Senator Lídice da Mata

Rapporteur of the Bill PLS 757/2015 at the Constitution, Justice and Citizenship Commission of the Brazilian Senate

 

Your Excellency,

We would like to express our concern regarding the recent approval of the reform bill PLS 757/2015 by the Senate Human Rights and Participative Legislative Commission and currently under review by the Constitution, Justice and Citizenship Commission, under your rapporteurship. The reform bill PLS 757/2015 whose authors were senators Paulo Paim (PT-RS), Chair of the Human Rights Commission, and Antonio Carlos Valadares (PSB-SE), has the objective of reforming several provisions of law number 10,406 of January 10, 2002 (Civil Code), law number 13,146 of 6 July, 2015 (Persons with Disabilities Statute), and law number 13,105 of March 16, 2015 (New Civil Code Procedure).

The human rights approach towards persons with disabilities is rooted in the principle that they should have the right to make decisions and choices in their lives on an equal basis with others. Enabling persons with disabilities to decide whether to marry, what house to buy, or where to live should be considered an inherent feature of their human dignity. In case they require support to take decisions, governments should provide the necessary systems to do so. The bottom line is that governments should provide the support people need to make their own decisions, rather than empower other people to make decisions on their behalf.[1]

Brazil has taken important steps to ensure the protection of the rights of persons with disabilities, including the adoption of the Convention on the Rights of Persons with Disabilities (CRPD) – which has constitutional status -–and the Brazilian Law for Inclusion.[2]

The present bill is a larger attempt to remedy conflicts between the New Procedural Code and the Brazilian Law for Inclusion. We recognize the important need to address those conflicts, but the harmonization of Brazil’s legal framework should comply with the country’s obligations under the CPRD. The present bill, however, appears to mark a retreat from advances in CRPD implementation established under Brazil’s Law for Inclusion.

Article 84 of the Brazilian Law for Inclusion[3] establishes the right of persons with disabilities to exercise their legal capacity on an equal basis with others, and limits the possibility of applying curatorship only for “exceptional cases that should be proportional to the needs and circumstances of the person concerned, in each case, and for the shortest time possible” (article 84.3). This in itself is something that needs to be reviewed. Furthermore, article 85 limits curatorship only to business and patrimonial acts[4] and prohibits the application of this civil regime to issues related to one’s own body, sexuality, marriage, privacy, education, health, work and voting (85.1).[5]

PLS 757/2015 appears to take a deliberate step back from all of this. The most worrying provision of the proposed reform would reinstate provisions from the Civil Code (Lei nº 10.406/2002) that authorized full guardianship for persons who were declared to be “incapable”. Another worrying aspect of bill is its proposed extension of the use of curatorship regime for issues related to one’s own body, sexuality, marriage, privacy, education, health, work and voting for persons with disabilities. 

Article 12 (2) of the Convention on the Rights of Persons with Disabilities (CRPD), which Brazil ratified in 2008, requires that persons with disabilities “enjoy legal capacity on an equal basis with others in all aspects of life.” Instead of removing or limiting the legal capacity of people with disabilities, 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.[6] Article 12(4) requires that measures relating to support for the exercise of legal capacity provide appropriate safeguards to prevent abuse—in particular that any such measures respect the rights, will and preferences of the person, are free from conflict of interest and undue influence, are proportional and tailored to the person’s circumstance and are both limited in duration and subject to regular review.  Finally, article 12.5 emphasizes the rights of persons with disabilities “to own or inherit property, to control their own financial affairs” and the state’s obligations to “ensure that persons with disabilities are not arbitrarily deprived of their property”. This provision is particularly important in light of the restrictions on legal capacity currently in place under the Brazilian Law for Inclusion.

There has been considerable debate as to the precise contours and appropriate implementation of Article 12. For its part, the CRPD Committee, which monitors implementation of this treaty, has recommended that the Brazilian government “withdraw all legal provisions that perpetuate the system of substituted decision-making.” It also recommended that, in consultation with organizations of persons with disabilities and other service providers, “the State party take tangible steps to replace the system of substitute decision-making with a supported decision-making model that upholds the autonomy, will and preferences of persons with disabilities in full conformity with article 12 of the Convention.” Furthermore, the Committee asked the Brazilian government to present a follow-up report on this specific recommendation[7], reflecting the importance it gave to compliance with the provisions of Article 12.

At its core, Article 12 requires a paradigm shift away from the manner all domestic legal systems have approached these questions in the past. We recognize the deep practical and ethical complexity of designing new systems that comply with article 12, and the fact that this takes Brazil into genuinely uncharted territory.  But where articles 84 and 85 of the Law for Inclusion appeared to be a strong effort to move towards compliance with Article 12, the present bill appears to abandon that effort.

There have been several examples of supported decision-making in other countries that may be considered in implementing the Brazilian Law for Inclusion and complementary legislation. Mechanisms such as informal peer support to take specific decisions like housing or financial decisions or advanced directives, for example in Canada, which allow a person to decide before hand how he or she wants to manage affairs by stating in writing how this should be done. Also, people with disabilities could choose to delegate their legal capacity to a guarantor, who would help them make specific decisions. There are a range of possibilities and by calling a public hearing, the commission will have the opportunity to learn about more alternatives from different stakeholders.

We ask that you reject the approval of the bill as it is. We also call you to advocate for the creation of a special plural legislative commission, involving Senators and Deputies, which closely consults persons with disabilities and their representative organizations, legal scholars and other stakeholders, mandated at:

  1. Addressing problems that have been identified in the contradicting laws and holding public hearings with wide civil society participation;
  2. Proposing an alternative draft legislation to harmonize the Brazilian legal framework in compliance with the country’s obligations under the CPRD, that would include:
    1. eliminating the reference to “full guardianship” from the Brazilian legal system as a whole, including the New Procedural Code;
    2. comprehensively addressing the supported decision making process in the New Procedural Code;
  3. Developing sound solutions to the practical difficulties of establishing and enforcing a legal framework that is fully compatible with Article 12;
  4. Promoting a full revision of any type of substitute decision-making models, among them the curatorship model;

 

Kind regards,

Human Rights Watch

Instituto Baresi

Rede Brasileira do Movimento de Vida Independente

Associação Brasileira para Ação por Direitos das Pessoas com Autismo - Abraça

ONG Essas Mulheres

Instituto MetaSocial

Movimento Down

Inclusive – Inclusão e Cidadania

Rede Latino Americana de Organizações Não Governamentais de Pessoas com Deficiência e suas Famílias – RIADIS

Federação das Fraternidades Cristãs de Pessoas com Deficiência do Brasil – FCD/BR

 

 

[1] CRPD Art. 12(3).

[2] Lei Brasileira de Inclusão da Pessoa com Deficiência (Estatuto da Pessoa com Deficiência). Lei Nº 13.146, de 6 de Julho de 2015.

[3] Art. 84.  A pessoa com deficiência tem assegurado o direito ao exercício de sua capacidade legal em igualdade de condições com as demais pessoas

[4] Art. 85.  A curatela afetará tão somente os atos relacionados aos direitos de natureza patrimonial e negocial.

[5] A definição da curatela não alcança o direito ao próprio corpo, à sexualidade, ao matrimônio, à privacidade, à educação, à saúde, ao trabalho e ao voto.

[6] CRPD, Art. 12(3).

[7] CRPD, Concluding Observations for Brazil, paragraph 61. According to this follow-up recommendation Brazil will have to present a complementary report on September 2016.