Human Rights Analysis
Disability related laws and policies in Bangladesh
Advocate Sadia Sultana
In Bangladesh approximately 14 million people are with disabilities that constitute a significant part of the extreme poor people. They have not received adequate attention of the policy makers. As a result poor and severely disabled persons with are facing deprivation that makes them marginalized and vulnerable to all forms of repression. They face environmental and attitudinal barriers while trying to enjoy or exercise human rights and fundamental rights in the political, economic, social, cultural, civil or any other field on an equal basis with other citizens of the country. This article tries to identify the disability related laws and policies in Bangladesh and also to find out their shortcoming.
The Constitution
Principles of equality and non-discrimination are the twin pillars, upon which the whole structure of human rights is established. Thus Bangladesh Constitution has a number of relevant human rights provisions reflecting this significant principle of equality. With this aim one of the fundamental rights enunciated by our Constitution is- the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, or place of birth[Article 28(1)]. The Constitution also utters the responsibility of the state to make any special provision in favour of women or children or for the advancement of any backward section of citizens. In our social context if we identify the 'persons with disabilities' or 'challenged people' or 'differently able people' of our country as 'backward section of citizens', consequently, it binds the state with several liability to make them forward. Thus there is no chance to discriminate against any disabled person on the ground of his impairments as the Constitution recognises the principle of equality and non-discrimination for all citizens. Some relevant Articles of the Constitution are-
Article 11 of the Constitution states-The Republic shall be a democracy in which fundamental human rights and freedoms and the respect for the dignity and worth of the human person shall be guaranteed.
Article 27 states, all citizens are equal before the law and are entitled to equal protection of the law.
Article-28(4) states,Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens.
Article-29 (1) states-There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic.
Fundamental rights provided in Part III (from Articles 26 to 47)
Article 122 (2) states: A person shall be entitled to be enrolled on the electoral roll for a constituency if he…(c) does not stand declared by a competent court to be of unsound mind.
Article 66 (2) states, a person is disqualified for election as, or for being, a member of Parliament who…(a) is declared by a competent court to be of unsound mind…
Protibandhi Kollyan Ain, 2001
The purpose of the Act is to protect and safeguard the rights and dignity of the persons with disability, ensure their participation in the national and social programmes and their general welfare. This text consists 23 Articles and 10 Parts (Part A to J). Being the first Act in Bangladesh to address disability issues it bears major structural deficiencies e.g. accountability, enforcement, immunity from suit, scope of the authorities to exercise arbitrary and undue power, lack of adequate representation in the committees, weakness in the committees, lack of adequate detail and a meaningless schedule having no implementation mechanism. It is a thin Act having weak and inadequate provisions. Practically we need a comprehensive new Act rather than its amendments or else it is not possible to ensure the rights of this oppressed section of our society.
Legal Aid Act, 2000
The purpose of this Act is to give legal aid to those persons who are poor, insolvent, destitute and otherwise incapacitated, for socio-economic reasons, to be engaged in legal fights. Section 6 of this Act empowers a district committee to engage a lawyer, at the expense of the government, for a poor and destitute person who has become a victim of offences or abuse of power. This Act contains no specific provisions for persons with disabilities, but the terms 'persons who are poor, insolvent, destitute and otherwise incapacitated, for socio-economic reasons' might include persons with disabilities.
Penal Code, 1860
Section-84 of the Code states- Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
Code of Criminal Procedure, 1898
Chapter-34 (From Section 464 to 475) of the Code provides the following procedures in case of accused being a lunatic.
Section-464 (Procedure in case of accused being lunatic)
Section-465 (Procedure in case of accused being lunatic before Court of Sessions)
Section-466 (Release of lunatic pending investigation, trial)
Section-467 (Resumption of inquiry or trial)
Section-468 (Procedure on accused appearing before Magistrate or court)
Section-469 (When accused appears to have been insane)
Section-470 (Judgment of acquittal on ground of lunacy)
Section-471 (Person acquitted on such ground to be detained in safe custody)
Section-473 (Procedure where lunatic prisoner is reported capable of making his defence)
Section-474 (Procedure where lunatic detained under section 466 or 471 is declared fit to be released)
Section-475 (Delivery of lunatic of care of relative or friend)
Lunacy Act, 1912
The Lunacy Act, 1912 (Act No. IV) deals with mentally challenged persons. But the Act itself use negative terminology such as lunacy, idiot etc. Section 3(5) of the Act defines a lunatic as an idiot or a person of unsound mind. We should change our terminology and use some facilitative terms like intellectually disabled or mentally challenged person.
