The evolution of disability law in the light of Rights of Persons with Disabilities and their Protection Act 2013

- Barrister Shehrin Salam Oishee

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Published On - August 31, 2014 [Vol. 1, Jul - Dec, 2014]

When re-visiting the memory lanes, if some of us just reminiscence the beauty of our growing up and the fun-filled childhood, many have, as their assets of memory, such dark shadows which remain despite desperate attempts to wash it off. Many remember the painful recovery from diseases which leave their toll for a lifetime, while many have never seen the colours of life since birth or where many just remember an accident that has stolen their chance to live a life they have forever only dreamt about. The disability that falls upon them is not a choice of life but a way of living the same life in a different way.

At present, in Bangladesh, 15% of the population are the Persons with Disabilities (PWDs) according to the World Bank estimates. Every year we observe December 3rd as the International Disability Day to ensure the rights of the PWDs. However, we all forget the fact that an inclusive society for PWDs will only be possible when they will enjoy equal rights in every sphere of family, society and nation.

Before any noteworthy change can be adopted by the Bangladesh government, in 1982 the UN published, before any other organization, the World Programme of Action Concerning Disabled Persons, which explicitly states “Particular efforts should be made to integrate the disabled in the development process and that effective measures for prevention, rehabilitation and equalization of opportunities are therefore essential.” This doctrine set stage for the UN Decade of the Disabled Person from 1983 to 1992, where, the General Assembly adopted the Standard Rules of the Equalization of Opportunities for Persons with Disabilities. The Standard Rules encourages states to remove social, cultural, economic, educational, and political barriers that bar individuals with disabilities from participating equally in society. Proponents claim that these movements helped facilitate more inclusive development policy and brought disability rights to the forefront.

The first National State initiative towards recognizing the rights of the PWDs was in 1993 when the National Coordination Committee on Disability was established under the Ministry of Social Welfare. Since then, from time to time, the State has formulated various policies including the follows:

** In 1995, National Policy on Disability was adopted;

** In 1996, the State formulated Action Plan on Disability which approved the outlines for the implementation of the National Policy;

**In 2000, the State established the  National Foundation for the Development of Disabled Persons;

** In 2001, the Disability Welfare Act was passed and out of the many flaws in this Act, there was no punishment mentioned for violence against persons with disabilities.)

** The year 2007 had been a milestone given this year Bangladesh ratified the UNCRPD (United Nations Convention on Rights of the Persons with Disability). In addition to that, the Government introduced from the month of July, 2007, Special Stipend program for Disable students at all levels of the country;

** In 2009, a Disability Rights Watch Group and National Forum of Law and Legislation committee was formed;

** In 2012, the Draft Act on Rights of Persons with Disabilities was drafted (hereinafter referred to as the Proposed Act 2012)  and finally in 2013, the Draft Act on Rights of Persons with Disabilities Proposed Act  was  passed and enforced as Rights of the Persons with Disabilities and their Protection Act 2013;

The “Bangladesh Persons with Disability Welfare Act, 2001”had not been as effective as expected in addressing the issues in determining the fair rights and opportunities for the PWDs. In due recognition of this fact, the legislature of Bangladesh have finally come forward with the Draft Act on Rights of Persons with Disabilities in 2012, thus providing a minute ray of hope for those who were dwelling in the darkness.

The definition of PWDs can be found under two spheres: national and international. Our area of concentration is the domestic/national legislation, which is the Bangladesh Disability Welfare Act 2001. It encompasses the definition from a rather native and closed-door perspective. The Act, instead of adopting alternatives rather addresses the Persons with Disabilities themselves as “Disability”:

“Disability means any person who is physically crippled either congenitally or as result of disease or being a victim of accident, or due to improper or maltreatment or for any other reasons became physically incapacitated or mentally imbalanced, and as a result of such crippledness or mental impairedness, has become incapacitated, either partially or fully; and is unable to lead a normal life.

