Daily Times

Pakistan ratified the Convention on Rights of Persons with Disabilities (CRPD) in 2011. We became the 101st country to have done so. Pursuant to the Convention, Pakistan had to take a number of steps for the differently-abled. We had to develop a code of implementation by enacting new laws or revisiting our existing legal framework, formulate policies as well as administrative measures to mainstream issues faced by the differently-abled, and through different mediums, address the stereotypes and societal prejudices faced them. Seven years on, we as a state have failed on all three counts.

The Convention adopts a broad categorisation of persons with disabilities and reaffirms that all persons with all types of disabilities must enjoy all human rights and fundamental freedoms. Article 1 of the Convention states: “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” This is significant because disability, as recognised by the Convention, is an evolving concept and results from the interaction between persons with impairments and attitudinal as well as environmental barriers that hinder their full and effective participation in society on an equal basis with others.

The definition that we have adopted in our national law, Disabled Persons (Employment and Rehabilitation) Ordinance, 1981, is extremely narrow and purely utilitarian, defining disability only with the context of the occupational or professional eligibility. It states: “’disabled person’ means a person who, on account of injury, disease or congenital deformity, is handicapped for undertaking any gainful profession or employment in order to earn his livelihood, and includes a person who is blind, deaf, physically handicapped or mentally retarded.” This language and scope of definition needs to be re-examined in light of our commitments under the Convention.

Reaching out to the differently-abled is simply not part of politicians’ narrowly drawn self-serving agendas

At present, approximately 15 percent of our population suffers from impairment of one form or the other. Nearly 45 percent of that population comprises the children.  It is imperative for the state and its instrumentalities to reach out to our differently-abled citizens. In this regard, education and skills development remains the most important aspect. In a celebrated judgment of Justice Mansoor Ali Shah in the case of Muhammad Yousaf, the Court observed: “… there are 330 special education schools in Islamabad, Punjab, Sindh and Khyber Pakhtunkhwa provinces. Most of these schools are in urban areas, which makes education for persons with disabilities in rural areas a challenge. Some interviews estimate as many as 50 percent of children with disabilities have access to such schools, but even where there is access, the quality of education is lacking. The fee for private schools can be up to 15 times higher than for public schools, making them only accessible to wealthier families. With limited primary and secondary education, very few students reach the university.” With segregated schools offering poor education, our differently-abled do not stand a chance to be integrated in the mainstream society contributing to our collective development. A leaf out of Government College Lahore’s policies can be taken towards adopting an inclusive approach in educational centers.

After the 18th Constitutional Amendment, Sindh enacted Differently Abled Persons (Employment, Rehabilitation and Welfare) Act, 2014 and Balochistan passed the Balochistan Persons with Disabilities Act, 2017; the other two provinces by virtue of Article 270AA (6) of the Constitution continued to follow the law of 1981 with no legislation of their own. There was a view that after the 18th Amendment, the issues concerning the differently-abled are exclusively a provincial subject unless they give up their powers under Article 144 of the Constitution.

However, the recent ruling of the august Supreme Court in Sui Southern Gas Company Ltd. and others on the vires of Industrial Relations Act, 2012, interpreting entries No 3 and 32 in the Federal Legislative List concerning the external affairs and International Conventions seems to indicate otherwise. According to the judgment, parliament in the centre can legislate on issues pertaining to our commitments under the international conventions, especially if issues involve a trans-provincial spread. As such, the two provincial statutes are applicable to public and private agencies functioning only within the limits of a province.

Notwithstanding the entire debate on anti-commandeering triggered by the recent ruling; the provinces have not taken any meaningful steps towards extending fundamental rights to the differently-abled. The provincial statutes increased the job quota from 2 percent, reserved under the law of 1981 by centre, to 5 percent. But there is hardly any implementation by both public and private agencies. Enabling laws, whether provincial or federal, if they don’t lead to quantifiable results, serve no purpose. This is where the role of the political executive is crucial. Reaching out to the differently-abled is simply not part of politicians’ narrowly drawn self-serving agendas.

Beyond sympathy, we as a nation need to move towards a rights-based approach empowering the differently-abled. Disability needs to be recognised as a diversity, nothing more. Let the differently-abled share stories and experiences informing sensibilities and culture of the nation. The enabling structures of the state must be aimed at providing all amenities to the differently-abled, essential to lead a fuller life in accordance with the constitutional mandate. While legislative reforms are needed, the buck does not stop there. Executive will in implementing the existing law and policies must follow. As for all of us, in our dispositions, interactions and discourse; we must resolve, once and for all, to bring down the shameful walls of exclusion.

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, April 18^th 2018.