Some legal systems in Latin America have been moving towards recognising the equal right to recognition of the legal personality of people with disabilities. Such forms of recognition range from specific legal reforms in this matter, to the development of constitutional jurisprudence in line with the mandates established in the Convention on the Rights of Persons with Disabilities (CRPD).
Foto: Mauro Mora.
By Dr Nicolás Espejo Yaksic*
As provided in Article 12 of the Convention on the Rights of Persons with Disabilities (hereinafter “the Convention”), persons with disabilities have the right to have their legal personality recognised everywhere, without discrimination. The Convention overcomes the model of “mental disability” as the basis for “legal incapacity”, placing people with disabilities at the centre of all decisions that concern them. Based on this, States are obliged to guarantee the double commitment to recognise the right to legal capacity without discrimination, providing access to people with disabilities to any individual support that they may need to exercise their legal powers, and to establish adequate, effective safeguards to prevent abuse (Espejo Yaksic & Lathrop Gómez, 2019).
In other words, the Convention seeks to fulfil two types of obligations: a) a negative content, which requires the non-intervention or invasion of the State and third parties in the sphere of independent power of choice of the person and that corresponds to the classic vision of autonomy, and b) a positive content, which would demand the intervention of the State and society to promote and favour the power of independent choice of the person, through a system that supports the exercise of legal capacity. It is a set of relationships, practices, measures and agreements, of varying formality and intensity, designed to assist a person with intellectual disability, in the communication, understanding and consequences of legal acts, and in the manifestation and interpretation of their wishes, desires and preferences (Committee on the Rights of Persons with Disabilities, 2014, para. 13 & 29).
At different rates, some legal systems in Latin America are starting to recognise the equal right to recognition of legal personality of people with disabilities. The types of recognition range from specific legal reforms in this matter, to the development of constitutional jurisprudence in line with the mandates established in the Convention. Here I would like to draw your attention to three prominent examples.
Costa Rica adopted Law No. 9379 for the Promotion of Personal Autonomy of Persons with Disabilities in 2016, recognising the legal capacity of people with disabilities, abolishing interdiction, insanity and guardianship by different legal bodies and creating the legal figure of the safeguard. According to this law, the purpose of this safeguard is to guarantee the safe and effective enjoyment of the rights and obligations of people with intellectual, mental and psychosocial disabilities, within a framework of respect for their wishes and preferences (Article 5) and may not be imposed against the will of the person [1]. Importantly, Law No. 9379 introduces the concept of personal assistance to further the exercise of the right to personal autonomy of people with disabilities, on equal terms with others (Article 12). To enable this, the law creates the Programme for the Promotion of Personal Autonomy of Persons with Disabilities, under the responsibility of the National Council of Persons with Disabilities (Article 16).
In the case of Peru, Legislative Decree No. 1384 of 4 September 2018 recognises the full capacity of people over 18 years of age, including people with disabilities, and under the same conditions as others and in all aspects of life, even if they use or require reasonable adjustments or support to express their wishes (Article 42 of the Peruvian Civil Code). This reform repeals guardianship for reasons of disability, and interdiction regarding several groups of people with disabilities (Article 43 no. 2 and Article 44 no. 2 and 3) and recognises the right to reasonable and procedural adjustments in courts and notaries. The introduction of a supported decision-making system is particularly important. The supports are now defined by the Peruvian Civil Code as forms of assistance to facilitate the exercise of legal capacity, including that oriented to communication, understanding of legal acts and their consequences, and in the expression and interpretation of the subject’s wishes (Article 659-B). The supports are freely chosen and are available to anyone of legal age.
Finally, in Colombia, Law No. 1966 (which establishes the regime for the exercise of legal capacity of persons with disabilities of legal age), enacted on 26 August 2019, recognises that all people with disabilities are subjects with rights and obligations, and have legal capacity under equal conditions, without distinction and regardless of whether or not they use support to carry out legal acts (Article 6, sec. 1). For the first time in Colombia, the reform establishes a decision-making system with support based on the person’s wishes and preferences of the person, leaving only two representation hypotheses in force. Likewise, the law regulates safeguards in direct relation to Article 12 of the Convention, setting precise criteria for its establishment for this purpose, namely necessity, correspondence and impartiality. Finally, the Law governs the system for determining support for taking decisions in two hypotheses: a) based on the person’s wishes, or II) through an evaluation of the supports.
