{"id":82,"date":"2023-08-07T15:06:15","date_gmt":"2023-08-07T19:06:15","guid":{"rendered":"https:\/\/pressbooks.library.torontomu.ca\/capacitydecisionmaking\/?post_type=part&p=82"},"modified":"2023-08-25T14:22:34","modified_gmt":"2023-08-25T18:22:34","slug":"82-2","status":"publish","type":"part","link":"https:\/\/pressbooks.library.torontomu.ca\/capacitydecisionmaking\/part\/82-2\/","title":{"raw":"Andrea Parra - Transcript","rendered":"Andrea Parra – Transcript"},"content":{"raw":"So first, where, what are my own affiliations and where I'm speaking from, as I said, I'm based in Bogota, which is the capital of Colombia and I have language access privilege. So I've been able to access a lot of information about these and have, as Michael said, started this conversation many, many, many, many years ago. And right now, I am the co-director of A.L.C.E., which is, the word for elk in Spanish. And it's an acronym in Spanish, that means Abolition of Punishment, or Punitive and Confinement Logics. And we are an anti punitive, queer collective. My co-director is a trans survivor of psychiatric violence. And please follow us, we are an emerging organization. And, I'm gonna paste this link in the chat, it has a brief description of our work. And we have an advocacy team, and we have a mutual peer support group and we have a Mad people school. And we are all combining all these three pillars in the way we're doing a work to dismantle psychiatric violence in Colombia.\r\n\r\nOne thing I'll say is that one of the toughest things is mapping all the different ways in which people get locked up. So people are institutionalized through the classic psychiatric system, but also through protection system of children through boarding schools, or Indigenous youth that we still have (for those in Canada who didn't know that). We have a psychiatric annexes in prisons, we have private, a lot of private confinement and all of these have different legal frameworks. So mapping institutionalization is really hard. It's a really hard thing to do and that's one thing we're working on. And actually, today, we have an event on racism, eugenics, and the health system later this afternoon. I'm also the co-coordinator of the Latin American network on Article 12. And this is a network of over 150 activists and advocates and academics from Argentina, Chile, Peru, Brazil, Colombia, Costa Rica, Guatemala, and Mexico, and then some international allies from Spain and the international world, like the International Human Rights world. Why this countries, is because this is these are the countries in which some local advocacy has taken place to implement Article 12 and our goal as a network is to support local advocacy efforts to implement Article 12. And it's sometimes it's a lonely task to push for full legal capacity, and when you feel that everybody believes otherwise. So it started about, it's gonna be like four years, many of us know each other in Latin America, we have the advantage of having the common language of Spanish and being able to kind of speak Portu\u00f1ol, as we call it, and between Portuguese and Spanish, and we were sharing the ideas to share strategies to share advances and knowledge among us and share what's happening because implementation is pretty difficult once even with legislative reform. Please feel free to ask questions as I go, so, so I can incorporate them also.\r\n\r\nSo I wanted to give a little bit of an overview of this of the story of how the issue around legal capacity has shifted in Colombia. First there was a whole push and I know some of you know Natalia Angel, here to ratify the CRPD in Colombia, she played a key role and convinced the government to ratify the CRPD because if we were the hundreth country to ratify it, we would get a lot of press. So that was one of the tactics used to get Colombia to ratify the convention. And then in 2013, a statutory framework law was passed on all of disability, incorporating the convention and assigning mandates to the local authorities and regional authorities and the different national authorities. In these laws, it goes through every aspect, education, health, etc. But in article 21 of that law, it gives the order to the Ministry of Justice, the protective agency, the protection agency, to initiate works to align the Colombian legal framework with Article 12. At that time, it wasn't strategic at all to try to eliminate guardianship through a law because it had so much pushback. But we managed to get this little article saying, just make sure that you initiate actions to align the Colombian law with Article 12. Using that article, we started doing a whole advocacy strategy to get this agencies to move because they, of course, were planning to do much about it. And what happens next is that Colombia was reviewed before the CRPD committee in 2013. Well, the initial the initial review, reported and that happening in 2016. But we started a process of preparing the shadow report, and one thing I would say is, as you may know, Colombia is a country with, that had a 60 year old war. And the the human rights activism here is very, very strong against state terrorism, against women's rights violations, Indigenous rights violations. And there is a big mobilization, to push for international bodies to issue recommendations to the state. So for example, the people who have been working like the human rights defenders, and political leaders have a track of 20 years of submitting shadow reports to the Human Rights Committee and to the Committee Against Torture. But the disability rights movement in Colombia had never submitted anything to the UN system. So we started a process of political education, and created a coalition which was, which is the Colombian coalition for the implementation of the CRPD that brought together about 30 organizations. And we started a process of political education about how what does it mean to advocate before the UN system? And how do we look at each of the articles in the Colombian context.