Peruvian Disability Rights and Civil Reform

Isabel BaltzanBy Isabel Baltzan

For my IHRIP experience, I’ve had the opportunity to join the Instituto de Democracia y Derechos Humanos at the PUCP in Lima — following along with a course on disability law and disability-related human rights issues in Peru, with work in an accompanying legal clinic. This is my first legal internship experience. I felt nervous and unprepared at first, and so, so far from any of my classmates over 6,000 km away.

I’ve been placed with a group of students, all in their last year of courses, and thrown into a course that expertly draws the historical and legal framework for rights granted (or not) to disabled people in the region. The course focuses on interesting and important ethical and moral debates that the law needs to answer for. I’ve quickly realized that though I’ve done a year of law school and a few years of living before that, I am in no way at the caliber of the people around me — not in legal knowledge (let alone in the Peruvian system), not in disability rights, nor in Spanish (never even mind legal jargon). So, I’ve spent a lot of time listening, filling in knowledge gaps on my own time, and mulling over the issues that are brought up.

I want to point out some thoughts I’ve had over the course of my internship, with it being my first dive into the world of human rights and disability. Granted, I never really know what’s going on — as an intern I expect to feel lost but doing it over email, WhatsApp and Zoom really adds to that feeling — so classes are always an interesting surprise, as are the cases we are presented. I’ve first learned that Peru has recently undergone an overhaul of its disability rights, and changes enacted in 2018 now allow people with disabilities to take advantage of their legal capacity — their ability to manifest a will, and move through the world much like everyone else does. This in turn has been accompanied by the phasing out of interdicción, a state in which a disabled person is deprived of their rights (under the guise of their best interest) and all legal decisions are handed off to a curator — with little to no oversight of how effective or respectful the process is. Nowadays, a system of apoyos (literally, ‘supports,’ but possibly better translated as advocates) and salvaguardias (safeguards) has replaced interdicción. The current system seeks to support disabled people in the exercise of their legal capacity, ideally while respecting and affirming their needs and wants. The new system also benefits from oversight granted by safeguards. A fantastic reform.

Now, of course, just because we say things are different doesn’t mean they actually are any different. Calling the same thing by another name is not progress unless actual change occurs. Progressive law (more progressive than lots of places — cough, California, cough, #FreeBritney), as amazing as it is when enacted, needs to be followed for anyone to reap its benefits. One issue that came up often was disabled people petitioning for rights at the court and the judge requiring them to get an apoyo to be granted what they might be asking — even though the disabled person seems completely able to exercise their legal capacity. Why? Perhaps the judges are used to working through curators with the disabled population. Perhaps, discrimination and stereotyping prevail. Possibly, a misunderstanding that something was supposed to change after 2018.

One case in particular comes to mind as an example of the darker side of reform. It had been moving through the courts for quite some time, and involved an older woman who had been under a curator — someone close to her — through interdicción, for many years. Unfortunately, the curator had passed and the woman was left in a sort of vacuum — the interdicción system had been overhauled, so she wouldn’t get another curator, and would need an apoyo if any legal issues came up, which eventually they did. Seems easy. Except, in order to begin the process of naming an apoyo for herself, she needed some documents from an office that wouldn’t give them to her because she needed legal representation through a curator (deceased and irreplaceable) or an apoyo (yes, a total real-life, awful catch-22). Funny enough, this situation is analogous to one described by Lon Fuller in his Eight Consequences of Failure — “(6) rules that require conduct beyond the powers of the affected party.” The solution was for the legal clinic to request a procedural curator for the woman just until she got an apoyo — but in the meantime, this woman has suffered serious violations to her rights to access to justice and to defense, leaving her effectively in a state of utter vulnerability. This can’t be the progress sought out by the reform, but it’s the reality of the situation.

The whole affair underscores for me how important it is to consider the impact of sweeping reforms that seek to improve a system — to consider who exactly is making a sacrifice for the benefit of all. It really highlights how important it is for the systems in place to move with reforms, instead of just letting reforms pass through them. This isn’t to say that my entire experience at the IDEHPUCP has been disheartening, though it’s unrealistic to assume it would all be joy and glory. The clinic does incredibly important work to educate students and the public on disability-related topics, and it is fulfilling beyond belief to be a small part of meaningful and impactful changes in people’s lives through the clinic. I’ll write more soon about the experiences of clinic work and some interesting debates we’ve had throughout the course.

Cheers,

Isabel

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