Yet another controversy?
On 8th March, 2017 a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 (“Constitution”) was filed in the Islamabad High Court by Miss Muniba Mazari (an eminent author, campaigner and motivational speaker who was years ago left bound to a wheelchair due to a spinal cord injury following a car accident) through her counsel Mr. Hasan Murtaza Mann in which the Secretary, Statistics Division along with Bureau of Statistics were impleaded as Respondents. The said petition craved the indulgence of the Court for a direction to the Respondents, to use a Form for collecting information related to number of disabled persons in households, and nature, cause, duration and severity of their disability for the purpose of upcoming National Population Census (“Census”). Justice Ather Minallah vide order dated 09.03.2017 directed the respondents to properly hear the Miss Mazari and decide the matter before start of the Census.
It is a harsh reality that Persons with Disabilities (“PWDs”) are the most abandoned, marginalised and unrepresented group in Pakistan, who are facing multitude of social, economic, physical and political barriers which profoundly hinder their mainstreaming in the society. Miss Mazari herself a PWD was compelled by circumstances to invoke the extra ordinary jurisdiction of the Court as the executive has miserably failed to perform its constitutional and statutory duties in relation to rights of PWDs. Although on theoretical foundations, the socialist structure of Constitution (Article 3) and Fundamental Rights embodied in it envisage a motherly state for the masses; however, the practical manifestation of such lofty principles is yet to be seen especially with regard to rights of PWDs. It appears like the executive is not willing to play its part unless the judiciary directs it do so.
The whole saga also exposes the indifference of the masses towards grievances of PWDs, why it was a PWD (Miss Mazari) who approached the court, do we as citizens of Pakistan owe no responsibility to these people? Another factor which puts me in deep shame is apathy of lawyers especially those who claim themselves as leaders of the Bar and brag about their sharp legal acumen and excellent juristic abilities. Miss Mazari was represented by an emerging young lawyer who pleaded the case pro-bono (free of cost), while the legends of the Bar acted as silent spectators. As per my understanding, a complete lawyer is someone who is competent, honest and a contributor towards the betterment of the society; so far, shining stars of the legal fraternity have failed this test.
It needs to be noted that data pertaining to PWDs was gathered for the first time in the Census of 1961 and was determined to be around 0.23 percent of the total population. In Survey of 1973 the percentage was determined to be around 2.08, in the Census of 1981 it was determined to be around 0.44 percent and in Census of 1998 it was determined to be around 2.49 percent. Due to the unreliable and inconsistent of official data, different international and national non-governmental have carried out surveys, for instance, the World Health Organisation has estimated the incidence of disability around 7% in 2011.
Under the Rules of Business 1973, it is the responsibility of Statistics Division’s task to provide reliable, comparable and timely data-base to the policy makers in the government and other researchers in various socio-economic sectors. A reliable, comprehensive and relevant data regarding prevalence and magnitude of disability in the population is crucial for the purposes of devising and implementing concrete and effective laws and policies for PWDs. The current scheme of Census is confined to a “headcount” of sorts and the information crucially needed to address a variety of social challenges such as assisting PWDs will once again not be collected. The mechanism proposed and demanded by Miss Mazari is indispensable to estimate specific needs of PWDs and introduce reforms for ensuring their participation as productive members of the society.
PWDs are not children of a lesser God; they are entitled to the Fundamental Rights embodied in Chapter I of Part II of the Constitution. If the executive continues to work with outmoded and irrelevant figures, it will continue to remain unaware of the number of people who need specific intervention, treatment, training and rehabilitation. Failure to carry out a comprehensive survey of incidence of disability in the population of Pakistan violates Articles 4 (right to be dealt in accordance with law), 9 (right to life), 15 (freedom of movement), 19-A (right to information) and 25 (protection against discrimination) of the Constitution. Furthermore, such failure also violates Article 31 of United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) which requires state parties to collect appropriate information, including statistical and research data, to enable them to formulate and implement policies to give effect to the Convention.(Pakistan ratified the UNCRPD in 2011)
History of legal thought and jurisprudence teaches us that constitutional values and notions are based on universality, indivisibility and interdependence of basic human rights and fundamental freedoms. Our Constitution vigilantly reaches out to PWDs; the wisdom behind UNCRPD is already entrenched in its soul and can be easily inferred through purposive interpretation of the Constitution in light of principles of UNCRPD. Right to life, dignity and equality are further emboldened and illuminated when interpreted in the perspective of the UNCRPD.
Right to life, dignity, movement and equality are epicentres of our constitutional design and recognise the importance of accessibility to physical, social, economic and cultural environment, and to health and education. They are the heart and soul of our Constitution and must at all times be ready to embrace and guard the sensitivities of the PWDs. A PWD, like every human being, has an inherent right to life and its effective fulfilment at par with others. These rights for PWDs can only be realised if the State and its institutions facilitate and ensure that a disable person can enjoy life with honour and dignity like others. This way they can be mainstreamed and made useful and productive members of the society.