A Critical Appraisal of Disability Laws in Islamic Republic of Pakistan

Authors

  • Naveed ur Rehman Doctoral Candidate / Assistant Professor, University Law College, University of the Punjab, Lahore
  • Prof. Dr. Shazia Qureshi Principal, University Law College, University of the Punjab, Lahore

DOI:

https://doi.org/10.53762/alqamar.06.03.e07

Keywords:

Persons with Disabilities (PWDs), United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), Disability Laws

Abstract

In Pakistan, the proportion of Persons with Disabilities (PWDs) has significantly risen. This weaker section of society was habitually neglected, exposed to discrimination, put to legal violations, and banned from practically all advanced vocations while disregarding their other abilities for participation in the routine affairs of life. There was no dynamic legislative framework in place and no forward-thinking research to defend the rights of these PWDs in Pakistan. The problems that PWDs are now experiencing appear to be caused by excessive social, physical, and attitudinal action or inaction on the part of society. Therefore, it is essential that Pakistan's present laws be evaluated from the perspective of international human rights treaties and that administrative measures be put into place at the national level to eliminate the exploitation faced by PWDs. After ratifying the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), Pakistan has built a legislative framework for PWDs, but its efficacy remains unexplored. The article will thoroughly discuss the framework and its efficacy. In discussing PWDs' rights under the UNCRPD, the article emphasizes the active fundamental liberties that PWDs enjoy. The study will also discuss PWDs' challenges in Pakistan and the subtle bias that impedes their advancement. Ultimately, it will offer suggestions for improving legislation and implementation mechanisms to advance the welfare of PWDs in Pakistan.

References

World Health Organization. “World Report on Disability (WHO Library Cataloguing-in-Publication Data, 14 December 2011).”Accessed March 19, 2023. https://www.who.int/publications/i/item/ 978924 1564182.

World Health Organization. “Disability (Key Facts, 7th March 2023)”. Accessed March 20, 2023. https://www.who.int/ news-room/fact-sheets/detail/disability-and-health.

United Nations. “Charter of the United Nations, 24 October 1945, 1 UNTS XVI”. Accessed August 2, 2023. https://www.refworld.org/docid/3ae6b3930.html.

Article 55(c) of the Charter expresses an aspiration to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.

University Declaration of Human Rights. General Assembly Resolution 217A (III) of 10 December 1948. Article 1 & 2 of UDHR provide that all human beings are born free and equal in dignity and rights and are entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The Two Covenants included (i) The International Covenant on Civil & Political Rights (ICCPR), General Assembly Resolution 2200A (XXI) of 16 December 1966 and (ii) The International Covenant on Economic, Social and Cultural Rights (ICESCR), General Assembly resolution 2200A (XXI) of 16 December 1966.

ICCPR has two Optional Protocols, which being additional treaties provide further rights to PWDS or processes to secure those rights. The first Optional Protocol to ICCPR allows people to complain directly to the Human Rights Committee (HRC) if they believe that their rights have been violated. It came into force on 23 March 1976. The Second Optional Protocol to ICCPR which is also its subsidiary agreement, aims at the abolition of the death penalty. It was created on 15 December 1989 and entered into force on 11 July 1991.

Rioux, M. H. and others eds., Critical Perspectives on Human Rights and Disability Law (Boston: Martinues Nijhoff Publishers, 2011), 19.

The Committee on Economic, Social and Cultural Rights (CESCR) is a body of 18 independent experts that monitors implementation of the ICCPR by its State parties. The Committee seeks to develop a constructive dialogue with State parties, determine whether the Covenant’s norms are being applied, and assess how the implementation and enforcement of the Covenant could be improved so all people can enjoy these rights in full.

The Human Rights Council (HRC) is an inter-governmental body within the United Nations system responsible for strengthening the promotion and protection of human rights around the globe and for addressing situations of human rights violations and making recommendations on them.

HRC General Comment 18 HRI/Gen/1/Rev.1 at 26 (1994) para 7 and ESCR General Comment 5 UN.DE/C.12/1994/13 (1994) released general remarks clarifying the inclusion of PWDs.

Jayna Kothari, Economic & Political Weekly XLV no. 18 (May 1, 2010). https://www. epw.in/journal/2010/18.

