Rajeev Amarasuriya

This article is based on an address delivered by Rajeev Amarasuriya in the Session on Disability Rights at the 36th LAWASIA Conference held in Bengaluru, India recently. 
The world as we know it has been on a pathway towards development, to make the lives of the people who live in it easier, efficient and convenient. It is not only the standard of life which is continually sought to be increased but also the quality and value of life, which is where human rights come into play. 
However, it is most important that all persons, conventionally abled and differently abled, are protected by the full coverage offered by human rights, as human rights are not rights that are assigned to you based on your physical or mental capabilities, but it is a birthright of every individual which arises from the mere fact of being born as a human being. 

The topic today is ‘Disability Rights’. 

In every corner of the world, families are the very foundation of support, love, and understanding which shapes and forms the experience one would have in this world. However, for families grappling with the challenges of disability, their perspective and experience of life is often marked by unique hurdles. 
In a country like Sri Lanka, rich in tradition and culture, disability rights and family are intricately intermingled and the development and furtherance of Disability Rights ultimately vests with the resilience and compassion of the people.
LET US BRIEFLY LOOK AT THE INTERNATIONAL STANDPOINT IN TERMS OF THE LAW. 
The levels of ‘ability’ of a person varies drastically not only within a state but internationally amongst all members of the human race. As such, it is only fitting that the standards to be set in furtherance of Disability Rights emanate universally, and as such, be given due recognition in International Law. 
The United Nations Convention on the Rights of Persons with Disabilities of 2006 is currently one of the foremost international instruments that serves todays topic, which came into effect for the purpose of promoting, protecting and ensuring the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. 

To highlight a few important Articles of this Convention, Article 02 which defines ‘Discrimination on the basis of Disability’ as ‘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;’
Article 4, places an obligation on state parties ‘to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability.’
Further, amongst the rest of the other Articles which provides for the freedom of expression, personal mobility, privacy and work and employment. Yet another Article which deserves prominence is Article 24 which provides for the right of persons with disabilities to education and creates an obligation on state parties to ensure an inclusive education system at all levels and life-long learning for persons with disabilities. 

SRI LANKAN CONTEXT

Shifting this conversation to the Sri Lankan Perspective, the Department of Census and Statistics in 2012, reported that an estimated 8.6% of the people of Sri Lanka have some form of disability. This equates to one in 12 people. And the World Percentage is well above that.
This figure in the abstract, may not resonate too much, but if we consider that, from the entire World’s population;Buddhists count 7 – 8 %, Hindu’s count – 15%, Muslims count 23 %, Christians count 31%, and Europeans 9% and North Americans 5%, the number of disabled persons, 8.6% in Sri Lanka and 13 – 14% around the world, is a significant population on any standard and the rights and interests and wellbeing of this population is equally or more important to any other population living on earth.
And the discussion today, is more important than most being discussed at this Conference.

And I say this for good reason. We may think we are not disabled at the moment.
But who knows whether one of us crossing the road this evening will be knocked down by a car, or fall down a flight of steps, or something fall on our head, and immediately we become transferred to that disabled population.
That is why I say, this discussion is imperative, and it is our bounden duty as human rights activists to do whatever we can in our power to ensure that the legal framework and its enforcement will be at optimal level, within our respective jurisdictions.
Sri Lanka ratified the International Convention on the Rights of Persons with Disabilities in 2016, as such, is subject to all the state obligations that are provided for under the Convention. 
In looking at the laws that are applicable within the domestic legislative framework of Sri Lanka, attention is first invited to Sri Lanka’s Constitution, where Article 12 (1) entitles every person to the Equality and the Equal Protection of the Law. 

However, it must be observed that Article 12(2) which is the non-discrimination clause, does not expressly prohibit discrimination based on disability, although Article 12(3) provides that “No person shall, on the grounds of race, religion, language, caste, sex or any one of such grounds, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels, places of public entertainment and places of public worship of his own religion.” However, this does not expressly deal with the specific provision of the rights of the disabled. 
However, Article 12 (4) sets out that “Nothing in this Article shall prevent special provision being made, by law, subordinate legislation or executive action, for the advancement of women, children or disabled persons”.
Legislation that addresses the matter of discussion today is “The Protection of the Rights of Persons with Disabilities Acts of 1996”.
This being an Act passed nearly 3 decades ago, there is much room for improvement and in this respect for fresh legislation. 
One shortfall is the definition of disability in the act which provides that a “person with disability” means any person who, as a result of any deficiency in his physical or mental capabilities, whether congenital or not, is unable by himself to ensure for himself, wholly or partly, the necessities of life”.
Furthermore, the prohibition on discrimination provided for under the act only covers discrimination in the areas of employment, education and access to public places.
This definition of ‘disability’ followed the old school of thought, better known as the ‘medical model’ where disability was approached only in a medical standpoint, however this has grown to cause marginalization and isolation of those suffering from disabilities. 

