According to the United Nations, nearly 83 million women and men in China or 6.3% of the population have a disability. Slightly over half of this population (52%) is male and 48% is female. Over 32 million people are of working age. Most persons with disabilities (75%) live in rural areas. Evidence from 2005 indicates that almost 14 million persons with disabilities in rural areas live in poverty and that the per capita income of households including persons with disabilities was less than half the average for other households.
Around 43% of persons with disabilities over the age of 15 are reported to be illiterate. Less than two thirds (63%) of children with disabilities aged 6 to 14 are enrolled in school. Approximately 85% of poor persons with disabilities have never advanced beyond middle school education. As a result, they have comparatively lower qualifications and poor production skills. In 2006, the annual average employment rate of persons with disabilities was 76% in urban areas and 79% in rural areas. This is compared to employment rates of over 90% per cent among persons without disabilities.
1. Accession to international treaties
China has ratified most of the major international treaties, for example the CRPD, International Covenant on Economic, Social and Cultural Rights (“ICESCR”), Convention on Elimination of Discrimination Against Women (“CEDAW”), and Convention on the Rights of the Child (“CRC”) although it did not sign or ratify any of the Optional Protocols to the above treaties. Further, China has signed but did not ratify the International Covenant on Civil and Political Rights (“ICCPR”).
2. Constitution and domestic laws and policies
The Constitution of the People’s Republic in China (“Chinese Constitution”), enacted in 1982 and amended in 1988, 1993, 1999, and 2004, provides a general protection to persons with disabilities. Article 45 states that “Citizens of the People’s Republic of China have the right to material assistance from the State and society when they are old, ill or disabled. The State develops social insurance, social relief and medical and health services that are required for citizens to enjoy this right. The State and society ensure the livelihood of disabled members of the armed forces, provide pensions to the families of martyrs and give preferential treatment to the families of military personnel. The State and society help make arrangements for the work, livelihood and education of the blind, deaf-mutes and other handicapped citizens”.
Aside from the Chinese Constitution, the Chinese government has adopted and implemented a number of laws, policies, standards, and initiatives pertaining to persons with disabilities, (including in respect of their rights to education and productive and decent work).
The Law on the Protection of Disabled Persons (“Law”), enacted in 1991 and amended in 2008, is the major legislation that safeguards the rights of persons with disabilities in China. The Law contains 54 articles and 9 chapters (addressing rehabilitation, education, employment, cultural life, welfare, access, and legal liability). The amendment to the Law added details regarding stable financial support, better medical care and rehabilitation for people with disabilities, along with favourable employment and tax measures.
Article 3 of the Law contains a principle related to anti-discrimination and holds that “Disabled persons are entitled to the enjoyment of equal rights as other citizens in political, economic, cultural and social fields, in family life and other aspects. The rights of disabled persons as citizens and their personal dignity are protected by law. Discrimination against, insult of and infringement upon disabled persons is prohibited”.
Articles 49 to 52 establish enforcement mechanisms for disability-related laws (civil, criminal, and administrative) and list the rights, violations, and repercussions for breaking the Law.
‘Disability’ is defined in the Law and adopted in the majority of domestic laws and policies related to persons with disabilities in China. A person with disabilities is referred to as “one who suffers from abnormalities or loss of a certain organ or function, psychologically or physiologically, or in anatomical structure and has lost wholly or in part the ability to perform an activity in the way considered normal”. The term ‘disabled persons’ refers to persons with visual, hearing, speech or physical disabilities, mental retardation, mental disorder, multiple disabilities, and/ or other disabilities.
The Compulsory Education Law requires every child to be given the right to nine years of free public education (i.e. six years of elementary school and three years of secondary school). However, for persons with disabilities, the education system in China is far from inclusive. Instead, education for persons with disabilities takes the form of segregated education in ordinary schools and/or education at special schools.
The primary laws relating to education for persons with disabilities are the Regulations on the Education of Persons with Disabilities (1994, amended in 2013) (“Regulations”) which were enacted to ensure the rights of persons with disabilities to education. The Regulations aim to develop educational projects for persons with disabilities.
Whilst the 2013 amendments to the Regulations comprise positive elements (such as requiring mainstream schools to develop individualized educational plans for students with disabilities), Human Rights Watch criticized the amendments for failing to require the provision of reasonable accommodation (thereby reinforcing a parallel system of segregated special education schools and failing to remove obstacles to attendance at ordinary schools for children with disabilities).
The legislations and regulations mentioned herein are accessible in the Domestic Legal Resources section under Inclusive Education.
According to an International Labor Organization (“ILO”) factsheet, the employment rate for persons with disabilities in urban and rural areas rose from less than 50% in 1987 to 80% in 2008. However, challenges remain for persons with disabilities to realize the right to work. These challenges include:
Bias and discrimination in society due to stereotypes of persons with disabilities
The increasing gap in the living conditions of persons with disabilities and others
Lack of access opportunities to employment, education, vocation training, and social security
Lower education and skills for persons with disabilities compared to others
Low quality of employment including wage levels and conditions of work
Shortage of job opportunities
Insufficient employment services to assist persons with disabilities in seeking jobs
Underdeveloped social security system(including underdeveloped financial support)
Weak enforceability of some legislative instruments
The current laws relating to the employment of persons with disabilities include:
The Rules on the Employment of Disabled Persons (2007) bans discrimination against persons with disabilities and was enacted to encourage social groups and individuals to support the employment of persons with disabilities through various means.
The Employment Promotion Law (2007) contains an anti-discrimination provision relating to persons with disabilities.
The 12th Five Year National Programme on Disability (2011-2015) has as one of its key aims the creation of 1 million jobs for persons with disabilities in the next five years.
