Law analysis
Plight of persons with disabilities
Towards effective legal framework
Dr. Abdullah Al Faruque
Persons with disabilities are the most vulnerable and disadvantaged segment of any society and are often subjected to discrimination and negative attitudes and stereotyping. In Bangladesh, the estimated number of persons with disabilities is around 140 million people, which constitutes 10% of its total population.
Most of them are isolated from mainstream society, stigmatised, mistreated and marginalised. Most of persons with disabilities are often deprived of basic needs including access to health services, housing, education, employment, and transportation. Discrimination against them in voting and other opportunities for political participation is also common phenomenon in Bangladesh.
Widespread discrimination against persons with disabilities and their exclusion from mainstream society leads to considerable economic hardship and loss of their productive capacity. In fact, many of them are the poorest of the poor with disabilities are the most vulnerable and disadvantaged segment of any society and are often subjected to discrimination and negative attitudes and stereotyping. In Bangladesh, the estimated number of persons with disabilities is around 140 million people, which constitutes 10% of its total population.
Most of them are isolated from mainstream society, stigmatised, mistreated and marginalised. Most of persons with disabilities are often deprived of basic needs including access to health services, housing, education, employment, and transportation.
Discrimination against them in voting and other opportunities for political participation is also common phenomenon in Bangladesh. Widespread discrimination against persons with disabilities and their exclusion from mainstream society leads to considerable economic hardship and loss of their productive capacity. In fact, many of them are the poorest of the poor.
There are two main approaches regarding treatment of persons with disabilities- welfare approach and human rights approach. Traditional notion of the welfare approach, which is based upon medical model, looks at disability as a medical condition which can be solved through the treatment and social welfare measures. The welfare approach follows a difference or separate-treatment approach, providing for the different needs of disabled persons in segregated settings, such as special schools and accommodation.
Main assumption behind such approach is that rather than making mainstream institutions accessible, the needs of disabled persons are better served in separate facilities that can be constructed to meet very specialised needs. According to this approach, the exclusion of persons with disabilities is not seen as discriminatory, but as a natural outcome of their medical limitations.
But over the last two decades, the human rights model emerged as pre-dominant approach to re-place the welfare model of disability. According to the human rights model, disability itself is a social construct. Accordingly, it is the disabling environment, the attitudes of others as well as institutional structures that need to be changed, not the person's disability.
This model recognises the inherent equalities of all people, regardless of disabilities or differences. Social exclusion is not to be seen as an inevitable consequence of disability rather it is a result of discriminatory attitude and a history of exclusion from institutions that have failed to adapt to the needs of persons with disability. The human rights based approach places specific obligations on the part of the government to remove social barriers that prevent or hamper the full integration of people with disabilities into society in order to ensure that they are accorded rights and opportunities as any other member of society.
The right-based approach has two elements: firstly, it implies conferring disabled people with the enforceable rights to protection against direct and indirect forms of discrimination. Secondly, positive action programmes should be designed to rectify the historical subordination of disabled people to their able-bodied environment.
Human rights based approach can be very powerful tool for legal protection of persons with disabilities. Human rights approach to address the problems of disabilities can confer the following advantages:
Firstly, it can afford greater level of protection to the disabled persons;
Secondly, human rights approach offers a better understanding of structural issues underpinning the problem of disability;
Thirdly, a human rights based approach can inform and guide the policies and laws on disability.
The movement of disability rights got concrete shape when the UN Convention on the Rights of Persons with Disabilities was adopted in 2006. The Convention was adopted in view of the fact that existing standards and mechanisms failed to provide adequate protection to the specific cases of persons with disabilities. This Convention is the first global binding treaty to comprehensively address the rights of persons with disabilities. The Convention outlines the civil, cultural, political, social and economic rights of persons with disabilities.