The entire idea behind addressing all these issues is to form a static and functioning law, self sufficient in dealing with unfair scenarios where the “differently-able” people require and deserve recognition of their rights, which could only be fulfilled once we have addressed the following problems:

— Access to education for the children with disabilities is less than 4 per cent;

— 14% of the population owning less than 0-1 acre of land (functionally landless) is disabled;

— Absolute annual growth of disabled population in Bangladesh is approximately 250,000;

 

2013 was the last year of the 9th National Parliament. As many as 69 laws were passed during the 16th, 17th, 18th and 19th sessions of this parliament. Out of them  the “Rights of the Persons with Disabilities and their Protection Act, 2013” have significant impact on people’s lives,  ensuring rights and dignity of persons with disabilities and further ensuring their educational, physical and mental improvement as well as participation in social and state activities removing all the previously widespread discrimination.

The PWDs suffer discrimination while seeking justice. While the essence of the Constitution demands procedural equality for the PWDs, the Proposed draft Act 2012 makes no such provision. Under such circumstances, the PWDs have to compete with the able bodied persons in the court of law. Majority of the PWDs are the poverty struck people, and their voice more often than not does not reach the alter of the judge sitting so high and far in the Court. Where due to lack of transparency and procedural mishap the mainstream suffers so much hardship in getting justice in true sense, we could only imagine how it is for the poor PWDs. This absence of procedural equality ultimately worsens their position and their degree of disability is further downgraded.

Hence, keeping the short fallings in mind, the present law stipulated 21 rights of the disabled persons. According to the newly enacted law, a 19-member national executive committee, headed by the social welfare secretary, will work for national implementation of the law.

Accessibility of government and public buildings, infrastructure, roads, transportation has been a major concern for the PWDs and this challange have stood as the biggest barrier making all their attempts to lead a normal life futile.

The national building code of 1992 did not mention accessibility for persons with disabilities. The National Building Code of 2008 is disability friendly, in that accessibility for persons with disabilities is clearly mentioned, but that code’s rules and guidelines are not followed for constructing government and private buildings, especially educational institutions. In experience, some government and public institute buildings have ramps and toilets but they are not accessible for persons with disabilities because the specific guidelines and instructions in the Building Code are not followed, leading to a wastage of resources only.

The UN Convention on the Rights of Persons with Disabilities requires in article 9 (1) (a) that buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces be accessible for the PWDs. But despite all these firmly set legal-infrastructure, the PWDs do not receive the deserved benefits and utilities required for their special needs.

For achieving an independent stand for the PWDS, our first priority should be ensuring education and employment facilities. Second priority is to ensure participation and representation of PWDs from local government to national assembly.  Finally we should change our attitudes towards them. There is no alternative to these three pillars.

Once the PWDs reach the age at which normal kids will begin their school, they are asked to stay back at home while their able siblings get enriched with the light of education.  This implants the roots of unemployment as the discrimination is speculated to begin at an early age. UNESCO reports that 98 percent of children with disabilities in developing countries are denied access to formal education. According to the World Bank, at least 40 million children with disabilities do not receive an education thus barring them from obtaining knowledge essential to gain full employment and forcing them to grow up to be financially dependent upon others.

This statistic is even more jarring for women with disabilities, with the United Nations Development Program reporting that the global literacy rate for this population is a mere 1 percent. This may be attributed to the fact that, according to the World Health Organization, boys with disabilities are significantly more likely to receive an education than similar disabled girls. The curriculum of the educational system is very vast and there are not any adaptedones for children with disabilities of all types.

Women with disabilities are five times as likely as women without disabilities to have less than eight years of formal education; 17.4% of all women with disabilities have less than 8 years of formal education as compared to 3.5% of non-disabled women. Only 16% of all women with disabilities are likely to have any college education compared to 31% of non-disabled women and 28% of men with disabilities.

The proposed act 2013 in Schedule B under the Head “Education and Training” provides for Special academic and vocational training and education for the PWDs. Such scheme is to be undertaken with due regard to the gender and nature of disability of the target groups in every district and upazilla level. It also propounds for making the currently running facilities accessible to the PWDs. This is a good approach to ensure the mainstreaming of the PWDs

Educational institutes especially primary schools do not take disabled children. If a child with a disability is admitted in an educational institute, he or she doesn’t get their facilities which are specifically needed for different types of disability. It is very difficult to get permission for writers who write exams on behalf of visually impaired children.

