Letter to Moroccan Parliament on Draft Disability Law

We are writing about the Draft law 97.13 on the protection and advancement of persons with disabilities (Draft Framework Law), which Morocco’s Parliament is currently examining. We would like to share our observations about the Draft Framework Law in light of Morocco's obligations under the Convention on the Rights of Persons with Disabilities (CRPD) and other international human rights treaties, as well as the Constitution of Morocco.

First, we would like to express our thanks to the government for arranging for us a meeting in Rabat on April 29 with officials from the ministries that participated in the drafting of this law, including Social Development, Education, Justice, and Health.

We also spoke with other stakeholders in Morocco, including leaders of disability rights organizations, disabled persons organizations, persons with disabilities and their families, members of independent human rights associations, the National Council on Human Rights (CNDH) and the Economic and Social Council.

Building on the comments you have already received from several disability rights organizations, the CNDH, and the Economic and Social Council, we would like to share additional comments based on our expertise in the implementation of the CRPD across the world. Our comments will focus on the following issues:

• A rights-based approach to disability
• The right to legal capacity
• The right to education
• The participation of persons with disabilities and their representative organizations

1. Comments on Draft Framework Law

                A. A rights-based approach to disability

The CRPD outlines a human rights-based approach to disability, emphasizing that persons with disabilities are holders of rights rather than simply the beneficiaries of charity or services. The Committee on the Rights of Persons with Disabilities (CRPD Committee) has been clear that states violate the CRPD when their laws and practices follow a "medical model" approach to disability - placing too much emphasis on diagnosis, prevention, treatment, and providing services to persons with disabilities to adapt them to society - rather than ensuring that states themselves adapt to ensure that persons with disabilities are fully included and can exercise their rights.^[1]

Human Rights Watch is concerned that the Draft Framework Law does not yet adequately reflect the rights-based approach to disability, as it places undue emphasis on the diagnosis and prevention of disability and does not sufficiently address the need for society to adapt to ensure the participation and inclusion of persons with disabilities in all aspects of life, as outlined in the CRPD. For instance, the first objective in Article 1 of the Draft Framework Law is "[p]reventing and diagnosing disability and sensitization of the need to take precautionary steps to avoid it," conveying that prevention and diagnosis of disability is the primary purpose of the law. Although the remaining objectives listed in Article 1 promote the rights of persons with disabilities, these rights focus on adapting persons with disabilities to society rather than on ensuring that society itself is inclusive.

During the CRPD negotiations, there was considerable debate on whether to include prevention of disability among these principles. Although prevention of certain disabling conditions may be one component of government health initiatives, it was ultimately excluded as a key principle in the CRPD, in part because preventing disability does not play a significant role in ensuring the rights of persons with disabilities specifically. In fact, the CRPD contains only one reference to the prevention of disability, as one aspect of the right to health.^[2]
 

Recommendations

• Amend Article 1 of the Draft Framework Law to emphasize ensuring the full respect, protection, and fulfillment of the rights of persons with disabilities as the primary objective, instead of focusing on the prevention and diagnosis of disability.
• Include an additional objective in Article 1 of the Draft Framework Law affirming the need to adapt society itself to ensure the inclusion and participation of persons with disabilities.

                B. Right to legal capacity 

Article 12(2) of the CRPD specifically provides a right to legal capacity for persons with disabilities, which includes the right to exercise all of their rights and have their decisions recognized by the law on an equal basis with others and without discrimination based on disability.^[3]

According to the CRPD Committee, all people, including people with disabilities, maintain a right to legal capacity "simply by virtue of being human."^[4] It further notes that the exercise of legal capacity is "the key to accessing meaningful participation in society" for all persons, including persons with disabilities.^[5] For example, the CRPD Committee has found that legal capacity "acquires a special significance for persons with disabilities when they have to make fundamental decisions regarding their health, education and work," while the denial of legal capacity has led to numerous violations of these rights for persons with disabilities.^[6]

The CRPD Committee has repeatedly found that legal regimes that deprive persons with disabilities of their legal capacity and assign others to make decisions and exercise rights on their behalf - such as guardianship - do not conform with Article 12 of the CRPD and should be abolished.^[7] Instead, the CRPD in Article 12(3) requires that states provide support when needed and requested to persons with disabilities so that they can exercise their rights and make important life decisions for themselves.^[8]

