Daily Times

“Survival of the Fittest” has been the cornerstone of the theory of evolution of species. This led Herbert Spencer to call it “natural selection” in a society. Perhaps more than any other scientific research project, On the Origin of Species has directed the sociological, political and cultural discourses (not to mention the religious arguments) in the past one and a half century. Many a time the debates thus generated have taken a course and conclusion which were neither very desirable in the context of the dignity of man nor empirically as justifiable as the original theory of Darwin. One such sociological deduction had been to relegate, though implicitly, people with disabilities to the lower rungs of humanity. The disastrous effects of disregard to human dignity and not attaching equal value to all lives was witnessed by the mankind during the Nazi regime. Even before the Holocaust took place it was the homeless and the people with physical and psychiatric disabilities, who were considered the “lives not worth living”, as propagated by the so called German scientists. This acceptance of disposability of life by considering the sick and the infirm burden on the resources of a society was neither alien to the humankind nor the ingenuity of the Third Reich, it was only that when mixed with the ideas and ideals of the purity of races, the gas bottles of the carbon monoxide administered to the physically, mentally and socially challenged, made the most horrible and the ugliest episodes of the twentieth century. These machinations unchecked and unchallenged by the conscience of the majority turned out to be forerunners of the gas chambers in the extermination camps of Aushwitz and Majdanek. It was officially believed that those surviving with assistive techniques, medicine or any other medical or social care, were interfering with the natural selection and the society needed to be purged of them.

Pakistan has ratified CRPD like several other human rights conventions, treaties and covenants, mainly for the policy purposes, including to secure the GSP plus status, without taking sufficient steps in the direction of incorporating the said treaties in the local laws

The recent judgment of the Supreme Court of Pakistan regarding the people with disabilities is a significant step in reiterating the rights of the differently abled people and at the same time reaffirming the responsibilities of the state towards them starting form addressing the use of pejorative terms to refer to themin statutes and official correspondence to the specific question of calculating the statutory job’s quota as specified in Disabled Persons (Employment and Rehabilitation) Ordinance, 1981.It may not be out of place to mention here that many of the observations of the honorable Supreme Court are the recapitulation of an earlier judgment of the Lahore High Court, both judgments authored by the same honorable judge. In the instant case the Supreme Court of Pakistan in an appeal by a physically challenged candidate for the post of an Arabic teacher emphasized by referring to another LHC’sjudgment, “Our Constitution, as a whole, does not distinguish between a person with or without disabilities. It recognizes inherent dignity of a human being; equal and inalienable rights of all the people as the foundation of freedom, justice and peace. Every person is entitled to all the rights and freedoms set forth therein, without distinction of any kind. It, therefore, applies equally to persons with disabilities, guaranteeing them full enjoyment of their fundamental rights without discrimination”.

Convention on the Rights of People with Disabilities (CRPD), to which Pakistan is a state party, draws attention to the “universality, indivisibility, interdependence and interrelatedness of all human rights”, thus rights of the people with disabilities go far beyond providing them with medical care only or the education and the employment opportunities but also to provide them the enabling environment for the purpose. This Convention not only recognizes the disability as a growing concept but also talks distinctively of girls and women and the need of having the gender perspective integrated in the discussions and solutions to the issues of disability. The subject judgment of the honourable Supreme Court has noted that “In Pakistan, policy approaches to disability have largely been focused on rehabilitation, welfare handouts and related charity. This has been changing since CRPD, which Pakistan ratified in 2011, but progress around building an inclusive society has been woefully slow. The Convention, which became operational in 2008, is the first human rights treaty of the 21st century and the first UN treaty protecting the fundamental rights of persons with disability”.

This judgment is noteworthy for the rights advocacy groups on a number of accounts: one is the liberal references to CRPD; numerous citations of the research undertaken by the scholars globally on the subject along with quoting the findings of the World Health Organization. Benefitting from the experiences of others in a field which had largely been the focus of philanthropy at best in our society is a progressive step in our judicial culture. This serves to make Pakistan more than a mere signatory of the international rights conventions. Ours being a common law jurisdiction and in the absence of codified laws for the protection of rights, these judgments and also the directions given by the superior judiciary in the public interest litigation fill some of the vacuum.

Pakistan has ratified CRPD like several other human rights conventions, treaties and covenants, mainly for the policy purposes, including to secure the GSP plus status, without taking sufficient steps in the direction of incorporating the said treaties in the local laws. One such legislation for the Islamabad Capital Territory is long pending passage by the parliament. After Eighteenth Amendment legislation on the subject to the extent of ICT only would serve as a template and example for the federating units to follow. Judgments of the superior courts on rights issues can fill gaps only but cannot make up for the logically thought out plans; reasonably resourced facilities and above all well debated legislation on the subject of the people with disabilities.

The author is a gender and human rights specialist Twitter:@SaimaAhad3