Braille text books and materials, including writing frames and stylus, are not much available. If anyone has Braille books, these are very expensive – one Braille book is almost one hundred dollars, as compared to textbooks that are free from the government for everyone else.

The responsibility of education for all PWDs needs to be transferred from the Ministry of Social Welfare to the Ministry of Education; the government should take initiative on accessibility and transportation; all education must be made inclusive; it must make available Braille books and materials, and sign language training for students, families and teachers.

The societal value of education and the inability of schools to accommodate special needs children substantially contributes to the discrimination of these individuals, but also highlights an issue of resource limitation. Children with disabilities often requirespecialized educational resources and teaching practices largely unavailable in developing countries

The International Labor Organization estimates that roughly 386 million of the world’s working age population have some form of disability, however, up to eighty percent of these employable individuals with disabilities are unable to find work.

Bangladesh government ratified the UN Convention on the Rights of Persons with Disabilities (UNCRPD) in 2007, where in article 27 it clearly says about the employment opportunities of PWDs out of the many others that which requires a realization:

Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions; during their recruitment processes, employers do not consider the specific needs of persons with disabilities. Persons with disabilities should not be discriminated against and should have access to all types and levels of employment, and employees with disabilities should be provided any reasonable accommodation needed to fulfil their job responsibilities.

Employ persons with disabilities in the public sector and private sector; through appropriate policies and measures;

Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.

Some possible recommendations will surely include a reasonable attempt to invoke the Government to create programs for economic empowerment, including self employment opportunities for PWDs and to further monitor the situation of employment of PWDs.

History has always marked a dark era for PWDs leaving behind examples of incidents which display a biased infrastructure of law and regulation for them. A national disability policy was formed in 1995 where it was clearly mentioned that persons with disabilities could participate in any government job including BCS. Unfortunately the law is not being followed. Advocate Swapon Chowkidar is an example where he was denied in BCS exam when it was discovered that he was a visually impaired person.

Out Of 238 candidates who passed against 78 posts of Health Assistance in Cox’s Bazar district in June 2009, Mr. Jahidul Islam was the only one with a disability.  Despite a district-based 10% quota for persons with disabilities, Mr. Jahidul Islam was not recruited. Physically disabled Obaidul Islam was selected in a post of Cancer Research Institute, but he was rejected when the authority saw his disability and another person was recruited in his place. Disabled people do not get any job easily in spite of their qualifications.

The Proposed Act of 2012 submits to liberalise the age limitation and to reserve quotas for the PWDs in Government, autonomous and Local institutions subject to regulations formulated by the Government in this respect. This would have a direct impact on ensuring the employment opportunities and effective representation in the public spheres.

The Constitution of Bangladesh also mentions in article 29 that all citizens in the country have the rights to employment.  The article partly states the following;

(1) There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic;

(3) Nothing in this article shall prevent the State from: (a)making special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic;

But the reality is different.

Even in today’s very progressive society, there still remains the underlying population where the male are prioritised at home rather than the females. In any family where there are 2 disabled children, one male and one female, the male will be the one treated with utmost care, within their capabilities, as they consider their disabled son as a source of survival for their future and the daughter remains as a heavier burden than she already was when born as a girl itself. Our society and its perspectives are more disabled than the person itself. So in such a society, where the rights of normal women are yet to have been recognised fully, the rights of those disabled needs to be fought with more strongly than ever.

Men with disabilities are almost twice as likely to have jobs as women with disabilities. Almost 42% of men with disabilities are in the labour force, compared to 24% of women. In addition, while more than 30% of men with disabilities work full-time jobs, only 12% of women with disabilities have full time employment.

Creating inclusive employment that better facilitates the participation of individuals with disabilities is demonstrated to have a significantly positive impact on not only the lives of these individuals, but also the economies of nations who implement such measures. The International Labour Organization estimates that the current exclusion of employable individuals with special needs is costing countries possible gains of 1 to 7 percent of their GDP.

