordination organ of the State Council. The director is the Deputy Prime Minister of the State Council, and it has involvement from 36 entities and ministries, including the Ministry of Education, Ministry of Civil Affairs, Ministry of Manpower and Resources and Social Security, Ministry of Health and the China Disabled Persons’ Federation. The key functions of the State Council’s Disabled Persons’ Work Coordination Committee are to coordinate the planning and implementation of the guiding principles, policies, laws and regulations pertaining to persons with disabilities, and to organize and coordinate major activities of the United Nations concerning persons with disabilities. County-level and higher governments have established disabled persons’ work committees, which are standing advisory and coordination organs of governments of the same level. Disabled persons’ work committees do not deal directly with cases concerning the discrimination of persons with disability. However, as the government’s advisory and coordination organ, the committee is responsible for coordinating major issues relating to disabled. The committee may coordinate the various aspects of work concerning persons with disabilities carried out by many departments, and the formulation and implementation of guidelines, policies, laws and regulations, plans and programs relating to the same. Hence, these committees play an important role in the enforcement of laws and the formulation of policies that eliminate and inhibit discrimination on the basis of disability.

(2) Administrative Organs

60Because discrimination affects different aspects of the life of disabled persons, administrative organs have responsibilities and duties for discrimination on the basis of disability within their functional responsibilities. According to Article 60 of the Law of the People’s Republic of China on the Protection of Persons with Disabilities, “Where the lawful rights and interests of persons with disabilities are violated, the offended shall have the right to ask competent departments to deal with the case in accordance with law.” Article 61 provides that

Whoever, in violation of this law, rejects, delays or holds back the complaint, appeal or report relating to the violation of the rights and interests of persons with disabilities, or retaliates against the one who launches the complaint, appeal or report, shall be ordered to rectify their wrong doing by the organization to which they belong or higher level authorities. Disciplinary measures shall be taken against the people in charge and others directly responsible. [...] Where, not in compliance with his public duties, a civil servant fails to stop actions which violate the rights and interests of persons with disabilities or fail to offer necessary help to the harmed, which leads to serious consequences, the organization to which he belongs or higher level authorities shall take disciplinary measures against the people in charge or others directly responsible.

61According to Article 50 of the Regulations on the Education of Persons with Disabilities, in the event that schools discriminate against disabled persons and refuse to enrol any person with a disability who should be enrolled according to the relevant provisions of the State, the concerned administrative department of education shall order the school in question to enrol the person with a disability in school. The department shall also impose administrative sanctions on the persons who are held directly responsible. Administrative departments responsible for manpower and resources and social security, health, buildings and civil affairs have corresponding responsibilities in employment, rehabilitation, health, accessibility, livelihood security, etc. When they are discriminated against, persons with disabilities may, depending on the nature of the discrimination, seek relief and assistance from the relevant administrative department.

(3) Disabled Persons’ Federation

  • 19 Wang Zhijiang et al., “Project Report on Anti-Education and Anti-Employment Discrimination towards (...)

62According to the Law of the Peoples Republic of China on the Protection of Persons with Disabilities, the China Disabled Persons’ Federation and other local organizations represent the collective interests of persons with disabilities, protects the legitimate interests of persons with disabilities, and unite to serve these persons. Also, the China Disabled Persons’ Federation works for the benefit of disabled persons by facilitating equal opportunities and full participation by disahled persons through mobilization of social powers, as provided by law, regulations, the Federation’s constitution, or by government mandate. The results of a study of persons with disabilities reveal that the Federation is the first relief channel to which persons with disability turn when they face educational discrimination; the next channel is the local education administration department; after this they institute legal proceedings. When faced with employment discrimination, the Federation is also the first relief channel for disapled persons, followed by suing in court and seeking assistance from the labour department.19 Hence, the Disabled Persons’ Federation is an important agency in inhibiting and eliminating discrimination against disability that represents persons with different disabilities.

(4) The Courts and Arbitration Organs

63As the State’s adjudication organs, the People’s Courts of various levels may hear and assess the liabilities of the parties to discrimination against persons with disability. Article 60 of the Law of the People’s Republic of China on the Protection of Persons with Disabilities provides that “Where the lawful rights and interests of persons with disabilities are violated, the offended shall have the right to ask competent departments to deal with the case in accordance with law, or submit application to arbitration institutions, or appeal to people’s courts in conformity with law.” If the discrimination against disabled persons is within the scope of labour disputes, the disabled persons may request that the labour arbitration agency conduct labour arbitration. If it is a civil matter, application to an arbitration agency for arbitration may be submitted upon consent by the parties concerned.

