D. IMPLEMENTATION AND ENFORCEMENT OF LEGISLATION 1. IMPLEMENTATION An analysis of the legislation reviewed indicates that authorities at different levels have been designated for their administration. Similarly, different procedures and strategies have been stipulated for the implementation of the laws. (a) Implementing authorities The laws reviewed, with the exception of the Disability Discrimination Ordinance of Hong Kong, are national laws which apply to all levels of government of the respective countries. Government departments and agencies at national, provincial/state and district levels are responsible for the implementation of these laws. China, India, Japan, the Republic of Korea and Thailand have established coordinating committees to administer their respective laws. In contrast, in Australia, Hong Kong and the Philippines, government departments responsible for diverse areas of public life and functioning at different levels, are responsible for the implementation of those provisions relevant to the respective areas of their responsibility. China provides an example of recognition of the role of a national federation of disabled persons in the administration of its legislation. Article 8 of the "Law of the People s Republic of China on the Protection of Disabled Persons" stipulates that it is obligatory for the China Disabled Persons Federation (CDPF) to protect the interests of disabled persons, as well as provide services for them and assist in developing undertakings for them. China has constituted a high-level permanent Coordinating Committee on Disability of the State Council consisting of 33 ministries, commissions and CDPF. The Committee s responsibility is to coordinate and deal with important issues concerning disabled persons. The national coordinating committee is linked with provincial-, municipality- and county-level coordinating bodies. CDPF serves as the secretariat of the Committee. The Fundamental Law for Disabled Persons (1993), Japan, designates a Central Council and Local Councils as the implementing authority. Articles 27 and 30 of the Law specify the establishment of a Central Council and Local Councils, respectively. The Central Council is charged with the responsibility of promoting measures for disabled persons in accordance with the Fundamental Plan prepared and approved for this purpose. Local Councils have the same responsibility with regard to the implementation of welfare measures, in accordance with the Fundamental Plan in their respective prefectures and municipalities. The Welfare Law for Persons with Disabilities (1989), of the Republic of Korea also identifies a Central Welfare Committee, as well as Local Committees as the implementing authority. Section 6 of the Law empowers the state to constitute these Committees for promoting welfare measures contemplated by this Law for persons with disabilities. In addition to this, the Law also makes provisions for the appointment of counsellors at the local level, to facilitate the work involved in the promotion of welfare measures. Thailand s Rehabilitation of Disabled Persons Act (1991) provides for the appointment of at least two disabled persons as members of the Committee for the Rehabilitation of Disabled Persons. (1) The Act charges the Committee with powers and duties which include the following: 1. Propose and recommend to the Minister ([of Interior] and Chairman of the Committee) on policies and plans concerning assistance, development and rehabilitation, for Cabinet approval, and designate concerned government organizations for further implementation in compliance with their respective authorities; 2. Advise the Minister on the enforcement of the Act; 3. Support and promote, through technical and financial assistance, facilities and services, the rehabilitation of disabled persons by governmental and non-governmental organizations; 4. Approve programmes or projects utilizing the Fund for Rehabilitation of Disabled Persons and set the rules and regulations for management and disbursement of the Fund; 5. Set rules, regulations and ordinances within the purview of assistance, development and rehabilitation, to ensure compliance with the Act. The above-mentioned Indian Bill seeks to establish a Central and Provincial Coordinating Committees for the administration of its provisions. As in the case of Thailand's legislation, the Indian Bill provides for the representation of disabled persons on the Coordination Committees. Clause 3.2 of the Bill provides for the nomination of one NGO representative from each category of disability, who should preferably be a person with a disability. In addition to this, Sections 57 and 60 of the Bill specify the appointment of a Chief Commissioner and a Commissioner for Persons with Disabilities in each province, respectively. The Commissioners may be expected to play a vital implementation role. (b) Implementation procedures and strategies While the legislation reviewed differ in their implementation