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A regional disability tribunal for Asia and the Pacific: changing the conversation to a ‘conversation’?

Published online by Cambridge University Press:  20 September 2011

Terry Carney
Terry Carney*
Affiliation:
Faculty of Law, University of Sydney
*
Terry.carney@sydney.edu.au
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Abstract

This article reviews approaches to the needs of disabled people in Asia and the Pacific, the only part of the world currently lacking regional human rights machinery. The article examines some of the social policy choices involved in prioritising different possible approaches to meeting the needs of disabled people in the region, with a focus on a proposed regional disability rights tribunal (DR-TAP). It is argued that this is not the top priority for immediate action; rather it is contended that capacity building and culturally appropriate attitudinal and other change strategies should instead be pursued over the medium-term horizon.

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Type
Articles
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International Journal of Law in Context , Volume 7 , Special Issue 3: Health and Human Rights , September 2011, pp. 319 - 333
Copyright
Copyright © Cambridge University Press 2011

‘Asia's mental health situation continues to be in crisis in the twenty-first century with a large diversity in the mental-health resources available among the 45 countries in Asia. Factors deterring the development of Asia's mental health include negative attitude to mentally ill individuals, limitations in the availability of and accessibility to mental health service, very limited budgets for mental health despite increasing financial status and a state of war.’ (Chanpattana, Reference Chanpattana2010, p. 2)

Introduction

It is impossible to read of an estimated up to 30,000 mentally ill Indonesians shackled in inhumane conditions,Footnote 2 or of similar service deficits elsewhere in Asia,Footnote 3 without asking why this is so, and whether human rights principles might not alleviate the suffering. When it is pointed out that Asia and the Pacific is the only geographical block of the world not to have an overarching regional human rights structure, or other bodies before whom such grievances may be agitated (Perlin and Ikehara, Reference Perlin and Ikehara2011, p. 4), then the case for its introduction appears to become ever more compelling.

Yet resistance to regional human rights approaches within this region is well known (Saul, Mowbray and Baghoomians, Reference Saul, Mowbray, Baghoomians, Nasu and Saul2011b), and international law already has a strong presence in the form of the recently adopted Convention on the Rights of People with Disabilities (CRPD), the normative machinery of which has yet to be tested.Footnote 4 The case for parallel ‘sibling’ structures at the regional level (Perlin and Ikehara, Reference Perlin and Ikehara2011, p. 5) does have some cogency on the basis of theories of subsidiarity (implementation closest to local conditions, scale and values), but scarce resources such as for essential mental health services,Footnote 5 and lower levels of cohesion and commitment across the supposed region, raise serious questions about where the proposal ranks against alternative measures (such as social development or capacity building), its timing and the preferred form of any such initiative.Footnote 6 For, as Ajit Dalal so compellingly documents for India, poverty and disability are closely intertwined (Dalal, Reference Dalal2010).

This article begins to unpack some of the issues associated with the social policy choices involved in prioritising different possible approaches to the needs of disabled people in Asia and the Pacific, with a focus on a proposed regional disability rights tribunal (popularly known as DR-TAP; Perlin and Ikehara, Reference Perlin and Ikehara2011; Perlin, Reference Perlin2011b; Reference Perlin2011a). It is argued that this is not the top priority for immediate action; rather it is contended that capacity building and culturally appropriate attitudinal and other change strategies should instead be pursued over the medium-term horizon. The analysis commences by examining some of the assumptions underpinning DR-TAP (Section I). Section II then turns attention to the evidence and issues around the question of possible regional cultures and values, and the contribution to social issues able to be made by law and lawyers. Section III canvasses some of the choices required to be made about the ingredients of any regional tribunal or other bodies, before a brief recapitulation of the overall argument (Section IV).

I. How strong are the assumptions behind the DR-TAP proposal?

The proposal for a new body to address human rights issues in the Asian and Pacific region currently centres around the establishment of a regional disability court or tribunal (Perlin and Ikehara, Reference Perlin and Ikehara2011).

The auspice and authority for the proposed regional body (DR-TAP) was originally described this way: ‘[i]t is expected that, at first, this will be a voluntary tribunal and that eventually it will become state-sponsored’ (Perlin and Ikehara, Reference Perlin and Ikehara2011, p. 2). While the form and timing of the establishment of the body remains under discussion, its proponents recognised that agreement would be unlikely to be forthcoming either for government funding of the initiative or for a regional treaty to give it any formal authority under international law. Instead it envisaged creation of an informal body, funded by and with the backing of key non-government sector agencies: presumably both domestic non-government organisations (NGOs) and international bodies (such as the Red Cross, for example).

