Sharing vision - Bringing Empowerment

Seminar: Disability law 2010 - High time for changes!?

  • Perform: Lê Hoa (Translator: Ánh Nguyễn)
  • 30/11/2021

SESSION I - SUGGESTIONS TO COMPLETE CHAPTER I OF DISABILITY LAW 2010

Vietnam's Disability Law was established in 2010 and for the past 10 years has always been considered the prominent legal basis to ensure the implementation of the rights for persons with disabilities in many fields. However, after carrying out The Law for a period of time, Disability Law 2010 has revealed several shortcomings that failed to meet the requirements of the Convention on the rights of persons with disabilities (CRPD) as well as lack of synchronization with the legal system of Vietnam. Those inadequacies raised an urgent request for research to revise and improve the Disability Law to be consistent with the CRPD, which Vietnam has been participating in, and the current legal system, as well as to be in accordance with the current socio-economic growing status in Vietnam. From this, a concrete legal basis is built to guarantee the practicality of rights of persons with disabilities in Vietnam.1 

The scope of research into the policies of Disability Law is extremely wide, therefore, in this article, the author would like to address a number of issues in hope of contributing to the completion of the contents in Chapter I (general provisions) of Disability Law 2010. 

An overview of Disability Law 2010 - Chapter I:

With a total of 14 articles, besides from the scope of regulation and word interpretation (Article 1 and 2), the terms and conditions in Chapter I (general provisions) of Disability Law 2010 are considered to be quite complete, from rules regarding classifications and levels of disability (Article 3), rights and obligations of persons with disabilities (Article 4) to provisions on general policies of the State, the responsibilities of organizations, families and individuals to persons with disabilities (Article 5, 7 and 8); social policies for assistance to person with disabilities (Article 6); media communication issues and prohibited acts in regard to ensuring human and civil rights for persons with disabilities (Article 13, 14) etc. All regulations in this Chapter contain the most fundamental legal policies, guiding the direction and foundation for the principle policies. 

Discussion about the inadequacies in the general provisions (Chapter I) of Disability Law: 

About the definition of persons with disabilities:

Article 1 of CRPD presented an overview: “Persons with disabilities include those with long-term physical, mental, intellectual disabilities that, when interacting with various barriers, can hinder the efficiency and fulfillment of their social participation based on an equal basis with others.” It can be seen that the identification provided by CRPD has addressed effectively in terms of medical, social and rights aspects. 

Meanwhile, according to Paragraph 1, Article 2 of Disability Law 2010, persons with disabilities are defined as “people with impairment with one or more body parts, or functional defects manifested in the form of disabilities that make it difficult to work, live or study.” This definition primarily approaches the medical aspect but lacks in mentions of barriers (potential barriers) that persons with disabilities may face when participating in social relations, based on an equal basis with others.

Mainstreaming means: assisting persons with disabilities to live, study and work in specific conditions, where they have the best opportunities to be as independent as possible. However, “inclusivity" isn't simply just bringing children with disabilities into an education program with non-disabled children, but establishing clear steps to ensure children with disabilities can fully and actively take part in class activities. 

Thus, in comparison with the overview by CRPD, the definition in Disability Law 2010 lacks inclusivity and still has points that are incompatible with CRPD's view. Research in need to make adjustments to the definition of persons with disabilities in Disability Law (Paragraph 1, Article 2 - Disability Law 2010) in a more inclusive way that fits with the definition of persons with disabilities by CRPD. Accordingly, persons with disabilities should be defined from all aspects including medical, social and rights. 

About the term "inclusive education"

Currently, Vietnam's Education Law 2019 has a definition reflecting the nature of inclusive education. This states: “Inclusive education is an educational method that adapts to the different requirements and abilities of the learners; ensure equal learning rights, education quality, in accordance to each learner's needs and characteristics and abilities; respects the diversity and differences of all learners without any discrimination.” (Paragraph 1, Article 15, Education Law 2019). 

Compared to the definition by Education Law, the definition that “Inclusive education is the method of educating both children with disabilities and non-disabled children in educational institutions'' under Paragraph 4, Article 2 of the current Disability Law 2010 only explained part of inclusive education but not the complete nature or basis content of this educational method. Therefore, research is necessary to revise and make adjustments to the term “inclusive education" for persons with disabilities in Item 4, Paragraph 1, Article 2 of Disability Law 2010 in a clearer, more complete and comprehensive way on the maximum inheritance basis of the definition by Education Law. 

