On intervention and directions of Justice Jawad Hassan of the Lahore High Court in different cases, various laws including acts, ordinances and policies have been made by the legislator and subsequently implemented by the executive thereby leading to the protection of public interest. These laws include The Punjab Empowerment of Persons with Disabilities Act 2022; The Punjab Domestic Workers Act, 2019; Punjab Food Authority (Disposal of Excess Food), Regulation, 2019; Commercial Courts Ordinance, 2021; The Punjab High-Security Zones (Establishment) Act, 2020; Urban Forest Policy; and The Punjab Empowerment of Persons with Different Abilities Act, 2021. Justice Jawad has always promoted and protected the larger public interest in case of violation of any fundamental right.
As public interest litigation is a powerful tool for individuals and groups for combating illegalities, injustice and social ills, Justice Jawad passed various judgments in which directions were issued to the authorities concerned to make proper legislation relating to the issues involving the people’s interests. Also, The Punjab Empowerment of Persons with Disabilities Act 2022 was made under the direction of Justice Jawad Hassan for the empowerment of differently-abled persons.
The Act was passed by the Punjab Assembly on December 5, 2022. It was assented to by the Punjab Governor on December 14 and sent for its publication in the Gazette of Punjab as an Act of the Provincial Assembly of Punjab on December 19, 2022. Persons with disabilities in Pakistan have to face obstacles in their access to public, educational and commercial places especially wheelchair users as the authorities concerned remain unable to make arrangements for the construction of ramps, lifts and toilets for the PWDs. Due to the non-provision of ramps and facilities, their fundamental rights of life, dignity and freedom of movement are infringed.
Under the Accessibility Code of Pakistan, 2006, access to public places/facilities is a statutory right of persons with disability, particularly persons in wheelchairs. The provisions of Section 3 of the Special Citizens’ Act, 2008 clearly state that it is the responsibility of the Government to bind the authorities concerned, before the construction of buildings in public or private sectors, particularly, in educational institutions, banks, hospitals, shopping malls, police stations, airports, railway stations, bus stops, hotels and other public places to provide the facility of access of wheelchairs. To address these grievances, Justice Jawad Hassan issued stepwise directives to the authorities concerned and passed a judgement on a writ petition titled Judicial Activism Penal VS Federation of Pakistan and others. The judgment discusses in detail how the justice has walked by delivering writ of mandamus and appreciating the role of civil society and the Government to draft law i.e. the Punjab Empowerment of Persons with Disabilities Act, 2022.
This Act gives rights to PWDs including rights of privacy, accessibility and mobility, equity in education, right to home and family, access to justice and right to inherit and own property, etc. Earlier, the Punjab province lacked the law for the protection of PWDs’ rights while in other provinces of the country, specific legislations dealing with ease of access and mobility of disabled persons had already been made including The Baluchistan Persons with Disabilities Act, 2017; The Sindh Empowerment of Persons with Disabilities Act, 2018; and The ICT Rights of Persons with Disabilities Act, 2020.
The judgement came on the writ petition filed by Judicial Activism Penal which submitted that provision of special facilities, including special education, special libraries, recreational activities, special care, health facilities and other basic necessities of life is a fundamental right of a special child. Protection of the fundamental rights of special persons comes within the mandate of Article 35 of the Constitution of the Islamic Republic of Pakistan, 1973 while Article 37 of the Constitution promotes social justice which covers the provisions of special facilities for PWDs in Pakistan.
In the writ petition (No 22253/21), the author, representing JAP, had asserted that “there is no proper legislation for regulating welfare of special children in Pakistan and as the issue of public importance is involved, therefore, the Petitioner has knocked the door of this Court”. Showing his compassion, Justice Jawad remarked in the judgement that a ladder might have been helpful for a person to climb up the building but giving the same ladder to a person with impaired ability to walk to reach the top of every building does not amount equal treatment but an approach, which is neither sanguine nor justified rather depicts a modus operandi, which is improper and indifferent at the same time.
As this case was of public importance, Justice Jawad ordered the constitution of a committee under the supervision of the Secretary of Social Welfare and Bait-ul-Maal Department.
On 15.10.2021, Minister for Social Welfare Syed Yawar Abbas Bukhari apprised the Court that the meetings of the Committee were held on 05.10.2021 and 11.10.2021, respectively, and the suggestions of the Committee were duly considered, incorporated and added a new Chapter i.e. Part 2 (II) dealing with Rights and Entitlements of Persons with Disabilities in the original Draft Act. Finally, the Secretary submitted a report stating that almost all identified discrepancies were rectified and on 02.12.2021 after re-articulating several clauses cleared the Vetted Draft Act.
Subsequently, the Judicial Activism Panel had to file another constitutional petition for the enforcement of the fundamental rights of persons with special abilities and special children who have been deprived of their fundamental rights. Adjudicating upon this petition, the court passed substantial directions to the authorities for the protection of the rights of persons with special abilities. From now, permission for all new infrastructure for public use shall be subject to adherence of their building plans to the Council’s minimum standards, guidelines and requirements. It will implement procedures and programmes to promote their personal mobility at a concessional cost. They will have full and appropriate access to all forms of communication and have restriction-free access to all communal facilities and services. They shall be protected from abuse, violence, torture, cruel, inhuman, or degrading treatment and exploitation at the hands of any person, institution, or authority.
Thus, Justice Jawad succeeded substantively to conclude the case by way of incorporating all the Constitutional Rights for persons having disabilities in the shape of the Punjab Empowerment of Persons with Different Abilities Act. The Act is aimed to promote and ensure the effective inclusion of persons with disabilities in the community and to promote their rights in line with the Constitution of the Islamic Republic of Pakistan, the United Nations Convention on the Right of Persons with Disabilities and international best practices. It also ensures the provision of matters including meaningful and effective access to various tangible and intangible means to fulfil their special needs.
Under this Act, the government shall conduct surveys of school-going children, periodically, to identify children with disabilities, and ascertain their special needs and the extent to which such needs are being fulfilled. As this Act has been enforced, the first survey for the purpose shall be conducted within two years. For their welfare, the government shall arrange special training for teachers, professionals and staff to support inclusive education at all school levels. Now, the government is legally bound to promote the use of appropriate augmentative and alternative modes; provide books, learning materials, and appropriate assistive devices free of cost up to the age of 18 years; and offer scholarships in appropriate cases to the PWDs.
The PWDs have a right to live independently in the community without any discrimination, and in no case shall be denied access to communal facilities and services. No such person shall illegally and unlawfully be separated from his family. The Act ensures the PWDs shall have the right to participate in politics, and equitable rights about freedom of speech, expression and information. It is also binding on the government to ensure the provision of barrier-free access to all necessary public health services and infrastructure free of cost on a priority basis.
Under this Act, the PWDs have the right to inherit and own property; to participate in sports, cultural and recreational activities; and to be protected in risk and disaster situations. Moreover, they may be assessed, examined and certified in a manner that takes full account of their particular needs. For the enforcement of their rights and entitlements, the government may establish the Council on Rights of Persons with Disabilities (CRPWD) with the Minister of Social Welfare as its chairman, the Secretary of the Department as its vice chairman and 22 official and non-official members.
For speedy justice, it shall specify or designate for each district, a Court of Sessions to be a Special Court for Persons with Disabilities to try the offences under this Act. The Council shall ensure the development, advancement and empowerment of women, children, transgenders and elderly people with disabilities. In short, the judicial efforts made by Justice Jawad have devised a principle that the persons, who cannot walk to justice, justice can walk to them because the foundation of rule of law is access to justice and the dispensation of justice as provided under Article 4 and 37(d) of the Constitution.