\r\n\r\nSo with that, we submitted a shadow report. And in 2016, we got specific recommendations to end guardianship and to align Article 12. In terms of the context of what happened before the legislative reform, we had absolute guardianship, and one thing that I should say that is different from the Anglo Saxon system, is that is families are the ones appointed as guardians, there isn't like a Guardianship Association, or there isn't, like, third party appointed guardian is usually or most of the time is family members who are appointed as guardians in a guardianship process. And, prior to the law, what happened is that many families got advised to place their children under guardianship for them to receive the to be able to inherit pensions. And the other main reason was for sterilization. So we we started doing a lot of trainings with families, because it was like a matter of fact, like, oh, you have to place your kid under guardianship and this was just, you know, in law school, whatever you learned is people are divided into capable people and incapacitated people and next chapter, and you don't learn anything else and you don't even consider that a human rights impact. So, then we start to critically questioning what is, why are we talking about guardianship, if it's a protective measure?\r\n\r\nAnd actually, when you look at Roman law from the Roman Empire is almost a literal, a copy pasting into the current times of how the framing was, which was menta loci [unclear]. Menta loci and menta capti [unclear] were the two categories on the Roman law that allowed for the paterfamilias to have full control of patrimony and decisions when a person was considered not capable. So there's really no evolution in terms of the guardianship institution as how it was translated into civil law from Roman we are, we have a Roman law derived system. So, so based on that, there's a, I mean, we're pushing against, you know, centuries of this idea that some people are incapable of engaging with legal actions or with any kind of negotiations or legal acts.\r\n\r\nAnd in my head, I remember to give ourselves some support, I kept thinking like, okay, when slavery was, was abolished, I imagined that was a legal nightmare. So this is one way to kind of keep pushing, like, yes, we're shaking a whole system that is so embedded and so rooted in the way our systems were created. So yes, we're gonna get a lot of pushback in this. After the recommendations, and having that kind of framing, we created a working table, so one thing that I should say, is that we had thought about in Colombia, you don't need standing to challenge the constitutionality of a law. So you don't have to show an actual violation, to file, to challenge the constitutionality of, of a legal norm. So initially, we thought maybe we challenged the constitutionality of the guardianship law, then we'll win based on human rights standards, and that was a possibility and it could have been viable. But the problem with that is, if we even if we win, that would mean guardianship is out of the legal system, but there's no regulation or legal framing to ensure supportive decision making mechanisms are in place and, and attributions of obligations to the institutions etc. So we knew that we had to make a legal legislative reform for that to happen. So we created a working table that brought in all of the agencies that would have a role in implementing the law, so the Ombuds Persons Office, the Attorney General, the Inspector General, the Ministry of Health, the advisor to the President on disability, and the protection system, all of them sat at this table. And it's not because I'm famous that all these people sat at that table it's because we were managed to convince the presidential advisor to listen to us and put a stamp on all the invitations. So that may meant that all agencies would show up and we would do all the grunt work behind the scenes. And then also, Michael was a huge ally, in setting up pilot projects, on the ground, to track a ways to ensure supported decision making for people.