Promoting Social Change in Asia and the Pacific: The Need for a Disability Rights Tribunal to Give Life to the U.N. Convention on the Rights of Persons with Disabilities

Article excerpt

I. INTRODUCTION

There is no question that the existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights in those regions of the world where such tribunals exist. In the specific area of mental disability law, there is now a remarkably robust body of case law from the European Court on Human Rights (ECtHR), some significant and transformative decisions from the Inter-American Commission on Human Rights (Inter-American Commission), and at least one major case from the African Commission on Human Rights (African Commission). In Asia and the Pacific region, however, there is no such body. Although the Association of Southeast Asian Nations (ASEAN) charter refers to human rights, that body cannot be seen as a significant enforcement tool in this area of law and policy. Many reasons have been offered for the absence of a regional human rights tribunal in Asia, the most frequently cited of these is the perceived conflict between what are often denominated as "Asian values" and universal human rights. What is clear is that the lack of such a court or commission has been a major impediment in the movement to enforce disability rights in Asia.

The need for such a body has further intensified since the ratification of the United Nations' Convention on the Rights of Persons with Disabilities (CRPD).1 The CRPD clearly establishes, through hard law, the international human and legal rights of persons with disabilities, but in order for it to be more than a mere paper victory, it must be enforced. Only then, can we begin to be optimistic about the real-life impact of the CRPD on the rights of persons with disabilities in Asian and the Pacific region.

The empirical evidence is clear: in all regions of the world, persons with mental disabilities-especially those institutionalized because of such disabilities-are uniformly deprived of their civil and human rights.2 The creation of a Disability Rights Tribunal for Asia and the Pacific (DRTAP) would be the first necessary step leading to amelioration of this deprivation. It would be a bold, innovative, progressive, and important step on the path towards realization of those rights. It would also be, ultimately, a likely inspiration for a full regional human rights tribunal in this area of the world. If it were created, however, it is also clear that it would be an empty victory absent available and knowledgeable lawyers to represent individuals seeking to litigate there.

This Article will first consider the existence and role of regional human rights tribunals in regions other than Asia. Part Two briefly discusses some of the important disability rights cases litigated in those tribunals so as to demonstrate how regional tribunals have had a significant impact on the lives of persons with disabilities. Part Three considers the need for a body like DRTAP, focusing specifically on the gap between current domestic law on the books and how such law is practiced in reality, as well as the importance of what is termed the "Asian values" debate. This section of the Article concludes that this debate leads to a false consciousness because it presumes a unified and homogenous multi-regional attitude towards a bundle of social, cultural, and political issues, and that the universality of human rights must be seen to predominate over differences in cultural values.

This Article then explain why the CRPD is a paradigm-shattering instrument that truly is the "first day of the rest of our lives" for anyone who works in this field, and why the creation of the DRTAP is timely, inevitable, and essential if the CRPD is to be given true effect. Finally, this Article briefly summarizes the work that has already been done on the creation of a DRTAP, and how this work needs to continue in the future. This Article concludes by looking at the role of counsel in the representation of persons with mental disabilities, the current lack of counsel experienced in this subject matter in Asia and the Pacific, and the importance of training lawyers to provide adequate representation before DRTAP, ensuring that this tribunal would have an authentic impact on social change. …