Sat, 25 Sep 2021 Today's Paper

State has violated rights of differently-abled: SC

18 April 2019 11:13 pm - 0     - {{hitsCtrl.values.hits}}

A A A

In a landmark judgment, the Supreme Court today ruled that the State and its agencies have violated the fundamental right to equality guaranteed by the Constitution to persons with disabilities, for the breach and failure to comply with the provisions of the Disabled Persons (Accessibility) Regulations.

Justice Prasanna Jayawardena with Justice Vijith K. Malalgoda and Murdu Fernando concurring made this declaration against the State and its agencies including those coming under the purview of the Minister of Social Services & Social Welfare and the National Council for Persons with disabilities, in addition to other top ministries.

Those institutions coming under the purview of the Minister of Provincial Councils, Local Government and Sports; Minister of Housing and Construction, Minister of Megapolis and Western Development, Minister of Education; Minister of Justice and Prison Reform along with Sri Lanka Tourism Development Authority and the Urban Development Authority were also ruled as institutions that violated the fundamental right of disabled persons.

Court also directed the State to pay the petitioner Dr Ajith C.S.Perera a sum of Rs 50,000 on account of costs.

Court issued complete and comprehensive directions to ensure the said Regulations with regard to a pubic building, public place and/or place where common services area available and where it is reasonably considered it appropriate to institute such a prosecution or cause such a prosecution to be instituted.

Court noted that despite 16 years having passed since the National Policy on Disability made in 2003, there has been and there continues to be, substantial non-compliance with and non-enforcement of the provisions of the Act and the Regulations.

Court observed it has been estimated that about 9% of the population of Sri Lanka have disabilities among them are war heroes, senior citizens, Students and others.

Justice Prasanna Jayawardena held that the failure on the part of the State and its agencies to satisfactorily implement and enforce the provisions of the Act and the Regulations, has caused substantial prejudice to the petitioner and other persons with disabilities who, due to that failure on the part of the State and its agencies, are prevented from accessing numerous public buildings, public places and places where common services are available and using the facilities within these places or have difficulty and are sometimes placed in danger of injury, when accessing such places and using the facilities within these places.

He considered the manner in which the failure on the part of the State and its agencies to satisfactorily implement and enforce the provisions of the Act and the Regulations, violates the fundamental rights guaranteed by Article 12 (1) of the Constitution to the petitioner and others who are similarly circumstanced.

He underlined it is relevant to keep in mind that the UNCRPD was signed and later ratified by Sri Lanka. Article 3 (f) of the UNCRPD declares that one of its eight General Principle is “Accessibility”. Thereafter, Article 9 (1) declares that all States Parties to the UNCRPD: “….. shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and rural areas …..”. No doubt, this undertaking given by the State when it signed and ratified the UNCRPD does not amount to law in our country until Parliament enacts legislation giving effect to that undertaking, he stated.

Nevertheless, this Court has recognised that International Conventions of this nature entered into by Sri Lanka form a type of “soft law” which may be taken into account when reviewing executive or administrative action and inaction in relation to fundamental rights, he stressed.

He drew attention to section 24 (1) of the Act which provides that: “Where there has been a contravention of the provisions of section 23, any person affected by such contravention or the Council on behalf of such person may apply to the High Court established under Article 154P of the Constitution for the Province in which the person affected by such contravention resides, for relief or redress.”.

Thereafter, Section 24 (3) enacts that: “The High Court shall have power to grant such relief or make such directions as it may deem just and equitable in the circumstances in respect of any application referred to in subsection (1).”.

He further noted that section 34 (e) of the Act stipulates: “Any person who contravenes the provisions of this Act or any regulation or rule made thereunder, shall be guilty of an offence under this Act and shall on conviction after summary trial before a Magistrate be liable to a fine not exceeding ten thousand rupees or to imprisonment for a term not exceeding one year or to both such fine and imprisonment.”.

Section 35 provides that: where such an offence is committed by a body corporate, the directors, secretary and officers of that body corporate shall be deemed guilty of the offence, and where the offence is committed by a firm, every partner of the firm shall be deemed guilty of the offence; unless such a person proves that the offence was committed without his knowledge and that he exercised due diligence to prevent to the commission of the offence.

Court issued Direction to the relevant respondent ministers and the Secretaries to the Ministries to take or cause to be taken, effective measures to ensure the provisions of the Disabled Persons (Accessibility) Regulations No. 1 of 2006, as amended, are forthwith implemented and complied with in the case of and/or in respect of public buildings, public places and places where common services are available [as defined in clause 10 of the Disabled Persons (Accessibility) Regulations No. 1 of 2006] which come under purview or control of the relevant Ministers and/or under the purview or control of local authorities, government departments, boards, statutory institutions, State agencies and public officers under the relevant respondent Ministers,. However, if valid practical and/or budgetary considerations necessitate that such implementation and compliance in an existing public building, public place and place where common services are available [as defined in clause 10 of the Disabled Persons (Accessibility) Regulations No. 1 of 2006], be temporarily deferred, that may be done, provided that, in such instances, implementation and compliance is achieved at the earliest possible opportunity;

Court issued further Direction to the respondents and the Secretaries to the Ministries to forthwith issue or cause to be issued, circulars or directions to all local authorities, government departments, boards, statutory institutions, State agencies and public officers under the purview or control of the respondents, specifying that: (a) Approvals for the construction or renovation of public buildings, public places and places where common services are available [as defined in clause 10 of the Disabled Persons (Accessibility) Regulations No. 1 of 2006] shall not be granted unless the building plans, designs and drawing relating to such construction or renovation, comply with the provisions of the Disabled Persons (Accessibility) Regulations No. 1 of 2006; (b) Certificates of conformity in respect of public buildings, public places and places where common services are available [as defined in clause 10 of the Disabled Persons (Accessibility) Regulations No. 1 of 2006] shall not be issued unless it has been established, after inspection, that such buildings and places, comply with the provisions of the Disabled Persons (Accessibility) Regulations No. 1 of 2006, as amended; 