It was conceded by DR-TAP proponents that this would be problematic, since ‘remedies’ are at the heart of effective regional rights protection (Perlin and Ikehara, Reference Perlin and Ikehara2011, p. 11). But several other questions arise. These include what legitimacy rulings by such a non-government tribunal would carry with regional governments; and whether such pronouncements would be inferior to rulings made under the processes of the CRPD, the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP) or even pronouncements of the World Health Organisation (WHO), given that building on the work of such existing bodies and institutions in Asia and the Pacific was one of the lessons for human rights development drawn by Saul, Mowbray and Baghoomians (Reference Saul, Mowbray and Baghoomians2011a, p. 27). The proposal also raises the issue of whether a body confined to social development, information exchange or other capacity-building functions might not be a better first step.

Why disability rather than inequality generally; and why law?

Agonising though the plight of the mentally ill and disabled undoubtedly is in some or perhaps many countries within the region, an obvious question is: Why target regional human rights measures on this group (disability), rather than pursuing a general regional human rights framework, or favouring socio-economic initiatives to address disability concerns?

The first of these questions conceals some important subsidiary debates. One of these concerns the advisability of investing in regional machinery while domestic human rights instruments and machinery are underdeveloped in many countries in the region, such that issues are perhaps more profitably advanced through concentrating on fostering closer co-operation between national and international bodies. On the other side of this debate it can be argued in response that, among other things, a regional framework could

‘aid in tailoring international standards to specific problems faced at a regional or sub-regional level. It could provide non-threatening, cooperative, region-sensitive assistance to weaker countries, to constructively help them to meet their human rights obligations. It could strengthen the capacity and independence of national institutions by drawing on region-specific expertise. Ultimately, it could enhance the perceived legitimacy of rights across the region, including by subjecting national authorities to external scrutiny from within the region, counter-balancing the common objection that UN bodies in Geneva are too remote from realities on the ground.’ (Saul, Mowbray and Baghoomians, Reference Saul, Mowbray and Baghoomians2011a, pp. 4–5)

The arguments for a regional initiative are quite compelling, but they do not assist in deciding between generic regional human rights machinery and the narrower proposal for a regional disability tribunal for disability, or the case for deferring action on regional rights initiatives in favour of socio-economic development and capacity building.Footnote 7 Of course there are precedents for such a piecemeal approach: in 2002 the South Asian Association for Regional Cooperation sponsored regional conventions on child welfare, and on trafficking of women and children for prostitution (Saul, Mowbray and Baghoomians, Reference Saul, Mowbray and Baghoomians2011a, p. 4). But these were issues on which there was a strong consensus for action. Building a consensus in favour of action in respect of disability may prove to be a harder road than building consensus for action in respect of the plight of other human rights constituencies because cultural or traditional attitudes to disability are more ingrained than in some other areas.

Prioritising the claims for investment in regional human rights machinery against other social expenditure priorities of government is difficult. Is the human suffering experienced by the disabled greater or more numerous than that afflicted by major infective epidemics such a malaria, or child mortality, or deaths from poverty? And how valuable is the law anyway? Doesn't the not too distant memories of similarly inhumane treatment of the mentally ill in wealthy countries such as Australia (where Victoria's notorious ‘J Ward’ for the criminally insane operated in rather inhumane conditionsFootnote 8), or experience in the US, suggest that raising levels of public awareness is a more powerful change agent? To what extent are poor conditions for people with disabilities attributable to low GDP and associated lack of money for services, and what evidence is there that law can leverage changed funding priorities within national budgets (Carney, Tait and Beaupert, Reference Carney, Tait and Beaupert2008)? Is the quality of human rights protection of involuntary mental patients commensurately many-fold higher in Ireland (and much of the UK) than in Australia by virtue of the fact that their mental health tribunals spend eighteen times the amount of money per case reviewed (and devote ten-fold the time to each hearing), not to speak of their universal legal representation (mainly only for inpatients in Australia, at best; none at all in Queensland), or their mandatory second specialist reports?

The answer to these questions is probably ‘no’. Even equal opportunity and other individual rights are of questionable relevance as ‘Western constructs’ in the eyes of some commentators (Grech, Reference Grech2009, pp. 778–79), though this is not the place to pursue that point. Law is certainly of little assistance presently in addressing resourcing and other deficits. It is a matter of record that it is comparatively rare for the extensive set of socio-economic rights found in international treaties to be written into domestic charters of rights. This is no mere oversight, but reflects widely held reservations about the role of law in securing improvements in socio-economic rights, such as the right to health (see, for example, Harrington and Stuttaford, Reference Harrington and Stuttaford2010).