Section 14 provides that the Magistrate, upon determination that a person is a lunatic, may make an order for admission of such lunatic into an asylum. Section 15 states provision of punishments for the relatives and caretaker of a lunatic if they maltreat or show any cruel attitude to him or her. Under Section 16 Magistrate may order detention of a person for the purpose of determining whether or not he is a lunatic, but the maximum period of such detention shall not exceed thirty days. When an order has been made by the Magistrate to send a lunatic to an asylum, under Section 23 pending his removal to an asylum, he may be detained in a suitable custody in such place as the Magistrate thinks fit.
Mentally challenged persons may be cured through proper care and treatment. But under the authority of the existing Acts of the country police arrest mentally challenged persons from street and detain them in custody as they disrupt public tranquillity. Often such a helpless mentally challenged person is arrested on very inept ground or under Section 54 of the Code of Criminal Procedure, 1898. Some case studies give a horrible scenario of the victims who are languishing in the prison or Pabna Mental Hospital or other receiving centres. Government should take initiative to properly rehabilitate them. If it is not possible, the authority concerned should send them back to their family without depriving them of the normal environment of the society; thus helping them to embrace the sound life they desire.
Building Construction Rules, 1996
To accomplish the purpose of the Building Construction Act 1952 Bangladesh government constituted the Building Construction Rules, 1996 and the Dhaka Mohanagar Building Construction Rules, 2006. The Building Construction Rules, 1996 lay down provision for ramp in its Rule-5(5) and Rule-13.
Dhaka Mohanagar Building Construction Rules, 2006
The Dhaka Mohanagar Building Construction Rules, 2006 provides rules for easy accessibility of disabled people in all appropriate buildings (e.g. for the areas in Dhaka Mohanagar under The Town Improvement Act, 1953). One will not get the occupancy certificate if he -- the occupier -- violates the rules while designing the building under this Building Construction Rules.
Rule-75 provides special provision for universal accessibility including disabled people. It states that-
(a) In each governmental and non-governmental building there shall be provision for universal accessibility including disabled people. Provided that, in residential building such provision for accessibility shall be at least 5 percent in its entire part.
(b) Universal accessibility including disabled people must be ensured in building for 'public use' (e.g. commercial building, shopping complex, health care centre, educational institution etc.) over an area of 100 square meters.
(c) In each floor of all appropriate buildings there shall be at least one toilet or 5 percent of total toilet in the building whichever is higher in number, for universal accessibility including disabled people, which is easily accessible and well-indicated.
(d) In each parking space of all appropriate building there shall be at least one parking space or 5 percent of total parking space in the building whichever is higher in number, for universal accessibility including disabled people.
Schedule-3 set up a minimum standard for easy accessibility of disabled people in building. This standard is set up for easy access through specific provision for entry or exit, ramp or handrail, lift, parking spaces, wash room and toilet. This schedule specifically declares that,
*there will be no revolving turnstile in the entry;
*there shall be enough space for the movement of wheelchair in the footpath, corridor or other walkway;
*there shall be provision for ramp and handrail for accessibility of disabled people;
*if it is not possible to provide lift or ramp, there shall be provision for wheelchair lift or platform lift in special cases;
*the parking space for universal accessibility shall be closer to the exit;
*there shall be western commode in the toilet;
*the washbasin system must be accessible to the wheelchair user;
*There will be no enclosure in the floor of the bathroom.
In its Schedule-1 it states of provision for ramp in parking spaces. There is provision for exit ramp with guard or handrail in its Annexure-3.
The National Policy on Persons with disabilities, 1995
It is a compilation of policies to ensure all rights and facilities for persons with disabilities which includes 14 chapters on prevention, detection and intervention, early intervention, assistive devices, education, rehabilitation, human resources development, employment, research, accessibility and facilities for movement, information, recreation, self-help movement and implementation and coordination. It also speaks of Article 15, 17, 20, 29 of the Constitution of Peoples Republic of Bangladesh.
All citizens and the government of our country should recognise persons with disabilities as 'citizens' of the country on equal basis without any discrimination. Without effective participation of this large number of population no development can reach its envisaged goal. Hence we need adequate disability-friendly laws and policies in our country and their effective implementation mechanism.
The author is Legal researcher, Action on Disability and Development (ADD)-Bangladesh.