\r\n\r\nSo we did a project with 65 people with psychosocial and intellectual disabilities, that track where they were, some of them were under guardianship, some of them lived in rural areas, some of them were victims of the armed conflict, some of them lived in poverty, some of them had access to school. So it was that range of participants to track what were decision making mechanisms that could be in place and principles that we could use to to imagine how supportive decision making could look like in the ground. And that was a key component of convincing people that a shift in the law could happen. So there were two attempts in Congress to submit the law and disability is not really a party issue, no one will speak against the rights of people with disabilities but few people believe that people with disabilities can actually decide so some of our opponents were in the liberal party's like, \"oh, you are leaving people vulnerable, guardianship protects people\", so this was actually a big, big problem in Congress. And finally in 2019, and we celebrated the passing of law 1996, which fully eliminates guardianship from the Colombian system, and mandates the implementation of a supported decision making. Michael, again, was in the launch of the law from the President's office and it's always helpful to use international experts, saying that we can support what's happening on the ground. So we also have exploited Michael's status as a Canadian white to have Colombians believes that we were doing something good.\r\n\r\nAfter the law passed, a whole new cycle began, we were already so tired from this whole process and then we had to face nine constitutional challenges against the law, from people saying that this was violating people's rights. And in this, it was super helpful to get amicus curiae or like, yes, friends of the court, briefs from allies, all over Latin America, people in the US and, like, from IRIS, we had also Amicus, and these supported us. And in all, some of the challenges got accumulated. But in all the decisions that the Constitutional Court issued, the law was ratified as constitutional.\r\n\r\nAfter that we've also participated in in, in working tables to issue the regulations, because in Colombia now, after the guardianship is eliminated, a person can create support agreement before any notary, or they can go before a judge, or before mediation center without cost. And so regulating these portions was important and that transition system. The Ministry of Justice, fortunately, was a great ally and they did trainings for over 2000 judges and justice operators to implement the law. And for some other alignment of the stars, the president of this, so in Colombia, we have three high courts, the Constitutional Court, the Supreme Court and the State Council, for administrative litigation. The Supreme Court is the civil labor criminal, and the Constitutional Court oversees constitutional rights. So the Supreme Court, the civil law chamber, the president of the Supreme Court, was the person that really actually had done advocacy before they were justice, before he became a justice, and then he became the president of the Supreme Court. So he actually has issued some of the main decisions on the implementation of the law and not at this point, the supreme court court of Colombia has issued about over 20 decisions about the proper implementation of the law. So this has created a body of legal framing that is very important. And you know, as much as I hated procedural law, in law school, then I had to become more knowledgeable about procedure for the proper implementation of the law. We've gotten lots of pushback from families, from civil law attorneys, from judges from notaries, but also a lot of people are supporting it. And I do think that many of you had conversations about children. And I do think that there's a shift that we see is families actually wanting their kids to have an autonomous life, which is fairly different from a generation ago in which it was like, where do I place my kid, and it was a very segregated kind of leaning culture.\u00a0So I'm out of this process there's this an, I really recommend watching this documentary that I'm pasting in the chat. It has English subtitles, about that process. And I hope that it can give you some ideas.\r\n\r\nLastly, because I get to coordinate this great network in Latin America, what I went on, briefly mentioned some of the shifts in the region involved. So in Argentina, it was an overhaul of the civil and commercial code and that was the first change. In Costa Rica, like in Colombia, was a specific law about autonomous and personal assistance, and that did away with the current shift. In Mexico actually, just last week, the change in the procedural code of family issues eliminated guardianship. But Mexico started with a lot of case law. In Peru, it was a congressional decree that eliminated guardianship. In Chile, it was pushed in the constitutional reform and then also (built) Bill Chile still has not changed its law. And in Brazil, it was a law that had some partial reform and did away with guardianship in some specific issues like sexual and reproductive rights and some patrimonial but left some things still. And I think what Guatemala it's been mostly litigation against psychiatric hospitals and the prevention of exercise to legal capacity.","rendered":"

