Dc presentation

Executive Summary

This paper seeks to set out the contours of strategic litigation to contribute to the implementation of Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). The paper provides some half-baked thoughts and will be subject of discussions on 13 November 2009, and thereafter improved.

Article 12 of the CRPD provides for legal capacity for all persons with disabilities, and places an obligation upon States to provide supports to those people who require assistance in exercising their legal capacity. There are many unknowns about the meaning of Article 12, and the paper sets out some questions to provoke discussion.
The paper suggests that there are three main areas of legal capacity litigation:

1. 
   “Cases which chip away the guardianship edifice”. These are cases which demolish aspects of traditional guardianship systems. They are about faulty procedure, unfair trial, arbitrariness and discrimination.
   
2. 
   “Cases which disentangle subsequent losses of rights”. These are cases in which litigators seek to separate the deprivation or restriction of legal capacity from any subsequent loss of rights, for example the right to consent to or refuse medical treatment, decisions about place of residence, right to vote, right to work, right to marry and to found a family, right to privacy.
   
3. 
   “Cases which demand alternatives to guardianship”. These are cases which seek to put in place the building blocks to establish systems of supported decision-making as alternatives to guardianship.
   

Some examples are provided of how the first two categories of cases have been and could be litigated under the European Convention on Human Rights. The paper draws heavily from two unpronounceable cases. First the case of Shtukaturov v. Russia of March 2008 litigated by MDAC, as well as a judgment hot off the press: Salontaji-Drobnjak v. Serbia (October 2009). It also draws from MDAC’s amicus curiae brief submitted in October 2009 in the pending case of Kedzior v. Poland.

The paper suggests that the third category is subject of much speculation. Here the paper would benefit most from the input of seminar participants. The paper sets out Michael Bach’s six-pronged approach for supported decision-making law reform, and offers some meagre ideas on how litigation may (not) help under each of these areas.
Overall, the paper asks participants to identify the areas where litigation could assist legal capacity law reform efforts, and the areas where it might not be so effective. The paper asks participants to help disability rights litigators develop our strategies by providing examples of other areas of rights litigation – especially so-called economic and social rights – where litigation has successfully contributed to establishing new legal frameworks and new social systems.

2. A long-winded disclaimer

Article 12 of the UN Convention on the Rights of Persons with Disabilities made history by causing a UN punch up. In the ring, autonomy is out-staring interdependence. Substitution is getting its head kicked in by support. The protectionist tendency of the State is seeking to corner self-determination. Political and civil rights have come head to head with their economic and social counterparts. Shouldn’t litigators thrown in the towel and let the political, social and moral wrestling fight it out? This paper suggests that it is a bout time (sorry) for litigators to reflect on the utility of taking these fights into the courtroom.

Article 12 of the UN Convention on the Rights of Persons with Disabilities (hereinafter “CRPD”) has given rise to a certain polarity, oppositional views which lawyers find comfortable. For a lawyer where there’s is a right there’s a wrong. And when there’s a wrong there’s a remedy. Decision-making of persons with disabilities may well be more complex than this. Article 12 may be as evolutionary as it is revolutionary. There may be grey areas which need to develop, and for which broad political coalitions and persuasion in parliamentary corridors may be more successful in pushing forward a human rights agenda than the heated polarities of the courtroom.
This paper seeks to lay down the tracks along which legal capacity is travelling, and suggest potential roles of strategic litigation. There is little experience, even before CRPD, of strategic litigation to advance legal capacity rights. As the CRPD beds down lawyers are likely to be more engaged in thinking about role of litigation in legal capacity law and policy reform. I hope that litigators are also going to think about the limits of litigation, and of the ways in which they can utilize their knowledge through advocacy methods other than litigation.
My experience is limited largely to MDAC’s work in Europe and is constrained by not having had time to properly think about other areas of law from which lawyers can learn. There are not yet any hard and fast strategies. These will emerge in years to come when we can look back and evaluate what worked and what didn’t work. But the evaluation will always be contextual to the time, the place and the interest and power of various stakeholders. Taking all that into account, this paper is nothing more than a half-baked attempt to frame discussions about the role of litigation to move States to implement an Article 12 utopia. I look forward to learning from participants in order to build my own understanding and to develop a more polished paper for wider distribution.
My points of departure are a combination of passion and a yet-to-be rebutted scepticism of law itself, it’s often inaccessible mechanisms (e.g. persons placed under guardianship to protect them from abuse who are denied access to courts to challenge actual abuse), law’s safeguards which amount to little more than a cosmetic nicety (e.g. judicial rubber-stamping of guardianship applications whereby there is no probing of the psychiatric evidence nor a questioning of the adult concerned), and law’s strongly-held principles (e.g. least restrictive alternative where there are actually no alternatives). These fallacies need to be aired and challenged and litigators are well-placed to do so.
I also want to recall that strategic litigation is not merely about cracking open a bottle of champagne on obtaining a carefully-worded court judgment which orders the executive to do something or refrain from doing something. Strategic litigation serves other purposes. It documents violations in a much more definitive way than any NGO could ever hope to do. It frames personal misery as matters of judicial and public concern. It holds to account those who carry out unwanted (in)actions in the name of the state (and in our case, often in the name of therapy or science). It educates judges. It engages the media and reaches the public: taxpayers, voters and potential users. It is the only advocacy tool which puts our conceptualization of a helpless/pathetic victim in control of proceedings, and in an exquisite position of power to put the State in the dock. I hesitate not to overstate matters by suggesting that strategic litigation may have an empowering effect of members of the victim’s ‘group’ as a whole. It can create a space for societal discourse. It can make available a seat at the policy table. It can in and of itself be the catalyst for reform.