As a State Party to the several international human rights instruments, Nepal must first introduce the system of supported decision-making to enable persons with intellectual and psychosocial disabilities to exercise their legal capacity
The Convention on the Rights of Persons with Disabilities (CRPD) is the first legally binding and enforceable international treaty specifically for persons with disabilities. As a core international human rights convention, and the first to be adopted in the 21st century, its constellation of civil, political, economic, social and cultural rights offers a window through which to view human rights law in the context of disability.
Article 12 of the CRPD on equal recognition before the law provides that "States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life." International conventions such as the Convention on the Elimination of All forms of Discrimination against Women (CEDAW) as well as the CRPD define legal capacity as people's capacity to have rights, and to have the capacity to act on those rights on an equal basis with others without discrimination on the basis of gender or disability. Legal capacity in this sense is a recognised status.
While Nepal is a signatory to several international human rights instruments, including the CRPD, the national implementation process has been rather slow. Senior government officials are not ready to address disability issues because most of them still embrace stereotypes, and it is challenging to change such a mindset. Article 18(2) of Nepal's Constitution 2015 states that there shall be no discrimination in the application of general laws on any ground. The Rights of Persons with Disabilities Act 2017 Section 8 (Right against discrimination) states no person with disability shall be subjected to discrimination on the basis of disability or be deprived of personal liberty. However, in Nepal, due to lack of pure awareness, that is, lack of access to the broader ideological conversations of the world, significant challenges remain in implementing the Act.
In developing countries like Nepal, mental health legislation does not include provisions for persons with psychosocial disabilities to exercise legal capacity. A number of laws still adopt a paternalistic approach with the stated purpose of protecting the individual and society from harm. This protection has been linked to the historical view that persons with psychosocial disabilities are dangerous to others or violent, leading the state to adopt a protective role. In Nepal, laws concerned with mental health are often found penalising and concerned with taking the individual away from society, frequently prescribing institutionalised treatment and guardianship as the solution and as a means of protection.
These facts highlight that the Nepal government is unable to implement these legal policy provisions to enable persons with disabilities to realise their right to legal capacity. The recognition of a right to legal capacity in the CRPD signifies that all people have an equal right to make decisions on their own behalf. Without the right to make fundamental decisions, such as where to reside and what kind of medical care to receive, a person is relegated to the status of an object rather than an independent human being with thoughts, emotions and opinions. The recognition of legal capacity is the tool that allows an individual access to make these decisions.
The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights specifically guarantee the right to equality before the law. The right to equality before the law is also reflected in other core international human rights treaties such as Article 15 of the CEDAW, which guarantees women's equality before the law and requires the recognition of women's legal capacity on an equal basis with men.
Article 12 of the CRPD seems to touch a nerve – it asks us to strip away the paternalistic instinct to protect people with disabilities. Not only that, it asks us to deconstruct centuries-old systems of substituted decision-making, such as guardianship, conservatorship, deputyship and wardship. This resistance to Article 12 may reveal the truth behind the willingness of governments to ratify the convention: an ever-pervasive stigma related to perceived 'difference' in people labeled as disabled, which is perpetuated via sympathy and a willingness to provide merely paternalistic protection and charity, rather than real opportunities for individuals to be respected and recognised as full citizens.
The recognition of a right to legal capacity in the CRPD signifies that all people have an equal right to make decisions on their own behalf. The recognition of legal capacity is the tool that allows an individual access to make these decisions. It is the freedom to be a holder of rights and obligations as well as the freedom to exercise those rights and undertake those duties by way of one's own conduct and without representation by a third party.
Thus, Article 12 of the CRPD requires state parties to recognise the right to legal capacity of persons with disabilities in its fullest sense. However, in Nepal, for persons with disabilities, especially for persons with intellectual disabilities and psychosocial disabilities, the right to legal capacity remains out of reach.
As a State Party to the several international human rights instruments, Nepal must first introduce the system of supported decision-making to enable persons with intellectual and psychosocial disabilities to exercise their legal capacity. Second, Nepal should/must discard the medical model of disability and conceptualise disability from the perspective of human rights and social models of disability. Third, Nepal should/must amend the family law and the electoral law to recognise the legal capacity of persons with intellectual and psychosocial disabilities.
Joshi is executive director of Equip for Equality Nepal
