The right to equality before and under the law for persons with disabilities: the CRPD vs. domestic protections

Abstract

The UN Convention on the Rights of Persons with Disabilities (“CRPD”) demands robust protection of the rights of persons with disabilities (“PWD”), especially in relation to the right to be equal before and equal under the law. Yet equality rights have often been denied, which the CRPD Committee (“the Committee”) is beginning to document – in its General Comments and its jurisprudence. The right to be equal before and equal under the law are mirrored in a number of common law constitutional documents, including in Canada’s Charter of Rights and Freedoms, and Hong Kong’s Bill of Rights Ordinance. By comparison, the Australian Constitution lacks specific equality rights protection, however, various legislative instruments do afford some protection of these rights, and specifically so in relation to disability. Notwithstanding the near replication between international and domestic laws of the right to be equal before and under the law, different interpretations of these rights have manifested in sometimes more or sometimes less expansive rights protection for PWD. At one extreme, the Committee’s interpretation has at times been criticized for being overly robust, unrealistic, ultimately achieving little concrete change. By contrast, it is arguable that the common law’s doctrine of precedent has resulted in more substantial rights protection, but that such protection is potentially problematic because it is ad hoc, unpredictable and only able to be achieved incrementally. My PhD thesis will seek to analyze the CRPD’s notion of equality rights as applied to the issue of PWD who commit heinous crimes and are deemed to lack mental responsibility. In this paper, I will focus more narrowly on how the Committee has interpreted the right to be equal before and under the law, and draw out the extent to which this interpretation differs from these common law jurisdictions. The paper will provide a doctrinal analysis of these rights in the CRPD in order to draw out any gaps in domestic protections. At the same time, by identifying these gaps, the paper will examine the pervasiveness of the Committee’s interpretation. It will make an argument that when the Committee is uncompromising in its interpretation of equality rights, it is the least influential. By contrast, better protections have come from strong constitutional courts, and will likely continue to do so, even if such protection is imperfect.