Above all, the protection aimed to be provided by the legislation to the PWDs are the strongest of support. Freedom from fear is an indispensable part of human rights movement since the day Roosevelt uttered those words. This freedom has not been specifically mentioned in our constitution. But, a plain reading of the Articles 32, 33 and 35 discloses such right. Article 32 guarantees right to life and personal liberty in accordance with law. Liberty does not merely mean not being confined within four walls, but it has a much deeper hidden interpretation which encompasses much greater freedom in case of self chosen movement. Liberty includes one’s freedom to explore various faculties, opportunities and horizons. Thus, where a person is becoming disabled through exterior factors, it is a clear violation of his liberty.

The disabled persons must get the national identity cards and be listed in the voters roll. Even they will be able to contest in the polls. Under Article 66, section (2), a person is “disqualified for election as, or for being, a member of Parliament who…(a) is declared by a competent court to be of unsound mind…”. Now, it becomes a matter of controversy together with an added responsibility to be able to interpret these words “unsound minds”, as to whether they shall include persons with physical disabilities as well or not. Article 122, section (2) states: “A person shall be entitled to be enrolled on the electoral roll for a constituency delimited the purpose of election to Parliament, if he…(c) does not stand declared by a competent court to be of unsound mind”

Very often, persons with intellectual or psychosocial disability are excluded from the voter’s list thus taking away their right as a citizen of this country. There is no ramp in the voting centres and also some voting centres are located on the second or third floor which makes it difficult, if not totally impossible, for the PWDs to go and cast their votes. Blind persons do not have the specific ballot papers, i.e. Braille voting sheets, that they can use to vote in their own privacy, and they must get other persons’ help.

In Bangladesh, voter lists are made using voter surveys. When the election starts, there are surveys from house to house to determine how many voters there are and the voter’s lists are made. Currently, there is a page to fill out to indicate if the person has a disability. The election commission should ensure that persons with disabilities are not discriminated from voting on the basis of disability and not deprived of their right to vote.

PWDs are unaware that there is a special blog for PWDs to fill out to give information about how many PWDs will be casting votes. It says that the voters should be aware of how to use the voting system, including electronic voting machines, but in reality this is not happening because information is not provided to persons with disabilities, and technology is not provided to them.

There is no visible application, let alone any critical interpretation, for a detailed implementation of these rights. In reality, a major barrier to these implementations  are as follows:

Attitudinal barrier: disabled people are considered as weak and incapable of work.

Institutional barrier: the lack of rules of regulations in country to provide employment to persons with disabilities.

Another major concern is that most women with disabilities are frequently subjected to violence, such as mental, physical and sexual abuse. In the family, women with disabilities are ignorant about from their human rights and in most cases family does not ensure their safety and security. For example, one woman with intellectual disability is sexually abused by her uncle, another abused by her brother, and in each case she became pregnant. Only once she became 5 or 6 months pregnant the family would understand or accept that she was being abused. But in majority of the cases, women with disabilities are violated and they never get justice in these cases.

Various studies have shown that, in the society, women with disabilities are facing gang rape, trafficking, kidnapping and murder after rape. Most of the cases are handled by DPOs or NGOs with the cooperation of legal services organizations.  A real life tragedy was a disabled girl named Husne Ara who was gang raped. When her case went to court, magistrate dissolved the case holding that the girl could not testify about the case. The case was then shifted to Khulna. And some days back the perpetrators were given 80 year imprisonment.  Our judges should be trained about the rights of PWDs. Majority of such cases are yet awaiting justice.

In Bangladesh, there is also a law to protect women and girls from abuse and torture, which is Prevention of Cruelty against Woman and Children Act 2000 and 2003. But this law failed to protect women and girls with disabilities from all forms of abuse and torture. In addition to lack of inclusion in relevant laws, the courts also fail to give justice to the victim women or girls with disabilities. The courts do not agree to accept the evidence from visually impaired girls as substantive evidence. The system does not allow interpreters for hearing impaired girls, evidence from visual impaired girls or parents’ evidence on behalf of the intellectual disabled girls.

