Submitting Organization: CEIS- Centro Estratégico de Impacto Social, A.C.
Description of the organization:
We are a human rights organization based in Mexico City. We specialize in generating legal strategies to solve structural social problems in Mexico. We do this by carrying out advocacy projects having as one of our main tools strategic litigation in national and international courts. We work closely with other organizations, especially those who lack legal expertise.
We have been working for 5 years and since the beginning one of our main focuses has been the rights of persons with disabilities. We have conducted several cases before courts, and have participated in other national projects such as capacity building courses, seminars, and conferences, among others. We have also participated in international projects such as the general hearing before the Inter-American Commission of Human Rights related to the right to legal capacity of persons with disabilities in the region.
Level of inclusiveness of persons with disabilities in the report:
The report is based on the different experiences that people with disabilities have shared with us through years of working with them, and our own experiences from the cases related with the rights of persons with disabilities we have conducted. We also consulted persons with disabilities particularly for purposes of the reports and their perspectives are included in it.
IMPLEMENTATION OF ARTICLE 12 OF THE CRPD IN MEXICO
Submission prepared for the 12th Session of the UN Committee on the Rights of Persons with Disabilities
-Prepared by CEIS-Centro Estratégico de Impacto Social, A.C.-
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Table of contents
Executive Summary
Introduction.
I.Guardianship in Mexico.
A.Guardianship. Institution that limits legal capacity
1.Guardianship procedure under Mexican law
2.Damaging terminology against PwD that reinforce prejudices.
II.Limitations to legal capacity because of guardianship
III.Legal capacity before the Mexican Supreme Court of Justice.
A.The constitutional case: Ricardo Adair Coronel Robles’s case.
B.After the constitutional decision
IV.Other limitations to legal capacity in Mexico
A.Limitations arising from the law
B.Limitations on practice because of stereotypes
C.Laws contradictions that limit legal capacity
V.Government’s actions
VI.Suggested questions to the State
VII.Suggestion of recommendations to the State
Annex A: Consulted legal provisions regulating guardianship
Annex B : Example of legal provisions on the guardiandhip judicial procedure
Annex C : Example of legal provisions with damaging terminology
Annex D: Example of legal provisions that limit legal capacity because of guardianship
Annex E: Example of legal provisions that limit legal capacity because of disability
Executive Summary
In Mexico, a substitute decision-making model, the “estado de interdicción” (guardianship), governs legal capacity of persons with disabilities. This mechanism has serious problems as the fact that it is a general system that doesn’t see the particularities of every person with disabilities. Additionally, it is inconsistent with Mexico’s obligations un article 12 of the Convention on the Rights of Persons with Disabilities.
Guardianship limits legal capacity in itself and through a series of legal provisions that inhibit that persons with disability living under guardianship participate in certain legal acts. In this sense, it limits their capacity to get married, exercise parental authority and accept an inheritance, among others.
By the end of 2013, the Mexican Supreme Court of Justice recognized that the guardianship is not in accordance with the Constitution and the Convention on the Rights of Persons with Disabilities, and it ordered that judges, when applying guardianship, follow a series of guidelines that guarantee more protection to the right of legal capacity of persons with disabilities. Although the decision is a progress towards implementing article 12 of the Convention, it’s still not enough because it didn’t eliminate guardianship for good.
The problem with restricting legal capacity of persons with disabilities goes beyond guardianship. The laws and provisions related to inheritance, organ donation and voting, among others, limit legal capacity because of disability, notwithstanding if the person is under guardianship or not. Leaving aside legal provisions, there is a serious pattern of discrimination based on stereotypes and false presumptions about persons with disabilities, which affect the behavior of authorities and society in general. This limits the possibility of persons with disability being able developing independent and autonomous lives, capable of enjoying fully their rights.
The State has not given the issue the attention it deserves. The few actions that have taken place are not significant and haven’t led to an improvement of the life of persons with disabilities. It is urgent that the State commits to its responsibility under the Convention, especially article 12. The State should implement measures to eliminate guardianship and create an alternative, establish safeguards and support systems so that persons with disabilities can exercise their legal capacity, train judges and public servants, and raise awareness among the population regarding the right to legal capacity of persons with disabilities.
Introduction.
This shadow report addresses the implementation of article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD) in Mexico, in response to questions 11 and 12 on the List of Issues released by the UN Committee on the Rights of Persons with Disabilities. We expect it to be useful in the following review of Mexico before such Committee, and that it will give rise to specific actions on behalf of the Mexican State to guarantee the right to legal capacity of persons with disabilities (PwD) in Mexico.
In Mexico, legal capacity of persons with disabilities (PwD) is regulated through a guardianship system called “estado de interdicción”.A classic model that limits the legal capacity by substituting the will of the ward by that of the guardian. The law distinguishes among two elements of legal capacity, capacity to enjoy and capacity to exercise. It recognizes that although PwD enjoy rights (capacity to enjoy), its exercise (capacity to exercise) its limited to a guardian doing it on the persons´ behalf, therefore not allowing PwD to claim their rights for themselves.