So first, where, what are my own affiliations and where I’m speaking from, as I said, I’m based in Bogota, which is the capital of Colombia and I have language access privilege. So I’ve been able to access a lot of information about these and have, as Michael said, started this conversation many, many, many, many years ago. And right now, I am the co-director of A.L.C.E., which is, the word for elk in Spanish. And it’s an acronym in Spanish, that means Abolition of Punishment, or Punitive and Confinement Logics. And we are an anti punitive, queer collective. My co-director is a trans survivor of psychiatric violence. And please follow us, we are an emerging organization. And, I’m gonna paste this link in the chat, it has a brief description of our work. And we have an advocacy team, and we have a mutual peer support group and we have a Mad people school. And we are all combining all these three pillars in the way we’re doing a work to dismantle psychiatric violence in Colombia.<\/p>\n

One thing I’ll say is that one of the toughest things is mapping all the different ways in which people get locked up. So people are institutionalized through the classic psychiatric system, but also through protection system of children through boarding schools, or Indigenous youth that we still have (for those in Canada who didn’t know that). We have a psychiatric annexes in prisons, we have private, a lot of private confinement and all of these have different legal frameworks. So mapping institutionalization is really hard. It’s a really hard thing to do and that’s one thing we’re working on. And actually, today, we have an event on racism, eugenics, and the health system later this afternoon. I’m also the co-coordinator of the Latin American network on Article 12. And this is a network of over 150 activists and advocates and academics from Argentina, Chile, Peru, Brazil, Colombia, Costa Rica, Guatemala, and Mexico, and then some international allies from Spain and the international world, like the International Human Rights world. Why this countries, is because this is these are the countries in which some local advocacy has taken place to implement Article 12 and our goal as a network is to support local advocacy efforts to implement Article 12. And it’s sometimes it’s a lonely task to push for full legal capacity, and when you feel that everybody believes otherwise. So it started about, it’s gonna be like four years, many of us know each other in Latin America, we have the advantage of having the common language of Spanish and being able to kind of speak Portu\u00f1ol, as we call it, and between Portuguese and Spanish, and we were sharing the ideas to share strategies to share advances and knowledge among us and share what’s happening because implementation is pretty difficult once even with legislative reform. Please feel free to ask questions as I go, so, so I can incorporate them also.<\/p>\n

So I wanted to give a little bit of an overview of this of the story of how the issue around legal capacity has shifted in Colombia. First there was a whole push and I know some of you know Natalia Angel, here to ratify the CRPD in Colombia, she played a key role and convinced the government to ratify the CRPD because if we were the hundreth country to ratify it, we would get a lot of press. So that was one of the tactics used to get Colombia to ratify the convention. And then in 2013, a statutory framework law was passed on all of disability, incorporating the convention and assigning mandates to the local authorities and regional authorities and the different national authorities. In these laws, it goes through every aspect, education, health, etc. But in article 21 of that law, it gives the order to the Ministry of Justice, the protective agency, the protection agency, to initiate works to align the Colombian legal framework with Article 12. At that time, it wasn’t strategic at all to try to eliminate guardianship through a law because it had so much pushback. But we managed to get this little article saying, just make sure that you initiate actions to align the Colombian law with Article 12. Using that article, we started doing a whole advocacy strategy to get this agencies to move because they, of course, were planning to do much about it. And what happens next is that Colombia was reviewed before the CRPD committee in 2013. Well, the initial the initial review, reported and that happening in 2016. But we started a process of preparing the shadow report, and one thing I would say is, as you may know, Colombia is a country with, that had a 60 year old war. And the the human rights activism here is very, very strong against state terrorism, against women’s rights violations, Indigenous rights violations. And there is a big mobilization, to push for international bodies to issue recommendations to the state. So for example, the people who have been working like the human rights defenders, and political leaders have a track of 20 years of submitting shadow reports to the Human Rights Committee and to the Committee Against Torture. But the disability rights movement in Colombia had never submitted anything to the UN system. So we started a process of political education, and created a coalition which was, which is the Colombian coalition for the implementation of the CRPD that brought together about 30 organizations. And we started a process of political education about how what does it mean to advocate before the UN system? And how do we look at each of the articles in the Colombian context.<\/p>\n

