SESSION 4: THE ISSUE OF ENSURING THE RIGHTS OF PERSONS WITH DISABILITIES TO EDUCATION
As a member state of the Convention on the Rights of Persons with Disabilities (CRPD), Vietnam has acknowledged and implemented the rights of persons with disabilities to education with a clear orientation. However, the current regulations of the Disability Law still have several problems. This has resulted in the ensuring rights to study of persons with disabilities facing difficulties and challenges that need to be further revised and amended in the near future.
Education is one of the most fundamental rights and obligations of citizens, including persons with disabilities. To study is for persons with disabilities to be equipped with knowledge and skills that would help raise their awareness; to be provided with necessary conditions that would help ensure a stable and quality life, while simultaneously contributing to changing social perception and advancing the chance to live independently and participate in the community. The rights to study of persons with disabilities have been recognized in Article 24 of the Convention on the Rights of Persons with Disabilities (CRPD). More specifically, the member states acknowledge and implement the educational rights of persons with disabilities with a clear orientation, and at the same time, make sure the implementation facilitation is with appropriate supporting measures. To work towards the exercise of educational rights for persons with disabilities, the member states of CRPD must ensure that the educational systems at all levels and lifelong learning for persons with disabilities are on an equal basis with others “in primary, high school and college education... in the circumstances and conditions of integration", and “State parties need to ensure that education for persons with disabilities is an inclusive part of the national educational system"[1].
As a member state of CRPD, the State of Vietnam has an obligation to internalize the educational rights of persons with disabilities in its legal system to ensure the most suitable implementation. Therefore, up to now, Vietnam has had multiple policies on education for persons with disabilities. In addition to the policies recognized in the Disability Law 2010 (Chapter IV, from Article 27 to Article 31), several other policies on education for persons with disabilities have also been regulated in specialized legal documents, such as the Educational Law 2019 (Article 4, Article 11, Article 13, Article 15, Article 28, Article 63, Article 85…) and other documents detailing the law enforcement. It can be seen that, as a member state of CRPD, the educational policy system for persons with disabilities has demonstrated Vietnam's responsibility to recognize, respect and implement the educational rights of persons with disabilities with a clear orientation in the spirit of CRPD.
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A student with disability during class hours under the guidance of the teacher in Thua Thien Hue
However, an analyze of the educational policies for persons with disabilities in Disability Law 2010, on the basis of compatibility assessment along with relevant regulations in CRPD and provision consistency in domestic legal documents, has shown that: In the regulations of the current Disability Law still exists several drawbacks and inadequacies regarding the regulating of educational rights of persons with disabilities:
First and foremost, to ensure the rights of persons with disabilities to education, the CRPD has stipulated that “States Parties must ensure an inclusive education system at all levels and lifelong learning for persons with disabilities on the basis of equal opportunity as non-disabled people", and “ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. To this end, States Parties shall ensure that reasonable accommodation is provided to persons with disabilities" (Clause 1 and Clause 5, Article 24, CRDP). Although these regulations have been integrated into the Disability Law 2010, throughout the provisions of Chapter IV, educational policies in the current Disability Law still rely on the “encouragement", “facilitation" of the State on rights of persons with disabilities to access education, without any clear confirmation of whether the State has the obligation to “ensure an inclusive education system at all levels and lifelong learning” as stipulated by CRPD.[2]
Moreover, after over 10 years of implementation, some policies on educational development of the Disability Law 2010 have become outdated when compared to other relevant current legal provisions, specifically the Education Law 2019. For example, Clause 3, Article 4 of the Education Law 2019 has regulated educational development as follows: “Developing an open educational system, building a learning society to create opportunities for people to get access to education, study at all levels, all forms, get lifelong learning". Meanwhile, as a specialized law on persons with disabilities, the policies within the current Disability Law have yet to demonstrate clearly the rights of persons with disabilities, or equality between persons with disabilities and non-disabled people in the education field[3].
Furthermore, to ensure persons with disabilities are not excluded from the general education system, CRPD has stipulated in Point a, Clause 2, Article 24 that “persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability”. In the Disability Law 2010, there are also regulations regarding the responsibilities of the State, community, schools and families in ensuring the rights of persons with disabilities to education. However, as above, Clause 1, Article 27 in the Disability Law 2010 only regulates that “the State facilitates conditions for persons with disabilities to study in accordance with the needs and abilities of persons with disabilities" without emphasizing on the State's responsibility to ensure that persons with disabilities are not excluded from the educational system.