At the same time, some courts in the region have also been developing a body of jurisprudence that has enabled the establishment, at least from a constitutional standards perspective, a specific dogma regarding the equal recognition of legal personality in general, and legal capacity in particular.
So, for example, the Constitutional Court of Peru has determined the need to re-establish the full legal capacity of persons declared in a state of interdiction, before the entry into force of Legislative Decree No. 1384, and to move, at its request, towards a system of supports and safeguards (TC Peru, 2019, para. 31, 33 Similarly, the Constitutional Court of Colombia recently ratified the constitutionality of Law No. 1966 of 2019, insisting that the presumption of the legal capacity of people with disabilities provided in Article 6 of the aforementioned law is constitutional, since it takes a respectful view of human dignity and of real and effective equality for the exercise of fundamental rights (CC Colombia, 2021, para. 55). This jurisprudential support for the central mandates of Article 12 of the Convention, specified in the legal reforms described, has also been endorsed by the Supreme Court of Costa Rica by insisting on the constitutional protection of norms that protect the principle of personal autonomy of people with disabilities (CS Costa Rica, 2019, section III).
Finally, it is noteworthy the development of jurisprudential positions that, even in the absence of legal reforms in the field of legal capacity, have established clear constitutional mandates of legislative adaptation to the provisions of Article 12 of the Convention. This is the paradigmatic case of the Supreme Court of Justice of the Nation (SCJN) of Mexico, which has reiterated in several decisions that the interdiction system in various regulations of the Civil Code and the Code of Civil Procedures of Mexico City are incompatible with human dignity as a priority principle and purpose of the Convention. In particular, the SCJN has held that interdiction is not consistent with the social and human rights model embraced by this conventional instrument and with the equal recognition of legal capacity. In this regard, the SCJN has specified the need for the Legislator to advance towards the enactment of a new legal regime that establishes the necessary safeguards and support for the full exercise of legal capacity (SCJN, 2019 and 2021).
The challenges of legal capacity in Latin America and Covid-19
The legislative design of these reforms is far from perfect and poses implementation challenges (Bach & Espejo Yaksic, 2022 & Bezerra de Menezes, Constantino & Bariffi, 2021).
- Equal recognition of legal capacity is a fundamental step to start breaking down the legal barriers that justified a guardianship system, regardless of the same consideration of equal dignity and respect for the human person. However, these are necessary but insufficient reforms to make progress toward full equality and social inclusion. The important advances in the recognition of legal capacity for people with disabilities operate in a broader regional context and it is important to take into account a series of central aspects, particularly the effects of the Covid-19 pandemic.
- The exercise of legal capacity presupposes not only the existence of legal rules that allow the enjoyment of individual autonomy, but also robust social systems that guarantee equality and social inclusion. However, people with disabilities are particularly exposed to the impacts of the pandemic on their access to health, basic infrastructure, information and communication technologies (ICT), as well as overcrowding in their homes, and their right to education and employment (ECLAC, 2021 (a)). This, in turn, has had a particularly negative impact on women in Latin America who are the primary care-givers in their homes and have been forced to leave the labour force. [2] In the region, caring is seen as a female profession (Bidegain & Calderón, 2018) and any substantial transformation in the field of the transition towards an independent life and the exercise of personal autonomy for people with disabilities requires a clear focus on gender.
In other words, to address the serious economic and social effects of the pandemic, political and social pacts will be needed to generalise social protection and health on an equal basis (ECLAC, 2020). Without this, legal reforms to judicial capacity in the region are at risk of being irrelevant for the vast majority of people with disabilities. However, there is still time to rectify this.