Besides guardianship, in Mexico there are still laws that limit the rights of PwD notwithstandingthey are not under guardianship. Consequently, PwD are denied of a right everyone else enjoys without any procedure or judicial intervention. Additionally, stereotypes and false presumptions about PwD give rise to their rights being constantly denied by authorities and individuals who assume that they are naturally incapable to exercise and even enjoyment of their rights. Obstacle’s and violations related with the right to equal recognition before the law affect primarily persons with intellectual and psychosocial disabilities, and in some cases persons with sensory disabilities.
Notwithstanding that the issue of the equal recognition of PwD before the law has become more important among Mexican civil society in the last few years, the Mexican State has not given it the priority and importance it deserves. After almost seven years of having ratified the CRPD, significant measures to fulfill its obligations under article 12 of the CRPD and consequently the other rights contemplated in it, have not been made.
It is critical that the federal and local governments carry out actions directed towards ending every practice, law or public policy that limits the exercise of legal capacity by PwD. Likewise, it is urgent to adopt measures in order to raise awareness and end stereotypes and false presumptions related to PwD and their legal capacity.
I.Guardianship in Mexico.
A.Guardianship. Institution that limits legal capacity
Mexico is a federal republic formed by thirty-one free and sovereign states and one federal district. Within thefederal structure, the competences of each level of government have been arranged so that some matters are regulated by the federal government,some by the states and others by both.
Legal capacity, as a civil matter, is regulated by the states and the Federal District.Thus, legal capacity provisions can be found in thirty-onestate civil codes, the Federal District civil code and one federal code, which only appliestoissues regarding the federation. As a consequence, legal capacity for Mexicans could take thirty-three different forms, depending on the place of residency. However, all civil codes have similar dispositions on the matter.
The considerations of the following sections arise from a complete analysis of the different state laws.
1.Guardianship procedure under Mexican law
Most of the civil codes provide as reasons for limiting legal capacity to be under 18 years old or having a guardianship.
Guardianship is and has been the way in which the State has “protected” PwD through their adult life. Guardianship in Mexico is still based in the medical model, revolving around the medical condition of the PwD. After a supposedmedical condition is confirmed, a guardian is appointed who will act legally on behalf of the PwD. Therefore, in Mexico the current legislation doesn’t allow for the will of the PwD to be respected: the will of the guardian substitutes his/her will.
Guardianship is declared judicially.Previous to the judicial declaration, there is a procedure in which the main participants are the doctors that evaluate the PwD’s condition and the denouncing party. The PwD is relegated to a mere spectator, in occasions he/she doesn’t even participate in the trial and the judge never has direct contact with him/her. Once guardianship is declared, the legal capacity is limited by restricting the “capacity to exercise[1]”or the “legal personality[2]”.
The regulations that limit the “capacity to exercise” recognize that the PwD enjoys rights that are inherent to the human condition, but the enforceability of such rights is dependent of an external will, that of the tutor. On the other hand, those that restrict the “legal personality” although they have the same practical consequences that those that restrict the “capacity to exercise”, have a more serious pernicious effect given that such language can be understood as meaning that PwD are not entitled to rights and obligations.
The law provides that the judge should establish the “scope of capacity” and the “extension and limits of guardianship”, however, in practice, judges always order a total restriction of legal capacity. The same measure is applied to any person, notwithstanding the severity of the disability or his/her personal circumstances.
Finally, it is important to consider the seriousness of having a procedure in which the PwD doesn’t intervene at all. Because their wishes are not considered in any stage of the procedure, they can’tvoice their opinion, decide if they want a guardian or decide who they want their guardian to be. Even worse is the fact that the removal or modification of guardian responds to established reasons and not to the preferences of the PwD.
2.Damaging terminology against PwD that reinforce prejudices.
One of the most serious issues regarding the regulation of legal capacity of PwD in Mexico is the use of incorrect and pejorative words that affect the dignity ofPwD and encourage discrimination, exclusion and social stigma. Some of the terms that are used to refer to PwD are “dements”, “idiots”, “imbeciles”, “deaf-mute” “diminished adults”,“adults disturbed in their intelligence”, and “adults deprived of their intelligence because of insanity, idiotism or imbecility”, among others.
Finally it is important to point out that both the legislation and the performance of authorities in the country make evident that there is a confusion among legal “incapacity” and disability, referring to both as if they where equivalents. Although big efforts have been carried out by civil society to raise awareness that PwD have and should enjoy rights equally with others, there is still a lot of reluctance to accept this. In large part this is due to a charity ideology and paternalistic attitude, arguing that the reasons behind these measures are to better protect them against abuses from others or mistakes they can make due to disability.