procedures and strategies, they provide for the preparation and notification of implementing rules and regulations containing detailed procedures for their administration. The legislation of Australia, Hong Kong and Japan is dependent on the preparation and approval of "Disability Standards, Codes of Practice and Fundamental Plan" for implementation in the respective cases. With respect to the Republic of Korea and Thailand, implementation is linked with the registration of persons with disabilities. Australia s Disability Discrimination Act (1992) prohibits discrimination on the ground of disability in all areas of public life. In order to achieve equality and participation of persons with disabilities in public life, Section 31 of the Act provides for the formulation of "Disability Standards" in relation to the following areas: 1. Employment of persons with a disability; 2. Education of persons with a disability; 3. Accommodation of persons with a disability; 4. Provisions of public transportation services and facilities; 5. Administration of Commonwealth laws and programmes in respect of persons with a disability. The Disability Standards form the basis of implementation of the Act. These Standards have statutory sanction, as contravention has been made unlawful through Section 32 of the Act. Following a similar pattern, implementation of Hong Kong s Disability Discrimination Ordinance (1995) depends on Codes of Practice, as indicated in Section 63 of the Ordinance. Codes of practice containing practical guidance may be issued by the Commission for the purpose of the: 1. Elimination of discrimination; 2. Promotion of equality of opportunity between persons with a disability and persons without a disability generally; 3. Elimination of harassment and vilification. The Disabled Persons Fundamental Law (1993) of Japan centres on the Fundamental Plan, as formulated and approved under Article 7-2 of the Law. The Law sets a broad legislative framework in each area of public life, leaving the details to be prescribed by Fundamental Plans at different levels of administrative authority. Thus Prefectures and Municipalities are obliged to establish fundamental plans, summaries of which are to be made public. Concerning the implementation of the Law of the People s Republic of China on the Protection of Disabled Persons, the State Council and concerned departments are obliged to determine priority rehabilitation projects by stages, to formulate plans and organize the means for their implementation. A series of measures have been taken to promote the implementation of the Law. Implementing regulations and by-laws have been drafted by the concerned government departments. The Regulations on the Education of Persons with Disabilities were promulgated on 23 August 1994. The draft Regulations on Employment of Disabled Persons have been formulated and are expected to be promulgated in 1996. Those Articles of the Law pertaining to the protection of disabled persons have been integrated into 10 related laws and regulations, which have been passed in the past two years. Among them are the Labour Law, the Education Law, and the Temporary Regulations of Income Tax for Enterprises. Furthermore, implementing measures for the Law have been drafted by every province, municipality and autonomous region in China. Twenty-five out of 30 provinces, municipalities and autonomous regions have passed their implementing regulations. The remaining five are scheduled to pass their regulations by 1995. Regulations on support of disabled persons have been drafted and implemented at the county and township levels. Sixty per cent of the counties have drafted the regulations. The remaining 40 per cent are expected to follow suit in the near future. Assistance to disabled persons has also been integrated into the national poverty alleviation programme, focusing on enhancing their capacity to earn a basic livelihood. The Welfare Law for Persons with Disabilities (1989), Republic of Korea, specifies compulsory registration of persons with disabilities as one of its basic implementation strategies. Article 19 of the Law provides for the registration of disabled persons, to facilitate implementation of the Law. Information on various particulars, to be noted at registration, serves as a basis for planning both policies and programmes, as well as the implementation of measures and programmes detailed in the Law. Similarly, the Rehabilitation of Disabled Persons Act (1991) of Thailand also makes it mandatory for disabled persons, who wish to avail themselves of assistance, development and rehabilitation, to submit an application for registration to the Central Registrar at the Office of the Committee for the Rehabilitation of Disabled Persons or to the provincial-level Registrar at the Provincial Public Welfare Office in the province of their domicile. In a number of cases, positive discrimination and preferential treatment have been adopted as implementation strategies. The