Certainly the South African experience indicates that some positive results can be obtained (Forman, Reference Forman, Harrington and Stuttaford2010), despite real concerns about the justiciability of socio-economic rights and the competence of courts to adjudicate on them (Christiansen, Reference Christiansen2007), along with other difficulties (Pieterse, Reference Pieterse2008; Fredman, Reference Fredman2010a; O'Connell, Reference O'Connell, Harrington and Stuttaford2010). However, as currently conceived, the DR-TAP proposal does not even envisage the securing of socio-economic rights or other structural advances for the disabled in Asia and the Pacific.

What other ‘value-adding’ is offered by regional rights bodies and what are the implications for domestic social policy formation?

A central premise of the DR-TAP proposal is that domestic human rights remedies are absent or ineffectual across the region (Perlin and Ikehara, Reference Perlin and Ikehara2011, p. 6; Perlin, Reference Perlin2011a, pp. 6–9). Without contesting the undeniable empirical validity of the premise (Saul, Mowbray and Baghoomians, Reference Saul, Mowbray, Baghoomians, Nasu and Saul2011b), the obvious question is: Would a regional body be more successful than international instruments and agencies in remedying this deficit?

Certainly some support for the proposal can be drawn from the European experience, where the European Court of Human Rights has developed a more expansive disability jurisprudence than that applied domestically by otherwise liberal societies (Gostin, Reference Gostin2000). And a regional tribunal would be able to handle a much greater volume of complaints. But premature concentration on negotiation of a general or disability-specific regional human rights treaty would risk a lowest-common denominator regional treaty, and a weakening of endeavours to win compliance with existing international norms, as feared by some commentators and enquiries (see further, Saul, Mowbray and Baghoomians, Reference Saul, Mowbray and Baghoomians2011a, pp. 22–24), though sub-regional initiatives may prove more promising in some areas (Saul, Mowbray and Baghoomians, Reference Saul, Mowbray, Baghoomians, Nasu and Saul2011b, p. 125).

Having canvassed some of the reasons for being dubious about seeing DR-TAP as heading the list of most needed regional initiatives for people with disabilities in Asia and the Pacific, let us briefly return to the question of cultural values; just one of the constellation of socio-economic factors that the article might have selected in making the case for attention to focus on other initiatives than a new regional tribunal.

II. Culturally sensitive action and social development? Or time to ‘call in the lawyers’?

A very relevant consideration is the accuracy or otherwise of explanations advanced as to why the Asia-Pacific region has apparently been lukewarm about ‘rights talk’ solutions. Certainly the cultural and other reasons for lack of action may be overplayed, as Saul, Mowbray and Baghoomians suggest:

‘Asian exceptionalism on human rights questions is often more fruitfully explained as an expression of strategic policy choices by Asian governments to avoid strengthening human rights protections, rather than by any inherent truths about the unsuitability of rights and institutions to Asian traditions, values, diversity or cultural preferences.’ (Reference Saul, Mowbray, Baghoomians, Nasu and Saul2011b, p. 108)

However, the Asian region holds strongly to the five principles of peaceful co-existence which, among other things, place great weight on respect for national independence and non-interference,Footnote 9 or what is known as the Westphalian notion of sovereignty (Chan, Lee and Chan, Reference Chan, Lee and Chan2009; Stevenson and Cooper, Reference Stevenson and Cooper2009), meaning that soft law frameworks must necessarily be prioritised (Aoki, Reference Aoki2006).

Moreover, there is evidence of some special features of the way disability is constructed in certain cultures, and those features cannot be ignored in the design of any initiatives aimed at addressing them.

The role of culture and family

The prominence and extent of responsibilities culturally expected to be shouldered by the extended family cannot be overstated in its importance in social policy formation in Asia and the Pacific (Lee, Reference Lee2007; Carney, Reference Carney, Weisstub and Pintos2008). In this region, the family (and to a lesser extent civil society), does the ‘work’ which in Western societies is carried by the state, by state agencies or by the law (see further, Carney, Reference Carney2010a).

By way of example, lack of attention to such cultural difference accounts for the almost complete failure in the transplanting to Hong Kong of Australia's adult guardianship model (along with the training of tribunal members). Only a miniscule fraction of the expected client demand eventuated, because substituted decision-making was culturally alien to the community sought to be served. Likewise in Japan, where filial/family responsibility for managing mental health dramatically delayed the adoption of contemporary laws or the provision of community care in place of heavy reliance on institutional care (Weisstub and Carney, Reference Weisstub and Carney2006). Similarly, access by people with disabilities to any equal opportunity protections in Asia has proved to be ‘patchy’ due to cultural and cost barriers (Tan and Ang, Reference Tan and Ang2008, p. 373).

