The right to vote of persons with disabilities: an analysis from the Social Model of Disability

Argentina has ratified the Convention on the Rights of Persons with Disabilities (Law 26,378), enshrining its comprehensive protection and establishing a “social model” when conceptualizing disability. This model abandons the system of substitution of decision-making, promoting autonomy and self-government. However, the Argentine Electoral Code (CE) excludes people with mental disabilities from the right to vote. In the decision H.O.F, dated 06/10/18, the Supreme Court of Justice (CSJN) understood that “the declaration of incapacity does not entail the automatic restriction to the right to vote, according to the social model of disability”. The purpose of this paper is to analyse the reasoning of the CSJN and its implications when interpreting the CE, and to contrast this analysis with the philosophical-political principles that emerge from the protective norms and the social model of disability.

Avoiding stigma and discrimination when providing inclusion, accessibility and support: the case of the right to vote of people with disabilities

This paper uses the critical diagnosis of access to the right to vote of people with disabilities (PD) and the recommendations that can be found to solve the problems that affect them, to analyse the tensions in the access of people with mental disabilities to citizenship. The electoral exclusion and the difficulties that the PD experience in practice when voting invite to think in terms of accessibility and support, on the one hand, and in changing eligibility rules, on the other. However, the concrete ways in which these policies materialize can generate new problems for PD in their relation to the political process. We must avoid the emergence of new problems through a better and more informed electoral regulation, but also we must realize the difficulties that inclusive measures, accessibility and support can generate for PD if these measures are not considered as part of transformative solutions that seek to eliminate varied and profound forms of discrimination and stigma.

Electoral exclusion of people with intellectual, cognitive and psychosocial disabilities in Chile

Article 16 Nº 1 of the Chilean Constitution prohibits people with intellectual, cognitive and psychosocial disabilities (PICPD) who have been deprived of their legal capacity from voting. This paper critically discusses the rationale for this practice in light of Article 29 of the Convention of Rights of Persons with Disabilities and raises several questions. For instance, is conditioning the right to vote to any kind of capacity assessment legitimate? Have Chilean courts considered any cases related to the right to vote of PICPD? What role could PICPD themselves play in reforms to remove barriers to the right to vote? These questions become more pressing when viewed against the backdrop of widespread constitutional provisions depriving PICPD of the right to vote in Latin America. Adopting this view will contribute to a better understanding of the extent of discriminatory practices in
the region. At the same time, it will also highlight constitutionally entrenched inclusive measures.

Towards the end of disability-based paternalism?: Some thoughts over the concept of 'safeguards' in the recent Civil Code Reform in Peru on the legal capacity of persons with disabilities

Peru has recently modified its Civil Code to comply with the standards of the Convention on the Rights of Persons with Disabilities. Therefore, it eliminated any disability-based guardianship and replaced it with a system of supports and safeguards. The idea of guardianship is based on a paternalistic approach towards autonomy. Only a certain type of people would be able to be autonomous: the rational ones. Such rationality has usually been related to gender or race. Even though those perspectives have long been surpassed, such idea persists in the case of persons with disabilities. This paper will provide arguments for the elimination of disability-based guardianship. In order to do that, it is necessary to re frame the idea of autonomy in a disability-inclusive manner. This paper will analyze if the efforts of the Peruvian Civil Code in that way. It will be particularly important to see if the “safeguards” are compatible with a disability-inclusive idea of autonomy

Same rights and same duties: Criminal liability of persons with disabilities

The disability rights academia has held a long debate regarding the correct interpretation of legal capacity. Such debate has not been as long regarding one of the consequences of such capacity: criminal liability. Traditionally, persons with disabilities were not subject to regular criminal procedures. They usually were labelled as “unfit to stand in trial” and sent to psychiatric institutions. The notion of the social model of disability and the entry into force of the Convention on the Rights of Persons with Disabilities has challenged this idea, mainly due to the human rights violations related to involuntary hospitalization. This paper will try to provide an argument for a much restricted version of “non-imputability” for persons with disabilities that cannot be based only on the disability of the person.