Protecting the Rights of Disabled Persons
— From the Perspective of Protecting Their Right to Development with Affirmative Action as the Core
QIAN Jinyu*
Abstract: Establishing and protecting the right to development of disabled persons is not only the important part of Xi Jinping’s thought on human rights, but also a reflection of Marxism’s idea of human rights and a requirement of the rule of law in China. It is necessary to promote the protection of the right to development of disabled persons in terms of affirmative action. The Chinese government’s affirmative action requires structural characteristics, including providing the institutional basis for the affirmative action by constructing legal and non-legal institutions, providing an environment conducive for the affirmative action by shaping a more aware social ecology and providing valid guarantees for affirmative action by increasing the responsibility of local governments.
Keywords: disabled persons ♦ right to development ♦ human rights♦affirmative action
2016 was the 30th anniversary of United Nations’ adoption of the Declaration on the Right to Development as well as the 10th anniversary of the Convention on the Rights of Persons with Disabilities. When we reflect on the development of human rights, it is necessary to analyse and explore the protection of the rights of disabled persons from the perspective of their right to development. In China the number of disabled persons may be as high as 85 million, affecting 260 million family members and the protection of the rights of disabled persons is concerned with the happiness of “thousands of households”. The respect and protection of the dignity and rights of disabled persons is also the embodiment of China’s national ethics and social harmony, as well as political civilization.
I. Significance of Establishing and Guaranteeing the Right to Development of Disabled Persons
Paying close attention to the protection of the rights of disabled persons is a consensus achieved in the development of human civilization, as well as one of the signs of progress for human society. The United Nations’ Convention on the Rights of Persons with Disabilities (hereinafter referred to as the Convention), which was adopted on December 13, 2006, was the first comprehensive document on human rights agreed by the international community in the 21st century. The first Article of the Convention stipulates that its purpose “is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”.
Guided by such an intention, the Convention, the first international legal document in the history of United Nations to comprehensively set out the rights of persons with disabilities, not only declares that respect for and protection of the inherent dignity of “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”, but also establishes the guarantee of their full human rights and fundamental freedom. It not only stipulates the rights to life, freedom and equality, but more importantly, it highlights the guarantee of their right to development; it not only establishes the responsibility of sovereign states in domestic law, but also constructs the system and framework for international cooperation in the protection of the rights of persons with disabilities. Therefore, in this sense, the promulgation and implementation of the Convention has guided human society to change its attitude toward persons with disabilities and introduced methods for protecting their legitimate rights.
Persons with disabilities face two challenges to effective social integration and participation: On the one hand, they usually have physiological and psychological barriers (though these are not the fundamental reasons); on the other hand, there are usually societal barriers, including imperfect or non-existent public facilities for disabled persons, peoples’ prejudice and even discrimination toward the disabled, as well as cultural and even territorial estrangement (these are the most important barriers to their social integration). Thus, to realize the real social integration and participation of persons with disabilities and ensure they are equal members of their community, as well as “an important force in the development of human civilization”, we must attach great importance to and protect their right to development and by promoting and guaranteeing their right to development, remove those barriers to their integration into society.
It is highly significant for China, a signatory state to the Convention, to establish and guarantee the rights of persons with disabilities, including their right to development.
A. Establishing and guaranteeing the right to development of disabled persons is an important part of Xi Jinping’s thought on human rights
Since launching reform and opening up, China has achieved dramatic progress in its human rights cause and it has continuously sought to strengthen its safeguarding of human rights. In particular, the report for the 16th National Congress of the Communist Party of China, held in 2002, clearly states that “we should perfect the democratic system and enrich the forms of democracy to expand the orderly political participation of citizens and guarantee peoples’ rights in democratic elections, democratic decisions, democratic administration, as well as democratic supervision according to law, to ensure people enjoy extensive rights and freedoms, and to respect and guarantee human rights”. In addition, in 2004, an amendment to the Constitution states, “[t]he state respects and preserves human rights”. These documents have become the fundamental support for the development of human rights in China. Since the 18th CPC National Congress, the Central Committee with General Secretary Xi Jinping as the core has further pointed out that China will “unswervingly pursue the path of peaceful development and promote the human rights cause in China and the world.”1 The ruling party and government of China take improving the protection of human rights as an obligatory duty and unswervingly promote the human rights cause because it is the great mission for the CPC to lead the Chinese people to realize the Chinese Dream. The Chinese Dream has profound implications for the human rights cause in China, because “to realize the Chinese Dream is to revitalize the Chinese nation, and attain the goals of national prosperity, national rejuvenation and people’s happiness… The Chinese Dream is the dream of our nation, our country, and of every single Chinese — and that includes all of our disabled friends. ”2
