1 October, 2020

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Access For Justice: Constitutional Protection ‘For All’

By Ajith C. S. Perera

Dr. Ajith Perera

Dr. Ajith Perera

Constitutional Protection for All under Article (12.3) is imperative for a secured brighter Sri Lanka

We are about to bring reforms to our Constitution in the larger interest of the country and its people.

As a developing country we need to secure a brighter future. This requires enjoying protection equally by all citizens without marginalisation, which in turn also lead to a formidable and sustainable national economy through empowering and enabling.

It is thus imperative to arrest the colossal economic and social waste that plagues the country in untold proportions.

Two prerequisites should be met to achieve this goal:

(i). Arresting the waste of human potential and instead mobilizing this asset and (ii). Minimising unwanted dependency through empowering, inclusion and equal opportunity, leaving no margin for marginalisation, discrimination and exclusion.

As explained below, almost all of us is certain to spend some of our time living with deficiency in ability to move and see, physical coordination, manual dexterity, etc. to varying degree.

The wide range of people – estimated to be not less than 20% of our population in this broadest category form the biggest minority group often oppressed, marginalised and excluded from the use of facilities essential in day-to-day life.

Changing this requires the enforcement and implementation of effective measures to guarantee all people, regardless of their level of physical ability, to enjoy the basic rights equal to those of other citizens in the same society – especially the inherent right to access with safety and dignity the buildings and facilities that are important in day-to-day life.

Where are we today? – Open your eyes

At a time when we are opening doors to equally enjoy democratic rights, I pose some questions – few amongst many – to your inner conscious.

Dr. Ajith Perera - Campaigns for the Democratic Right for Inclusion

Dr. Ajith Perera – Campaigns for the Democratic Right for Inclusion

How many star city hotels, even renovated or new, marginalise those non-ambulatory tourists accessing and using safely facilities in their washrooms and toilets, especially at a time when we are promoting tourism? – Hardly any!

How many private sector hospitals charging colossal sums of money, deprive wheelchair access to washrooms, even in wards built new? – Almost nil!

How many newer higher education institutions give equal opportunity for wheelchair users amidst being brilliant in their studies? – Hardly any!

How many ATM Machines claiming to be Banks open for 24 hours” are user-friendly even to elders and less-able ranaviru soldiers? – Hardly any?

How many of our reputed architects, engineers and builders are competent enough and truly committed to prevent marginalisation and discrimination of largest minority group of people in the work they undertake and often charging lucrative sums of money? – Hardly any as the University of Moratuwa accepts the bitter reality.

We are yet to recognise that the fact that the right to enjoy access is also the single right on which enjoying several other rights depend heavily.

Access to Buildings in fact is often far more important in daily life to everyone, than the right to information!!

People thus require the basic protection enshrined in the Constitution to guarantee that no person or class of persons shall be denied the same rights that are enjoyed by other persons or other classes in same society in like circumstances.

Article 12.3 when reformed as stated below will guarantee equal protection for this biggest minority group of our people.

Then only and, only then, we shall be able to meet truly these two prerequisites enabling a secured brighter future for all.

Proposed amendment to Article (12.3)

Article (12.3) of the Constitution needs to be amended to read as follows.

No Person shall, on the grounds of race, religion, language, caste, sex, limitation in physical and / or mental ability or any one of such grounds, be subject to any dis-ability, liability, restriction, marginalisation, safety hazard or condition with regard to access to buildings and also facilities therein the public needs to use in day-to-day life, including shops, hotels, restaurants, banks, hospitals, sports stadia, places of education – employment – recreation – entertainment and worship of his own religion.

Ten (10) facts that support justification

(i) The way a country treats its ‘dis-Abled’ population (termed now as those whose ABILITY is Restricted in attending to normal day-to-day activities of life) is an internationally recognized measure of a country’s good governance and a far more telling indicator of society’s development than GDP, a fact that this government cannot overlook.

(ii) Legislation defines a Person with dis-Ability (often still termed injuriously as Differently-abled) as: “Any person who, as a result of any deficiency in his physical or mental abilities, is unable by himself to ensure for himself, wholly or partly, the necessities of daily life.

World views and perceptions, thus, have changed rapidly to enhance equally the quality of life of ALL people.

The focus hence, is on **Persons with RESTRICTED ABILITY**.

