ISLAMABAD: The Supreme Court has ordered the federal and provincial governments to discontinue the use of words like ‘disabled’, ‘physically handicapped’ and ‘mentally retarded’ in official correspondence as these words offend the dignity of physically-challenged people.

Instead, such persons should be identified as ‘persons with disabilities’ or ‘persons with different abilities’, observed the Supreme Court in a judgement authored by Justice Syed Mansoor Ali Shah.

Justice Shah was member of a three-judge SC bench headed by Justice Manzoor Ahmed Malik which had taken up an appeal moved by Malik Ubaidullah against the Dec 2, 2014 judgement of the Lahore High Court (LHC).

The Supreme Court, however, set aside the high court order after accepting the appeal of Ubaidullah, who had applied for the post of senior elementary school educator (SESE) Arabic on the disability quota in pursuance to the advertisement put out by the Education Department, Local Government, Multan.

According to the advertisement, 81 posts of SESE (Arabic) were advertised with 42 posts in female category and 39 in the male category. Under the disability quota, only Asma Qasim was appointed against the post while Ubaidullah failed to secure a position.

Judgement says every person is entitled to rights without any distinction

Ms Qasim topped the merit list with 62.78 marks while Ubaidullah, who secured 43.53 marks, could not be offered a post.

Ubaidullah challenged the selection process under the disability quota before the LHC by invoking its constitutional jurisdiction. The high court, however, dismissed the petition on Oct 28, 2013 and also his intra-court appeal on Dec 1, 2014.

The Disabled Persons (Employ­ment and Rehabilitation) Ordinance requires 2pc disabled persons, out of the total number of people, employed by an establishment at any time.

The judgement regretted that appointing persons with disabilities under the disability quota was half the story. The other half and perhaps the more important was to provide the infrastructure, access, support and facilities so that persons with disabilities, once appointed to a post, can perform their job without feeling physically or emotionally incapacitated in any manner, the judgement observed.

The biggest barriers to the employment of persons with disabilities are accessibility and their social acceptability at the workplace, the judgement said, adding that the government was bound to make such provisions otherwise the purpose of the ordinance would stand frustrated.

This support and facilitation for persons with disabilities has been recognised as ‘Reasonable Accommodation’ under the Convention on the Rights of Persons with Disabilities (CRPD) that Pakistan ratified in 2011, the judgement said.

It means necessary and appropriate modification and adjustments were needed in a particular case to ensure persons with disabilities the enjoyment of all human rights and fundamental freedoms on an equal basis with others.

‘Reasonable Accommodation’ can be through assistive technology, which is an umbrella term that includes assistive, adaptive and rehabilitative devices for people with disabilities, the judgement elaborated.

Referring to the concept of disability, the judgement said it means lacking one or more physical powers, such as the ability to walk or to coordinate one’s movements as from the effects of a disease or accident or through mental impairment.

According to the CRPD, persons with disabilities include those who have 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.

The medical model views disability as an impairment due to various health-related factors which can be identified and eradicated through medical treatment, while the social model identifies systemic barriers, negative attitudes and exclusion by society and argues that societal attitudes and environment are the main barriers for people with disabilities, the verdict explained.

The judgement said disability was the outcome of an oppressive relationship between people with impairments and the rest of the society, adding that it had been argued that society was the cause of disability and rejected the idea of it being a personal tragedy.

The judgement emphasised that Pakistan’s Constitution, as a whole, did not distinguish between a person with or without disabilities. It recognises inherent dignity of a human being; equal and inalienable rights of all people as the foundation of freedom, justice and peace.

Therefore every person is entitled to all the rights and freedoms set forth therein, without distinction of any kind, and therefore applies equally to persons with disabilities, guaranteeing them full enjoyment of their fundamental rights without discrimination.

Published in Dawn, August 16th, 2020