Floyd Morris | A new era for disability advocacy

In recent times, I have had conversations with persons with disabilities and others within the society about the Disabilities Act that has been enacted in Jamaica. Some of these individuals have concluded that the legislation is not impactful on the lives of persons with disabilities. Some have even proffered the view that the legislation has not brought about the transformation that is needed in society.

Twenty-four years ago, when I served as minister of state in the Ministry of Labour and Social Security, I met with the community of persons with disabilities to find out what were the priority areas for this marginalised community. At the top of the list was legislation to protect the rights and dignity of persons with disabilities.

Instructions were given to draft the Disabilities Act in 2004. By 2014, the legislation was enacted by the parliament.

PROTECTION AGAINST DISCRIMINATION

The Disabilities Act is an anti-discriminatory legislation that seeks to protect persons with disabilities against all forms of discrimination. Section 25 of the Disabilities Act states: “A person with a disability shall not, by reason of such disability, be subject to any form of discrimination.” For persons with disabilities in Jamaica to fully reap the dividends of this transformational piece of social legislation, the antidiscrimination features must be understood. This is going to require a shift from the traditional modes of advocacy for persons with disabilities. It cannot just be about welfare in the modern era. The focus must be on advocating for the enforcement of the rights and dignity of persons with disabilities.

For centuries, the rights and dignity of persons with disabilities have been transgressed, as they have been seen as subhuman by some individuals in society. We must reject this ableist rhetoric of subhumanity. Persons with disabilities are human beings and are therefore rights-holders, as now fully recognised by national and international law.

DAILY DISCRIMINATION

Daily, persons with disabilities have been discriminated against in Jamaica. In areas of education, employment, public transportation, social protection and access to public facilities, discrimination is most evident. Research data is showing up to 91 per cent of persons with disabilities in Jamaica unemployed, at a time when the government is reporting almost three per cent unemployment. With this elevated level of unemployment among persons with disabilities, discrimination is suggested as the root cause.

Under the Disabilities Act, once a business or institution is offering a service or benefit to the public, it must be made accessible to persons with disabilities. It is regarded as an ‘ex ante duty’ by the UN Committee on the Convention on the Rights of Persons with Disabilities. Any business or institution opened to the public must be accessible to persons with disabilities before they seek to access the service or benefit. Failure to provide such accessibility constitutes an act of discrimination, as it is “restricting” and “preventing” persons with disabilities from participating in society.

DISABILITY RIGHTS TRIBUNAL

The Disabilities Act has moved to establish a creative mechanism, the Disability Rights Tribunal (DRT), which, hitherto, never existed in any similar legislation in the Caribbean. The DRT is a quasi-judicial body with powers to make binding decisions on matters brought before it.

Whilst the DRT is in its nascent stage, there is a cruciality to its utility in the fight against discrimination of persons with disabilities. Most persons with disabilities in Jamaica are poor individuals and they do not have the resources to hire a lawyer to take a matter to court to defend their rights. With the DRT, there is no need for such legal machinations.

HOW TO GET A MATTER BEFORE THE DRT

The Disabilities Act requires that, if a person with a disability feels that he or she is discriminated against, that individual, or caregiver, can lodge a complaint to the Jamaica Council for Persons with Disabilities (JCPD). After completing the prescribed form, the JCPD is duty bound to investigate the formal complaint that is made by the person with disability or the caregiver. After the investigation, and if the problem is not resolved, the JCPD can refer the matter to alternate dispute resolution or to the DRT for adjudication. Once the matter goes to the DRT, the team will decide on the matter based on what is presented to it.

I am fully comfortable and confident in the competence of the members. These are eminently qualified individuals in their respective professions, and include persons with disabilities.

NEW ERA OF ADVOCACY

In this new era of disability advocacy, the rights of persons with disabilities take notoriety. Persons with disabilities must be prepared to stand up for their rights, even when individuals will want us to recoil. If we do not have cases being brought to the DRT, the negative attitudes and wanton discrimination will not be eradicated. We must be bold and evaluate the law. If we do not evaluate the law, we cannot say that it is ineffective.

So, unlike some individuals who are ready to conclude that the Disabilities Act is not effective, I am not there with them. If persons with disabilities are denied a service or benefit based on their disability, the matter must be brought to the JCPD and documented for action.

Senator Floyd Morris is a professor in disability studies and politics at the UWI Mona. He is also the director of the Centre for Disability Studies at UWI Mona. Send feedback to morrisfloyd@gmail.com