Making justice systems work for everyone
A path to delivering people-centered justice for women with intellectual and psychosocial disabilities
This guest blog in our Justice for All series, written by UN Women Regional Office for Asia and the Pacific and Transforming Communities for Inclusion (TCI), summarizes the key findings of a legal needs survey for women with intellectual and/or psychosocial disabilities conducted in Asia and the Pacific. Women with intellectual and psychosocial disabilities are among the most marginalized of the estimated 690 million persons with disabilities living in Asia and the Pacific. They face numerous barriers to full and equal participation in society. This marginalization has given rise to a complex set of barriers for women with intellectual and psychosocial disabilities to access justice.
The legal needs survey was conducted in Fiji, Indonesia, Nepal, and the Philippines, under the regional programme, entitled Enhancing Access to Justice for Women in Asia and the Pacific: Bridging the gap between formal and community-based justice through women’s empowerment and reduction of gender biases, led by UN Women, together with the Office of the United Nations High Commissioner for Human Rights (OHCHR), and International Commission of Jurists (ICJ), and generously supported by the Swedish International Development Cooperation Agency (Sida). The results of the survey will be made available in the second quarter of 2023.
UN Women is the United Nations entity dedicated to gender equality and the empowerment of women. UN Women’s Regional Office for Asia and the Pacific works with national and regional partners including government, private sector and civil society, to address inequalities and discrimination, and promote behavioral and social norms change.
Transforming Communities for Inclusion (TCI) is a post-CRPD movement of persons with psychosocial disabilities and its cross-disability supporters. TCI forecasts a future in which all human rights and full freedoms of persons with psychosocial disabilities are realized. They are guided by the United Nations Convention on the Rights of persons with Disabilities (UNCRPD).
“Have you ever wondered what it would be like to go to a police station to report a crime and be unable to get justice because you are not considered credible? How would you feel knowing you are an easy target for violence because perpetrators are hardly ever punished for crimes committed against persons with disabilities? Can you imagine living in a society without a bank account because you don’t have legal capacity to open one?”
These were questions posed by Indonesian disability rights activist, Petra, at a high-level intergovernmental meeting on the rights of persons with disabilities. Her questions prompted meeting participants, including heads of state and government, and law and policy-makers, to consider the myriad barriers faced by women with disabilities. They were urged to confront an issue seldom talked about: how do you access justice and participate in society when you have no legal capacity?
In addition to being an activist and YAPESDI student, Petra is a published poet, speaks multiple languages, and was recently recognized for her advocacy, receiving the courage category award at the “Karya Tanpa Batas” Festival.
Petra has Down Syndrome.
Petra, who is encouraged by her family and peers, is one of a growing number of powerful self-advocates in the Asia-Pacific region. They speak from lived experience and with expertise. They raise their voices for women with intellectual and psychosocial disabilities who encounter justice barriers, including denial of legal capacity.
Here starts a course-correcting path towards people-centered justice — one that places women with disabilities and their justice needs, at its heart. UN Women and Transforming Communities for Inclusion (TCI) have developed a strong partnership working together on access to justice for women with intellectual and psychosocial disabilities.
We know from the Justice for All report that women and persons with disabilities are among those that find it hardest to access justice. For women with disabilities, the intersecting discrimination they experience on the basis of gender and disability, including sexism, ableism, stereotyping, paternalism and prejudice, can significantly impact their ability to access justice. For women with intellectual and psychosocial disabilities, who have had their legal capacity restricted or denied, or who are institutionalised, these barriers to justice are insurmountable, as noted by the brief UN Women, Women Enabled, TCI, and other partners developed. The Convention on the Rights of Persons with Disabilities (CRPD) recognises the diversity of persons with disabilities, and as such outlines an intersectional approach to its implementation. Article 12 (equal recognition before and under the law) and Article 13 (access to justice) are two of the most pertinent Articles of the Convention.
To better understand the justice needs of women with intellectual and psychosocial disabilities, UN Women’s Regional Office for Asia and the Pacific commissioned the Centre for Disability Law and Policy at the University of Galway to work in close collaboration with disability self-advocates to conduct legal needs surveys in Indonesia, Nepal, Philippines, and Fiji. In doing so, the team prioritised a co-production approach to ensure that the OECD legal needs survey format was adapted to be accessible for women with intellectual and psychosocial disabilities, was contextually relevant, and that respondents were supported in real time to complete the survey.
An early analysis of survey responses matched what Petra warned: the overwhelming majority of women with intellectual and psychosocial disabilities do not seek to have their legal issues resolved by justice actors. Rather, they seek to resolve issues through trusted persons, such as family and friends, or community actors, such as organizations of persons with disabilities or religious leaders. The findings suggest that we need to explore how community processes might serve as justice interventions and ensure that we leave no one behind in our quest for justice for all.
Most of the women surveyed experienced a loss of autonomy, with their legal capacity denied, either formally through laws, or informally through practice. This amounts to a loss of personhood for the women affected. The ability to seek justice rests with the right to equality before the law and the recognition of legal capacity — the ability to hold rights and to exercise those rights. Yet, in most countries, laws and policies that restrict or deny legal capacity exist, despite commitments under the CRPD.
Legal capacity can be denied through formal guardianship or conservatory arrangements, where someone else is legally empowered to make decisions for an individual. Such arrangements disproportionately affect women with intellectual and psychosocial disabilities. In such situations, these women lose all, or most, of their rights. They may no longer be able to inherit, consent to or decline medical treatment, vote, or control their finances — the list of what they cannot do is long and ultimately amounts to what is commonly described as a ‘civil death’.
Alongside formal systems of guardianship a pervasive informal system exists that also denies this group of women the ability to exercise their legal capacity, and have their will and preferences listened to and respected. It is fuelled by gender and disability stigma and stereotypes, and a lack of understanding of the rights of persons with intellectual and psychosocial disabilities. These informal guardianship systems exist in the home, where these women are at times hidden — sometimes even shackled; they exist among service providers and institutions who may make determinations on medical treatment or forced procedures without respecting their will and preferences; and, they exist in the community when women are treated with ableist and patriarchal attitudes, and everyday decisions are deferred to family members or carers.
The legal needs survey results support calls for laws, policies, and practices to align with the CRPD, to grow disability rights awareness among women and the broader community, to move to supported decision-making, and for justice systems to be accessible and transformed in partnership with women with disabilities to shift justice from a few to justice for all.
Justice interventions at the community-level, such as the Bapu Trust Seher Inclusion program provide important examples of good practices. By building support through immediate and distant relationships of kinship, social services, and informal circles of care, Transforming Communities for Inclusion helps in supported decision-making and diminishes the need for formal legal incapacity structures to kick in.
For Petra and many others, there are further signs that change could be on the way in the Asia-Pacific region, with Indonesia at the forefront. Following a petition from organizations of persons with disabilities and owing to the decades-old movements of persons with psychosocial disabilities, Indonesia’s Constitutional Court is currently conducting a judicial review of Article 433 of the Civil Code, which sets forth conditions for conservatorship and guardianship. If the formal system of guardianship is ultimately disbanded, it could help reset attitudes and presumptions about the capacity of women with intellectual and psychosocial disabilities in both the private and public spheres, giving them a much better chance of having their justice needs met.
Women with intellectual and psychosocial disabilities are at the forefront of bringing about people-centered justice in the Asia-Pacific region, so that justice can benefit, not hinder, their participation in and contribution to society. Petra said it best with just a few short words: “Justice systems need to change, they need to work for everyone.”