Tciasia 提交对crpd第19条的民间意见
Transforming Communities for Inclusion – Asia
(Draft) Submission to the UNCRPD Monitoring Committee, Day of General Discussion, Article 19
[本站注］由于站长最近较忙，这篇TCIasia四月份在联合国CRPD监督委员会之一般性讨论日上所做的发言／建议，从民间／自倡导者的立场解读了CRPD第19条的要义，展现了TCIasia的基本使命和立场：（1）明确“社区”和“融合”的概念；（2）确认一个融合的社区是人类向往爱、关照和分享的体现；（3）承认确实存在着一批能实现CRPD第19（2）条所述的良好实践；（4）明确要求缔约国实施有效的法律，以保障 在社区独立生活和被包容的权利，作为普世人权得到法律认可。
(在翻译中……）
Executive Summary
TCI Asia is an Asian alliance of persons with psychosocial disabilities and their supporters, which exists to enhance the pedagogy and practice of Article 19 for the region. We are delighted to participate in DGD proceedings towards a General Comment on Article 19. Our submission (1) appeals to the Committee to elaborate on the meaning of ‘communities’ and ‘inclusion’. (2) Recognize that inclusive communities are a reflection of the human aspiration to love, care and share. (3) Recognize that a number of good practice models do exist, to explicate 19(2) of the CRPD, cited herein. (4) Stipulate those enabling laws for states parties so that the right to live independently and be included in communities is a legally recognized human right everywhere.
About TCI Asia
TCI Asia (Transforming communities for Inclusion of persons with psychosocial disabilities, Asia) is an Asian Alliance of organizations and persons with psychosocial disabilities, and cross disability supporters, focussing on Article 19 and its realization in the Asian region. Since 2012, TCI Asia has made several country visits, 4 annual plenary consultative processes, 1 strategy development workshop, and has engaged upto 15 member countries and over 100 members, to enhance the pedagogy and practice of Article 19 for the region [1]. We are delighted that the Monitoring Committee of the Convention on the Rights of persons with Disabilities (CRPD) is holding a Day of General Discussion, towards a General Comment on Article 19.
General provisions of Article 19
Other than being a human right, Article 19 is the overall purpose of realizing the CRPD: All persons with disabilities will live independently and be included in communities, without discrimination and on equal basis with others. Article 19 may be considered as the heart of the convention, though it is not a new or a higher human right. Article 19 compels us to locate the site of change in society which will create opportunity, choice and support. The four key stakeholders States must address in implementing article 19 are persons with disabilities, their families; neighbourhoods; service providers both disability specific services; mainstream services, government and private; and the society at large. The comprehensiveness of Article 19 invites an inclusive world for everybody, not just persons with disabilities. The General Assembly interventions at the time of HLMDD and the making of the SDGs suggest that policy must shift the frame of access to Development from Welfarism to a framework of self-determination, inclusion, choice and human rights[2]. The CRPD committee, in May 2013 [3], recommended that international communities should ‘Take measures to ensure that persons with disabilities enjoy their right to development on equal basis with others’.
Article 19 makes reference to “Community” [7] times. We urge the Committee to provide a rich picture of what an ‘Inclusive community’ would have as key elements. The Thematic study by the OHCHR on Article 19 has exemplified what does not constitute community. The Thematic Study makes a contribution to guiding states parties in removing traditional barriers[4], echoed more recently by the OHCHR Expert meeting on Deprivation of liberty[5]. It is important to also elaborate constructively on what is community, in a modern human rights compliant society that is inclusive of persons with disabilities.
In a meeting in Pune (May, 2013) TCI Asia members advocated that personal identity cannot be reduced to being just a user of a medical service, as often happens in communities. Identity encompasses having opportunities in adopting multiple roles, such as parent, sibling, spouse, teacher, banker, pastor, farmer, postman etc. and to be able to contribute emotionally to the welfare of the society. In most cultures of the world caring for others, emotional connection and altruism prevail as a basic human duty or even a personal aspiration for living a ‘happy’ and ‘purposeful’ life. Article 19 could be interpreted as a reflection of this aspiration. Extensive studies linking neuro-diversity with ‘happiness’, and recent Happiness studies in the field of economics, are evidence that empathy is essentially human[6].
