Sudeep Das, a visually impaired law graduate from the University of Chittagong, recently filed a writ petition seeking the Apex Court ruling to allow him to participate in the thirteenth Bangladesh Judicial Service Commission (hereinafter BJSC) examination with the aid of a writing assistant. Unfortunately, the High Court Division dropped the petition from its hearing list. It was reported on media that the BJSC successively refused to provide adequate assistance to enable him to effectively participate in the BJSC examination twice in the last two years. By virtue of the BJSC Rules 2007, blind and physically disabled persons are not eligible to be appointed for the post of Assistant Judge. The provision is clearly inconsistent with the disabled persons’ right to access to justice guaranteed in Article 13 of the United Nations Convention on the Rights of Persons with Disabilities (hereinafter CRPD) to which Bangladesh is a State Party.
The concept of access to justice as articulated in the CRPD travels beyond the pre-existing notions of remedy, fair trial and equality. It has added several new dimensions to the right that entail much more than ensuring equal access to Courts. It requires the States Parties to make available the provision of procedural and age-appropriate accommodations to facilitate the effective role of disabled persons as direct and indirect participants in the field of administration of justice. In the disability context, the phrase ‘provision of procedural accommodation’ and ‘indirect participation’ in the administration of justice merit deeper attention and nuanced analysis.
A 2017 Report of the Office of the High Commissioner for Human Rights on Article 13 of the CRPD emphasised that procedural accommodation is indispensable to the effective realisation of the right of disabled persons to participate in the administration of justice. The report, however, raised the concern that such an obligation is narrowly understood by the States Parties in the absence of any general comment on Article 13. This is evident in most of the State Party reports submitted under the CRPD. Addressing the issue, the committee on the CRPD has guided how procedural accommodation for disabled persons can appear in practice. For example, to cater to the needs of various forms of disabilities in the justice system, it is imperative to make available, among others, the provision of a sign language interpreter, accessible formats of legal and judicial information, multiple means of communication, easy-to-read versions of documents and Braille. Disability rights scholars have argued that the obligation to provide procedural accommodation is deeply intertwined with the principle of non-discrimination. In line with this, the CRPD Committee stressed that the failure to provide procedural accommodation when required by a person with disability potentially constitutes a form of discrimination based on disability.
In addition to direct participation as litigants, the CPRD provides for the indirect participation of the disabled persons in the administration of justice in various capacities including as a lawyer, judge or witness. To enable the disabled persons to contribute to the justice system through active participation, States Parties are required to eliminate all kinds of barriers including physical and legislative ones disabled persons encounter in their interaction with the administration of justice. The CRPD committee in its concluding observation on the initial state party report of South Africa recommended the States Parties to review their legislation to explicitly include the duty to provide procedural accommodation for disabled persons at all levels of the administration of justice on an equal basis with others.
Many State parties to the CRPD are gradually engaging in improving their justice systems for the disabled persons. For example, Chile has repealed the prohibition against blind and deaf persons to become magistrates. Likewise, the House of Federation in Ethiopia ruled against a customary practice which prohibited blind persons from acting as judges and ordered courts to provide for necessary accommodations for disabled judges to effectively perform their duties. In Peru, reasonable accommodations are made available for blind candidates participating in the examinations to become judges or prosecutors. In Germany, there are approximately seventy visually impaired judges currently serving at different levels of judiciary including the highest judicial office. Countries like India, Pakistan and the USA have appointed blind judges.
Indeed, the case of Sudeep reflects the broader concerns of inequality and unfair treatment experienced by the differently-abled persons in Bangladesh. Our judiciary missed a great opportunity to address these concerns in this case. We should not remain oblivious of the recent advances in the disability rights movement worldwide.
The writer is Lecturer in Law, Jagannath University.