Promises vs protections: The Convention on the Rights of Persons with Disabilities vs South Africa, Canada and Hong Kong, a comparative argument.

Abstract

Perhaps surprisingly, the legal systems of Canada, South Africa and Hong Kong protect human rights in markedly similar ways; all have been British Colonies and have some system of precedent, all have written constitutions and boast relatively robust bills of rights. In the area of disability rights, the right to equality and non-­‐discrimination is guaranteed and protected by markedly similar language. The Canadian Charter of Rights and Freedoms (“the Charter”), the Hong Kong Bill of Rights Ordinance (“HKBOR”) and the South African Bill of Rights (“SABOR”) all guarantee the right to equality and non-­‐discrimination for persons with disabilities (“PWD”). These documents recognize equality before and / or under the law as a justiciable, enforceable right. The wording is almost identical with the protections in the Convention on the Rights of Persons with Disabilities (“CRPD”). However, though there have been similarities in the way constitutional courts have applied this right, there are significant differences when comparing the courts approach to the approach by the CRPD Committee. This paper will begin with a comparative analysis of the inconsistencies between state parties’ interpretation of the scope of equality and non-­‐ discrimination for PWD, compared with the CRPD Committee’s interpretation. An argument will be made that it is the transformative nature of the SABOR that provides the most scope for the expansion of equality rights protection. While the Canadian Supreme Court has made significant progress by world standards, still there are limits as to how far the Canadian judiciary will go. In this analysis, Hong Kong is perhaps the biggest wild card; while in 2018 and early 2019 the right to equality and non-­‐discrimination expanded in leaps and bounds, the current political climate may be expected to have a cooling effect on the protection of human rights. By stark contrast, the recommendations being made by the CRPD Committee seem somewhat out of touch with how equality and non-­‐ discrimination are interpreted by constitutional courts. To this end, the Committee’s recommendations have made the least inroads in expanding the scope of protection for the right to equality and non-­‐discrimination for PWD. In illustration of this argument, the paper will undertake a case study analyzing instances where people with psychosocial disabilities and cognitive impairments have come into contact with the criminal justice systems in these three jurisdictions. The paper will argue that the Committee has made recommendations that have largely been disregarded by state parties. Notwithstanding the largely similar constitutional equality rights protections, the Committee’s approach has had little impact. Still, the aim of the paper is not merely to criticize the Committee’s approach. Instead, the paper aims to encourage more deliberative dialogue between the Committee and state parties, in order that the Committee’s recommendations might have a more significant impact on domestic norms and policies. Recommendations will be made as to how the Committee might moderate its approach to better engage with state parties. It is hoped that this will push the needle forward to expand the protections of human rights for PWD, especially in relation to equality and non-­‐discrimination.