Court also issued another Direction to the respondents and the Secretaries to the Ministries of the 1st to 6th respondents, to take or cause to be taken, appropriate follow-up action, on a continuing and regular basis, to monitor compliance with the subject matter of Direction (i) and Direction (ii) (a) and (ii) (b) above, by local authorities, government departments, boards, statutory institutions, State agencies and public officers under the purview or control of the 1st to 8th respondents;

In another Direction, court directed to instruct local authorities, government departments, boards, statutory institutions and State agencies and public officers under the purview or control of the respondents, to take or cause to be taken, where reasonably considered appropriate, disciplinary proceedings against public officers who are found to have granted approvals or issued certificates of conformity in breach of and/or in violation of and/or in disregard of the provisions of the Disabled Persons (Accessibility) Regulations No. 1 of 2006;

In a further Direction to the respondents and the Secretaries to the Ministries to direct local authorities, government departments, boards, statutory institutions, State agencies and public officers under the purview or control of the respondents, to institute or cause the institution of prosecutions in the Magistrate‟s Court under the provisions of 34 of the Protection of the Rights of Persons with Disabilities Act No. 28 of 1996, as amended, in instances where they detect that there has been a breach and/or violation and/or failure to comply with the provisions of the Disabled Persons (Accessibility) Regulations No. 1 of 2006 in the case of and/or with regard to a public building, public place and/or place where common services are available and they reasonably consider it appropriate to institute such a prosecution or cause such a prosecution to be instituted.

Court directed the National Council for Persons with Disabilities acting together with the National Secretariat for Persons with Disabilities, to place appropriate, effective and prominent notices in the national newspapers in all three languages, on three separate occasions which are each one month apart, drawing the attention of the public: (a) To the requirement that all public buildings, public places and places where common services are available [as defined in clause 10 of the Disabled Persons (Accessibility) Regulations No. 1 of 2006] must comply with the provisions of the Disabled Persons (Accessibility) Regulations No. 1 of 2006, as amended; and (b) That a failure to comply could entail the liability to be prosecuted in the Magistrate‟s Court for the commission of an offence under the Act and, if found guilty, to be liable to punishment, as set out in the Act.

It also directed the National Council for Persons with Disabilities acting together with the National Secretariat for Persons with Disabilities, to, in addition to the above, carry out an appropriate and effective public awareness programme designed to increase public awareness of the relevant provisions of the Protection of the Rights of Persons with Disabilities Act No. 28 of 1996 Act, as amended and the mandatory requirements of the Disabled Persons (Accessibility) Regulations No. 1 of 2006, as amended.

Court further directed the National Council for Persons with Disabilities acting together with the National Secretariat for Persons with Disabilities: (a) To take measures to provide facilities to assist, by way of legal advice and assistance, persons with disabilities and others who wish to enforce their rights under the Protection of the Rights of Persons with Disabilities Act No. 28 of 1996, as amended, and the Disabled Persons (Accessibility) Regulations No. 1 of 2006, as amended, by recourse to the High Court or the Magistrate‟s Court, as the case may be; and (b) In instances where there has been a breach and/or violation and/or failure to comply with the provisions of the Disabled Persons (Accessibility) Regulations No. 1 of 2006, as amended, to institute or cause the institution of proceedings in the High Court under the provisions of section 24 of the Protection of the Rights of Persons with Disabilities Act. (S.S.Selvanayagam)

See Kapruka's top selling online shopping categories such as Toys, Grocery, Flowers, Birthday Cakes, Fruits, Chocolates, Clothing and Electronics. Also see Kapruka's unique online services such as Money Remittence,News, Courier/Delivery, Food Delivery and over 700 top brands. Also get products from Amazon & Ebay via Kapruka Gloabal Shop into Sri Lanka.

  Comments - 0

See Kapruka's top selling online shopping categories such as Toys, Grocery, Flowers, Birthday Cakes, Fruits, Chocolates, Clothing and Electronics. Also see Kapruka's unique online services such as Money Remittence,News, Courier/Delivery, Food Delivery and over 700 top brands. Also get products from Amazon & Ebay via Kapruka Gloabal Shop into Sri Lanka.

 


Add comment

Comments will be edited (grammar, spelling and slang) and authorized at the discretion of Daily Mirror online. The website also has the right not to publish selected comments.

Reply To:

Name - Reply Comment




See Kapruka's top selling online shopping categories such as Toys, Grocery, Flowers, Birthday Cakes, Fruits, Chocolates, Clothing and Electronics. Also see Kapruka's unique online services such as Money Remittence,News, Courier/Delivery, Food Delivery and over 700 top brands. Also get products from Amazon & Ebay via Kapruka Gloabal Shop into Sri Lanka.

 


A state-sponsored elephant racket in the works

A controversial new gazette has been issued seeking to employ elephants for w

Waiver of registration questioned: Import of covid related drugs, products shrouded in controversy

The National Medicines Regulatory Authority- the independent authority that r

Mysterious disease killing pups!

A mysterious respiratory disease affecting puppies in the Central Province is

Jacqueline Fernandez; Lankan Star Shining in Indian Film Sky

Sri Lanka’s Jacqueline Fernandez who has made a name for herself in India