The current DR-TAP proposal rejects — as a form of ‘false consciousness’ and ‘specious’ — any ‘Asian cultural values’ argument against the universality of coverage by a regional tribunal, writing that

‘those of us who believe in the universality of human rights – and who recognize the false consciousness of the specious “Asian values” arguments that seek to reject that universality … – understand that a DR-TAP that spans multiple nations (in diverse geographic regions, with diverse populations comprised of diverse ethnicities, races, religions and cultures) will make the enforcement of these human rights far more likely than reliance on state-by-state enforcement.’ (Perlin and Ikehara, Reference Perlin and Ikehara2011, p. 14)

While this may well be sound so far as the content of international rights documents are concerned (Perlin, Reference Perlin2011a, pp. 9–10), it does not mean that cultural values do not exist, or that they might not compel a rethinking of priorities for action within the region (for a contrary argument, see Perlin, Reference Perlin2011b, pp. 8–12).

As the meta-review of studies undertaken by Chiu-Yueh Hsiao and Marcia Van Riper observes:

‘In traditional Chinese societies such as those found in Taiwan, Hong Kong, and Mainland China, mental illness is often considered a punishment for misdeeds done by the individuals or their family members. Mental illness is generally viewed as a family problem rather than a societal problem […] Because of this, families of individuals with mental illness living in traditional Chinese societies typically receive minimal assistance from their community and government. Some Chinese families actually choose to keep the fact that one or more family members has a mental illness a family secret rather than seek help because they know that if they reveal this information, they are likely to face stigma similar to that faced by their family member(s) with mental illness.’ (Reference Hsiao and Van riper2010, p. 69)

Such stigma is a major barrier to access to treatment by individuals, as well as accounting for ‘the amount and type of assistance [that] a society provides to families of individuals with mental illness’ (p. 69). In the light of this, should work to advance a ‘thematic culturally appropriate interpretation’ of the role of the family not top the agenda for action? Who is going to launch complaints before the DR-TAP (will it not replicate the just quoted underutilisation demonstrated by the Hong Kong adult guardianship experience?) and will rulings attract the required levels of Government legitimacy (and necessary remedial action) while such cultural attitudes remain, absent such ‘culturally appropriate [re]interpretation’?

This stigma of disability in these societies, it appears, is due to a combination of entrenched factors, including the weight placed on families as the primary units of care (Tan and Ang, Reference Tan and Ang2008, p. 369), the Confucian ‘disharmony’ associated with having a family member unable to discharge their expected social and productive roles, and a strong belief in hereditary factors (affecting the prospects both of the person with the illness and of other family members perceived as ‘carrying’ a similar risk). Based on narrative analysis of interviews with carers in mainland China, Guy Ramsay confirms that

‘Stigma is seen as an overriding concern for the caregivers and their families. It manifests through the prejudiced views toward mental illness held by neighbours, work colleagues or an undifferentiated wider community. So stigmatised is mental illness in Chinese societies that in the narratives under study some caregivers see this stigma as acceptable and justified. They view the phenomenon as understandable and reasonable given the disease symptomatology and based on ‘‘historical’' grounds. Rarely is stigma vigorously contested by caregivers. They actively conceal their family member's illness from outsiders (including relatives who are not coresident), even in the knowledge that their actions, such as refusing in-patient hospital treatment since it may ‘‘expose’' the family, may be detrimental to the ill family member.' (Reference Ramsay2010, p. 94)

Nor can it be contended that cultural values sound only in more fraught areas such as mental health care. Studies demonstrate that the same factors shape, say, the attitudes of employers to engaging people with disabilities, and thus seriously diminish the chances of success of equal opportunity laws and any associated policies (Tsang et al., Reference Tsang, Angell, Corrigan, Lee, Shi and Lam2007).

Of course Confucian values are only one of many in play across what is a very diverse region.Footnote 10 The brief discussion in this section has been simply one possible exemplar, not a comprehensive survey of all the matters calling for attention. There are also other issues to reflect on, including the role of law and lawyers.

What is the role of law and lawyers?

Certainly the picture in Asia and the Pacific looks bleak if the test of human rights compliance is posed in terms of having – or having ‘modern’ – disability laws. Thus the WHO Mental Health Atlas (2005, pp. 18–19) reported that only 78 per cent of countries (or 69 per cent of the world population) had enacted domestic mental health laws (defined as laws for the ‘protection of the basic human and civil rights of people with mental disorders and deals with treatment facilities, personnel, professional training and service structure’), with just 57 per cent of Eastern Mediterranean countries having done so. Roughly 16 per cent of legislation pre-dated the 1960s, and thus did not reflect contemporary treatment or service delivery approaches.