In essence, it elaborates in considerable detail the rights of persons with disabilities under international law and sets out a code of implementation for governments. The Convention spans a wide range of real-life issues including accessibility, personal mobility, health, education, employment, rehabilitation and participation in political life, equality, and non-discrimination. The Convention represents a 'paradigm shift' away from the medical model of disability, to human rights model, which views persons with disability as rights holders and respective members of our societies. There are several recurring themes throughout the Convention. First theme is inclusiveness in the community, which is a central element. A second theme, closely related to the first, is bringing about a change in attitudes and getting rid of stereotyping. A third theme is accessibility which includes physical accessibility to buildings, as well as accessibility in other ways, and providing accessible information and communication technologies.
In Bangladesh, the Disability Welfare Act, 2001 remains main legal framework for ensuring well-being of the persons with disabilities. However, the Act has major deficiencies in terms of lack of accountability, lack of adequate representation of persons with disabilities or their self-organisations in the Committees, immunity from suit, scope of authorities to exercise arbitrary and undue power, and lack of permanent institutional mechanism. The Act clearly takes welfare-based approach and does not recognise the rights of persons with disabilities. While there is no point debating that the government has responsibility to ensure welfare of the persons with disabilities, rights-based approach should be figured prominently in the legal framework considering the evolving jurisprudence and international standards.
According to the Act, the National Coordination Committee appears to be focal point of action for welfare measures for persons with disabilities. The National Coordination Committee lacks an appropriate mechanism of accountability, as it is not responsible to any body for its activities. Tenure of the members of the Committee nominated from NGOs depends upon the sweet will of the government as the Government can relieve or terminate such membership anytime. The District Committees are required to submit annual reports to the Executive Committee, but the Executive Committee is not required to submit Reports to any body, nor is the National Committee required to submit its report anywhere. There is no provision in this Act, which provides for accountability for non-implementation of any scheme or step taken or not taken by any Ministry, any Committee, or any body authorised under the Act to deal with disability issues.
Lack of accountability-mechanism renders these Committees largely ineffective. Moreover, the constitution of the Committees is too bureaucratic and cumbersome to work on a regular and consistent basis. The involvement and participation by the non-governmental actors such as self-help organisations of persons with disabilities is too narrow under the present Act.
The Act contains a clinical model of disability, which tends to be rigid. It does not provide any scope for further elaboration and there is real fear that it will fail to keep pace with the rapid development of medical and other sciences. But the Convention carefully avoids a clinical definition. Rather it adopts social model of definition, which views disability as a social construct dependent upon the environment in which it arises.
Ensuring well-being and protection of rights of persons with disabilities hinges on not only the government, but also private sector and NGOs. In the era of economic liberalisation and privatisation, the private sector has emerged as biggest employer and service provider. Unfortunately, the present statute does not address the issue of obligations of private sector in clear terms. The obligations of the private sector in terms of rights and well-being of disabled persons should be made much more clear and specific.
The present statute does not contain elaborate provisions on offences and punishment for discriminatory practices towards persons with disabilities. But there should be clear provision on how the government employees and private actors can be made more responsible for non-compliance with the law. On the one hand, giving them total immunity as in the present Act results in negation of the very rights for which the Act was designed.
On the other hand, caution should be taken so that the government departments are not flooded with new types of vexatious cases. The Act does not provide for action against those violating or abusing the rights of persons with disabilities. The Act should more clearly set how and to what extent the violators of the rights of the disabled, whether private citizens or government employees, should be made accountable.
The present statute is rendered almost inoperative for the simple reason that the government has not yet framed the Rules. In absence of detailed rules, different committees formed have become ineffective.
The above analysis of Act reveals that the Disability Welfare Act, 2001 is not consistent with standards set out by the Convention and other international instruments on disability rights. A new enactment with a set of bill of rights and new organisational structure is imperative for building a comprehensive right-based legal framework. It should be mentioned that Bangladesh ratified the UN Convention on Rights of Persons with Disabilities on 30 November, 2007. Therefore, Bangladesh is under international legal obligation to enact new legislation to give effect to the Convention and for bringing disability law in conformity with international standards set out in the Convention.
The writer is Associate Professor, Dept. of Law, University of Chittagong.