Disabled Persons (Employment and Rehabilitation) Ordinance (1981), Pakistan, the Magna Carta for Disabled Persons (1991), Philippines, and the Act relating to Employment Promotion, etc., of the Handicapped (1990), Republic of Korea, are examples of such legislation providing positive discrimination through a quota scheme. The Ordinance of Pakistan had earlier required establishments to employ disabled persons (2) equivalent to not less than one per cent of the total number of employees of those establishments. However, this employment quota covering public and private sector organizations has recently been raised to two per cent by the Government of Pakistan. The Magna Carta provides for reservation to the extent of five per cent for disabled persons in government employment. The Act relating to Employment Promotion, Etc., of the Handicapped provides for reservation to the extent of two per cent for disabled persons in national and local government employment. Tax concessions, soft loans and other government assistance are further examples of provisions for preferential treatment. The Magna Carta s provisions for financial allocations to support implementation (3) pertain to incentives for private sector employers to engage disabled persons as regular employees or apprentices, and to improve their physical facilities to provide reasonable accommodation for disabled persons. They also cover free postal charges for marginalized disabled persons (4) on literature, orthopaedic and other devices and teaching aids, for their personal use. In many cases, the legislation requires establishments that do not comply to contribute to funds for alternative means to implement the relevant provisions. The Disabled Persons (Employment and Rehabilitation) Ordinance (No. XL, 1981) of Pakistan requires an establishment which does not employ a disabled person to pay the Rehabilitation of Disabled Persons Fund each month the sum of money it would have paid as salary or wages to a disabled person had he been employed. (5) The Labour Code of the Socialist Republic of Viet Nam (1995) contains a clause in the same vein. (6) In the case of those undertakings exceeding the prescribed proportion of disabled workers among their employees, they are entitled to State grants or low-interest loans, according to the Labour Code, to enable them to create suitable working conditions for the disabled workers. An instance of stipulation of financial allocation for implementation of specific provisions is Section 13 of the Magna Carta whereby the State is obliged to provide financial assistance to economically marginalized but deserving disabled students pursuing post-secondary or tertiary education. The State is required to set aside, for this group pursuing vocational or technical and degree courses, at least 5 per cent of the allocation for the Private Education Student Financial Assistance Program created through R.A. 6725. In Australia, the provision of government funding for support services to people with a disability is influenced by the Commonwealth Stability Agreement. The Agreement specifies the respective responsibilities of the Federal and State governments and commits all governments to at least maintaining existing funding levels. To support the implementation of the respective legislation, Governments have developed public awareness raising strategies to mobilize the support of diverse sectors in society. Elements of the Chinese implementation strategy include incorporating the Law into the national publicity programme for promotion of legal knowledge, mobilizing journalists to provide coverage and public supervision of the Law, and organizing a national seminar on promotion and implementation of the Law. It is noteworthy that the seminar had been co-organized by the Ministry of Justice, the Legal Affairs Committee of the People s Congress, the Legal Affairs Bureau of the State Council and CDPF. There had been over 200 participants from the concerned departments of all provinces, municipalities and autonomous regions in China. 2. ENFORCEMENT A range of mechanisms, procedures and strategies are contained in the legislation reviewed, to ensure compliance. (a) Mechanisms In most cases, the Court of Law is recognized as the ultimate instrumentality for ensuring observance. However, in some cases, the legislation has identified additional enforcement mechanisms. The Disability Discrimination Act (1992) of Australia recognizes the Human Rights and Equal Opportunity Commission and a Commissioner as additional enforcement authorities. A summary of the functions conferred upon the Commission includes the following: (7) 1. Enquiries into alleged infringements and conciliation to effect settlement of matters to which the alleged infringements relate; 2. Granting of exemptions to compliance with the Act; 3. Monitoring of the operation of standards; 4. Receipt from service providers of action plans that are consistent with the objectives of the Act; 5. Promotion