VIII. LEGISLATIVE INHIBITION OF DISCRIMINATION AGAINST DISABILITY: A RECOMMENDATION

1. Establish a Sound Legal System to Prohibit Discrimination against the Disabled

64Legislation is an important and effective avenue to inhibit and eliminate discrimination against disability. Although more than 40 countries have enacted laws that oppose discrimination against disability, most have not formulated special laws against discrimination on the basis of disability. Hence, driving countries to enact laws that inhibit discrimination against disability will be an important task for the international community. Article 4 of the Convention of the Rights of Persons with Disabilities provides that State Parties shall “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities.”

65Although we recommend enacting special legislation for discrimination against disability, our greatest wish is to establish a holistic inhibitive legislative system, instead of a single set of laws. The State’s Constitution and civil, criminal, administrative, procedure, labour and education legislation should incorporate the basic principles of non-discrimination on the basis of disability, providing for the inhibition and elimination of discrimination against disability. They should cohere with specific anti-discrimination laws to form a legislative system that is improved and fine-tuned, along with greater economic and social development. This is the only way to ensure the rights of people with disabilities are protected by a solid legal system to ensure effective legislative inhibition of discrimination against disability, and to provide equal opportunities for persons with disability.

2. Clear Definition of what Behaviour Constitutes Discrimination on the Basis of Disability

66A clear definition is required for the inhibition and elimination of discrimination on the basis of disability.

67We need to draw a clear line between discrimination on the basis of disability and other types of discrimination. There are many types of discrimination, such as racial discrimination, geographical discrimination or discrimination against qualifications, etc.; hence, not all discriminations that may be suffered by persons with disabilities are necessarily on the basis of their disabilities. Discrimination on the basis of disability must be discrimination against disabled persons solely on the basis of their disabilities. This delineation is important, for the relevant provisions under the disability discrimination law may be applied and the relief and protection obtained only if it is truly discrimination on the basis of disability. Other types of discrimination are governed by their corresponding laws and regulations.

68We must also clearly define direct discrimination and indirect discrimination, for they hold important theoretical and practical significance. Because indirect discrimination is comparatively more shrouded, the determination of indirect discrimination must be based on more stringent criteria, and the legislation must provide clear interpretation of what is entailed. Particularly for employment, the State must find a balance between its employees who are disabled persons and their employers; over-protection will dampen the willingness of employers to hire disabled persons. It would, therefore, end up being detrimental for the employment prospects of persons with disability.

69We must also differentiate between discrimination, harassment and vilification of disabled persons. Although these are all done on the basis of disability, and prejudice the rights of persons with disabilities, they have different constitutive requirements and inflict different harms on disabled persons and society. Thus, measures taken against the three behaviours differ. A clear definition helps identify the behaviours in practice; it also prevents arbitrary definition of what constitutes discrimination against disability, and helps achieve due, reasonable and regulated protection of the rights of persons with disabilities.

3. Establish a Special Agency for the Inhibition of Discrimination on the Basis of Disability

70Due to different country specificities, agencies established for the inhibition of discrimination against disability differ. Based on general jurisprudence, persons with disabilities may seek judicial protection by the State – especially relief through court litigation – for all discriminatory behaviours. Many countries permit local human rights agencies to accept complaints about discrimination on the basis of disability and to take relevant relief action. However, the fact that most countries do not have special agencies that inhibit discrimination against disabilities does not favour the inhibition of discrimination against disabilities in practice. Should special organizations for the inhibition of discrimination against disability be established? The answer is obvious. However, a standard model on the specific form of this organization applicable for all countries is not available; differences in administrative systems, history and tradition, religion and beliefs, and level of development will affect the form of the organization. The fundamental principles and ultimate objective of setting up such a special organization is that it must ensure the realization of the provisions of international conventions. At the same time, it must take into full consideration the national specificities in order to safeguard the best interests of persons with disabilities.