The Chinese government has also established a quota system requiring all public and private employers to reserve no less than 1.5 % of job opportunities for persons with disabilities. Provincial authorities specify the exact quota level which may vary between provinces).
It is worth noting that China was also supported by the ILO as part of its Decent Work Country Programme to address the needs of those most disadvantaged in the labour market(including persons with disabilities) and promote worker rights, fundamental principles, and labour rights. The last ILO Decent Work Country Programme with China ran from 2013-2015.
The legislations and regulations mentioned herein are accessible in the Domestic Legal Resources section under Supported Employment.
Rehabilitation occupies an important position in government policies and programs and is included in national and social development programs. Rehabilitation programs aim to mainstream and facilitate the participation of persons with disabilities in society.
Laws relating to mental health and rehabilitation include:
The Rehabilitative Medical Education Plan (1992), which contains regulations on training and education of rehabilitation doctors and therapists, physiotherapists and occupational therapists.
The Provisional Regulations of the Qualification System for Prosthetists and Orthotists (1997), which aims to improve the production of artificial limbs, assistive devices, wheelchairs and canes, while focusing on standardizing production.
The Mental Health Law (2012), which standardizes mental health care services, requiring general hospitals to set up special outpatient clinics or provide counselling, and calls for the training of more doctors. It aims to prevent individuals from being involuntarily held and treated in psychiatric facilities.
China’s Law on Protection of the Disabled, upon amendment in 2008, included a chapter of 7 articles which require the State and society to adopt measures to construct barrier-free facilities and promote barrier-free information exchange in order that “the disabled may participate in social life on an equal basis”.
In 2012, the new Regulations on Construction of Accessible Environment (“Accessible Environment Regulations”) came into place. The Accessible Environment Regulations require local governments to construct various public facilities (including all urban, newly-constructed, altered and extended roads, public buildings, public transportation facilities, residential buildings, and residential communities) to accommodate persons with disabilities. The Accessible Environment Regulations aim to create accessibility and barrier-free environments to guarantee that persons with disabilities and other members of society can participate equally in social life (Article 1).
“Construction of barrier-free environments” refers to construction activities to facilitate access by persons with disabilities to roads, entrances and exits of buildings, public transportation, exchanges of information, and community services in an independent and safe manner (Article 2).
For works already built that do not satisfy the standards and rural areas, the Accessible Environment Regulations specify that the standards must be “gradually reached” (Article 9). The Accessible Environment Regulations also require medium to large-sized public parking lots and parking lots in large residential communities in cities to designate barrier-free parking spaces for the exclusive use of physically-disabled persons (Article 14). The Accessible Environment Regulations also require governments at various levels to promote barrier-free design in information exchange (i.e. by providing examination papers printed in Braille, electronic examination papers, or staff assistance to attendees with visual disabilities at state-operated examinations, broadcasting news programs with sign language at least once per week on state-run TV stations, and supplying voice and written warnings and other information exchange services in sign language and Braille in public places) (Articles 20, 21 and 24). Publicly distributed video products, including movies and TV shows, must have subtitles (Article 21).
The legislations and regulations mentioned herein are accessible in the Domestic Legal Resources section under Reasonable Accommodation.
7. Legal Capacity
In China, the recognition of legal capacity is equated with a mental capacity assessment (thus allowing disability to be a basis to deprive or deny a person of his or her legal capacity). The relevant laws differentiate individuals based on their mental states and are discriminatory in that they assume that persons with mental disabilities do not have the ability to exercise their legal capacity. Similarly, in practice, whether a person with mental disability can recognize his or her own behaviour is frequently assessed medically (i.e. based on mental capacity assessment).
The guardianship system places persons with disabilities under the substituted decision-making regime. As a result, persons with disabilities are unable to make decisions concerning themselves according to their own will and preference.
The Mental Health Law that came into force in 2013 is perceived as an attempt to prevent involuntary treatment and increase the involvement of persons with mental disabilities. To an extent, this legislation restricts the authority of guardians (i.e. a guardian has no authority to restrict the personal liberty of a person with mental disability). In other words, guardians do not have authority to detain a person under guardianship in a mental health facility or force such person to undergo mental health treatment. However, many of the provisions in the Mental Health Law still emphasize the powers of guardians. While the Mental Health Law enables a person with mental disability to bring a legal action, requirements under civil procedure laws mean that this right is not recognized in practice.
Certain quasi-administrative procedures further aggravates the negative impact of the guardianship system. The Disabled Card (regardless of the type of disability) issued by the China Disabled Persons’ Federation has a column to identify the guardian of the person with disability. However, the law does not require persons with physical disabilities to have a guardian. In practice, persons with cognitive or intellectual disabilities must identify their guardians under that column(for persons with visual impairment or similar disabilities, the relevant department will strongly recommend (though this is not compulsory) such person to identify a guardian). Moreover, under many circumstances, the families of persons with disabilities can apply for a Disabled Card for such persons without their presence or knowledge. The requirement to identify a guardian is, in practice, a deprivation of legal capacity.
Once legal capacity has been deprived, the daily lives of persons with disabilities are limited in many aspects (i.e. in regards to the ability to conclude contracts or conduct other social transactions). This deprivation of legal capacity limits other fundamental rights (including the right to vote, the right to marry and found a family, reproductive rights, the right to establish and terminate intimate relationships, and the right to give consent to medical treatment etc.). Where persons with disabilities are unable to exercise their legal capacity, their rights can be easily infringed. For example, very often, persons with disabilities are involuntarily detained in mental health facilities or forced to undergo mental health treatment. There are also frequent cases of persons with disabilities being deprived of their property. Moreover, despite such rights infringements, persons with disabilities are unable to seek compensation or redress due to the restrictions placed on their exercise of legal capacity.