of acceptance, understanding and compliance with the Act, and undertaking of programmes, on behalf of the Commonwealth, to promote the objectives of the Act; 6. Examination of enactments for their consistency with the Act; 7. Reporting of laws that should be made by Parliament, or action that should be taken by the Commonwealth, on matters relating to discrimination on the ground of disability; 8. Preparation, for publication, of guidelines on the avoidance of discrimination on the ground of disability; 9. Intervention in proceedings that involve discrimination on the ground of disability, where deemed appropriate by the Commission, and with the leave of the court hearing the proceedings and subject to any conditions imposed by the court; 10. Pursuance of actions that are incidental or conducive to the performance of the preceding functions. The Australian Act also contains details of the functions of the Commissioner on behalf of the Commission, when the Commissioner is taken to be a complainant, and concerning inquiries by the Commissioner. (8) Similarly, Hong Kong s Disability Discrimination Ordinance (1995) also provides for the establishment of a Commission to act as a preliminary enforcement authority. The Commission is empowered to keep under review the working of the Ordinance, and to prepare and submit to the Governor proposals for amending the Ordinance, as it deems necessary. It may also perform such other functions as are entrusted to it under the Ordinance or any other enactment. In addition, the Commission is empowered to work towards the elimination of discrimination, harassment and vilification, and to promote equality of opportunity between persons with and those without a disability. The Commission may also issue codes of practice, as well as conduct and report on formal investigations in connection with the carrying out of any of its functions. (9) The Indian Bill provides for the appointment of a Chief Commissioner and Commissioners for Persons with Disabilities, by the central government and State Governments, respectively. (10) (b) Grounds for liabilities In all cases, the legislation reviewed contain penal provisions. An analysis of those provisions indicates that the following types of action may constitute grounds for civil, criminal and administrative liabilities: 1. Discrimination and harassment on the ground of disability in the matters of education, training and employment, as well as use of public facilities, goods and services, accommodation and access to buildings, places and transport system; (11) 2. Vilification of or causing insults to persons with disabilities by any act in public; (12) 3. Maltreatment of persons with disabilities; (13) 4. Refusal or neglect to foster a disabled person by an individual who is responsible for doing so; (14) 5. Infringement of the civil and political rights of disabled persons. (15) 6. Non-implementation of laws, rules, bye-laws, regulations, executive orders, guidelines or instructions made or issued by the appropriate Governments and the local authorities for the welfare and protection of rights of persons with disabilities; (16) 7. Contravention of a quota scheme specifying the hiring obligations of enterprises concerning the employment of disabled persons; (17) 8. Refusal to correct and modify facilities and equipment to conform to the prescribed standards; (18) 9. Failure to report in advance to the Mayor or Governor on the abolition or suspension of a welfare institution for persons with disabilities. (19) (c) Enforcement procedures and strategies In order to enforce the penal provisions, enforcement procedures and strategies have been envisaged in the respective legislation. Under the Disability Discrimination Act (1992), Australia has established a conciliation procedure for determination of a complaint. Hong Kong has also followed this enforcement procedure in its Disability Discrimination Ordinance (1995). The respective Commissions in Australia and Hong Kong have been invested with the powers to settle, by conciliation, complaints of discrimination and harassment. The Commissions have also been equipped with wide powers to conduct investigations and enquiries, take evidence, as well as compel attendance of parties at hearings, provision of information in writing or orally, and production of relevant documents. These laws do not stipulate criminal liability in the event of breach of any of their provisions. Legal remedies such as award of compensation, order of injunction restraining the continuance of a discriminatory act and order for making available the facility either withdrawn or withheld on the ground of disability, are included in the above-mentioned Act and Ordinance. Hong Kong s Disability Discrimination Ordinance (1995) also provides for the Commission to extend legal and other assistance to persons with disabilities, to institute proceedings where complaints lodged have not been settled. (20) In the case of maltreatment of disabled