Article 1 of UDHR declares that “Every single person is brought into the world free and equivalent in respect and rights.”.

Art.23, para 1 of Convention on the Rights of the Child which requires the States Parties to recognize the rights of children with disabilities to enjoy “full and decent: lives and participate in their communities”.

(i) General Assembly Resolution No.2856 (XXVI) at 93, UN GAOR, Supp. No. 29, UN Doc.A/8429 (Dec. 20, 1971) concerning the Declaration on the Rights of Mentally Retarded Persons, 1971 and (ii) General Assembly Resolution No.3447 (XXX) of 9 Dec. 1975 concerning the Declaration on the Rights of Disabled Persons, 1975.

Gerard Quinn & Theresia Degener and others, Human Rights and Disability, the current use and future potential of United Nations Human Rights Instruments in the Context of Disability (United Nations, New York and Geneva: United Nations Human Rights, 2002), 30.

General Assembly Resolution No. 2856 (XXVI) at 93, UN GAOR, Supp. No. 29, UN Doc. A/8429 (Dec. 20, 1971).

Art.1 of the Declaration on the Rights of Mentally Retarded Persons, 1971.

General Assembly Resolution No. 3447 (XXX) at 88, UN GAOR Supp. No. 34, UN Doc. A/10034 (Dec. 9, 1975).

Para 4 of the Declaration on the Rights of Disabled Persons, 1975.

General Assembly Resolution No. 36/77 at 176, UN GAOR, 36th Sess., Supp.No.77, UN Doc. A/Res/36/77 (Dec. 8, 1981).

General Assembly Resolution No.37/52 at 185, para 11, UN GAOR, 37th Sess., Supp.No.53, UN Doc. A/Res/37/53 (Dec. 3, 1982).

General Assembly Resolution No.37/52 at 186-187, para 11, UN GAOR, 37th Sess., Supp.No.53, UN Doc. A/Res/37/53 (Dec. 3, 1982). The UN Decade of Disabled Persons’ ran from 1982 to 1992.

Paragraphs 1 to 88 of World Program of Action, 1982.

At the Global Meeting of Experts to Review the Implementation of the WPA for PWDs held in Stockholm in 1987.

United Nations document A/C.3/42/Sr.16.

United Nations document A/C.3/43/Sr.16.

General Assembly Resolution 44/70 of 15 March 1990.

Gerard Quinn & Theresia Degener and others, Human Rights and Disability, the current use and future potential of United Nations Human rights Instruments in the Context of Disability (United Nations, New York and Geneva: United Nations Human Rights, 2002). https://www.ohchr.org/sites/default/files/Documents/Publications/ HRDisabilityen.pdf

General Assembly resolution 46/119 of 17 Dec. 1991.

Principles for the Protection of Persons with Mental Illness. General Assembly Resolution, 46/119 Adopted on 17 December, 1991.

Eric Rosenthal and Leonard S. Rubenstein, “International human rights advocacy under the Principles for the Protections of Persons with Mental Illness.” International Journal of Law and Psychiatry 16 (1993): 257.

General Assembly Resolution 48/96 of 20 Dec. 1993.

Valentina Della Fina, Rachele Cera & Guiseppe Plamisano Editors, The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (New York: Springer International Publishing AG, 2017), 9. DOI 10.1007/978-3-319-43790-3_1.

Reports issued by the Special Rapporteur are available at UN. Enable, The Special Rapporteur on Disability of the Commission for Social Development, http://www.un.org/ esa/socdev/enable/rapporteur.htm.

Dimitris Michailakis, The Standard Rules: A Weak Instrument and a Strong Commitment in Disability, and Legal Change 117 (Melinda Jones & Lee Ann Basser Marks ed., 1999).

Vienna Declaration and Program of Action, UN. Doc. A/Conf.157/24 (July 12, 1993).

Para 63 and 64 of the Vienna Declaration and Program of Action, 1993.

Cairo International Conference on Population and Development was held in 1994.

United Nations. The United Nations and Disability: 70 Years of the Work Towards a More Inclusive World (Division for Social Policy and Development United Nations, Department of Economic & Social Affairs, 2018), 10.

United Nations Document A/Conf.166/9, Annexure I (Declaration) and II (Program of Action).

World Summit for Social Development, which was held in Copenhagen from March 6 to 12, 1995.

