Who is protecting the disabled?

An in depth look with Zainab Mustafa about where disability rights belong in the Pakistani legal system

To put it mildly, Pakistan and its legislature have never had a very congenial relationship. After adopting its own Constitution after 28 years of its birth, the Pakistani Constitution has since been suspended four times during martial laws. When not sent packing by generals, the Constitution has come under fire several times by not only the people and journalists but by lawyers themselves as well.

But where does disability rights fit into this tumultuous country and its law? We talked to Zainab Mustafa, a research associate at the Research Society of International Law, Pakistan, to find out more.

Ms. Zainab Mustafa

Where does Pakistani legislature stand on disability rights?

Pakistan’s primary legislation for safeguarding rights of persons with disabilities (PWDs) was promulgated in 1981 which focuses on employment and segregated education (special schools). Under this ordinance, all government agencies and companies employing at least 100 individuals were required to ensure at least 1 % of their workforce were persons with disabilities (today this is 2%), or a pay a penalty of Rs. 1000 (US $10) per month. A National Policy for Persons with Disabilities was enacted in 2002 which was a comprehensive document with guiding principles and strategies, with a focus on empowering persons with disabilities. Four years later, the National Plan of Action of 2006 was introduced to provide a mechanism for implementing this policy. It identified 17 critical areas of intervention from assessment of the magnitude of the problem to service delivery systems and provided for short-term steps that were to be taken by the end of June 2009 and long-term measures to be adopted by July 2025. However, it can be said that the Plan of Action was a failure and was never properly implemented because the 18th amendment to the Constitution of Pakistan devolved the power from the Federal Government to the Provinces. The ordinance has been amended by the Punjab Assembly in 2015. However, it is crucial to note that the scope of rights for persons with disabilities is not broad. Anti-discriminatory legislation mandating equal treatment for persons with disabilities, laws on early detection and intervention services for children with disabilities and standards in special education are missing.
The UN Convention on the Rights of Persons with Disabilities (CRPD)) was adopted by consensus by the General Assembly in December 2006 and entered into force in 2008. Pakistan ratified the Convention in 2011. The CRPD is a comprehensive, detailed and overarching framework that promotes and protects the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities and “respect for their inherent dignity”.
On ratification, the obligation is to implement the treaty in two ways. The first is to ensure that the civil and political rights, such as the right to vote, the right to liberty of a person and the right not to be tortured are immediately protected. In Pakistan, some of these rights are still missing. On voting, for e.g. persons with physical impairments cannot access the polling stations. Another major issue is that persons with disabilities also have a lack of information about their electoral rights that keeps them from exercising their right to vote. Unfortunately, not much has been done since the ratification of the Convention. Furthermore, instead of isolated legislation, there is a need for comprehensive federal & provincial legislation to protect all rights (including employment rights) of PWDS. There should be an effective oversight board to ensure the implementation of CRPD.

Is there any law or Act to protect the rights of the disabled and safeguard them from discrimination? Has there ever been such law or bill proposed in the Parliament?

Pakistan’s 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. Each person is entitled to all the rights and freedoms set forth therein, without distinction of any kind. Our Constitution embodies universality, indivisibility, interdependence and interrelatedness of all human rights and freedoms. It applies equally to persons with disabilities, guaranteeing them full enjoyment of their fundamental rights without discrimination. The triangular construct of the right to life, dignity and equality under the Constitution provides a robust platform for mainstreaming persons with disabilities. The Constitution abhors discrimination and holds that all citizens are equal before law and are entitled to equal protection of law. Inherent in Article 25 is the recognition that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of a human being. Article 25 of the Constitution promotes inclusiveness, effective participation and recognizes human diversity in a society (PLD 2017 Lahore 1). However, specific legislation that prevents discrimination against PWDs is the need of the hour. It will also aid in the process of litigation and enforcement of rights.

Have you in your experience as a lawyer ever encountered a case involving a disabled person suing an offending party? If not has any of your colleagues ever been witness to such a case?

Yes, I have come across such cases. However, the process is extremely lengthy and costly. PWDs often have to fight for years if they have been discriminated against on the basis of their disability. If there was an anti-discrimination law besides the Constitution of Pakistan, dealing with such a scenario in particular, it would make such cases easier to fight in courts.

United States of America has the Americans with Disability Act in place for protecting personal as well as professional rights of the disabled including ensuring easy access to them to public places and transport. If such a law was to be passed in Pakistan, what chances are there it shall be taken seriously and implemented rigorously?

Such a law is definitely needed in Pakistan. However, not much has been done after ratifying the CRPD. Thus, we need to assess how to build political will in order to address discrimination against PWDs. Only when sufficient political will is built through advocacy campaigns and mainstreaming PWDs can such a law be effectively enforced. If Pakistan focuses on strengthening compliance with the CRPD, it would go a long way in providing holistic rights to PWDs. In order to ensure the proper implementation of the law, an oversight mechanism is crucial.

As a member of the judicial system what steps do you think need to be taken to bring about an awareness regarding disability rights? How do we start a chain of reaction which will finally end in a similar law as the ADA to be set up in Pakistan?

PWDs suffer due to a number of barriers that impede their ability to participate in economic, social and cultural activities of daily life. The only constructive way to remove these barriers is by enacting laws and policies that safeguard the rights of PWDs in an effective manner. The State of Pakistan therefore needs to adopt a holistic rights-based approach for PWDs.
Parliamentary representation of persons with disabilities needs to increase which will contribute to the strengthening of political will. Furthermore, advocacy campaigns need to be launched to address special groups such as policy makers, political parties and youth wings etc.

You can reach Zainab at zainabmustafa@rsilpak.org