In SE Asia, only 16.7 per cent of laws post-dated the 1990s (compared to 76.6 per cent in Europe). But is this a sensible measure anyway? As Peter Bartlett observes, if some commentators in wealthy developed countries such as Australia query rights models for depleting already strained mental health budgets (Vine, Reference Vine2007), it is unsurprising that developing countries prioritise provision of services ahead of rights protection (Saraceno et al., Reference Saraceno, Van ommeren, Batniji, Cohen, Gureje and Mahoney2007; Bartlett, Reference Bartlett, McSherry and Weller2010).

The current DR-TAP proposal puts store not only in a regional tribunal, but also in the provision of legal counsel (Perlin and Ikehara, Reference Perlin and Ikehara2011, pp. 16–23):

‘without the availability of such counsel, it has been “virtually impossible” to imagine the existence of the bodies of involuntary civil commitment law, right to treatment law, right to refuse treatment law, or any aspect of forensic mental disability law that are now taken for granted in the United States.’ (p. 17)

Again this may be a bridge too far. High-profile test cases or other grievances taken up with UN agencies or the CRDP unquestionably do call for quality legal advice and representation, but the supply of such services for that purpose is adequate if properly co-ordinated (such as through a regional network/clearing-house). The case for the dramatic expansion of specialist disability lawyers for routine advocacy, ahead of other claims on resources, is highly questionable. In mental health, Australia currently lacks universal legal representation (or anything approaching such levels), or mandatory independent second psychiatric opinions, or monitoring of quality of services by a statutory Mental Health Commission or Office of Inspector of Psychiatric Services, and it runs its review tribunals on one-eighteenth their cost in Ireland (Carney and Tait, Reference Carney and Tait2011). Services too are significantly underfunded, and surely have the first claim on scarce resources.

Local research, for instance, led the present author to put the lawyers last on the ‘wish list’ of needed Australian reforms for routine mental health review: behind all the others, a list headed by funding for better services (especially community services) and governance oversight by a Commission, followed by mandatory specialist reports and longer mental health tribunal hearings, before turning to legal representation (Carney, Reference Carney, McSherry and Weller2010b; Reference Carney2010c).

III. Design features for any subsequent DR-TAP

Leaving such questions for the moment, precisely what role might sensibly be envisaged for a regional tribunal, now slated for establishment in 2022?

What are the possible roles for any regional body?

In connection with the DR-TAP proposal, Michael Stein identified several different roles or functions which any such body might discharge (Stein, Reference Stein2010).

(a) DR-TAP consistent or complementary roles?

Interestingly, only some of Stein's roles comport with an adjudicative Tribunal, including: (i) complementing the work of UN bodies such as the CRPD Committee and enhancing the periodic review functions (i.e. supporting and being a practical extension of its work); (ii) being a focal point for national human rights bodies working within the region (and presumably also NGOs); and (iii) serving as a conduit, feeding information/concerns to bodies such as the Human Rights Council or Disabled People's Organisations. These are the functions which the DR-TAP proposal appears to envisage being undertaken by the regional tribunal, though some may be better associated with any cognate bodies.

Certainly any future design work on the DR-TAP should avoid the mistake of seeing it as a free-standing, isolated institution. Instead there would be merit in exploring the interconnectivity offered by models which might harness the tribunal with say a secretariat for domestic human rights commissions, or any network of specialist ombudsperson or other systemic advocacy offices (such as Australia's quite successful Offices of the Public Advocate: VLRC, 2011, chapter 20).

As previously argued in a cognate context, there are considerable advantages to be gained from a loose association of differing bodies, each with its specialist brief, where the division of labour is efficiently structured (Carney, Reference Carney2001–2003).

(b) Best practice capacity building and other social change roles

Two of the more interesting of Stein's list of needed roles are to ‘[p]rovide thematic culturally appropriate interpretation (e.g., role of family)’, and to ‘[f]acilitate inclusive development practices’, including ESCAP's resolution of May 2002 known as the ‘Biwako Millennium Framework’Footnote 11 for the promotion of an inclusive, barrier-free and rights-based society for people with disabilities in the Asian and Pacific region in the twenty-first century.