Ibid., Annex. I, para 16(h).

Ibid, Annex. I, commitment 6(n).

Ibid, Chap. II, Eradication of poverty, para 35(j).

The Fourth World Conference on Women's Platform for Action was held in Beijing, 4-15 September 1995.

Beijing Declaration and Platform for Action, Fourth World Conference on Women (A/CONF.177/20).

Para 32 of Beijing Declaration and Platform for Action.

The World NGO Summit on Disability was held in Beijing, China on the 12th of March 2000.

General Assembly Resolution 56/168 of 19 December 2001.

O’Reilly, A., Decent work for persons with disabilities: promoting rights in the global development agenda (Geneva: International Labour Office, Gender, Equality and Diversity Branch, Conditions of Work and Equality Department, 2007).

Report of the Working Group to the Ad Hoc Committee, para 1, UN Doc. A/AC.265/2004/WG.1 (Jan 27, 2004).

The ‘Draft Articles’ were published by the Working Group on January 16, 2004.

Draft Convention on the Rights of Persons with Disabilities and Draft Optional Protocol (2006) http://www/un.org/esa/socdev/enable/rights/ahc8adart.htm.

Para d of Preamble of Draft Convention on the Rights of Persons with Disabilities.

United Nations Convention on the Rights of Persons with Disabilities, 2006.

December 13th, 2006.

Secretary General Hails Adoption of Landmark Convention on Rights of People with Disabilities, Official statement of the UN Secretary General, 13 December, 2006. UN Doc SG/SM/10797, HR/4911, L/T/4400. Accessed October 28, 2018.

http://www.un.org/News/Press/docs/2006/sgs10797. doc.htm.

Lee Ann Basser (Editors), Human Dignity - Critical Perspectives on Human Rights and Disability Law (Leiden Boston: Martinus Nijhoff Publishers, 2011), 17.

Marcia H. Rioux, Lee Ann Basser & Melinda Jones (Editors), Critical Perspectives on Human Rights and Disability Law (Leiden Boston: Martinus Nijhoff Publishers, 2011), 2.

United Nations. United Nations – Disability, Frequently Asked Questions regarding the Convention on the Rights of Persons with Disabilities. Accessed October 28, 2018. https://www.un.org/development/desa/disablities/convention-on-the-rights-of-persons-with-disabilities/frequently-asked-questions-regarding-the-convention-on-the-rights-of-persons-with-disability.html.

For example, liberty, freedom of movement, freedom of expression and privacy etc.

For example, education, health and work etc.

For example, to realize the right to education (Art.24), State Parties inter alia ensure that education is ‘deliberated in the most appropriate languages and modes and means of communication for the individual”.

Bryan Y. Lee, “The UN Convention on the Rights of Persons with Disabilities and its Impact upon Involuntary Civil Commitment of Individuals with Developmental Disabilities.” Columbia Journal of Law and Social Problems 44 (2011): 393-445.

Danai Angeli, “Positive Obligations in Human Rights Law: The Disabilities Paradigm Shift.” (PhD thesis, European University Institute, 2015).

Theresia Degener, “Disability in a Human Rights Context.” MDPI Publications 5 no. 35(2016): 2-24. doi:10.3390/laws5030035.

The Committee on the Rights of Persons with Disabilities (CRPD) is the body of independent experts monitoring the Convention's implementation by the States parties.

International Labour Office, Geneva, Decent Work for Persons with Disabilities: Promoting Rights in the Global Development Agenda, Summary overview. p. 12.

The Committee on the Rights of Persons with Disabilities (CRPD) is the body of independent experts which monitors the implementation of the Convention by the States parties.

Pakistan signed UNCRPD on 25th September 2008.

Pakistan ratified UNCRPD on 05th July, 2011.

Razzaq, S., & Rathore, F.A., “Disability in Pakistan: Past experiences, current situation and future directions.” Journal of Pakistan Medical Association 70 no. 12(2020): 2084-2085.

Rathore, F.A., & Mansoor, S.N., “Disability Rights and Management in Pakistan: Time to Face the Bitter Truth.” Journal of the College of Physicians and Surgeons Pakistan 29 no. 12(2019): 1131-1132.

According to Article 38(d) of the Constitution, the Government is required to provide for all such citizens, irrespective of sex, caste, creed or race, basic necessities of life, such as food, clothing, housing, education and medical relief, who are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment.