A community is the availability of ‘social capital’[7] and ‘local actor networks[8], a collection of individuals, groups, families, neighbourhoods in local environments who come together, to reach a functional objective together, or sometimes to connect on human basis for sharing and caring without any necessary preconditions or outcomes. Such networks bind families, individuals, cattle, plant life, other life forms, inanimate objects, land, water, food, and other actions and artefacts of human social living into an organic whole, embodying a vision for a sustainable world contained within extant Development frameworks such as the SDGs. The Thematic Study also recognizes ‘virtual communities’ as developed in a variety of social media. The Committee may recognize the importance of transforming communities so that they become emotionally sustainable, to facilitate the inclusion of everybody, and for the preservation of a peaceful and caring planet.
New development theories provide concepts to capture this shift in thinking about community, the self determinism of peoples and sustainability of human habitats, especially cities[9]. In the ‘capability’ approach’[10], an economic theory based on the theory of Justice, there is a need to evaluate policy outcomes based on the equability in the range of opportunities a person has, to achieve a certain desired state of being. In this approach, two aspects are important to address (1) recognizing agency and personhood of all persons with disabilities and (2) creation of choice by improving community inclusion.
Specific provisions of Article 19
In the Asian region, even though mental health legislations do not exist in many countries, and some have recently adopted new coercive mental health laws, mental institutions are coming up quite fast, resulting in the escalation of barriers to inclusion [11] [12] [13]. This trend to associate modernisation with imposing buildings and infrastructure, and closed door facilities as compulsory places of residence, has elicited strong Concluding Observations from the CRPD Committee in the Asian context, illustratively, in the case of China and Korea. We propose that, the General Comment on Article 19 must restrain this worrying trend emerging in the global South, by
(1) giving specific guidance to state parties to prohibit old or new laws that create barriers; and enact enabling laws and revise constitutional jurisprudence by unconditionally protecting the right to live independently and to be included in communities as provided for in the UNCRPD.
(2) enlisting illustrative actions and programs that need to be supported by state parties to capacity build and transform families and communities for inclusion and for independent living of persons with psychosocial disabilities
We appeal to the Committee that local, cultural contexts may determine choice of residential facilities and services. Comprehensive enlistment of illustrative examples can be cited in the General Comment, which will explicate the diversity of services that need to exist, to fully embody the Article 19(b) provision of choice.
A number of ‘alternatives’ in community, neighbourhood and family development can be illustratively enlisted, such as Intentional Peer Support[14], Soteria house, Open Dialogue [15] [16], etc. which may be applied universally. In high income countries of Asia, there are existing self managed models that can be adapted such as the ClubHouse, Independent Living or Hostel models preferred by persons with psychosocial disabilities[17]. Personal assistance would include simpler acts of companionship and offer psychosocial support, that come within the rubric of ‘Being with’ or ‘being present to’ someone with a psychosocial disability. There is strong advocacy globally, for peer support and community based care giving systems, based on the values and principles of the CRPD.
Asian low income country examples also exist of ‘good practices’ when a person is in crisis and is at higher risk for being institutionalized or having their legal capacity denied. A program provides peer support, night shelters and other essential services on the streets [18] with the support of the local authorities. Another program, also with the co-operation of local authorities, provides a ‘circle of care’ establishing a ‘neighbourhood alert’ system to be with persons who may be in need of crisis support [19], involving a diversity of trained non-formal care givers, community members, and family members. When there is conflict over the question of forced care, a community negotiation and capacity building module is initiated by the service provider, so that families feel empowered to give love, care and support. In such programs, which are accessible and affordable, the community is reminded of their aspiration to give love and care in compassionate ways. The families are also taught to provide reasonable accommodation, respect decision making and restore dignity of the person at home. Foster care giving and functional proxy relationships in neighbourhoods are accepted practices in some of these programs[20] to protect the right to live in place of choice and not be forced to live in isolation and segregation from natural communities. The programs also multiply emotional effects by plugging into and capacity building existing Local Actor Networks, for example, the education system, local healers, health workers, development workers, traditional healers, etc. While these social relationships may have their stresses and strains, and negotiations mediated by the service providers and other community members, we offer that they are devoid of the legal normative power of penal admission, institutionalization or guardianship. Inclusion International, in the context of empowering families and communities, brought out two useful reports [21] [22], on Inclusion within Development practise.