So with that, we submitted a shadow report. And in 2016, we got specific recommendations to end guardianship and to align Article 12. In terms of the context of what happened before the legislative reform, we had absolute guardianship, and one thing that I should say that is different from the Anglo Saxon system, is that is families are the ones appointed as guardians, there isn’t like a Guardianship Association, or there isn’t, like, third party appointed guardian is usually or most of the time is family members who are appointed as guardians in a guardianship process. And, prior to the law, what happened is that many families got advised to place their children under guardianship for them to receive the to be able to inherit pensions. And the other main reason was for sterilization. So we we started doing a lot of trainings with families, because it was like a matter of fact, like, oh, you have to place your kid under guardianship and this was just, you know, in law school, whatever you learned is people are divided into capable people and incapacitated people and next chapter, and you don’t learn anything else and you don’t even consider that a human rights impact. So, then we start to critically questioning what is, why are we talking about guardianship, if it’s a protective measure?<\/p>\n

And actually, when you look at Roman law from the Roman Empire is almost a literal, a copy pasting into the current times of how the framing was, which was menta loci [unclear]. Menta loci and menta capti [unclear] were the two categories on the Roman law that allowed for the paterfamilias to have full control of patrimony and decisions when a person was considered not capable. So there’s really no evolution in terms of the guardianship institution as how it was translated into civil law from Roman we are, we have a Roman law derived system. So, so based on that, there’s a, I mean, we’re pushing against, you know, centuries of this idea that some people are incapable of engaging with legal actions or with any kind of negotiations or legal acts.<\/p>\n

And in my head, I remember to give ourselves some support, I kept thinking like, okay, when slavery was, was abolished, I imagined that was a legal nightmare. So this is one way to kind of keep pushing, like, yes, we’re shaking a whole system that is so embedded and so rooted in the way our systems were created. So yes, we’re gonna get a lot of pushback in this. After the recommendations, and having that kind of framing, we created a working table, so one thing that I should say, is that we had thought about in Colombia, you don’t need standing to challenge the constitutionality of a law. So you don’t have to show an actual violation, to file, to challenge the constitutionality of, of a legal norm. So initially, we thought maybe we challenged the constitutionality of the guardianship law, then we’ll win based on human rights standards, and that was a possibility and it could have been viable. But the problem with that is, if we even if we win, that would mean guardianship is out of the legal system, but there’s no regulation or legal framing to ensure supportive decision making mechanisms are in place and, and attributions of obligations to the institutions etc. So we knew that we had to make a legal legislative reform for that to happen. So we created a working table that brought in all of the agencies that would have a role in implementing the law, so the Ombuds Persons Office, the Attorney General, the Inspector General, the Ministry of Health, the advisor to the President on disability, and the protection system, all of them sat at this table. And it’s not because I’m famous that all these people sat at that table it’s because we were managed to convince the presidential advisor to listen to us and put a stamp on all the invitations. So that may meant that all agencies would show up and we would do all the grunt work behind the scenes. And then also, Michael was a huge ally, in setting up pilot projects, on the ground, to track a ways to ensure supported decision making for people.<\/p>\n

So we did a project with 65 people with psychosocial and intellectual disabilities, that track where they were, some of them were under guardianship, some of them lived in rural areas, some of them were victims of the armed conflict, some of them lived in poverty, some of them had access to school. So it was that range of participants to track what were decision making mechanisms that could be in place and principles that we could use to to imagine how supportive decision making could look like in the ground. And that was a key component of convincing people that a shift in the law could happen. So there were two attempts in Congress to submit the law and disability is not really a party issue, no one will speak against the rights of people with disabilities but few people believe that people with disabilities can actually decide so some of our opponents were in the liberal party’s like, “oh, you are leaving people vulnerable, guardianship protects people”, so this was actually a big, big problem in Congress. And finally in 2019, and we celebrated the passing of law 1996, which fully eliminates guardianship from the Colombian system, and mandates the implementation of a supported decision making. Michael, again, was in the launch of the law from the President’s office and it’s always helpful to use international experts, saying that we can support what’s happening on the ground. So we also have exploited Michael’s status as a Canadian white to have Colombians believes that we were doing something good.<\/p>\n

