Section 3.1 - Systemic Monitoring in Practice

Laws, policies and government programs play an important role in ensuring that persons with disabilities are able to exercise their rights. Systemic monitoring involves looking at whether the legal and policy frameworks of a country meet a country’s human rights commitments and whether they meet international principles of human rights. Looking at this information shows whether a country’s legislation and policy tolerates or actively prohibits discrimination against persons with disabilities. The information tells the story of what the government is doing or not doing to promote the rights of persons with disabilities.

People involved in Systemic Monitoring

The people who collect and analyse the information about laws, policies and programs, like those who do individual experience monitoring, are called Monitors. Monitoring government policies, programs and laws (systems) can be accomplished by one person alone. However, if there is a team of people who can work together to gather and analyse the information, the results are generally better.

Having people who are familiar with collecting this type of data, such as professors and students from local universities or representatives of national human rights institutions as part of the monitoring teams may be helpful. Often these people have experience in accessing data about laws, policies, programs and services and also they have expertise about the legal system that they can share with colleagues from organizations of persons with disabilities. In all cases, it is important to make sure that a majority of the Monitors are persons with disabilities. Many people with disabilities also have legal and policy training and are familiar with policies and programs so they make very good monitors in this type of monitoring.

The Project Coordinator will work with the disability organization(s) supporting the monitoring project to decide how many Monitors should be involved and who the Monitors will be.

1. Getting Ready for Systemic Monitoring

This next section looks at what Monitors need to do before starting to collect systemic information in their country.

(a) What is the country’s general human rights situation?

It is useful to have some background information on the human rights situation of a country that is being monitored. What types of material will help Monitors to get a good picture of the human rights situation in that country?

• reports
• key studies
• newspaper articles and
• other relevant material on the country’s human rights situation

This information can be collected and read both before and while systemic monitoring is taking place. It can be found in government, university and NGO documentation centres, through national, regional and international human rights organizations, as well as on the Internet. These materials are a place to begin collecting systemic information and are important sources of data.

(b) What is the scope of the investigation?

In most DRPI projects, Monitors will look at all areas of human rights. But, it is possible to use the DRPI Template to look only at specific topics. In addition, Monitors can limit their examination to certain population groups or jurisdictions: national, regional or local.

In this way, the questions that can be asked may be broad such as:

• How do existing laws and policies in the country address the human rights of people with disabilities? (all rights, all persons with disabilities, all jurisdictions)
• How do existing laws and policies protect and promote the right to education for children with disabilities? (specific right (education); specific population group (children with disabilities, all jurisdictions)

Or they can be more narrowly defined such as:

• Are existing laws and policies effective in  protecting and promoting the right to education of children with disabilities in rural areas? (specific right (education), specific population group (children with disabilities), specific jurisdiction (rural areas)

Two criteria to ensure rights:

• Must enact national law and policy
• Must allocate budget for implementation of national law at the local level

(c) What are the legal sources in a country?

Systemic monitoring information comes from a number of different legal sources:

Constitutions

Where there is a constitution in a country, it is an important legal source. Written constitutions may provide statements protecting the human rights of people. An example is the Chapter 2- Bill of Rights of the Constitution of the Republic of South Africa, 1996.

Legislation

Legislation includes statutes and codes and acts and by-laws passed by governments. Legislation is legally binding but can be changed.

Case Law

Case law is the reported decisions of courts and other legal tribunals that interpret and apply the law.

Policies

Policies outline government strategies or directions about various legal and social issues. They have an influence as guiding statements and may or may be legally binding.

Programs

Programs are the measures that governments take to implement legislation and policies. Programs are ways in which human rights are put in place.

Legal Systems

It is helpful for Monitors to understand the type of legal system that is in place in the country where they are monitoring. Having this knowledge will help Monitors to know which sources of law (described above) are most important (hold most weight) in their country when it comes to systemic measures to protect rights.