The Party Central Committee with General Secretary Xi Jinping as the core attaches great importance to guaranteeing and promoting the rights of persons with disabilities in China, especially their right to development. To establish and guarantee the rights of disabled persons is an important constituent of Xi Jinping’s thought on human rights. On one hand, Xi stresses that “people with disabilities are equal members of the socialist big family, an important force in human civilization development and also an important force in sustaining and developing socialism with Chinese characteristics.”3 In this context and with this point of view, people with disabilities are also an important force for realizing the Chinese Dream. If every Chinese, including those with disabilities, can be considered a great force in realizing the Chinese Dream, then the effective social integration and social participation of people with disabilities can become one of the important conditions for the realization of the Chinese Dream and also the institutional guarantee and condition for every disabled person to realize his or her own Chinese Dream, while the effective social integration and participation of persons with disabilities can be promoted through the affirmative action of the government and the people which aims to empower them and practically guarantee their rights (especially their right to development). On the other hand, “?t?here is no best, but only better human rights guarantee. The international community should actively push forward the global human rights cause, and, particularly, pay attention to the existence and development rights of people in developing countries.”4 In Xi Jinping’s thought on human rights, establishing and guaranteeing the right to life and the right to development are the fundamental human rights. In the modern national governance of China, to establish and guarantee fundamental human rights means, in the first place, establishing and guaranteeing the right to life and the right to development of every person. Therefore, the primary rights of persons with disabilities are the right to life and the right to development. Only when these rights are guaranteed and promoted for people with disabilities in China, will the country’s human rights cause as a whole be further promoted and developed.
B. Establishing and guaranteeing the right to development of disabled persons is the inevitable requirement of Marxist human rights
What are human rights? Traditionally, human rights are perceived as respect for the dignity of people as individuals. Human rights are a “great noun”5 and a great “invention”6 because they imply guaranteeing everyone can realize his or her potential and hence gradually realize his or her development in an all-round way. In Marxism, only when one involves oneself in society and interpersonal relationships and demonstrates one’s usefulness to others and society in pursuit of realizing one’s own potential, can a person obtain a sense of social identity and achievement and realize their self-worth. The process of realizing one’s worth is the process of gradually realizing integrated development with society. Integrated development promotes the full display of one’s worth.
The right to development is the essential condition and institutional guarantee for the full fulfilment of one’s potential and realization of one’s integrated development with society. Especially for disabled persons, the realization and guarantee of the right to development has essential value. Despite the physiological or mental barriers that create obstacles for disabled persons realizing their potential and social worth, their disabilities do not diminish their right to participation in society and contribute to society. In other words, the barriers faced by disabled persons are not insurmountable and can be eliminated. In a real sense, the barriers are social rather than personal. Thus, it becomes necessary for us to eliminate the social barriers and at the same time protect the right to development of persons with disabilities. As stipulated in the Convention, the signatory states are not only required to take all appropriate legislative, administrative and other measures to guarantee the human rights and fundamental freedom of disabled persons and guarantee their economic, social and cultural rights, but also required to take appropriate measures to guarantee and promote the rights of disabled persons in education, health care, rehabilitation, employment, social security and participation in culture and sports. The ultimate goal of these provisions is still the full fulfilment of the potential of disabled persons as equal social subjects, the realization of their value to society, as well as their integrated development within society.
II. Promoting the Right to Development of Disabled Persons via Affirmative Action
The experiences of some major countries indicate that to protect the rights of disabled persons via affirmative action is extremely important. China has its own expression and practice in the process of promoting the right to development of persons with disabilities via affirmative action.
A. To promote the right to development of disabled persons via affirmative action is an inherent requirement of comprehensively promoting the rule of law
Whether from the perspective of Marxism or Western liberalism, human rights are the basis for national governance and the legitimacy of public power. The continuous development and guarantee of human rights is the historical mission and fundamental goal for any state with a political civilization. Passed at the second Session of tenth National People’s Congress of China in 2004, the Constitutional Amendment highlighting the state respects and preserves human rights raises the status of guaranteeing human rights as a basic principle in the Constitution of China. The incorporating of this Amendment, which signifies the establishment of human rights as a core value of law, means human rights become an important criterion and basis for examining the morality and legitimacy of any law or regulation. The concepts of freedom, equality and justice embodied in human rights are not only important constituents of core socialist values, but also set goals and requirements for the construction of a socialist legal system with Chinese characteristics and the establishing of the rule of law.