These roles are interesting not only because they lie outside the purview of a regional human rights court or tribunal, but also because they identify reasons for hastening slowly. Close synergies between CRDP and the Biwako Framework have been observed (Akiyama, Reference Akiyama2007, p. 21), lending weight to arguments for fostering the relationship of governments to international bodies, and the recognition of the priority accorded to capacity building and community education (see further Mak and Nordtveit, Reference Mak and Nordtveit2011, dealing with access to education by children with physical disabilities in Cambodia). Among the other of Stein's roles in the same vein include: serving as a repository of regional data and statistics; and constituting a regional ‘bridge’ or liaison between cognate bodies (e.g. the relevant convention committees for the CRPD [Disability], CEDAW (Convention on the Elimination of All Forms Discrimination Against Women), CRC (Committee on the Rights of the Child)). The first of these might best be discharged by, say, a prominent university institute or collaborative research initiative, or in the case of the second, by an inter-governmental agency.

Needless to say, these are disparate roles, few of which may be served by a regional disability tribunal constructed on the Western liberal premise of serving as a rights-enhancing/rights-correcting mechanism for individual grievances, or even a forum for ‘test cases’. Nor is the litigation model of individual rights enforcement the only model for action, with social inclusion strategies or even technology-based approaches attracting support (Tan and Ang, Reference Tan and Ang2008). For instance, a regional body could be charged with encouraging nations in the region to evaluate their laws against human rights benchmarks, as was done in Australia — with admittedly rather mixed/dubious results (Watchirs and Heesom, Reference Watchirs and Heesom1996; Watchirs, Reference Watchirs2000; Reference Watchirs2005).

This is both consistent with the trajectory of human rights developments in other regions such as Africa and South America (where commissions preceded any courts or adjudicative machinery), and arguably more consonant with the (admittedly contested) distinctive Asian values of the region (Saul, Mowbray and Baghoomians, Reference Saul, Mowbray and Baghoomians2011a, p. 26ff.).

But does it matter whether any body with adjudicative responsibilities in respect of disability rights is constituted as a court or as a tribunal? It is argued that it does matter.

What is the proposed form and ‘constituent style’ of DR-TAP?

(a) Tribunal or court?

In terms of its membership, the DR-TAP tribunal appears to be a tribunal in name rather than in substance, in that it was originally to be constituted by ‘judges’ in a ‘court’ (Perlin and Ikehara, Reference Perlin and Ikehara2011, p. 7).

It may not be immediately apparent that this is a distinction with any difference. However, research comparing adult guardianship courts with adult guardianship tribunals found that the logic of decision-making differs between such bodies. Putting it briefly, courts run by judges tend to be more protective and paternalistic (favouring the discredited medical model of disability contrary to the principles of the CRPD), while tribunals constituted by a majority of non-lawyers tend to more authentically implement philosophies such as the principle of the least restrictive alternative, or individual ‘dignity of risk’ (Carney and Tait, Reference Carney and Tait1997), consistent with the social model of disability.

In critical human rights areas such as the sterilisation of intellectually disadvantaged young women, courts preferred family and medical evidence favouring authorisation of such procedures, and made such orders in greater numbers; tribunals instead favoured evidence affirming the reproductive and liberty rights of the young women and social evidence about the success of training programmes, and made significantly fewer such orders (Carney and Tait, Reference Carney and Tait1999), as later again confirmed empirically by Brady (Reference Brady2005).

Of course, in such fraught areas where rights conflict and finely balanced choices are required, it does not follow that one logic of analysis should be preferred over the other. But it certainly reveals that differences in the memberships of such bodies can lead to dramatic changes in the outcomes. In any legal realist (or evidence-based) policy-making, such differences cannot be ignored. Nor can it be gainsaid that a genuine tribunal model would make it much easier to ensure that consumers and other constituencies and disciplines apart from lawyers were properly represented on the decision-making body.

(b) Individual complaint resolution or structural inequalities?

Equal opportunity laws (and other individual grievance machinery) have had a very patchy record even in developed Western countries, with little evidence of serious remediation of major or entrenched structural or socio-economic disadvantage. This was one of the reasons that Melinda Jones and Lee Ann Basser Marks (Reference Jones, Basser marks, Hauritz, Sampford and Blencowe1998; Reference Jones, Basser marks, Jones and Ann Basser Marks1999) instead pinned their hopes for the disabled on the structural impact of ‘action plans’ and the ‘disability standards’ strands of federal equal opportunity legislation for people with disabilities; though there are various ways in which Australian jurisdictions have since sought to enhance outcomes for vulnerable people (see further Gaze and Hunter, Reference Gaze and Hunter2009).