With this thinking, the growing emphasis world over is: the degree of their mobility should never be a disadvantage or a fact for Marginalisation caused by physical and architectural barriers.

Everyday activities should NOT become a daunting task to accomplish.

(iii) The biggest minority group of people.

Sri Lanka has the fastest ageing population in our region. 17% of our  population will soon be over 65 years.

Every one of us, inevitably, undergoes, a process of decay.

Fast increasing numbers also meet numerous debilitating conditions – often not readily visible – (such as arthritis, joint problems, vertigo, neuropathy, spondylosis, frozen shoulder, muscular dystrophy, chronic obstructive pulmonary disease, Parkinson’s, many an autoimmune diseases, uncontrolled diabetes – too long to list) or is convalescing after surgery or illnesses or are victims of man-made accidents.

Hence, more than one in five – no fewer than four (4) Million people experience deficiency in mobility.

(iv) They are also the significant number of people – voters accidents, debilitating illnesses, wear & tear of the body, etc., and the ended 30 years of war, have robbed of their abilities to see, walk, climb or even stand steadily, whether that be to a greater or lesser extent, whether permanently or temporarily.

(v) Unable to move freely, most of them are often forced silently to fight daily an uphill battle in approaching, accessing and using even the NEW and recently RENOVATED public buildings and facilities an essential prerequisite in everyone’s normal life.

Legislation recognises ‘a public building’ as any Government or Private Sector Building used by the public in daily life.

(vi) Malady of national importance

No government has ever before, given any due recognition to the colossal waste such marginalisation brings, both socially and economically, in the form of safety hazards waste of human potential, loss of opportunities for employment, education and recreation, escalating unwanted dependency, etc.

This has also led to the denial of their democratic rights to become equal partners in development programmes.

(vii) The root causes

Article (12.3) only recognises, race, ethnicity, religion, caste, gender and place of birth as non-discrimination states. It is, still, to include the biggest cause.

Our Constitution has thus failed to prevent the discrimination and arrest the disaster stated under (vi) above concerning the Country’s BIGGEST and the WIDEST sector of our population affecting them adversely, socially, economically and mentally in their day-to-day life.

Yet we still continue to design key parts of public buildings, overlooking the parliament approved standards (2007 March 20) and violating the Supreme Court’s orders of 27 April 2011 concerning access for all (SCFR: 221/2009).

(viii) The plight after 20 years

Enacted by the Parliament of Sri Lanka, Act No. 28 for the Promotion, Advancement and Protection of Rights of Persons with dis-Abilities came into effect from 24th October 1996.

Clause 23(2) of this Act clearly states: “No person on the ground of disability, is to be subject to any liability, restriction or condition with regard to access to, or use of, any building or place which any other member of the, public has access to or is entitled to use”.

On 30th March 2007 Sri Lanka signed the UN Convention for the protection of the rights to the dis-Abled persons. Accessibility is one of the eight pillars on which this convention stands.

Its sole purpose is to promote, defend and reinforce the basic rights of all persons with restricted ability.

However, although 152 countries have ratified it – Vietnam the last on 5th of last month – Sri Lanka is yet to do it!

Over the past ten years, we have heard politicians and bureaucrats talk ebulliently of Making Sri Lanka a truly dis-Abled friendly country and Integration of those with restricted ability into society for full participation in all spheres of life as useful equal partners.

Although the measures required to achieve them are low cost and easily feasible, have they become a meaningful reality to any significant degree?

The simple answer is “NO”.

(ix) The Supreme Court in hearing the public interest litigation F.R. case under SCFR: 221/2009 has recognised:

Significant and growing numbers, specially senior citizens, those with different levels of abilities and pregnant mothers, are restricted in their movements and thus ruled (on 27th April 2011) that anything less than full compliance at public facilities is a serious punishable offence attracting punitive repercussions.

In the absence of any effective mechanism for the implementation of even an ORDER by our APEX COURT, the violators often backed by political powers, still, go free; the victims are stranded and must either plead and earn the good-will of violators or suffer further!

(x) Tourism industry is worst affected

As invisible debilitating conditions world over are rapidly increasing, we witness fast growing ‘ability restricted’ senior tourist populations demand their right for equal access.

