Legislation on Disability: The Costa Rican Experience
"Legislation for Human Rights"
Stockholm, Sweden, 24 August 1998 Costa Rica is not a typical Central American country. After the Revolution of 1948, Costa Rica, a small country with less than 4 million inhabitants, abolished all military forces, created a social security system and inacted legislation for the protection of workers and for mandatory and free primary education. These reforms are the cornerstones of our Costa Rican society where the Government and the people have some respect for each other and where we see the legal system and its continuous improvement as the only protection against increasing corruption and other threats to our social peace. Unfortunately, some of the country’s social achievements are in danger as social stability and internal peace are threatened by corruption, drug traffic and violence. The country has an Ombudsman who is charged with protecting the human and civil rights of citizens. The Ombudsman is appointed by Parliament and reports to Parliament, not to the government. The Ombudsman’s budget comes directly from Parliament. The Ombudsman can start legal procedures on its own against anybody, public or private, including the government which happens frequently. The Office of the Ombudsman was created in 1988 and is today a very well-known and easily accessible institution with visitors from all walks of life including farmers and the urban poor. Despite the country’s relative good respect for human rights and our democratic system, disabled people still do not enjoy equal rights and participation in all aspects of society. Among the factors that prevent disabled people from full citizenship are negative attitudes against disability. During the large polio epidemics in the 1950’s many people were put in institutions where they were over-protected by professionals and their families and pitied by the general public. This negative image lead to the discrimination of all disabled people, in particular, in the labor market. In Costa Rica we have had and still have typical charity organizations for people with disabilities who in the 1980’s asked the public in nation-wide radio and television campaigns for money to be used for programs for disabled people. Unfortunately, the campaigns which confirm the negative image of disabled people as helpless and incapable people were supported by govenmental agencies. But there was opposition, in particular, by the country’s first organization of persons with disabilities, "Asociación Costarricense de Lisiados", which was started in the beginning of the 1970’s with the aim of becoming a strong political force. In 1994, as a result of pressure from the disability movement, the government created the function of the Presidential Advisor on Disability, a politically appointed position in the President’s Office. A disabled person got the job. The Presidential Advisor encouraged the government to start actions, coordinated the plans and resources of governmental agencies and helped disabled people to get on the board of these agencies where they previously had not been represented. In 1995, as a result of the Presidential Advisor’s work, Congress appointed a commission to draft a law to protect the rights of people with disabilities. Already before 1994 Congress had contemplated legislation in the field of disability for some time, but these initiatives were characterized by the attitudes of pity and over-protection. Solutions to the problems of disabled people were sought in separate and segregated facilities. These initiatives never advanced beyond the drafting stage and did not cover the key issues such as the quality of life, self-determination and independent living. Work towards anti-discrimination legislation was one of the main objectives included in the Work Plan for the Presidential Advisor on Disabilities. Inspired by the Americans with Disabilities Act of 1990, many disabled persons and parents of disabled children had demanded such legislation in order to fight for access to education, work and participation in society. Also, the Ombudsman had been overloaded with complaints about violations of citizen’s in education and in access to public buildings and places. The preparation leading up to the new law: research, consultations, drafting and revising became one of the main objectives of organizations of disabled people and parents organizations and had a strong support from the recently elected Government. The Goverment proposed to Congress that a Commision be appointed to elaborate the draft for a comprehensive and viable legislation which was to replace previously presented insufficent and unsatisafactory proposals. The Costa Rican Congress formed a Commission consisting of five congressmen, four disabled people, two parents of children with disabilities, and a few representatives of diverse private and public agencies working in the field of disability. After 18 months the Commission presented the draft of the new piece of legislation to government agencies, disability organizations and professional groups for official consultation. In contrast to the prevailing attitudes in the country and previous legal attempts the new law is based on a new model of disability. The environment and society as a whole rather than the individual are now focus and object of change in order to reach the goal of equalization of oportunities. These changes imply benefits for the whole society, not just for a limited group. The new paradigm is in sharp contrast to the traditional view of disability and disabled people which sees disability as an almost exclusive concern of the health and special education fields. This view puts persons with disabilities and their families in a passive role. The new Costa Rican law represents the move from a narrow individualistic concept to a broad societal concept. In the law disability is an issue of human and social development and as such a highly political concept. The new Costa Rican law is called "Equal Opportunities Law For People With Disabilities" and was enacted by Congress in May 1996. The law is based on international documents such as the Standard Rules on the Equalization of Opportunities of Disabled People, the Interamerican Convention of Human Rights, the United Nations Children’s Convention. Its philosophy consists of the principles of non-discrimination and equalization of opportunities, defined as the process of adapting the environment, services, information, activities as well as attitudes to the needs of all people. In its Article 4, the law establishes as the obligations of the State: The law covers the areas of health services, education, access to public buldings and spaces, housing, the media and transportation, employment, commerce and the role of organizations of disabled people. The new law entails changes in 13 existing laws in the area of health, education, trade, family, and others that contained discriminatory aspects. Busses used for the public have to have doors of at least 80 cm width and ramps, lifting platforms or other mechanical devices to enable wheelchair users to use the bus. Bus operators have 7 years from the time of the enactment of the law to comply. A specific example from the educational system is the creation of support committees in all public and private schools whose task is to identify the needs of students and to make specific recomendations as to how school activities and programs can be made