In addition to the lack of legislation, or law enforcement by courts, police also fail to enforce the law for women and girls with disabilities. There is a lack of enforcement of articles article 5 (2), 12 (2) and 16 (5) of the Convention on the Rights of Persons with Disabilities (CRPD) that mention relevant rights of women with disabilities.

An added agony on top of this is that there is no sufficient health service for persons with disabilities, including persons with psychosocial disabilities.

Doctors, nurses and health workers do not have enough knowledge about prevention of secondary disability, early intervention, or rehabilitation. There are no available services for persons with psychosocial disabilities- there are only two facilities in Bangladesh. There are fourteen centers for persons with psychosocial disabilities in medical colleges. There is no parent counselling. Early detection is not done. Medical facilities do not have knowledge about how to provide services to pregnant women with disabilities.

In line with article 25 CRPD, to provide immediate and instant services, including rehabilitation and speech therapy; the government should enact law and policies by having professionals’ training for health workers, doctors and nurses in these issues, including on communication with deaf persons; and increase the supports and services available in all areas for persons with psychosocial disabilities.

The argument that development should be channelled to better the agency of PWDs has been contested on several grounds. First, critics argue that development is enacted to harness potential that most individuals in this population do not possess. Second, the case that health care costs for many persons with special needs are simply too great to be shouldered by the government or NGO‘s has been made, especially with regard to emerging economies. Furthermore, there is no guarantee that investing in an individual’s rehabilitation will result in substantial change in their agency. Lastly is the proposition of priorities.

All types of laws and policies should be amended in the light of the CRPD. Disability should be included as a cross-cutting issue in all relevant ministries. Resource allocation should be proportionate and should be increased in light of the CRPD. The rules of business of the ministries should be amended to include persons with disabilities.

There are separate ministries for women and other people, but a ministry of disability affairs is needed. The 10 % quota has been provided for 3rd and 4th class employment. This quota is provided for PWDs and orphans, it is not separate. There should be a separate quota for persons with disabilities.

In Bangladesh, the country is still at the level of learning the basics about the rights of persons with disabilities. 40 years have passed by after independence. Still we are learning about ramps, toilets, inclusive education, employment, etc. Persons with disabilities in Bangladesh believe that the process of change should be faster. One generation has passed by. How many more generations do we have to wait?

It is true that it is difficult to persuade one to serve the society; they might feel intimidated by the possible complications or might feel that they may not be able to accomplish anything alone by themselves or in small numbers, but it is also true that a simple attempt may bring out a new ray of hope for those who need it the most.

2 years ago, I used to linger on the same idea, but my encounter with the residents of CRP, Centre for Rehabilitation for the Paralysed, Savar, a Foundation dedicated to help people who are disable, helped re-shape my perception. When we struggle to do certain jobs even when being completely able, why do we strike them down even in making the slightest of those mistakes?? If not anything, it has definitely taught me some simple lessons of life, that it does not take hundreds to help a blind man to cross a road, and similarly it won’t take more than one to help and support atleast one of those unfortunate souls. Every little support counts.

Aimee Mullins, an American athlete, actress, and fashion model, was born with a medical condition that resulted in the amputation of both of her lower legs and has become one of the most prominent thinkers on the topic of prosthetic innovation. She once mentioned “People presume my disability has to do with being an amputee, but that’s not the case; our insecurities are our disabilities, and I struggle with those as does everyone”. If such is accepted as the case by all, then the word “disability” will be interpreted in a fully new horizon, where it will go beyond just explaining physical deformities and mental illness, and include even those instances of our personal insecurities and one’s self-perceived short fallings.

It is true that the 2013 Act has brought about many changes in the legislation portraying a positive diversion, but what needs to be emphasized on is the compliance of these laws. A stitch in time saves nine, a saying which is true when it comes to a feud with time, but we should believe that it’s never too late to come forward and give recognition to these “differently-able” people in the same row of standing as everyone else.

About The Writer

Article Author Image

Barrister Shehrin Salam Oishee

Vice President of Physically-Challenged Development Foundation (PDF).

shehrin91@hotmail.com

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