Civil (or ‘negative’) rights do fare best in terms of practical realisation, but even they have a patchy record in areas of disability: for instance socio-legal studies show that mental health tribunals/courts do not prevent loss of liberty based on dubious medical opinions (Hiday, Reference Hiday1977) or substitution of clinical criteria as the basis for admission (such as the purely clinical concept of ‘lack of insight’) or care/risk discourses in place of consideration of the ‘legal’ criteria, such as harm to others or a diagnosis of mental illness (Peay, Reference Peay1989; Perkins, Reference Perkins2003). Likewise, in adult guardianship, empirical studies show that not even legal advocates changed their behaviour from a ‘best interests’ test a decade after a landmark Californian Supreme Court ruling that they must instead act on client instructions (Morris, Reference Morris2009).

Social (or ‘positive’) human rights − such as the right to work, to be treated with equal dignity or to be free of discrimination − acquire much less purchase in law and legal institutions. That is not to say that tribunals cannot be empowered to engage the domain of resource allocation, such as access to special education or other services for people with disabilities. Domestic tribunals in the UK and the US (special education) and formerly in Victoria, Australia (services for people with intellectual disabilities) do confirm Richardson and Genn's (Reference Richardson and Genn2007) observation that service brokerage can be a legitimate role for tribunals, and one which can be performed with some success for individual applicants (Carney and Akers, Reference Carney and Akers1991; Carney, Reference Carney, Shaddock, Bond, Bowen and Hales2000).

But these are rare examples at the domestic level, their systemic impact is dubious, and there is little to suggest that they would be effective at a regional or international level. So what if anything does DR-TAP aim to contribute in this sphere? If DR-TAP is not to speak to the under-resourcing responsible for much of the suffering experienced by people with disabilities in the region, who will? And how can it expect that its rulings will acquire any legitimacy with government (or indeed in civil society in affected countries) if it is agnostic to what many will see as the main issue?

One emblematic UK example of the dilemmas posed by the trade-off between funding for civil rights and funding for service provision is the so-called Bournewood case,Footnote 12 where it was held that incursions into the liberty rights of even an unprotesting person must attract review rights. In consequence, the Mental Capacity Act 2005 (England and Wales) was amended in 2007 to introduce a new process for all compliant residents in institutions such as nursing homes, mental health or intellectual disability residences; a process involving at least two assessors and six separate domains of evaluation, leading to individual (reviewable and renewable) deprivation of liberty authorisations in respect of the restrictions (Bruckard and McSherry, Reference Bruckard and McSherry2009, pp. 18–20) – protections costed at approximately AUD 1,070 per person per annum.

While there may or may not be cheaper alternatives for the protection of civil rights in such instances, such as a legislated ‘person-responsible’ model (a statutory list of authorised substitute decision-makers), there are obvious implications for both human rights and resource allocation. For instance, it cannot possibly be contended that a person-responsible model passes the Bournewood test of meeting, in respect of mooted deprivations of liberty, the three minimum conditions of showing that the person in question (i) is ‘reliably shown to be of unsound mind’; or (ii) that the disorder is ‘of a kind or degree warranting compulsory confinement’; or (iii) that the validity of the restriction rests on ‘the persistence of such a disorder’.Footnote 13 Moreover, would such expenditures of full compliance not be more appropriately devoted to expansion of services, or to paying the undoubted costs of a shift towards supported decision-making (Carney, Reference Carney, Doron and Soden2011 forthcoming), as the CRDP now strongly encourages?

Such trade-offs cannot be ignored in any future development of the proposal, given the emerging economic status of many of the countries in the region.

IV. Conclusion

International and regional approaches to complex issues such as the failure to accord social rights to unskilled migrant or ‘guest’ workers are of course warranted. But as that very example confirms, even an exemplary treaty with strong enforcement machinery does not guarantee progress: in that instance, because virtually none of the major supplier or user countries for migrant labour had signed on several decades after it was negotiated (Carney, Reference Carney2010d). Political and socio-economic realities need to be factored in.

Likewise, there is an important place for ‘rights talk’ in addressing the needs of disadvantaged and vulnerable groups such as the mentally ill and disabled (Carney and Beaupert, Reference Carney and Beaupert2008). But the record suggests that the main contribution of rights talk may be in changing the terms of the dialogue, rather than the successes won in the courtrooms. Again that is not to deny the educative importance of enshrining strong equal opportunity and rights protection laws and adjudicative avenues. But it is the political arena where resources of money and personnel are allocated, not that of the courts and tribunals. And it is in civil society where cultural phenomena such as stigma, denial of human dignity and neglect are embedded.

So in terms of priorities for a regional initiative, is the DR-TAP top of the action agenda for the next decade? I remain to be convinced on the question of urgency. Capacity building and programme leadership by a regional body is a higher priority than the establishment of any tribunal, though it should remain an active item on a broader, multi-faceted policy agenda for the Asia-Pacific region.

