Disability rights: Betrayal in Geneva

In Geneva three weeks ago, the Philippines was the only country that took exception to a United Nations resolution to protect persons with disabilities (PWDs) from discrimination. This is a shameful moment for a country that so prides itself as the progenitor of People Power as a mode of fighting for human rights.

It was supposed to have been a no-brainer. In order to affirm the Convention on the Rights of Persons with Disabilities (or PWD Convention), the UN Human Rights Council adopted a resolution guaranteeing that PWDs do not suffer from discrimination that will “exclu[de] or restrict [their] political rights” and requiring states to eliminate any law, custom or practice that discriminates against PWDs. It was almost a motherhood-and-apple-pie statement, and was adopted by the Council without need of a vote.

To the surprise of PWD activists, global and Filipino alike, the Philippine representative, Ma. Theresa Lepatan, took the floor to express our country’s “reservation”! She began by affirming our country’s support for PWD rights, but concluded by citing a “general comment” interpreting another convention saying that “established mental incapacity may be a ground for denying a person the right to vote or to hold office.”

As of this writing, the Philippine Coalition on the PWD Convention is up in arms, blind-sided and aghast at the effrontery, and is asking our government to recall that reservation.

The coalition rightly points out that a mere comment cannot override an express treaty obligation. That comment merely interpreted the Covenant on Civil and Political Rights, specifically the right “to participate in public affairs.” The bulk of the comment actually affirms PWD rights to equal participation. “It is unreasonable to restrict the right to vote on the ground of physical disability or to impose literacy, educational or property requirements.”

“Mental incapacity” was mentioned merely as a possible exception, and even that is now outdated, having been superseded by the 2006 PWD Convention that categorically guarantees such equality for PWDs without exception. Our duty is “to ensure that PWDs can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others.”

The UN High Commission on Human Rights has said: “The legal landscape has changed dramatically since the adoption of the Human Rights Committee’s general comment in 1996. Today, it may be argued that the majority of voting restrictions ‘are no longer compatible with the prohibition of discrimination … or with the present-day understanding of democracy.’ This holds true, in particular, with regard to limitations of the right to vote and stand for election on the basis of psychosocial or intellectual disabilities.”

Indeed, the Philippine Constitution itself not only does not provide a “mental incapacity” exception but it expressly says that “[n]o literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage” and even requires extra measures for PWDs, “a procedure for the disabled and the illiterates to vote without the assistance of other persons.”

If the Constitution already contains negative and affirmative obligations to ensure equality for PWDs, why would our representatives fixate on minor footnotes to create a giant exception?

Apparently, the Geneva faux pas came about because, one, the Philippines did not follow the usual practice of first engaging the sponsors of the resolution (Mexico and New Zealand) before entering a reservation, and thus ended up with an isolated view so out of step with enlightened thinking. And two, our government failed to consult PWDs before it bargained away their rights.

“Nothing about us without us.” I found those words on a PWD rights website, and they really pack a wallop. Apparently, the Philippines—unlike Thailand and Indonesia—chooses human rights spokespersons who do not have roots in either the constituency they purport to speak for, or in the advocacy they purport to embrace. Thus the tendency to showcase obscure and obsolete dicta when the text of a signed treaty stares one in the face.

But more than the letter of the law, there is a problem of mindset here. One, our bureaucrats think that when it comes to PWDs, exclusion is the rule, equality the exception. The bureaucrats’ instinct, their default position, is to discriminate against PWDs, as if PWDs should rejoice just to be treated equally like the rest of us.

Two, they don’t understand the almost sacred nature of the right of suffrage. How can any government purport to determine who isn’t smart enough to vote? There is something inherently undemocratic with idea that we can winnow out voters deemed not bright enough. It portends the tyranny of an IQ police.

Moreover, under the Civil Code, the legal presumption is that persons have capacity to act. Only a court can declare a person incapacitated but, even then, can at best merely appoint a guardian. So can the legal guardian cast the ballot in his place? Ridiculous!

And here’s the ultimate irony. Given our track record of electing buffoons, charlatans and stooges to public office, who is there among us who can say that the disabled can’t vote because they’re not as smart as us? As smart as who, for heaven’s sake?

One person, one vote. That’s the rule. We don’t weigh the vote according to the voter’s IQ. But let’s grant, for just one moment, that we can impose a minimum IQ. Maybe those who think less and feel more can vote more wisely because they can see through the heart and know who among the candidates don’t have any.

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