The Fourth Plenary Session of the 18th CPC Central Committee drew up a strategic blueprint for the comprehensive rule of law. “The comprehensive guarantee for human rights is the internal requirement and important mission for the comprehensive promotion of the rule of law.”7 This top-level draft of the strategic blueprint is of great significance for the protection of the rights of disabled persons and especially for the protection of their rights to development, as equality and non-discrimination are key points of the rule of law. To equally respect and guarantee the rights of everyone is one of the fundamental goals of rule of law. In particular, we should practically respect and protect the rights and dignity of persons with disabilities who are faced with social barriers and who are a traditionally a vulnerable group. What is stressed in this practical protection is not to give them formal equal treatment and protection, but to create the possibility for them to obtain practical equality by means of national and social affirmative action (also known as “supporting action”). The protection and attention to the right to development of persons with disabilities comprises legal protection of equality. To comprehensively implement the rule of law, we must realize the systematization and legalization of the right to development of disabled persons (including their rights to education, employment, social security, social relief and social integration) and finally realize the practical equality of disabled persons through the operation of this institutionalized human rights guarantee system.
Meanwhile, as the core value of the idea of socialist rule of law, justice also requires the institutional and legal protection of the legitimate rights of the weak social groups. John Rawls, in his theory of justice, argues that each person has an equal right to the most extensive basic liberty compatible with a similar liberty for others. More important, his theory of justice also requires the principle of equal opportunities — first of all, every office or position should be open to everyone; second, they are to be of the greatest benefit to the least-advantaged members of society. 8 In this sense, to protect the right to development of persons with disabilities by means of a special system and affirmative action is an inherent requirement of social justice, the socialist legal system with fairness as the core value, as well as a country under the rule of law.
B. The institutional goal of affirmative action is to realize practical equality and social justice
Affirmative action, also known as supporting action, active action, preferential treatment, or active equal rights, refers to the preferential treatment extended to minority groups or weak groups by the state in order to eradicate discrimination and realize practical equality and social justice. The following is a typical example of affirmative action: On March 6, 1961, President John F. Kennedy signed executive order no. 10925 requiring that government contractors “ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, colour, or national origin”. The rationale behind the affirmative action was the belief that “we are pursuing not only freedom but also opportunities; not only equality in law, but also development of abilities; not only the equality in rights and theory, but also the equality in reality and results.”9 Thus, to realize practical equality and social justice, affirmative action becomes the institutional means.
Affirmative action has had positive effects and proven legitimacy in protecting the rights of disabled persons. One major characteristic of affirmative action is to give preferential treatment and care to minority groups such as persons with disabilities in a special form without being confined to the principle of regulation equality in order to create a social institutional ecology which enables disabled persons to enjoy practical equality or near equality. Thus, in this sense, it is essential for us to guarantee the right life and right to development of disabled persons by means of affirmative action. As far as the protection of the rights of persons with disabilities is concerned, the principle of practical equality and social justice can be beyond the principle of regulation equality to some degree. This is also an important measure in a harmonious society to enable various social groups to continuously and actively participate in and develop their own traditional culture or benefits, to display the mutual respect and acceptance among different groups within the framework of common civilization and common society.
III. The Structural Arrangement of the Chinese Government in Implementing Affirmative Action
To push forward and guarantee the rights of disabled persons (especially their right to development) is one of the objectives of the Chinese Communist Party and also the important duty of Chinese government as a signatory to the United Nation’s Convention on the Rights of Persons with Disabilities.
On one hand, the purpose of the Convention is to promote and guarantee persons with disabilities enjoy adequate and equal human rights and promote respect for their inherent dignity. More importantly, the Convention requires that all the signatory states to take active actions (that is, appropriate legislation, administration and other measures) to guarantee the economic, social and cultural rights of persons with disabilities, to guarantee that disabled persons, on the basis of equality with others, can access public transport, information and communication technology, and other facilities and services, and to ensure that disabled persons have the right to participate in politics and communal life and finally realize their valid social integration. On the other hand, the CPC and the Chinese government have always attached great importance to the protection of the rights of disabled persons, as Xi Jinping said on March 20, 2014 in his congratulatory letter to the 30th anniversary of the founding of China Welfare Fund for the Handicapped, “Disabled persons are a group with special difficulties and thus need special attention and care. To help them live a happy life without worrying about their food and shelter is an important embodiment of the aim of our party, that is, serving the people heart and soul. It is also the essential requirement of our socialist system.”10 It has already been proven that since the founding of New China, and particularly since reform and opening-up, China has made dramatic achievements in protecting the rights of disabled persons and improving their well-being.
In the process of comprehensively promoting rule of law, the protection of the rights of disabled persons is based on laws or other normative legal documents such as the Constitution of the People’s Republic of China, the Law of the People’s Republic of China on Protection of Disabled Persons, the Regulations on the Education of Disabled Persons, the Regulations on the Employment of Disabled Persons and the United Nations’ Convention on the Protection of the Rights of Persons with Disabilities. Especially since the 18th CPC National Congress in 2012, the Chinese government has attempted to establish and promote the strategic layout for the protection of the rights of disabled persons with a top-level design. In August 2016, Premier Li Keqiang signed the Guidelines of the 13th Five-Year Plan to Accelerate the Well-Off Process of Disabled Persons. The promulgation of these guidelines demonstrates the Chinese government insists on “people-centred development” and it is promoting the happiness and integrated development of disabled persons together with all the other Chinese people, and helping them to participate in and benefit from the building of a moderately well-off society. All these show that the affirmative action of the Chinese government has structural characteristics.