persons, Article 52 of the Law of the People s Republic of China on the Protection of Disabled Persons (1990) stipulates punitive action in accordance with the provisions of Article 22 of the Regulations on Administrative Penalties for Public Security of the People s Republic of China. If the circumstances are flagrant, the Law provides for investigation of criminal responsibility in accordance with the relevant Articles of the Criminal Law of the People s Republic of China. (21) The Indian Bill and the Disabled Persons Fundamental Law of Japan contain provisions that link accountability regarding enforcement with scrutiny by the highest legislative bodies in the land. The Indian Bill requires the submission of annual reports by the Chief Commissioner and the Commissioners for Persons with Disabilities, to Parliament and the State Legislatures, respectively. The reports must contain recommendations explaining the actions taken or proposed to be taken, as they relate to the respective Governments (Central and State), and the reasons for non-acceptance, if any, of any recommendations. In Japan, the Fundamental Law requires the Government to submit annual reports to the Diet regarding the current status of measures taken for disabled persons. The Law for Employment Promotion, etc., of the Disabled, of Japan is a unique example in the ESCAP region in that its enforcement approach is based on a combination of incentives (grants and subsidies) for observance of and disincentives (levies) in cases where there is a breach of its clauses. ___________________________________________________________________________ (1) Section 5. (2) Those disabled persons who have been registered with the Employment Exchange of the area in which the establishments are located and against whose names an endorsement exists to the effect that they are fit to work. (3) Chapter I, Sections 8 (b) and (c), 24 and 42. (4) As certified by the Social Welfare and Development Office of the local government unit or the Department of Social Welfare and Development. (5) Section 11. (6) Clause 3, Article 125, Section III, "Employment of the Disabled", Chapter XI, Special Provisions concerning Young Workers and Other Categories of Workers. (7) Section 67.(1). (8) Sections 68, 70 and 71-76. (9) Sections 60, 62-67. (10) Chapter XII, Clauses 57-65 and 70. (11) Sections 5-6, 22, 37-38, 15, 35-36, 24, 39-40, 25, 23, 26-28, of the Disability Discrimination Act (1992), Australia; Sections 32-36, Magna Carta for Disabled Persons (1991), Philippines; Article 57 ([1], [3],), the Welfare Law for Persons with Disabilities (1989), Republic of Korea. (12) Article 52, Law of the People s Republic of China on the Protection of Disabled Persons (1990); Clauses 43-44, 75 and 77-79, Disability Discrimination Ordinance (1995), Hong Kong. (13) Article 52, Law of the People s Republic of China on the Protection of Disabled Persons (1990). (14) Article 52, Law of the People s Republic of China on the Protection of Disabled Persons (1990). (15) Articles 49-52, Law of the People s Republic of China on the Protection of Disable Persons (1990); Sections 29-31 and 46, Magna Carta for Disabled Persons (1991), Philippines. (16) Clause 59 (b) and 62 (b), The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Bill (1995), India. (17) Articles 26-39, Law for Employment Promotion, etc., of the Disabled (1960, amended in 1976), Japan; Articles 34-44, Act relating to Employment Promotion, etc., of the Handicapped (1990), Republic of Korea. (18) Article 57, para. 3, Welfare Law for Persons with Disabilities (1989), Republic of Korea. (19) Article 57, para. 4, Welfare Law for Persons with Disabilities (1989), Republic of Korea. (20) Section 79, Disability Discrimination Ordinance (1995), Hong Kong. (21) Articles 139 (concerning rape, bodily injury or death), 145 (concerning violence by other methods, including public insults, defamation and the use of wall posters), 182 (concerning maltreatment by a family member resulting in serious injury or death), 183 (pertaining to negligence of proper duty to support dependants who cannot live independently). ___________________________________________________________________________ E. CONCLUSIONS From the preceding analysis of legislation pertaining to equal opportunities and full participation in development for disabled persons in the ESCAP region, the following conclusions emerge: To date, only a few countries in the ESCAP region have formulated comprehensive legislation in support of the equality and full participation of persons with disabilities. However, the initiatives that are under way in the region are promising. It may be expected that, in the remaining seven years of the Asian and Pacific Decade of Disabled Persons, more ESCAP developing and least developed countries will match their success in the economic sphere with greater attention to the full participation and equality of people with disabilities. In certain countries in the ESCAP region, efforts are