About the classifications of disabilities

According to Paragraph 1, Article 3 of Disability Law 2010, there are 6 classifications of disabilities, which are: motor disabilities, hearing and speaking disabilities, vision disabilities, neurological and mental disabilities, intellectual disabilities, and other forms of disability. With these classifications of Disability Law 2010, autism is not a seperate form of disability.

As reported by the Ministry of Labor, Invalids and Social Affairs' preliminary statistics in 2009, the number of people with autism was 200 thousand. In 2019, experts estimated that there were about 1 million children with autism and 8 million people who were directly affected in Vietnam. 

In the detailed guiding documents of the Disability Law 2010’s implementation, people on the autism disorder spectrum, with confirmation from provincial health facilities, will be put in the category “other forms of disability"2. However, the generalization of autism with other forms of disability is problematic in both the professional field and the practical application of the policy. Specifically: according to some experts, autism is a broad spectrum and an extremely complex form of disability, with no limit to the areas of influence. If autism is classified as a form of “neurological and mental disability", in reality, there are many autistic people facing common issues in social interactions but don't show enough identifiable signs of neurological or developmental delays. Grouping autism with “mental retardation” isn't suitable because according to scientists' study, 75% of children with autism have developmental delays, 25% have normal intellectual and 3-5% are highly intelligent. Adding autism into “other forms of disability" can lead to misunderstanding that autism isn't an official form of disability...3

In fact, some localities have refused to make disability recognition records for people with autism. This is partly due to inadequate and clear policy, along with a lack of consistency in the direction of sectors, levels, and cognitive limitations of local officials in confirming disability for children with autism (citing autism as a curable disease rather than a form of disability).4

In order to ensure appropriate support for people with this type of disability, research is required to provide additional revisions to Disability Law 2010 (Paragraph 1, Article 3) to separate autism from other forms of disability. This regulation will be beneficial in managing specific policies in the field of medical and education, etc.

About the levels of disabilities

According to the current law, disabilities are sorted into 03 different levels, which are: very severe, severe and mild (Paragraph 2, Article 3, Disability Law 2010). The conclusion of the Medical Assessment Council (before June 1, 2012) on an individual’s self-serving ability and decline rate of working ability is one of the ground rules for the Council to examine, assess and evaluate the levels of disability.5 A person is confirmed to have mild disability when being concluded by the Council as “having self-serving ability and decline rate of working ability under 61%” (Item C, Paragraph 3, Article 4, Decree 28/2012/ND-CP). 

However, on the same aspect of assessing working ability's decline rate, Labor Law 2019 has classified “workers with mild disabilities and working ability's decline rate of 51% and up" as people in need of special protection in occupational health and safety, on the same par as those with very severe and severe disabilities. Article 160 of Labor Law has prohibited employers from making employees with disabilities work overtime or work at night (unless with consent) for these three following subjects: persons with mild disabilities and working ability's decline rate from 51%, persons with severe or very severe disabilities. Thus, in the same legal basis, the content of the current laws has showcased different views on the issue of assessing levels of disabilities. 

According to the current law, the primary basis to determine the social protection policy entitlement of a person with disabilities is based on their level of disabilities (not on their disabled classification).6 People with very severe or severe disabilities are entitled to social protection policy; free health insurance; free legal aid 7 and various other policies. People with mild disabilities aren't entitled to the mentioned above policies, they are granted certain offers in education, apprenticeships and preferential start-up loans, etc. 

Hence, the three levels of disabilities in accordance with the current Disability Law 2010 have possibly led to the disadvantage in the policy beneficiary for a group of persons with disabilities: sorted into mild disabilities group by law, but self-serving ability and working ability's decline rate range from 51% to 61%? To help strengthen the rationality and fairness in policies, specifically social protection policy, health insurance, it is essential to do research for the regulation adjustments on determining levels of disabilities in Disability Law 2010 (Paragraph 2, Article 3) more precisely into 4 levels: Very severe, severe, medium and mild. 

Disability rights issues 

The view on respect for fundamental individual human rights, equal rights, the rights to be respected and treated without discriminations of each citizen, including persons with disabilities is one of the crucial Constitutional perspectives in the current Vietnam's Constitution 2013 (Article 14, 15, The 2013 Constitution). Additionally, the view on ensuring equal rights, non-discrimination and fairness for persons with disabilities is integrated in many current law acts in Vietnam. 