A. The institutional construction of the right to development of disabled persons is the solid institutional basis for affirmative action.
The first task is to establish and perfect the legal system to guarantee the dignity and right to development of persons with disabilities according to law. The second is to construct a basic welfare system for disabled persons, continuously raise their social security level and help disabled persons in the poorer rural areas to get rid of poverty through targeted support. The final step is to establish and perfect the support system for the employment of disabled persons, to promote their employment and help them start-up businesses via various channels, for example, by effectively protecting their equal rights when applying to be civil servants and gradually set up a system for disabled persons to be employed in proportion by the employers.
B. To create a friendly social ecology for the protection of the right to development of disabled persons in order to provide a favourable social environment for affirmative action.
First of all, we should try to create a social atmosphere of understanding, respect, care and support for disabled persons, based on non-discrimination and then continuously enhance the legitimacy of affirmative action to benefit disabled persons. Second, we should promote a structural support system, such as promoting the development of charity, volunteer service, service industry and international communication and cooperation. Finally, we should try to increase the public service programs and standardize the system guaranteeing the right to development of disabled persons in various fields such as rehabilitation, education, culture and sports as well as accessible facilities. The ultimate goal for the construction of friendly social ecology for the protection of the right to development of disabled persons is to create a friendly environment which is favourable for disabled persons to be effectively integrated into society.
C. To strengthen the responsibility of the government in order to provide valid guarantee for affirmative action.
In protecting the right to development of disabled persons, the most important designer and practitioner is the government at various levels. Thus, in accordance with the requirements of the Third Plenary Session of the 18th CPC Central Committee, we should strengthen the responsibility awareness of governments at all levels and modernize the system of governance and the abilities of governments to protect the right to development of disabled persons and provide valid guarantees for the protection of their right to development.
At this moment of human civilization development, “fully respecting and guaranteeing the human rights of disabled persons is the characteristic and shining point of human rights cause in China”11 , and is also the embodiment of our Constitutional spirit and principle of “respecting and protecting human rights”. Establishing and guaranteeing the right to development of disabled persons is an essential requirement for the comprehensive development of China’s human rights cause. It can be expected that in the promotion of Xi’s strategic blueprint “The Four Comprehensives” (namely, to comprehensively build a moderately prosperous society, comprehensively deepen reform, comprehensively implement the rule of law and comprehensively strengthen discipline within the CPC), with the effective guarantee of their right to development, disabled persons in China will become active participants and practitioners in the realizing of the Chinese Dream.
(Translated by ZHANG Wenhong)
*QIANG Jinyu ( 钱锦宇 ), professor and deputy director of Institution of Human Rights Studies, Northwest University of Political Science and Law.
1"Congratulatory Letter to the 2015 Beijing Human Rights Forum from Xi Jinping”, People’s Daily, September 17, 2015.
2Luo Haocai, “Promoting the Modernization of the System for Safeguarding Human Rights and Striving to Realize the Chinese Dream”, Human Rights, no. 5 (2014).
3See “Speech of Xi Jinping on the Fifth National Convention for Awarding Model Disabled Persons and Model Collectives Helping Disabled Persons”, Xinhua Net.
4See “Congratulatory Letter to the 2015 Beijing Human Rights Forum from Xi Jinping”.
5See the State Council Information Office of P.R.C., ed., Human Rights Report of China (Beijing: Central Committee Literature Press, 1991), 1.
6See Lynn Hunt, Inventing human rights: a history, trans. Shen Zhanchun (Beijing: The Commercial Press, 2011).
7Li Junru, “Guaranteeing Comprehensively Human Rights in the Process of Comprehensively Promoting Rule by Law”, Human Rights, no. 1, 2015.
8John Rawls, A Theory of Justice, trans. He Huaihong et al. (Beijing: China Social Sciences Publishing House, 1998), 79.
9“Speech of Lyndon Baines Johnson at the Commencement Ceremony of Howard University on July 4, 1964”, in Timeline of Affirmative Action, eds. Borgna Brunner and Beth Rowen”, China Youth News, March 22, 2014.
11As early as 2008, Xi Jinping, the Vice President of China at that time, investigated the preparation work for Beijing Paralympic Games and stressed that “attaching great importance to the cause of disabled persons, investing sufficiently into the cause, and fully respecting and guaranteeing the human rights of disabled persons is the characteristic and shining point of human rights cause in China.”