II.Limitations to legal capacity because of guardianship
When someone is declared under guardianship in Mexico he/she is subject to several norms that prevent him/her from acting alone, and in some cases, to even participate in certain legal acts at all. Some of these restrictions are the following:
- Prevention from marriage. The law establishes that persons that have a legal“incapacity” -minors and persons under guardianship- cannot get married, preventing PwD to form a family.
Ricardo and I have been married for about a year. We just got married religiously. Because I have a guardianship they told me I couldn’t do it legally.[3]
Fernanda, 32 years, woman with intellectual disability.
- Grounds for divorce. Severalcivil codes in Mexicostill contemplate disability as grounds for divorce.Some of the reasons are if the spouse has an incurable mental sickness, mental derangement, incurable idiotism or imbecility, when there is a previous judicial declaration of guardianship.
- Interruption of parental authority. Most civil codes contemplate the possibility to interrupt parental authority if there is a guardianship declaration of one of the parents.
- Contract nullity. When a person is under guardianship and he/she carries out an act of administration of property or any contract, he/she needs authorization from the guardian. If this is not provided, the law provides that the act can be annulled.
- Acceptance or rejection of inheritance. When a PwD is under guardianship and is named as heir, she/he can’t accept it or reject it by herself/himself. This decision is taken by the guardian, allowing for abuses towards PwD.
When my mom died, she left me a house so that I could have a place to live. The judge doesn’t want to put it under my name because I have a disability.[4]
Tomas, 53 years old, adult with intellectual disability.
III.Legal capacity before the Mexican Supreme Court of Justice.
A.The constitutional case: Ricardo Adair Coronel Robles’s case.
In October 2013, the First Chamber of the Mexican Supreme Court of Justice (SCJN) reviewed for the first time a case related to legal capacity of PwD (Amparo en revision 159/2013). Ricardo Adair, a passionate young man of 25 years, was declared under guardianship through a judicial proceeding his parents undertook as means of “protection” for Ricardo. Through educational campaigns related to the CRPD directed to self-advocates[5] and their parents, Ricardo and his parents realized that their decision for Ricardo to live under guardianship was motivated by false presumptions and that, as the CRPD says, Ricardo should be able to exercise his legal capacity on his own. Thus, Ricardo presented an “amparo” lawsuit against Distrito Federal’s Civil Code (CCDF) where guardianship is established. Founding his claim on the fact that guardianship inhibits him from exercising his rights, Ricardo claimed violations to his right to legal capacity, recognition of his personality, human dignity, equality before the law and non-discrimination. He also claimed that pursuant the CRPD, Mexico had the obligation to implement safeguards so that PwD can exercise their right to legal capacity[6].
The SCJN decided by a majority of 4 votes[7] to grant the “amparo” protection to Ricardo by means of an interpretation of the Mexican guardianship in conformity with the CRPD. Through this interpretation the SCJN left the civil judges with three possibilities whenever they decide a guardianship case:
- Toestablish no limitation to legal capacity. The PwD remains completely capable of acting freely in society with legal validity.
- Declare guardianship with a supportive decision making modality. According to the decision this will imply that each judge will decide case by case in which situations the PwD needs the intervention of the guardian. This intervention should have a supportive nature and the wishes of the PwD should always be respected. Restrictions should be as minimum as possible and only to protect the physical and mental integrity of the person. In this modality the tutor should act as a facilitator.
- Declare guardianship in its substitute decision-making modality. This option is only available in the most exceptional cases when there is clear evidence that there is no mental autonomy and thus the person is incapable of expressing his/her wishes by any means.
Regarding the procedure, the SCJN established the following guidelines:
- The PwD will always be able to request that his/her guardianship be evaluated and reconsidered.
- The civil judges should apply a higher scrutiny and dedication in guardianship procedures. This includes an obligation to meet face to face with the PwD, using language that is accessible to him/her.
- In addition to the reports that guardians are legally required to present, the judge can request the necessary reports, clarifications or evaluations.
- To determine in what degree and in what circumstances the judge should limit the legal capacity of a PwD, the judge should look for as much information as possible, which should be inclusive, listening to the opinion of not just doctors but also psychologists, educators, etc.
- Only if the PwD wishes it to, assistance should be available for the proceedings.
The First Chamber of the SCJN wanted to put forward a more progressive stand on human rights issues, having regards to the CRPD and international standards. However, the decision has a lot of problems that leave Mexico in a state of non-fulfillment with its obligations under article 12 of the CRPD.
Attributes
- It recognizes the obligation of every judge to issue the decisions related to PwD in a simple and accessible language.
- It recognizes that the CRPD binds States to create safeguard systems so that PwD can exercise their legal capacity, and that mechanisms such as guardianship in which the guardian makes all decisions related to the PwD are not acceptable according to the treaty.
Problems