Students with disabilities striving to adapt to the integration of education at a primary school in Ba Vi, Hanoi
Additionally, regulations in Clause 1, Article 30 in the Disability Law 2010 confirm the responsibility of educational institutions in “...not refusing admissions from persons with disabilities against the regulations of the law" are still controversial and not really in correspondence to the provisions of CRPD. The question is: What does refusing admissions from persons with disabilities against the regulations of the law mean? Although up to now, there have been several documents under the law detailing the issue of education for persons with disabilities[4], in reality, these regulations do not have a clear acknowledgement of the action of refusing admissions from persons with disabilities against the regulations of the law. This leads to the inconsistency in the implementation of the law. In fact, there have also been some violations of the rights of persons with disabilities to education. Through ACDC’s legal advice practice, there are still cases where local kindergarten and elementary school authorities refuse to accept children with disabilities for school admission due to their disabilities. The refusal is mostly not covered in writing.
On the other hand, when compared to the laws of ASEAN countries, CRPD's provisions on ensuring persons with disabilities are not excluded from the educational system have been clearly regulated by a number of countries. For example, Clause 1, Article 28 in the Malaysian Disability Law states: “persons with disabilities will not be excluded from the general education system for disability reasons, children of disabilities will not be denied of kindergarten, elementary, secondary and higher education on an equal basis with those without disabilities, including vocational training and lifelong learning". Therefore, it is time for Vietnam to amend and supplement the regulations on access to educational systems for persons with disabilities in the Disability Law in the direction of ensuring the rights of persons with disabilities to education.
From the analysis above, we found that to ensure the rights of persons with disabilities to education, regulations related to education for persons with disabilities in the Disability Law 2010 need to be amended and supplemented as follows:
Adding to the regulations in principle: “persons with disabilities have the rights to study and education on an equal basis with non-disabled people with appropriate accommodation" to affirm the rights to education of persons with disabilities in Article 27 in the current Disability Law to be compatible with the provisions of CRPD.
At the same time, to affirm the rights of persons with disabilities to lifelong learning and ensure persons with disabilities are not excluded from the general education system due to disability reasons, the regulations need to be added in principle: “persons with disabilities have the rights to lifelong learning, not to be excluded from the general education system on the basis of disability" to be in accordance with the spirit of Article 24 of CRPD.
A teacher instructing a student with intellectual disabilities to learn office computer skills
In order to ensure this principle, it is also crucial to amend and supplement the regulations on the responsibility of educational institutions to accept admissions from persons with disabilities in Clause 1, Article 30 in the current Disability Law. Accordingly, instead of just generally stipulating that educational institutions must not refuse admissions from persons with disabilities against the regulations of the law, it can be stipulated to affirm the responsibility of educational institutions in accepting admissions from persons with disabilities: “Educational institutions have the responsibility to accept admissions from persons with disabilities in accordance to the regulations of the law". Simultaneously with this regulation, it is necessary to assign the Government or the Ministry of Education and Training to provide details about the responsibilities to receive student profiles, give admission counseling to persons with disabilities and their families; specify in which case refusals can be allowed; and which situations are illegal to refuse enrolment of persons with disabilities; it is especially essential to develop severe sanctions to strictly handle acts of refusing admissions from persons with disabilities against the regulations of the law.
It is only when the Disability Law and implementation guidance documents are regulated that specifically that a clearer legal basis can be created for handling the on-going situation of refusing admissions from persons with disabilities in a number of educational institutions today. Additionally, this regulation will partly contribute to setting requirements, reinforcing the responsibilities of authorities at all levels, organizations and individuals investing in the education field to pay attention to the conditions of ensuring funding, human resources, facilities… in educational institutions for the purpose of ensuring the rights of persons with disabilities to education.
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[1] Standard Rules on the Equalization of Opportunities for Persons with Disabilities, 1993, United Nations, Rule 6: Education.
[2] Vietnam Federation on Disability (2020), Independent Report on the Implementation of The UN Convention on the Rights of Persons with Disabilities in Vietnam, Hanoi, p. 25.
[3] Action to the Community Development Institute (2016), Legal Policy Research in several ASEAN countries on education and training, vocational training and access to work, transport, health and rehabilitation, Hanoi.
[4] As Joint Circular no. 42/2013/TTLT-BGDĐT-BLĐTBXH-BTC dated 31 December 2013 regulating policies on education for persons with disabilities; Circular no. 03/2018/TT-BGDĐT dated 29 January 2018 regulating inclusive education for persons with disabilities; Circular no. 28/2020/TT-BGDĐT dated 4 September 2020 promulgating Primary School Charter; Circular no. 32/2020/TT-BGDĐT dated 15 September 2020 promulgating Secondary School, High School and High School with Many Levels of Education Charter; Decree no. 130/2021/NĐ-CP dated 30 December 2021 of the Government on regulating administrative violations in the field of social and child protection, assistance;...