This is the new, wider focus for future soft law or deliberative democracy conversations within the region which this article seeks to encourage. In a sense, it involves reverse engineering (for a time) a process utilised by some domestic human rights courts as a means of realising socio-economic rights, such as by ‘shadow of law’ orders requiring further dialogue (or even alternative dispute resolution / mediation) at local level, as exemplified in some South African rulings on issues such as the right to housing (Ray, Reference Ray2009, pp. 799–800, 812–27).

Under the approach tentatively advanced here, regional international law initiatives are delayed until after an adequate body of more diffuse conversations has taken place between governments, non-governmental organisations and civil society to build a sufficient consensus for taking the final step of negotiating a treaty to found a regional tribunal or court. This is a governance-based approach (compare Klein, Reference Klein2008) to securing socio-economic and civil rights at a regional level within Asia and the Pacific, with some resonance with Sandra Fredman's interesting application of notions of deliberative democracy to shape innovative new ways of securing the realisation of socio-economic rights domestically (Fredman, Reference Fredman2010b; Reference Fredman2010c).

Footnotes

2 Tom Allard, ‘The Face of Indonesia's Shame’, Sydney Morning Herald, 19 June 2010, p. 2; and ‘Chained to a Life of Madness’ SMH News Review, 19 June 2010, p. 5.

3 Thus Cambodia spends less nationally on mental health than would pay for a single hospital, Pakistan reportedly has abandoned the mentally ill, and Japan has one of the highest rates of in-patient care of the mentally ill (Chanpattana, Reference Chanpattana2010, p. 2). India and other parts of South Asia lack domestic review bodies for involuntary mental health admissions, and lack either the psychiatrists or the mental health hospitals presumed as the basis for mental health laws, rendering them effectively almost worthless (Kala and Kala, Reference Kala and Kala2008).

4 For a recent ESCAP review paper on its implications for the region, see Byrnes (Reference Byrnes2010).

5 Regional disparities in staff and facilities are stark: psychiatrists per 100,000 of population stand at just 0.2 for SE Asia and 0.3 for the Western Pacific (despite the strong inflator from Japan and Australasia), compared to 14–16 in the USA or nearly 10 in Europe; psychiatric beds run at 0.3 per 10,000 of population in SE Asia and around 1 for the Western Pacific, compared to 8 in Europe or 1.7 worldwide (Tasman, Sartorius and Saraceno, Reference Tasman, Sartorius and Saraceno2009, p. 5).

6 In the light of regional meetings in Bangkok, Seoul and Melbourne, the target date to establish the regional disability tribunal is now 2022: Yoshikazu Ikehara, ‘Dual Approach in the Next Decade to Establish DRTAP’, slide for International Conference on Disability Rights Tribunal in Asia and the Pacific, Bangkok, 22 October 2010: available at http://tokyo-advocacy.com/drtapeng/conference_bangkok.html (last accessed 1 April 2011).

7 For a recent World Bank review of development aid programmes, see Lord et al. (Reference Lord, Posarac, Nicoli, Peffley, Mcclain-nhlapo and Keogh2010).

8 The ‘J Ward’ of the then Ararat Lunacy Asylum was proclaimed as a ‘temporary’ facility for the criminally insane in 1886 in what had been the old gaol. It operated as part of Ararat Mental Hospital, providing care in horrific conditions until May 1988 when the government announced its proposed closure, which finally took place in 1991 (for further discussion see Carney, Tait and Beaupert, Reference Carney, Tait and Beaupert2008, p. 345).

9 For a recent discussion of the implications for health governance generally, see Fidler (Reference Fidler2010, pp. 278–83).

10 The Asia Pacific region is religiously very diverse. Indonesia, with a population of 245 million, is the largest Muslim nation in the world, covering 86 per cent of the population (Bouma, Ling and Pratt, Reference Bouma, Ling and Pratt2010, p. 59). Japan has a significant Buddhist minority (89 million) but with 107 million adherents its dominant religion is Shintoism (p. 24). Singapore's majority ethic group in a population of 4 million are the Chinese (at 77 per cent) while Buddhism is the most prominent religion (at 42 per cent), followed by Christians (at 14.6 per cent: p. 98). Although religion is less central in China and Vietnam, Buddhism is the predominant religion among practitioners in Vietnam and Hong Kong.

11 Available at www.unescap.org/esid/psis/disability/bmf/bmf.html (last accessed 5 April 2011).

12 Case of H.L. v. The United Kingdom (2005) 40 EHRR 32; [2004] 9 ECHR 191 (Application no. 45508/99).

13 Footnote Ibid., para [98].

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