Linkage with other articles
Article 3-
Article 7- Childhood must be protected from needless ‘early intervention’, particularly the use of hazardous medication to contain behaviour in schools.
Article 8-
Article 10-
Article 11-
Article 12 -
Article 14 –
Article 17-
**Article 22- **
A plethora of colonial legal incapacity laws found in some countries of Asia[23] places at risk the confidentiality of the hospital and treatment records, especially of women with psychosocial disabilities, in the context of property, marriage and divorce. In communities with culturally defined ‘self’ and ‘other’ boundaries, privacy of persons with psychosocial disabilities must be protected and ensured, on equal basis with others.
Article 23-
Article 25- The gatekeeping practice of medical professionals to prohibit the choices of persons with psychosocial disabilities to seek out and use non-medical or traditional alternatives, oftentimes leading to reduction in social capital and healing resources in communities, must be addressed.
Article 28-
TCI Asia Contacts:
Convenor (2014- ): Bapu Trust for Research on Mind & Discourse
704 Fillicium, Nyati Estate, Mohammedwadi, Pune 411 060
www.baputrust.com, bt.admfin09@gmail.com 91-20-26441989
[1] This submission draws from the consultative processes done between 2012-2015 of TCI Asia. We are grateful to all member participants, allies, partners, and sponsors for the support and contribution.
[2] WNUSP and Bapu Trust, (2013). “Human Rights of persons with psychosocial disabilities in the post 2015 Inclusive Development Agenda: Towards HLMDD, September 2013”.
[3] ‘Statement of the Committee on the Rights of Persons with Disabilities on including the rights of persons with disabilities in the post 2015 agenda on disability and development’, May 2013, United Nations Human rights, Office of the High Commissioner, Geneva.
[4] OHCHR (2014) “Thematic study on the right of persons with disabilities to live independently and be included in the community” A/HRC/28/37 12th December 2014.
[5] Expert meeting on deprivation of liberty of persons with disabilities
8-9 September 2015. http://www.ohchr.org/EN/Issues/Disability/Pages/deprivationofliberty.aspx accessed 26-02-2016
[6] Matthieu Ricard, (2003) Happiness. A Guide to Developing life’s most important skill. Little, Brown and Company, New York.
[7] McKenzie, K. “Globalisation, Social Capital and Mental Health”, in Global Social Policy, 2008, Vol. 8, pp. 359-377.
[8] A concept developed by Latour, Bruno in his book, (2010) The making of law: An ethnography of the conseil d’etat. Cambridge: Polity Press.
[9] UNHABITAT, (2015). The right to adequate housing for persons with disabilities living in cities: Towards inclusive cities. [Eds.] Szporluk, M., Pal, A. and Bayer, M. UNHABITAT, Geneva.
[10] Sen, A. K. (2009). The idea of justice. London: Penguin, Allen Lane.
[11] TCI Asia, Working Group on Strategy Development Meeting, APCD Training Center, Bangkok, 9-11 June, 2015
[12] KAMI, (2013). Parallel report on the situation of persons with mental illness in Korea. Submission to the UNCRPD Committee.
[13] Mr. WonYong Kim, NHRC investigator, Korea, who presented the Parallel report before the CRPD committee, noted the higher occurrence of mental institutions in Korea, following adoption of a new mental health law. In Korea, 73.5% cases are involuntary, 4 times as high as other countries. 262 days average stay.
[14] http://www.intentionalpeersupport.org/
[15] Finland, https://www.youtube.com/watch?v=aBjIvnRFja4
[16] Peter Statsny and Peter Lehmann, [Eds.] (2007). Alternatives beyond psychiatry. Peter Lehmann Publishing, Berlin.
[17] TCI Asia, (2014). 2nd Plenary, Hotel Prince Palace, Bangkok.
[18] Ishwar Sankalp, Kolkatta, India.
[19] Seher program of the Bapu Trust for Research on Mind and Discourse, Pune, India. https://www.youtube.com/watch?v=t5PC0yBK3ow accessed on 25-02-2016
[20] Shared in TCI Asia consultation on Legal capacity, Incheon, Korea, 18-19 November 2015, Orakai Sangdo Hotel, Incheon.
[21] Inclusion International, 2012. “Inclusive Communities = Stronger communities. Global Report on Article 19”, London.
[22] Inclusion International, 2014. “Independent but not alone. A global report on the right to decide”. London.
[23]