under way to formulate national policies concerning persons with disabilities. Such policies are an important step in the evolution of equalization legislation. Among those countries and territories which have legislation concerning disabled persons, there is considerable difference in the level of implementation and enforcement. While some countries of the region have established the necessary mechanisms for implementation and enforcement of their respective legislation, others are still at a preliminary stage of doing so. Interest among ESCAP developing countries in legislative support for the goals of full participation and equality may be traced back to the late 1970s and early 1980s. However, the milestones in the development of comprehensive equalization legislation in the region have emerged only in the 1990s. In most cases, where equalization legislation exists, the implementing rules and regulations have yet to be formulated. Thus, overall, the implementation and enforcement of existing legislation have not yet made much headway. All the examples of legislation reviewed have, ultimately, left the enforcement of their respective provisions to Courts of Law, without prescribing special summary procedures to be followed in the event of proceedings under the respective legislation. This makes it difficult for persons with disabilities, who usually have limited resources and legal knowledge, to participate in complicated, lengthy and expensive legal processes. There is a need for concerted efforts to be made on information dissemination and public awareness-raising concerning equalization legislation. In countries where such legislation exists, public awareness-raising programmes on various provisions are required, which aim at generating understanding among both disabled and non-disabled citizens in diverse sectors. Such programmes are also needed where there is general ignorance of the citizenship rights of people with disabilities. Very few countries in the ESCAP region have developed mechanisms and criteria for regular monitoring, periodic evaluation and strengthening of equalization legislation, using the feedback obtained. The absence of adequate mechanisms and criteria for monitoring and evaluation, particularly if compounded by a lack of resource allocations, means that well-drafted legislation with excellent provisions may languish. Recommendations The development of legislative support for disabled persons to enjoy their rights to full participation and equality is a continuous, long-term process. The following actions are proposed to expedite that process: 1. Governments in the ESCAP region may consider establishing: (a) Permanent, statutory mechanisms to: i. Review existing laws (both substantive and procedural) to identify discriminatory provisions; ii. Formulate equalization legislation with the broad participation of diverse government agencies, civic/non-governmental organizations, and people with disabilities; iii. Encourage and expedite the reporting of discriminatory practice, and investigate the cases reported; iv. Incorporate enabling provisions in existing laws to ensure that the same degree of legal protection is extended to persons with disabilities (as to non-disabled persons); v. Promote through diverse means the development, implementation and strengthening of the legislation; vi. Prepare, for submission to the highest-level legislative body, annual reports on the progress of the legislation. (b) Monitoring and evaluation mechanisms, which may include: i. Participation of persons with disabilities; ii. Joint citizen-government committees to obtain information on the impact of the legislation on the lives of people with disabilities; iii. Organization of para-legal training for persons with disabilities, particularly at the community level, to enable them to participate in citizen monitoring of the legislation; iv. Inclusion, by Parliamentary Committees on different subjects, the criteria of impact (on the lives of persons with disabilities) in their review of all Bills introduced in Parliament; v. Appointment of a Disability Legislation Officer in the national, State/provincial legislature, to be charged with the responsibility of reviewing all new draft Bills for sensitivity to equalization issues, and to submit reports to the Parliamentary/State/Provincial Legislature Committees on different subjects. 2. The criteria for reviewing the sufficiency of equalization legislation may include the following: (a) Extent to which provisions of the law have been successful in eliminating discrimination, on the ground of disability, in different areas of public life. (b) Extent to which the provisions in legislation have enabled persons with disabilities to participate in community life. (c) Expansion of programmes, services and welfare measures for persons with disabilities to promote their equality and full participation. (d) Effectiveness of implementation and enforcement mechanisms, as well as procedures.