A new school of thought, that is the ‘Social Model of Disability’ stems from the belief that the difficulty faced by persons with disabilities could be mitigated by taking societal measures and implementing social and structural mechanisms to ensure that such persons are able to carry on with their day to day lives on an equal platform with those who are conventionally abled. 
It is important that the image that has been created surrounding a person who is ‘Disabled’ must be re-painted. 
Today, more than any time before, there are more and more differently abled people serving society as prominent contributors and reaching every societal, academic and career milestone that a conventionally abled person would be able to reach. 
A few of the recent emergence in terms of the law and national policy would be the National Policy on Disability which was formulated by the Ministry of Social Welfare in 2003. 
This was formulated with the aim of promoting and protecting the Rights of people with disability in the spirit of social justice. 
The other significant Regulation is the Disabled Persons (Accessibility) Regulations of 2006, which mandates facilitating access for those differently abled to public places such as public buildings and other such places where common services to the general public are available.

When speaking of the accessibility rights, we have a more recent and progressive judgment of the Supreme Court of Sri Lanka, in the case Dr. Ajith Perera vs Minister of Social Services.
This matter was one which was brought to the attention of the Supreme Court by one Dr. Ajith Perera who was a scholar and a Chartered Chemist who was awarded an Honorary PHD for his academic achievements. 
In 1992, he was gravely injured by an unforeseen accident and left with paraplegia (which Is the inability to move the lower parts of the body). Since then, he had been an advocate and an activist for the mitigation of difficulties faced by those physically disabled in day-to-day life. 
In 2009 an order was obtained from the Supreme Court by a matter brought forward by Dr. Ajith Perera, in the public interest, directing that Parts of NEW public buildings or public spaces, especially toilet facilities shall be designed and constructed in accordance with the `design requirements specified in the regulations in force. 
The Court further ordered  that compliance with this Court order was mandatory to gain approval of building plans, to certify buildings on completion and to issue the certificate of conformity.
And further, that any failure to comply with the Court order shall be a serious punishable offence and shall attract punitive repercussions as set out in the law.
Despite this order been given and despite the fact thatthe Regulations declared that all existing public buildings, and public places, must be brought into conformity with the provisions of the Regulations, within a period of 11 years from when the Regulations becoming operative, this was not done so. 
There were several buildings which did not have the legally mandated structures in place and Certificates of Conformity were still being issued despite noncompliance with the above order. 
As such, in 2018, this matter was once again brought to the attention of the Supreme Court in the public interest alleging that the non-enforcement of laws and regulations on accessibility rights of people with disabilities was a violation of the right to equal protection of the law. 

His Lordship Justice Prasanna Jayawardena, taking due consideration of international standards and international jurisprudence, pertaining to the rights of disabled held as follows;
“I hold that the failure on the part of the State and its agencies to satisfactorily implement, comply with and enforce the provisions of the Act and the Regulations has denied and continues to deny the petitioner and others who are similarly circumstanced, of the opportunity of equality and the protection assured to them by the provisions of the Act and the Regulations and, thereby, has violated the fundamental rights guaranteed by Article 12 (1) of the Constitution to the petitioner and others who are similarly circumstanced.”
His Lordship Justice Prasanna Jayawardena in his judgement also gave due recognition to the Convention United Nations Convention on the Rights of Persons with Disabilities of 2006, and acknowledged the obligations of a State that emanates from it. 
Disability is an inevitable fact of life for nearly everyone; almost everyone will be partially or permanently disabled at some stage of their lives. Those who live until old age will face growing difficulties in living and it is of vital importance that the world takes positive and affirmative action in the implementation of these rights. 

I will conclude by citing the words declared by Hellen Keller, famed author, traveler and social and political activist, who was left both blind and deaf as a result of a disease from the tender age of 19 months, which was also cited by His Lordship Justice Prasanna Jayawardena in his landmark judgement as discussed earlier;
“I am only one; but still, I am one. I cannot do everything but I can still do Something; I will not refuse to do something I can do.”  
(Rajeev Amarasuriya is an Attorney-at-Law, Raisina Fellow and Immediate Past Secretary of the Bar Association of Sri Lanka)