Monitors will want to examine all types of government and judicial action (constitutions, legislation, case law and policies) that are important in their legal system in order to build a comprehensive view of the systemic measures in place to ensure the rights of persons with disabilities.

(d) What is my network of contacts?

Even the most knowledgeable monitoring team will find it useful to develop a network of contacts. These contacts will:

• help gather and analyze information
• advise the Monitors about recent relevant developments
• increase the visibility of the monitoring project across sectors
• assist with widespread dissemination of monitoring results

It is helpful to start building this network as early as possible. Possible contacts can include:

• human rights organizations
• other nongovernmental organizations
• government officials
• academics and researchers working in the area
• lawyers
• journalists
• other people working in the area

Important Tip: It is a good idea and very useful to conduct focus groups of knowledgeable people in disability organizations to identify an initial list of laws, policies, programs and case laws as the basis for the template.

2. Using the DRPI Template for Systemic Monitoring

Background to the Template

The DRPI Law and Policy Template is the tool used by Systemic Monitors to both collect information about and assess government actions to protect, promote and fulfill the human rights of persons with disabilities.

The DRPI Template:

• is structured around the Convention on the Rights of Persons with Disabilities (CRPD) but also cross-references other international and regional human rights instruments that protect the rights of persons with disabilities.
• It covers all types of rights (civil, cultural, economic, political and social).
• It specifically focuses on monitoring the rights of person with disabilities in domestic law and policy.

Here is an example of a page from the DRPI Template:

3. A Step-by-step guide on how to use the DRPI Law and Policy Template to Collect and Analyze systemic monitoring information

This section reviews how to use the DRPI Law and Policy Template to collect and analyze systemic monitoring information. It explains how the Template is organized, what information it provides and what information should be gathered, recorded and analyzed by Systemic Monitors.

The DRPI project adopts a twin-track approach recognizing the importance of the UN in advancing the rights of persons with disabilities while also recognizing the importance of other human rights treaties as tools for change. Putting references to a number of international and regional human rights treaties into the Template, allows the Template to be used to monitor compliance with the UN as well as other human rights instruments that apply to persons with disabilities.

Monitors should be aware of what treaties have been ratified and that are legally binding on the country being monitored. [see Module 2 where this was also discussed]. Remember that Monitors can find information on the ratification of international human rights instruments on the United Nations Treaty Collection website.

(a) Review Information about the Right being Considered (Template Columns 1,2 & 3)

First, Monitors learn about the right that is being considered:

Column (1) International & Regional Human Rights Standards (Convention/Article)

This column identifies the articles and sections of the international and regional human rights treaties, including the UN, related to the right that is covered by the questions asked in column 2. An explanation of the abbreviations used for a number of human rights instruments is found at the beginning of the Template guide.

Monitors do not need to enter anything in Column (1).

Monitors begin the process of monitoring by reading provisions in the human rights treaties that apply to the question in column 2.

Column (2) Question

This column poses a question based on what the country has to do for persons with disabilities under the human rights treaties found in Column 1. Question 0 is the most general question of the template and cannot be answered until all of the information from Questions 1-38 has been collected and analyzed.

Important Tip: Question 0 is a general, overall evaluative question that cannot be answered until all of the information from Questions 1-38 has been collected and analyzed. Don’t try to answer it until you have completed all the questions.

Column (3) Definitions and Items Considered in the analysis

This column sets out relevant definitions taken from the text of the UN and also includes a list of considerations to guide the Monitors’ analysis. These considerations are useful in interpreting and clarifying the meaning of the questions included in Column 2. Monitors can make a decision about whether or not to take these considerations into account when they are collecting and analyzing the information.

Important Tip: Whenever a list of considerations for analysis is included in Column 3, Monitors must indicate with check marks in Column 3 which of the considerations they took into account.