The Draft Framework Law can strengthen protections of the right to legal capacity for persons with disabilities, including by overturning previous laws that limit the exercise of legal capacity for persons with disabilities. And although Article 19 of the Draft Framework Law provides for persons with disabilities to "enjoy full competence to exercise their civil and political liberties and rights," it qualifies this by stating that this competence should only be recognized "in accordance with the conditions set forth by law."^[9]

The current "conditions set forth by law" in Morocco do not yet conform with Article 12 of the CRPD. For instance, the Family Code of Morocco indicates that persons with disabilities, particularly intellectual or psychosocial disabilities^[10], may be deprived of their functional legal capacity--including the ability to exercise personal and financial rights--and assigned a guardian to make decisions for them.^[11] Individuals with intellectual or psychosocial disabilities, solely based on a doctor's assessment, are deprived of legal capacity when they turn 18 without a formal legal process or can be deprived of legal capacity and assigned a guardian or family member to make decisions for them by a court if they acquire the disability as an adult.^[12] The person with disability can challenge this assignment in court but must demonstrate that they no longer have the "symptoms" of their disability in order to do so.^[13]

Deprivation of legal capacity in Morocco places many limitations on an individual's exercise of rights under Moroccan law. For instance, the Moroccan Code of Contracts requires the consent of a guardian for people deprived of legal capacity, thus limiting opportunities for employment, to control finances, or to enter into other agreements.^[14] The Family Code of Morocco states that all actions taken by persons deprived of legal capacity are null and without effect unless specifically allowed by the court when depriving them of capacity, thus limiting almost every opportunity for these individuals to exercise their rights.^[15]

We welcome that the government is planning to amend the Civil Code, including the Family Code and the Code of Contracts, in line with an overhaul of Moroccan law.^[16] It is unclear, however, what the timeline will be for such amendments and whether these amendments will ensure the right to legal capacity for persons with disabilities in line with the CRPD. And although the Constitution of Morocco protects persons with disabilities from discrimination, it is unclear whether this would extend to ensuring their full rights under Article 12 of the CRPD and thus influence the interpretation of the Draft Framework Law.

Recommendations;

• Amend Article 19 of the Draft Framework Law to state that persons with disabilities have full competence to exercise all of their rights in accordance with Article 12 of the CRPD.
• Strengthen Article 19 of the Draft Framework Law to clarify that persons with disabilities should not be deprived of their legal capacity, either formally or informally, and should be provided with support when needed to exercise their rights and make important life decisions for themselves.

                C. The right to education

The CRPD requires that all persons with disabilities have access to education on an equal basis with others (Article 24) and be provided with reasonable accommodations if needed.^[17] The CRPD Committee has in turn found that states violate the right to education when they segregate persons with disabilities into special schools without the option to attend mainstream schools with reasonable accommodation. The Committee has also explained that children with disabilities are denied their right to education if they are placed in special classes in mainstream schools where there is little interaction with other students, and if students with disabilities receive sub-standard education because they are not provided with reasonable accommodation.^[18] Indeed, the CRPD specifically states that the denial of reasonable accommodation is a form of discrimination on the basis of disability.^[19]

Based on the April 2015 statement by the government, Morocco appears to have a long-term plan for ensuring the integration of children with disabilities into mainstream schools and classes in Morocco's public schools. This is a welcome step forward.

We also appreciate that the Ministry of Education has issued circulars requiring schools to ensure the inclusion of children with disabilities in mainstream schools and classrooms. However, families of children with autism and intellectual disabilities in Morocco report significant problems integrating their children into mainstream schools, including objections from schools and teachers about having assistants in the classroom assigned to work with students with disabilities. They also raised concerns about the quality of education their children receive in special classes or in mainstream classes without assistants and about the lack of government support for providing reasonable accommodations for integrating their children into mainstream classes.