4. Establish a Multi-Channelled Dispute Resolution Mechanism for Discrimination on the Basis of Disability

71Many countries advocate for the use of alternative dispute resolution by encouraging the disabled to settle disputes through negotiation, conciliation, facilitation, mediation, fact-finding and mediation, mini-trial, arbitration, and a range of other measures. Any disabled person whose right has been infringed upon may request the relevant authorities deal with the infringement according to law, or apply to the arbitration centre for arbitration according to law, or institute legal proceedings with the People’s Court. Hong Kong also encourages the settlement of disputes regarding discrimination against disability through mediation. The wide array of dispute resolution mechanisms provides multiple channels and avenues for the resolution of disputes about discrimination against disabled persons. Many countries have seen good dispute resolution results from the outcomes of their judicial practice. Hence, we recommend the establishment of a special agency to enforce the inhibition of discrimination on the basis of disability. However, our greater hope is that all countries will establish multi-channel dispute resolution mechanisms that offer flexible and case-specific settlement in cases of discrimination on the basis of disability.

Notes

1 Office of Dictionary Editing, Language Research Institute, China Academy of Social Sciences, Modern Dictionary of Chinese. (xian dai han yu ci dian), Commercial Press, 2005, 5th Edition, p. 1071.

2 Webster’s Dictionary of the English Language Unabridged, Encyclopaedic Edition, Publishers International Press, 1979, p. 523.

3 Bonnie Poitras Tucker and Adam A. Milani, Federal Disability Law, 2004, West, p. 2.

4 Ibid., p. 3.

5 Protecting the Rights of Persons with Disabilities – International and Comparative Law and Practice, Huaxia Publishing Co., 2003, Preface.

6 Michael Stein, Americans with Disabilities Act: Empirical Perspectives, Studies on the Legal Protection Mechanisms of the Disabled (can ji ren fa lü bao zhang ji zhi yan jiu). Huaxia Publication Co., 2008, p. 20.

7 See http://www.eoc.org.hk/cc/home.com.

8 Protecting the Rights of Persons with Disabilities – International and Comparative Law and Practice, Huaxia Publishing Co., 2003, 1st Edition, p. 45.

9 Ibid., p. 45.

10 Bonnie Poitras Tucker and Adam A. Milani, Federal Disability Law, 2004, West, p. 3.

11 Protecting the Rights of Persons with Disabilities – International and Comparative Law and Practice, Huaxia Publishing Co., 2003, 1st Edition, Preface.

12 Ibid.

13 Deng Bufang. The Call for Humanitarianism (ren dao zhu yi de hu huan), 3rd collection, Huaxia Publishing, Co., 2006, 1st Edition, p. 283.

14 Protecting the Rights of Persons with Disabilities – International and Comparative Law and Practice, Huaxia Publishing Co., 2003, 1st Edition, Preface.

15 Bonnie Poitras Tucker and Adam A. Milani, Federal Disability Law, 2004, West, p. 1.

16 See Wang Zhijiang. Protection of the Rights of Persons with Disability – The Chinese and International Society (can ji ren quan li bao zhang: zhong guo he guo ji she hui), RightsBased Development (yi quan li wei ji chu cu jin fa zhan), Peking University Press, 2005, p. 197-199.

17 See http://www.un.org/chinese/esa/social/disabled/.

18 Bonnie Poitras Tucker and Adam A. Milani, Federal Disability Law, 2004, West, p. 6.

19 Wang Zhijiang et al., “Project Report on Anti-Education and Anti-Employment Discrimination towards Persons with Disability” (fan dui dui can ji ren jiao yu qi shi, jiu ye qi shi xiang mu bao gao), The Research Centre for Human Rights, Peking University Law School – University of Ottawa Law School, Canada Project on Promoting Anti-Discrimination in China.

Auteur

Holds a Master of Laws and is a Director at the Association for Research on Social Law of the China Law Society. He is currently serving in the Laws and Regulations Section under the Department of Rights Protection of the Chinas Disabled Persons’ Association. Wang has devoted his research efforts to bankruptcy law, law of procedures and legal protection of disabled persons. He has participated in the formulation and passage of several laws. Through his work in the formulation and revision of laws, including the Law on the Protection of Disabled Persons and the Civil Servant Law, he has actively contributed towards safeguarding the rights and interests of disabled persons. Wang was a member of the Chinese delegation to the United Nations Ad Hoc Committee on the Convention on Persons with Disabilities, participating in the discussions and negotiations that led to the Committees recommendations. He has also translated several books on topics including bankruptcy, the rights of disabled persons and the economics of civil procedures

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