Analyzing the regulations of the rights of persons with disabilities at Paragraph 1, Article 4 of Disability Law 2010 has shown thạt: the Law focusing on the regulations of certain rights of persons with disabilities needs to be specifically guaranteed in some areas (Item D, Paragraph 1, Article 4) without the clear affirmation of the foremost important thing that is: Persons with disabilities have every human and civil rights under the Constitution and law to be respected and treated without discriminations, on the equal basis with others. Confirming that persons with disabilities have all the basic human rights and freedoms as well as civil rights under the Constitution and law of Vietnam without any discriminating treatment, on the same equal basis as others, needs to be kept and included in the First rights group. 

In addition, in the group of special rights guaranteed for persons with disabilities, listed under Item D, Paragraph 1, Article 4 of the current Disability Law 2010, there are still unstated important rights, such as the rights of persons with disabilities to have guaranteed support in dangerous situations and humanitarian emergencies. In the context of the current global climate change and pandemic outbreaks around the world in general and in Vietnam in particular, persons with disabilities are entitled to special guarantees to prevent and minimize risks, damages caused by natural disasters, epidemics, etc. (both are counted as dangerous situations and humanitarian emergencies), this needs to be considered as one of the important rights that must be clearly stated in the general policy of Disability Law. Adding to Paragraph 1, Article 4, Disability Law 2010: “Rights to have guaranteed support in preventing natural disasters, epidemics, and other emergencies", is in consistent with the spirit of CRPD (Article 11) as well as the the general regulations of related current law (such as the Law on Natural Disaster Prevention 2013) and the current situation of Vietnam in the general context of the world. 

Policies to ensure special support for women with disabilities

The Convention of CRPD stated in the Foreword and Article 6, 7 that women and children with disabilities are often vulnerable to violence, abuse, exploitation... and countries are to guarantee to employ every suitable method to help women (including young girls) and children with disabilities to maintain every human and freedom rights on the principle of equality. Up to this point (2021), Disability Law 2010 has confirmed part of the fundamental policies for prioritizing support for children with disabilities, focusing on policies in the field of social protection (Paragraph 3, Article 5; Paragraph 2 Article 44 of the Law). 

The downside is that Disability Law 2010 hasn’t yet appointed any special guaranteed policies for women with disabilities - who are classified as “the vulnerable in the vulnerable group” because they usually face a higher risk of violence and domestic violence than non-disabled women.8 In addition, in current legal provisions such as Gender Equality Law 2006; Domestic Violence Prevention Law 2007;... also lack other assisting policies for women with disabilities to strengthen their guaranteed legal conditions as well as the necessary protection and support against violent acts.9 This legal inadequacy needs amendments, firstly in DIsability Law. More specifically, supplements are needed to add to general policies of the States for persons with disabilities (Article 5) basic policies such as: “Taking priority measures to protect and support women and children with disabilities" in preventing domestic violence, gender-based violence and in other areas as prescribed by the law. 

About prohibited actions in the Disability Law 2010

With the provision of 07 groups of prohibited actions, in the author’s view, the content of Article 14 of Disability Law 201010 has technically expressed fully and broadly the spirit of CRPD and the 2013 Constitution. The sanctioning system for deterring and handling prohibited actions in Article 14 of Disability Law 2010 is also relatively complete.11

However, the practice of legal advice (of ACDC) has revealed existing situations where officials in charge of labor - social invalids have refused to accept applications after only eye-observed the physical condition of persons with disabilities or for other reasons; or some government officials also considered the Disabilities Certifications are only related to social protection policies and health insurance. The above situations have led to restrictions on the rights of persons with disabilities in applying for certifications or restrictions on the rights of persons with mild disabilities to benefit from the law's granted assisting policies in addition to social protection, health insurance such as apprenticeships, loans with preferential interest rates...

Particularly for the group of prohibited acts related to determining the level of disabilities, there is currently a lack in regulations to stop and prevent violations of the rights of persons with disabilities, such as refusal to receive applications without a proper reason; refusal to grant applications for persons with mild disabilities. It is highly necessary to research and adjust Paragraph 7, Article 14 of Disability Law 2010 to prohibit the act of “Refusal to accept applications and grant certifications in accordance with the law regulations.”  

The adjustment and supplement to such regulations above are the legal basis for the Government to complete and strengthen the application of necessary sanctions, in order to limit the abuse of power, violations in the process of determining levels of disabilities and violations of legal rights and benefits from the first stage of classifications in some authoritative officials. The review to make adjustments and supplements to the list of prohibited acts in Disability Law 2010 should also be considered as one of the urgent issues.