Disability Rights
Persons with disabilities
The United Nations Convention on the Rights of Persons with Disabilities and the Rights of Persons with Disabilities Act 2018 defines persons with disabilities to include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.
Convention on the Rights of Persons with Disabilities (CRPD)
Fiji ratified the Convention on the Rights of Persons with Disabilities on 07 June 2017. The Convention promotes, protects and ensures the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and promotes respect for their inherent dignity.
The Convention promotes the following principles:
- Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons
- Non-discrimination
- Full and effective participation and inclusion in society
- Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity Equality of opportunity
- Accessibility
- Equality between men and women
- Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
The Fijian Constitution
The Fijian Constitution for the first time explicitly defines the term “disability” legally prescribing any preclusion from access and equity on the basis of an individual’s disability as a prohibited ground of discrimination.
Section 26 (3) (a)- Right to equality and freedom from discrimination provides that
A person must not be unfairly discriminated against, directly or indirectly on the grounds of his or her actual or supposed personal characteristics or circumstances, including race, culture, ethnic or social origin, colour, place of origin, sex, gender, sexual orientation, gender identity and expression, birth, primary language, economic or social or health status, disability, age, religion, conscience, marital status or pregnancy.
A person must not be unfairly discriminated against, directly or indirectly on the grounds of his or her actual or supposed personal characteristics or circumstances, including race, culture, ethnic or social origin, colour, place of origin, sex, gender, sexual orientation, gender identity and expression, birth, primary language, economic or social or health status, disability, age, religion, conscience, marital status or pregnancy.
Section 42 (1) – Rights of persons with disabilities
(1) A person with any disability has the right-
(1) A person with any disability has the right-
- to reasonable access to all places, public transport and information;
- to use sign language, Braille or other appropriate means of communication
- to reasonable access to necessary materials, substances and devices relating to the person’s disability.
Rights of Persons with Disabilities Act 2018
Section 28 – Equality and non-discrimination
- All persons with disabilities are entitled to the equal protection and equal benefit of the rights and freedoms guaranteed under the Fijian Constitution
- Specific measures which are necessary to accelerate or achieve equality of persons with disabilities must not be considered as discrimination.
Section Section 30 – Children with disabilities
- In all actions concerning children with disabilities, the best interests of the child must be a primary consideration.
- Children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realise that right.
Discrimination
Part 6 of the Rights of Persons with Disabilities Act 2018 defines discrimination on the basis of disability as –
“any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”
Affirmative action laws, policies and programmes to promote equality for persons with disabilities is not discrimination as long as they are proportionate to the aim of promoting equality for person with disabilities.
The State is obligated to implement the right and in the event that the State claims that it does not have the resources to implement the right, it is incumbent on the State to show that resources are not available.
“any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”
Affirmative action laws, policies and programmes to promote equality for persons with disabilities is not discrimination as long as they are proportionate to the aim of promoting equality for person with disabilities.
The State is obligated to implement the right and in the event that the State claims that it does not have the resources to implement the right, it is incumbent on the State to show that resources are not available.
Impairment
The Act defines “impairment” as a condition which involves any loss or abnormality of the psychological, physiological, or anatomical structure or function of the body and may include—
- sensory impairments, such as those affecting sight or hearing
- impairments with fluctuating or recurring effects such as rheumatoid arthritis, myalgic encephalitis (ME)/chronic fatigue syndrome (CFS), fibromyalgia, depression and epilepsy
- progressive impairment, such as motor neurone disease, muscular dystrophy, forms of dementia and lupus (SLE)
- developmental impairment, such as autistic spectrum disorders (ASD), dyslexia and dyspraxia
- learning difficulties
- mental health conditions and mental illnesses, such as depression, schizophrenia, eating disorders, bipolar affective disorders, obsessive compulsive disorders, as well as personality disorders and some self-harming behavior.
Reasonable Accommodation
The Act defines “reasonable accommodation” as necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure that persons with disabilities enjoy or exercise on an equal basis with others all human rights and fundamental freedoms.
The Rights of Persons with Disabilities Act 2018 is consistent with most salient features of the Convention on the Rights of Persons with Disabilities
| Rights of Persons with Disabilities Act 2018 | UN Convention on the Rights of Persons with Disabilities |
|---|---|
| Equality and non- discrimination | Article 5 - Equality and non- discrimination |
| Accessibility | Article 9 - Accessibility |
| Disaster and humanitarian emergencies | Article 7 - Children with disabilities |
| Equal recognition before the law | Article 12 - Equal recognition before the law |
| Access to justice | Article 13 - Access to justice |
| Liberty and security of the person | Article 14 - Liberty and security of the person |
| Freedom from exploitation, violence and abuse | Article 16 - Freedom from exploitation, violence and abuse |
| Protecting the integrity of the person | Article 17 - Protecting the integrity of the person |
| Liberty of movement and nationality | Article 18 - Liberty of movement and nationality |
| Living independently and being included in the community | Article 19 - Living independently and being included in the community |
| Personal mobility | Article 20 - Personal mobility |
| Freedom of expression and opinion, and access to information | Article 21 - Freedom of expression and opinion, and access to information |
| Respect for privacy | Article 22 - Respect for privacy |
| Respect for home and the family | Article 23 - Respect for home and the family |
Persons with disabilities have the right just like anyone else to:
The Act defines “impairment” as a condition which involves any loss or abnormality of the psychological, physiological, or anatomical structure or function of the body and may include—
- access education by enrolling in schools/universities
- seek jobs and getting promotions/training
- rent or own a property
- access to all services such as public transportation, services provided by the Government departments, accessing hospitals, banking services, restaurants, shops or entertainment venues.