(b) Collect & Analyze Systemic Monitoring Data (Template Columns 4, 5 and 6):

Column (4) Description & Record of Relevant Laws/Policies Relied Upon in Analysis

SystemicMonitors collect sources of systemic data that are relevant to their country’s legal system as well as the question being considered by the Monitor. For example, Monitors will be looking for whether or not there is a written constitution, legislation, case law, policies and programs.

It is very important that Systemic Monitors provide accurate and full references to all of the legal sources that they use. In this way, it will be easier for Systemic Monitors who follow up the work and add to it at a later time to identify changes that have been made to legal and policy frameworks. It is also important to provide direct quotations of relevant passages in laws, policies and programs since the specific wording used can make a difference in the way that laws, policies and programs are interpreted.

Important Tip: Monitors have found it helpful to create separate computer files for each of the Template questions and include the relevant legal and policy sources in those files. This is a good idea as a way of keeping such a large amount of information organized.

Monitors need to make sure that their research is extensive and exhaustive and includes general legislation and policies as well as disability-specific legislation and policies. Monitors can use library resources as well as Internet searches. If Monitors do not have previous experience collecting legal and policy information in their country, it would be helpful to ask knowledgeable informants (possible examples include human rights lawyers, professors, policy analysts, leaders in the disability community) to be sure that all of the relevant material is collected.

Important Tip: To keep organized, monitors have found it helpful to organize the information first in separate files for each Template (see tip above) and then divide into the following categories: constitution; legislation; case law; policies; programs.

Here is an example of the types of information that could be collected in Column 4 in order to answer Question 25. The example is from Canada and is not complete.

Column (5) Other Sources Used in Analysis

Here, Monitors look to see whether persons with disabilities are able to realize their rights in practice. Sometimes, a law, policy or program can look as though it will help to enable rights when it is on paper but ends up not having a positive impact in realizing rights. Perhaps it has not been enforced or resources have not been allocated to support enforcement of the law, policy or program.

Monitors turn to other sources to gather information for this investigation. Some possible sources are:

• national and local statistics
• national budgets,
• policy or research reports,
• key informant interviews (with, for example human rights lawyers, journalists, NGO representatives) ,
• data from the individual experiences monitoring interviews

Drawing on these various sources, Monitors gather information to create a more comprehensive picture.

Column (6) Integrated Analysis of laws and policies on the books and other sources

Here, monitors conduct an integrated analysis to identify inconsistencies with standards in human rights treaties considered in column 1. This analysis should include a discussion about how well the country meets the 5 general human rights principles in relation to the specific area of rights under consideration. The five human rights principles are:

• Dignity
• Autonomy
• Participation, Inclusion & Accessibility
• Non-discrimination & Equality
• Respect for Difference

With all the information they found monitors should then provide a response to the question in column 2 by assigning stars in a report card:

• * non-compliance
• ** needs significant improvement
• *** generally compliant or needs only slight adjustment

The general human rights principles were discussed in Module 1. Here are they are again:

Dignity

Dignity refers to the inherent worth of every person. Human rights are about protecting and promoting the self-respect of all people.

Autonomy

Autonomy is the right of a person to make his or her own choices independently. Autonomy means that the person is placed at the centre of all decisions affecting him or her.

Participation, Inclusion & Accessibility

Inclusion is the right of all persons to participate fully and effectively. It involves making sure that society is organized to be accessible and is without physical or social barriers.

Non-Discrimination & Equality

Rights are guaranteed to everyone. It is discrimination for people to be denied their rights based on disability, race, sex, language, religion, political or other opinion, national or social origin, property, birth or age.

Discrimination happens when favouritism is shown to one group of people over another. It may be based on prejudice and is unfair. If there is a law, policy, program, action or failure to act that results in denying persons with disabilities the ability to exercise their human rights, that is discrimination. Everyone has the right to enjoy human rights equally. Rights, responsibilities and opportunities do not depend on whether someone is born with or without a disability. This does not mean that persons with disabilities will be treated exactly the same as persons without disabilities. Instead, society must be sure that persons with disabilities have what they need to exercise their rights fully – sometimes what a person with a disability needs to exercise his or her rights equally will be the same as what is needed by a person without a disability and sometimes it will be different.