Constitutional protection we seek here will revise the star-status awarding procedures to Hotels and thereby make compliance with accessibility legislations mandatory to propel the tourism industry to reach greater heights.

CONCLUSION:

Access for all really means Access for Justice which can no more be delayed under this regime’s good governance!

It should be seen by the Government as an indispensable investment towards moral duty, social responsibility and legal obligation.

Leaving these issues unresolved is a growing threat to our economic and social development, the quality of people’s lives and the country’s human rights image.

When we are about to bring reforms to our Constitution, it is imperative and highly desirable to enjoy Constitutional Protection under Article (12.3) by the biggest minority group of our country.

Hair splitting arguments cause delays and bring disaster. “Only the wearer of the shoe knows, where it really pinches.”

Sri Lanka to secure a brighter future under the rule of the President Mr. Sirisena and the Prime Minster Mr. Ranil Wickremesinghe, can no more remain inept to such amendment and it is NOW or NEVER!

*Dr. Ajith C. S. Pereraa former senior manager in industry, founder / chief executive of IDIRIYA, was left instantly a paraplegic for life by a fallen way side tree in 1992. By reason of this personal adversity he has bounced back to serve the humanity – most importantly as a reputed pioneer activist and a widely experienced accessibility advisor / auditor, facts of which have been befittingly recognised even by reputed bodies overseas. For further information please see http://goo.gl/3FWyW

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Latest comments

  • 3
    10

    We wish to applaude the move in amending constitution.

    • 2
      6

      YES but Amending RIGHTLY where it matters without hidden personal agendas and in the LARGER INTEREST of “ALL” People and the Country.

  • 0
    7

    I do not fancy the term ‘disabled’. Why not call it ‘physically handicapped.’, sounds better. Just my personal opinion.

    • 2
      6

      Very True. In this Article I use the YET BEST PHRASE ” Those with Restricted Ability” as that is what actually happens – YOU are STILL “ABLE” but to lesser and varying extent. Handicapped is NO MORE used as it reflects “CAP in HAND” syndrome projecting they are helpless and look for sympathy than empathy. “Ability Restricted or Ability reduced or Limited is far better and being used world over faster.

  • 1
    1

    Dear Ajith:
    Wish you all success in your endavour. Your commitment and dedication is absolutely fantastic. May you go from strength to strength!
    -R. Sandanayake

    • 0
      0

      Great to hear from you my dear Ranjith. Where are YOU now and how can I contact you?

      EVEN at R.C. access to Classrooms, Library and especially TOILETS are denied for those concerned with restricted mobility – at least ONE Class Room and a Toilet, when this inevitable need arise, should be there, at least to set an example for others to follow!

      These should be seen as INVESTMENTS as Schools reform our future leaders!

  • 0
    0

    In the last phrase of your proposed amendment “worship of his own religion” do you assume that every person is a male and has a religion. Shouldn’t it explicitly recognize the growing number of us who have no religion and should have equal protection under the law, without for example the indignity of having “No religion” recognised as a religion, as they did in Scotland.

    I Wish you all the best in your endavour.

  • 0
    0

    My dear Dr Kavan,

    Many thanks and I do see your point.

    In my Proposed Reform to Article 12.3: I ONLY edited those parts that concerns my GOAL – focusing Access for those whose Ability / Mobility is restricted.

    The Phrase you have highlighted REMAINS SAME as it is what the existing Article 12.3 States and here my aim was to include ALL Buildings that fall under the classification “Public” as at present NOT EVEN Schools are covered and children experiencing restricted mobility, are denied of the right for education.

  • 0
    0

    The power of the executive President should be devolved to Parliment. As proposed by RW and shown by him overlooking commitee,s in ministries reduces undue power of the executive. Issues are decided by Parliment. Differnt commitee,s report to parliment. COPE will be given teeth. This has slowed down anti corruption measures. A fresh mandate is necesary.
    However the Judicaries powers must be safe guarded by constitutional reform. A mechanism to prevent manipulation by the Executive with punishment should be introduced. The executive action of provincial council and prasediya saba is necessary with reduced members. Parliment is realy for Legistlature. Guidelines on skills necessary for the executive.legistlature and Judicary can prevent a lot. sacking or demoting members for ineficiancy or negligence must be ensured. While officers may be responsible for corruption the head is negligent if it happens. Track record is important.

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