accessible to disabled students. Parents and students with disabilities are represented. The committees help families to decide on the best educational option for their children. In the education of professionals at the university level subjects related to disability have to be included. The focus of this action is based on a Human Rights perspective. Hopefully these changes will improve the attitude of new professionals toward disability. In the health field the law establishes that the state health system, in all areas, at all levels, cannot deny services to anyone on the ground of a disability. In work, the law prescribes that employers cannot deny work to disabled and otherwise qualified applicants on the basis of their disability. The costs for adaptations of the work envionmrnt by the employer at his expenses are tax-deductable. The State is obliged to provide advice on assistive devices and work adaptations. In the media, certain TV programs have to be subtitled, by law. The sanctions for violations of this law, imposes fees of half of the minimun salary whichs is regularly stablished by another existing law. Newly constructed buidlings, streets and public spaces, open to the public, owned and operated by state and private entities have to be accessible according to specific norms. If a building, upon completion, is found not to comply with the access standards, the necessary changes have to be made. The construction can be stoped if violations to the law are found during the construction process. There are, however, no specific sanctions against builders or owners whose structures do not comply. Existing public buildings to which the public has access such as shops, offices, restaurants, theaters, churches or sports facilities, have to be made accessible within 10 years after the ratification of the law. The law clearly establishes who is responsable for implementing changes and how much time the owner or operator of facilities or services has for putting the adaptations in place. According to our legal system, laws become "practical" only when the regulations for their implementation are published. Thus, there is still not much legal practice. The actions required by the law aim at eliminating discrimination and promoting equalization of opportunities in all areas of social and personal development. We have to make sure that the required actions and accomodations become automatic and permanent practices in all private and public areas, because their implementation represents the bridge between theoretical rights and actual opportunities. As soon as the Commission had started meeting with key officials in education, social services, labor and health, resistance became apparent mainly from the representatives of educational institutions. They did not favour the inclusion of students with special needs into the National Education System. There were concerns that special schools would be closed as a result of the law. Other concerns were: " The regular teachers are not ready to take students with so many problems" and "Where will the displaced special educators work"? People said the law was an utopia, that Costa Rica did not have the necessary resources to comply with the law. This is not true because large and very expensive adaptations in private and public buildings have been made before without ruining the country, for example, changes to make structures resistant to earthquakes. Some wanted the law to include measures to prevent disabilities. We argued that prevention is not directly related to improving the opportunities of disabled people. In fact, in some cases prevention violates one of the most valuable human rights, the right to parenthood. Lobbying for the law, the drafting and consulting process, and getting it passed in Congress made the law and its implications for disabled people widely known among the general public. The media which had followed the process from the beginning informed about the law and its role in the country’s social legislation. Soon after its passing, many state agencies and private organizations started training activities and requested copies of the law. Some effects can already be noted. The telephone company, for example, began changing its system making it accessible to all people. Some shopping centers have designated disability parking spaces and ramps to their entrances. Most of the complaints about violations of the law are dealt with by the Ombudsman. The law states that organizations of disabled people have the right to self-determination and to participate in the decision-making process in matters affecting their members in some ways. The law also specifies that these organizations should receive the necessary resources for monitoring the law’s performance and informing government agencies and other groups as well as the public about the new law. There does not yet exist a control and monitoring system for the effective implementation of the law. The organizations of disabled people are supposedly assuming these responsibilities. Sadly, in my country, we have little experience with this type of work. There is, however, an independent group of lawyers who started a project for monitoring the law and providing legal support to disabled people. What We Could Have Done Different In retrospect it seems that we should have had a wide and open discussion and analysis during the whole process of creating the law. In this way, we could have avoided some of the complaints, misunderstandings and opposition cited above. This would have enabled disabled people to participate in the process. On the other hand, there would have been the risk that some groups had more time and opportunities to lobby against elements of the law and block it. The transport operators, for example, in my country are powerful and very conservative. Once I was invited to speak about disability to a group of taxi drivers with the purpose of discussing attitudes towards disabled people. All the speakers came but none of the taxi drivers. So we shared the food and went back home. Given the negative elements that our country represents: overprotection, prejudices against disabled people, violations of the law, low level of organization of disabled people, opposition from groups with political influence - given all that, the fact that we got as far as we did is an encouragement for all to continue the struggle against discrimination and segregation. Now, we have a powerful tool against these attitudes. With the help of the law the children of today and adults of tomorrow will have better options than what the children of yesterday had. Physical or mental differences will hopefully not be a reason anymore for segregation. Barriers that prevent disabled people from participating in society will be gradually removed. I believe that with time, as the changes prescribed by the law take place, my country will become more peaceful and truly democratic.
Background
The Government of 1994
The Process
The LawTo include in all policies, programs and services of state authorities the principles of equalization of oportunities and access, and to eliminate attitudes and actions that promote discrimination or prevent the access to programs and services to disabled people. This implies that all government institutions and regulations have to undergo revision and change, if deemed necessary.
Challenges and Opposition
Effects of the New Law
Final Comments
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