Introduction

For anyone that wants to understand the rights of persons with disabilities in Pakistan, they should be looking at the domestic legislation, international law and domestic case law. Disability means 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[1]. Since  the subject of persons with disabilities is a provincial matter as per the 18^th amendment of the Constitution of Pakistan, Sindh , Balochistan and ICT have passed legislations  on the Sindh Empowerment of Persons with Disabilities Act 2018 , Balochistan Persons with Disabilities Act 2017 and The ICT on Rights of Persons with Disabilities Act 2020 which give effect to an international human rights treaty which Pakistan had ratified in 2011 called United Nations Convention on the Rights of 'Persons with Disabilities' (hereinafter referred to as CRPD or Convention). This Convention  is  highly  significant,  as  people  with  disabilities  often  remain  victim of discrimination and/or deprived of equal opportunities. It is the only United Nations human rights instrument protecting comprehensively, the rights of persons with disabilities.

 

Under law, discrimination based on disability is prohibited and failure or denial to provide reasonable accommodation to a person with disability is considered to be discrimination based on disability. Discrimination on the basis of disability means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field[2]. It includes all forms of discrimination, including denial of reasonable accommodation and this also has also been quoted by Pakistani court’s (P L D 2017 Lahore 406; P L D 2018 Lahore 300).

What is reasonable accommodation?

The Convention provides that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. The State shall take all appropriate steps to ensure that reasonable accommodation is provided. Reasonable accommodation is defined under the Convention[3] to mean necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.

 

Reasonable accommodations are individualized measures meeting the special needs of persons with disabilities. They aim at moving beyond formal equality and achieving substantive equality by ensuring that persons with disabilities can reach the same level of opportunities as other persons.  It is requested by the person with disability. For example in the field of education, accommodations may include: changing the location of a class; providing different forms of in-class communication; enlarging print, materials and/or subjects in signs, or providing handouts in an alternative format; and providing students with a note taker or a language interpreter or allowing students to use assistive technology in learning and assessment situations. Provision of non-material accommodations, such as allowing a student more time, reducing levels of background noise (sensitivity to sensory overload), using alternative evaluation methods and replacing an element of the curriculum with an alternative may also be considered.

The question is of course when accommodation is considered ‘reasonable’. This question will never have a definite answer and has to be examined on a case by-case basis. While the UN Human Rights Office, OHCHR defines ‘reasonableness’ as ‘the result of an objective test that involves an analysis of the availability of resources, as well as the relevance of the accommodation, and the expected goal of countering discrimination’, it acknowledges that ‘testing standards are yet to be developed in jurisprudence by the Committee on the Rights of Persons with Disabilities[4].

Have the Pakistani Court’s given effect to the UN Convention on Rights of Persons with Disabilities?

Even without legislation, Courts in Pakistan have been interpreting the Constitution in light of the CRPD.  Courts have expressed that “the wisdom of the Convention is already embedded in the soul of our Constitution and can easily be rediscovered by purposively interpreting the Constitution”. (P L D 2017 Lahore 406) The following are extracts from a few reported cases demonstrating this.

 

2020 S C M R 1713

This Court being guardian of the Fundamental Rights guaranteed to the citizens was approached under Article 184(3) of the Constitution. It was pointed out to us that global movement for rights of the disabled persons had resulted in drafting of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Pakistan had ratified the same. However, despite such ratification, disabled persons continue to suffer as most neglected, marginalized and unrepresented segment of the society who face serious and insurmountable barriers against their inclusion in the mainstream society.

 

P L D 2018 Lahore 300

The Convention reaffirms the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination. That disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others. Discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person. The promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms results in their enhanced sense of belonging and in significant advances in the human, social and economic development of society. It is critical for persons with disabilities to have individual autonomy and independence, including the freedom to make their own choices. Children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children. Persons with disability should have access to physical, social, economic and cultural environment, to health and education and to information and communication, in enabling them to fully enjoy all human rights and fundamental freedoms.

The fundamental principles of the Convention provide respect for inherent dignity, individual autonomy including the freedom to make one's own choices, independence of persons, non-discrimination, full and effective participation and inclusion in society, respect for difference and acceptance of persons with disabilities, human diversity and humanity, equality of opportunity, accessibility, equality between men and women and respect for the right of children with disabilities to preserve their identities. Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.

Reasonable Accommodation

The Convention provides that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. The State shall take all appropriate steps to ensure that reasonable accommodation is provided. Reasonable accommodation is defined under the Convention to mean necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. While "Discrimination on the basis of disability" means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.

In Hafiz Junaid's case ((PLD 2017 Lahore 1) the need for reasonable accommodation under CRPD was given a constitutional underpinning, a requirement that flows from the fundamental rights guaranteed under the Constitution

 

Article 25 (All citizens are equal before law and are entitled to equal protection of law) of the Constitution promotes inclusiveness, effective participation and recognizes human diversity in a society. Non-discrimination as a fundamental right, guarantees elimination of discrimination at all levels and, therefore, mandates that reasonable accommodation be provided by the State and other institutions, to actualize this constitutional goal and avoid exclusion of persons with disabilities from effective participation in the society. "There should be a full recognition of the fact that persons with disability are integral part of the community, equal in dignity and entitled to enjoy the same human rights and freedoms as others." Our Constitution promotes and protects the human rights of all persons inclusive of persons with disabilities. The constitutional values of social, economic and political justice recognize free choice and individual autonomy for all. Our Constitution is a living document and provides a bold and a passionate constitutional support for persons with disabilities

This constitutional construct creates an obligation on the State and other institutions of the State to make all possible endeavours to mainstream persons with different abilities and to embrace the diversity in the society. The State and its institutions are under a constitutional obligation to go the extra mile and ensure, within the means available, that person with disabilities get reasonable accommodation in order to enjoy their fundamental rights in the same manner as enjoyed by other citizens of Pakistan. (emphasis supplied)

P L D 2017 Lahore 1

Right to life, dignity and equality mandate that State and its organs will make serious endeavours to provide reasonable accommodation to persons with disabilities so that they can be mainstreamed and made useful and productive members of the society. The impugned Recruitment Policy is devoid of any such thought or realization. It lacks openness, inclusiveness and accessibility for persons with disabilities. The School Education Department, Government of Punjab has failed to consider that the petitioner could have been made able enough to teach with the help of assistive technology as elaborated above. No one has questioned the qualification of the petitioner. His ability to use blackboard and maintain discipline can be easily achieved through assistive technology and additional human resource. It is not the case of the department that reasonable accommodation cannot be provided or that it is burdensome or expensive. The ground urged by the department is that the petitioner being blind cannot write on the blackboard and will not be able to control the class. These reasons hold out a merciless and heartless Department that has paid no heed to the rights of the petitioner under the Constitution, the Ordinance and the Convention. The Department has failed to realize that in considering the social integration of people with disabilities access to employment is often considered to be of a particular importance.

Conclusion

Therefore, when assessing what the rights of persons with disabilities are in Pakistan, and whether the violation of them constitutes discrimination based on disability, one should look into the domestic legislation, the fundamental rights under the Constitution, opinions of the Courts in previous cases and the international law through UNCRPD.

Barrister Sarah Kazmi is an Advocate High Court Pakistan. She is based in Islamabad. The views expressed are of the author.