Respect for Difference

Respect for difference involves recognizing and accepting persons with disabilities as part of human diversity. Difference is not a reason to deny someone their rights and dignity. The responsibility to change does not fall on the individual but on the community and the government. Society must recognize diversity and find ways to be inclusive of the difference that disability represents.

Here are two example of the analyses carried out in Column (6):

Education example from India

• The hostels and residential schools established specially for the education of visual impaired and speech and hearing impaired children in the name of special facilities and training, have become worse than prisons, due to severe lack of funds and finances as well resources,. The State Budget had reached One Lakh Crore Rupees and the Chief Minister of the State proudly proclaims that 46 Thousand Crores from the above Budget are available as part of the 5-Year Plan from the Central Government (Source: APOnline). If the 3% reservation protected for people with disabilities in the People with Disabilities Act, 1995 were to be implemented, then at least 3000 Crore Rupees of the State Budget and 1600 Crore Rupees from the Plan Budget, that is 4600 Crore Rupees in total should be allocated for the welfare of people with disabilities in this state through several development programs. The reality is that barely 3% of this amount of 4600 Crores, that is 150 Crores, is just about allocated for the programs for persons with disabilities. The Persons with Disabilities Act also stipulates that 3% of the Budgets allocated for each of the Departments should be set aside for taking up the concerned programs for persons with disabilities but to date, this has not been implemented at all.
• At present both the Central and State Governments can spend the allocated funds at the rate of One Rupee per person with disability. That is why many voluntary organizations are encouraged to get funds from outside the country to work with persons with disabilities.
• In addition to all this, the State Government has increased the amount given to people with disabilities as disability pension from 200 to 500 Rupees, with the financial and administrative support of the Ministry of Rural Development, to be disbursed also through the functionaries of the same Department. The State Government is also planning to increase the money given for scholarships for children with disabilities who are studying in schools and colleges, equal to the amount given to students from lower castes and aborigines, which is unprecedented.

Transportation example from Canada

In Canada there are laws and regulations protecting people with disabilities’ rights to personal mobility and transportation, both at federal and provincial levels (e.g. the Intercity Bus Code of Practice, issued in 1998 by the Canada Transportation Agency and the Accessibility Standards for Costumer Services, Ontario).

In the city of Toronto, Ontario, the mainstream transportation systems (buses, streetcars and the subway) continue to be inaccessible to many users with disabilities. To compensate, the city runs a special transportation service for people with disabilities (Wheel-trans) that provides door-to-door transportation on an individualized basis to persons with disabilities. However, users of Wheel-trans, interviewed during the individual monitoring study in Toronto, voiced a number of complaints about the ways in which the service operates. Here are some of the reports collected:

With wheel-trans you can’t control. Today my return ride is almost at 5:30. I didn’t really need to leave at 5:30 but I have to stick around and wait. Even though I may be sitting here until 6 I cannot cancel it because if I do it I’ll be kicked off of Wheel-trans for a month… So in situations like that I don’t have a choice (18-06-2008-interview16)

I’ve been in Toronto for 15 years and I still cannot go east and west through the downtown core on regular TTC service because streetcars are not wheelchair accessible in any way, shape or form. They’ve got more accessible buses but if I could take the regular TTC I wouldn’t have to rely on wheel-trans at all to go to work and to go home (DTA16-28-08-2008)

Human Rights Principles Analysis

Although Wheel-Trans provides some access to transportation for persons with disabilities, it operates on grounds that are inconsistent with human rights principles of inclusion, autonomy, dignity and non-discrimination. Indeed, it is a segregated service, over which users have little or no control at all, and because of limitations in the number of buses available and the long rides offered, it often creates significant barriers to social and economic participation of its users on equal terms with others.

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