Additionally, as we understand, some NGOs are providing a significant amount of support to children with disabilities in schools--including by training, paying, and providing learning assistants for children with autism or intellectual disabilities and running parallel classrooms for these children-at their own expense or at the expense of families and with little or no government support for these services. This has meant that mainly families with sufficient financial and other means are able to provide instructional support for their children, leaving many children with disabilities behind. Parents say that they rely on these NGO programs because mainstream schools will either not accept their children or will not provide them with needed accommodations to receive an adequate education. 

We urge you to consider amending the Draft Framework Law to address some of these issues, and to bring the law in line with national and international law. First, the law should include an appropriate accountability mechanism to ensure access to education for children with disabilities on an equal basis with others, whereby children with disabilities and their families can report denial of enrollment or reasonable accommodation in mainstream schools and receive speedy replies. The Draft Framework Law should also clearly shift the burden of providing reasonable accommodation - including individual support for children with disabilities - from families to the state. Although this issue could be addressed in more detail in other supplementary laws, we hope that accountability and state responsibility for ensuring reasonable accommodation can be stated as important principles in the Draft Framework Law.

Finally, we are also concerned that the Draft Framework Law as currently written may be interpreted to limit access to mainstream or inclusive education for some persons with disabilities, particularly autism or intellectual disabilities. Article 12 of the Draft Framework Law mandates the creation of separate institutions for education and training of persons with disabilities "who are unable to pursue their education and training at other institutions," which may promote continued segregation of children with intellectual or other disabilities, contribute to stigma surrounding disability, and deny these children the right to an education with their peers. Children with disabilities should only be placed in separate schools on the basis of a meaningful choice by the children and their families, and only in cases where this environment maximizes their academic and social development, consistent with the goal of full inclusion, as mandated by the CRPD.

Recommendations:

• Include in the Draft Framework Law a definition of reasonable accommodation in line with Art. 2 of the CRPD, noting that denial of reasonable accommodation, including in access to education, is a form of disability discrimination.

• Include in the Draft Framework Law a clause that specifically requires the state - rather than NGOs or parents - to provide reasonable accommodation for children with disabilities in schools, including by funding this reasonable accommodation and setting up programs to ensure access.

• Remove clauses in the Draft Framework Law that imply limits to the education that persons with disabilities can receive or require segregation, such as the reference to persons with disabilities "unable" to receive education in mainstream schools. Instead, replace this language to ensure that “Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion,” as required by CRPD Article 24 (2e).

• Call for greater investment of resources towards integrating persons with disabilities into mainstream schools and classrooms.

• Insert an additional paragraph in the Draft Framework Law that establishes an accessible reporting mechanism for parents and children with disabilities who are denied access to education or reasonable accommodation.

                D. The participation of persons with disabilities and their representative organizations

Finally, in line with the spirit of the CRPD and the principle of inclusion and participation conveyed in the disability movement’s slogan “Nothing about us without us,” we urge the government to ensure that persons with disabilities and their representative organizations in Morocco are adequately included in the process of developing this Draft Framework Law. According to NGOs and government officials, NGOs were not involved in the writing of the current Draft Framework Law, though some were included in a 2010 process in which they worked with officials to draft another law. Although the Ministry of Social Development indicated, in our meeting on April 29, that these earlier consultations were all part of the same process for developing the current Draft Framework Law, the current draft differs significantly from what was developed in 2010.

Now that the Draft Framework Law has been put forward for adoption by the Parliament, we hope that you give the comments from persons with disabilities and their representative organizations due importance in your deliberations. The Draft Framework Law could also be strengthened by including specific provisions to ensure the meaningful participation of persons with disabilities and their representative organizations in developing future legislation to implement the law, as required in Article 4(3) of the CRPD.

Recommendations

• Ensure that persons with disabilities and their representative organizations are included at all stages - development, drafting, passage, implementation, and monitoring – of the Draft Framework Law and other legislation or regulations related to persons with disabilities 
• Include in the Draft Framework Law a reference to the importance of the principle of participation of persons with disabilities and require state agencies to include persons with disabilities in any initiatives that may affect them.

2. Conclusions

Thank you for your time and attention to this letter. We would greatly appreciate the opportunity to discuss these concerns with you further and would be available to meet with you in person at your earliest convenience to hold these discussions. We will follow up with you to arrange a time to meet. We hope that our comments are useful to you in your deliberations and look forward to working together to promote the rights of persons with disabilities.