General Assembly Resolution No. 36/77 at 176, UN GAOR, 36th Sess., Supp.No.77, UN Doc. A/Res/36/77 (Dec. 8, 1981).

Amendment in Section 10 of the Disabled Persons (Employment and Rehabilitation) Ordinance (1981).

Punjab Disabled Persons (Employment and Rehabilitation) Ordinance’ of 2015 (X of 2015) 19th March, 2015.

Balochistan Persons with Disabilities Act, 2017 (II of 2017) 8 June, 2017.

Differently Abled Persons Act, 2014 (Sindh Act No. XVI of 2015) 18 March, 2015.

Sindh Empowerment of Persons with Disabilities Act, 2018.

The Gilgit-Baltistan Persons with Disabilities Act, 2019 (Act No. V of 2019) 5 Nov. 2019.

Khyber Pakhtunkhwa Rights, Rehabilitation, Accessibility and Empowerment of People with Disabilities Act 2018.

Muhammad Rafesh & Syed Muhammad Aun Abbas, “Disability Laws in Pakistan: A critical & Contextual Study.” South Asian Law Review Journal 8(2022): 196.

Moving from the Margins: Mainstreaming Young Persons with Disability in Pakistan, British Council, 2019 <https://www.britishcouncil.pk/about/research-reports/mypd-2019> assessed on 3 August, 2023 at 5:18 p.m.

National Policy for Persons with Disabilities, 2002 <https://dgse.gov.pk/SiteImage/Downloads/National%20Policy%20for%20Persons%20with%20Disability.pdf> assessed on 3 August, 2023 at6 pm.

National Plan of Act, 2006 <https://www.google.com/search?q=National+Plan+of +Action+in+2006+in+pakistan> assessed on 3 August, 2023 at 6:04 pm.

Special Citizens Act, 2008 (Act No. 24 of 2008).

National Education Policy, 2008 by Ministry of Education, Govt. of the Punjab was made on 14 April, 2008. It was adopted in 2009.

The Import of Duty-Free Cars for Disabled Persons, announced by Ministry of Commerce, Govt. of Pakistan vide a notification dated 1st September, 2010 <https://www.commerce.gov. pk/wp-content/uploads/pdf/SRO_61_2009_new.pdf> assessed on 3 August, 2023 at 6:27 p.m.

Accessible Banking Infrastructure for Special Persons, 2014, Circular/Notification dated 13 Feb. 2014 issued by the State Bank of Pakistan.

Guidelines for Banking Services to Visually impaired/Blind Persons, 2014, Circular dated 5 Dec 2014 issued by the State Bank of Pakistan.

The State Bank of Pakistan Concessionary Financing Facility, 2019 vide notification dated 19 Mar, 2019.

Dr. Shahnawaz Munami Vs. The Federal Govt. of Pakistan (2020) SCMR 1713 SC, 2020 PLC(CS) 1475 SC.

Malik Ubaidullah Vs. Govt. of Punjab (2021) PLC(CS)N 65 SC (PK).

Pakistan Bureau of Statistics. (2020 Feb. 28). Disability Statistics provided by NADRA & cited by Pakistan Bureau of Statistics in compliance to the decision of the Honorable Supreme Court dated 28-02-2020. https://www.pbs.gov.pk/content/disability-statistics.

Divisional Superintendent, Pakistan Railways Vs. Umar Daraz, 2023 SCMR 761.

Peerzada Waqar Alam Vs. National Accountability Bureau (NAB), 2023 SCMR 742.

Mubarak Ali Babar Vs. Punjab Public Service Commission, 2023 SCMR 518.

Malik Ubaidullah Vs. Govt. of Punjab, PLD 2020 SC 599.

Mst. Beena Vs. Raja Muhammad, PLD 2020 SC 508.

Mst. Safia Bano Vs. Home Department, Govt. of the Punjab, PLD 2021 488 SC.

Published

2023-09-19

How to Cite

Naveed ur Rehman, and Prof. Dr. Shazia Qureshi. 2023. “A Critical Appraisal of Disability Laws in Islamic Republic of Pakistan”. Al-Qamar, September, 115-30. https://doi.org/10.53762/alqamar.06.03.e07.