After the law passed, a whole new cycle began, we were already so tired from this whole process and then we had to face nine constitutional challenges against the law, from people saying that this was violating people’s rights. And in this, it was super helpful to get amicus curiae or like, yes, friends of the court, briefs from allies, all over Latin America, people in the US and, like, from IRIS, we had also Amicus, and these supported us. And in all, some of the challenges got accumulated. But in all the decisions that the Constitutional Court issued, the law was ratified as constitutional.<\/p>\n

After that we’ve also participated in in, in working tables to issue the regulations, because in Colombia now, after the guardianship is eliminated, a person can create support agreement before any notary, or they can go before a judge, or before mediation center without cost. And so regulating these portions was important and that transition system. The Ministry of Justice, fortunately, was a great ally and they did trainings for over 2000 judges and justice operators to implement the law. And for some other alignment of the stars, the president of this, so in Colombia, we have three high courts, the Constitutional Court, the Supreme Court and the State Council, for administrative litigation. The Supreme Court is the civil labor criminal, and the Constitutional Court oversees constitutional rights. So the Supreme Court, the civil law chamber, the president of the Supreme Court, was the person that really actually had done advocacy before they were justice, before he became a justice, and then he became the president of the Supreme Court. So he actually has issued some of the main decisions on the implementation of the law and not at this point, the supreme court court of Colombia has issued about over 20 decisions about the proper implementation of the law. So this has created a body of legal framing that is very important. And you know, as much as I hated procedural law, in law school, then I had to become more knowledgeable about procedure for the proper implementation of the law. We’ve gotten lots of pushback from families, from civil law attorneys, from judges from notaries, but also a lot of people are supporting it. And I do think that many of you had conversations about children. And I do think that there’s a shift that we see is families actually wanting their kids to have an autonomous life, which is fairly different from a generation ago in which it was like, where do I place my kid, and it was a very segregated kind of leaning culture.\u00a0So I’m out of this process there’s this an, I really recommend watching this documentary that I’m pasting in the chat. It has English subtitles, about that process. And I hope that it can give you some ideas.<\/p>\n

Lastly, because I get to coordinate this great network in Latin America, what I went on, briefly mentioned some of the shifts in the region involved. So in Argentina, it was an overhaul of the civil and commercial code and that was the first change. In Costa Rica, like in Colombia, was a specific law about autonomous and personal assistance, and that did away with the current shift. In Mexico actually, just last week, the change in the procedural code of family issues eliminated guardianship. But Mexico started with a lot of case law. In Peru, it was a congressional decree that eliminated guardianship. In Chile, it was pushed in the constitutional reform and then also (built) Bill Chile still has not changed its law. And in Brazil, it was a law that had some partial reform and did away with guardianship in some specific issues like sexual and reproductive rights and some patrimonial but left some things still. And I think what Guatemala it’s been mostly litigation against psychiatric hospitals and the prevention of exercise to legal capacity.<\/p>\n","protected":false},"parent":0,"menu_order":2,"template":"","meta":{"pb_part_invisible":null,"pb_part_invisible_string":"on"},"contributor":[],"license":[],"class_list":["post-82","part","type-part","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/pressbooks.library.torontomu.ca\/capacitydecisionmaking\/wp-json\/pressbooks\/v2\/parts\/82","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/pressbooks.library.torontomu.ca\/capacitydecisionmaking\/wp-json\/pressbooks\/v2\/parts"}],"about":[{"href":"https:\/\/pressbooks.library.torontomu.ca\/capacitydecisionmaking\/wp-json\/wp\/v2\/types\/part"}],"version-history":[{"count":5,"href":"https:\/\/pressbooks.library.torontomu.ca\/capacitydecisionmaking\/wp-json\/pressbooks\/v2\/parts\/82\/revisions"}],"predecessor-version":[{"id":218,"href":"https:\/\/pressbooks.library.torontomu.ca\/capacitydecisionmaking\/wp-json\/pressbooks\/v2\/parts\/82\/revisions\/218"}],"wp:attachment":[{"href":"https:\/\/pressbooks.library.torontomu.ca\/capacitydecisionmaking\/wp-json\/wp\/v2\/media?parent=82"}],"wp:term":[{"taxonomy":"contributor","embeddable":true,"href":"https:\/\/pressbooks.library.torontomu.ca\/capacitydecisionmaking\/wp-json\/wp\/v2\/contributor?post=82"},{"taxonomy":"license","embeddable":true,"href":"https:\/\/pressbooks.library.torontomu.ca\/capacitydecisionmaking\/wp-json\/wp\/v2\/license?post=82"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}