accessible mode Accessible Mode

About Author

Mushegh Hovsepyan

18 articles are between prohibition of discrimination and discrimination

0

The Professional Committee on Constitutional Reforms adjunct to the RA President has decided to approve the concept of constitutional reforms. The members of Committee claim that the main aim of constitutional reforms “is to ensure the superiority of the law which is the base of lawful state”.

Some statements regarding to the rights of people with disabilities were proposed to be modified.

Discrimination

Discrimination based on disability is prohibited since Constitutional changes in 2005. This article is same in the new proposal.

Article 29. Prohibition of Discrimination
Any discrimination based on sex, race, skin color, ethnic or social origin, genetic features, language, religion, worldview, political or any other views, belonging to a national minority, property status, birth, disability, age, or other personal or social circumstances shall be prohibited.

By signing the Convention on the Rights of People with Disabilities, the Government of Armenia is obliged to prohibit every discrimination based on disability. Constitutions of many countries include such articles, which are one of the main components of constitution.

Right-of-Vote

Although the Article 27 of the concept of constitutional reform claims that everyone is equal and Article 29 prohibits discrimination based on disability, but Constitution includes voting rights restrictions.

Article 47. The Right to Vote and to Participate in the Referendum
4. Persons declared by court as legally incapable, as well as persons convicted and serving sentence for the intentional commission of a grave crime by a court judgment that has entered into legal force may not vote or be elected or take part in a referendum.

Araks Melkonyan, advocate and author of research “Capacities of persons with mental and intellectual disabilities in RA: towards providing support in making decisions” is confident that there is contradiction in Constitution because legal incapacity is direct discrimination towards people with disabilities:

Araks-Melkonian

Especially Article 29 of Convention on the Rights of People of Disabilities is violated, which ensures participation of people with disabilities in politics with equal base with others as well as the 3rd article of the First Record of the Convention for the Protection of Human Rights and Fundamental Freedoms which ensures the right to vote.

This statement also contradicts the Universal Declaration of Human Rights and the Article 16 International Covenant on Political and Civil Rights: “Everyone shall have the right to recognition everywhere as a person before the law.” The covenant prohibits any deviation from the right of recognition even during state of emergency in country.

Article 98 of concept of constitution is also disturbing.

Article 98. Termination of Powers of a Parliamentarian
1. The powers of a parliamentarian shall terminate upon the expiration of the term of office of the National Assembly; loss of citizenship of the Republic of Armenia or acquisition of the citizenship of a different state; conviction to imprisonment by a judgment that has entered into legal force; being declared, by a court judgment that has entered into legal force, as legally incapable, as having limited legal capability, as missing or as having deceased; death; his resignation; or absence, without a valid excuse, from at least half of the votes during the term of a single regular session; or in cases of violating the terms of Article 95 of the Constitution.

1st General Comment by the Committee on the Rights of Persons with Disabilities published on 2014 confirms: “a person’s decision-making ability cannot be a justification for any exclusion of persons with disabilities from exercising their political rights, including the right to vote, the right to stand for election and the right to serve as a member of a jury.”

There is judicial precedent of European Court of Human Rights (ECHR) about such problem. Hungary’s Citizen Alajos Kiss who has mental disability applied to ECHR to reclaim his violated right to vote.

In the case of Alajos Kiss v. Hungary, the Court accepted that this is an area in which, generally, a wide margin of appreciation should be granted to the national legislature in determining whether restrictions on the right to vote can be justified in modern times. In addition, if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the mentally disabled, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question.

The Court therefore concluded that an indiscriminate removal of voting rights, without an individualised judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote.

European Commission for Democracy through Law (Venice Commission) hasn’t represented any comments and proposals about this statement. Media Officer of Council of Europe Tatyana Baeva reaffirms that there weren’t such discussions but she refers to the Code of Good Practice in Electoral Matters by Venice Commission.

We have tried to ascertain why Venice Commission hadn’t represented comment or proposal to the Professional Committee of Constitutional Reforms about this statement.

Christoph Grabenwarter, member of Venice Commission, mentioned that this article is not part of the constitution not excluding that it can be found in Election Code. To our note that Article 47 and Article 98 of Constitution contain restrictions, the member of commission said that there wasn’t discussion on this topic, but it will be considered. (Answers to question 2:41:37)

The Union of Legal Entities „National Disability Advocacy Coalition” represented proposal about reestablishment of the rights of legally incapacity, but proposal wasn’t included in the concept. We have contacted to a member of Professional Committee of Constitutional Reforms, Doctor of Juridical sciences, Professor Gagik Ghazinyan to find out why the proposal wasn’t accepted. Mr. Ghazinyan informed that he was out of town and is not aware from the latest developments of the topic. When we asked Mr Ghazinyan’s opinion about restricting the right to vote of people on the reason of legal incapacity, he answered:

Ghazinian

Vardan Poghosyan, member of professional committee of constitutional reforms and representative of president of RA in Parliament, hadn’t answered our calls.

We have asked the Larisa Minasyan, executive director of “Open Society Foundations-Armenai”, who attended the discussion Venice Commission and representatives of civic society, did they proposed something about this statement.

“It is not reliable that your participation will have results, so we don’t talk about it. We haven’t represented proposal and maybe we won’t. Now we analyse those articles that are more disturbing.”

Social-Security

On July 15, when Chapters 1-7 were published, in the Article 83 about Social Security was mentioned that the law prescribes everyone’s right of social security by particularizing special cases. The cases of maternity, having many children, old age, loss of bread-winner, unemployment were mentioned. In this case disability cannot be identified as illness or need of care.

However, the proposal of “National Disability Advocacy Coalition” was accepted. Now social security of people with disabilities is fixed by the draft:

Article 83. Social Security
Law shall define the right of everyone to social security in cases such as maternity, having many children, illness, disability, industrial accidents, need of care, loss of breadwinner, old age, loss of employment, and in other cases.

Tasks

The concept of constitutional reforms also fixes the basic tasks of the state in the economic, social and cultural spheres.

Article 86. Main Objectives of State Policy
The main objectives of state policy in the economic, social, and cultural spheres shall be:
7) to carry out disability prevention, treatment and rehabilitation programs and to promote the participation of disabled in public life.

The Union of Legal Entities “National Disability Advocacy Coalition” proposed to change term “integration of the handicapped” to “to promote full and productive participation of people with disabilities in all spheres of social life”.

It was proposed to give preference to the term “person with disability”: the Convention on the Rights of People with Disabilities recognizes that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others. So, the convention doesn’t consider disability as person’s characterization and prefers the term “person with disability”.

Considering this definition, “preventive care, treatment and recovery of disability” is incomprehensible, because disability is preventable, but one can treat and recover state of health, not disability.

This proposal wasn’t included in draft. “National Disability Coalition” isn’t aware about reasons.

Share.
* In case of finding spelling mistakes in the post text, please select the necessary word or sentence and press Shift + Enter to send.

Comments are closed.