Access to Justice

Article 13 of the CRPD requires the state to ensure access to justice for persons with disabilities on an equal basis with others (through procedural and age-appropriate accommodations), and to provide appropriate training for those working in administration of justice, including police and prison staff.

Laws and Policies Promoting Disability Rights

The 2013 Disability Rights Act provides the following:

  • A disabled person is entitled to have access to justice[1] and is entitled to equal protection under the law.[2]
  • All discriminatory behaviours or actions on the part of any individual, organization or government authority against a disabled person are prohibited.[3]
  • Preventing a PWD from accessing justice is punishable by law.[4]
  • Police, prison and court officials require training on disability rights and issues.[5]
  • The State is obligated to take all steps (including the appointment of an interpreter) to ensure access to justice for disabled victims of violence.[6]

The Legal Aid and Services Act, 2000 expressly secures the right to access to legal aid and services for persons who are “poor, insolvent, destitute, and otherwise incapacitated for socio economic reasons”. [7] The Legal Aid Service Rules 2014[8] makes particular mention of PWDs in its list of eligibility. [9]

The Penal Code 1860 provides protection to persons withintellectual disabilities by recognising that a person who is not capable of understanding the illegality or the nature of an act cannot be held responsible for committing an offence, on the basis of unsoundness of mind.[10]

The Evidence Act 1872 states that all persons, including PWDs, are competent to testify, unless prevented by a mental incapacity related to understanding the questions put to him/her and giving rational answers to them. Any witness who is unable to speak may give his/her evidence in any other manner, i.e. writing or by signs.[11]

The Code of Criminal Procedure 1898 and in particular Sections 199, 199A and 468- 475,provide special procedure for any accused who is identified as a “lunatic”, including for release of the “lunatic” pending investigation or trial, and custody of the “lunatic”.

Under the Code of Civil Procedure, 1908 consent or agreement for any person with disabilities may be given on their behalf by their next friend or guardian of such person in any proceeding with the permission of court (Section 147 CPC). Further, Order XXXII of the CPC sets out special provisions for suits by or against persons of unsound mind and Order XXXIII allows for pauper suits.

The Succession Act, 1925 allows for disabled persons to make wills as long as s/he can comprehend what is being achieved through the making of such wills.

The Labour Act 2006 provides[12] for compensation in the event of a workplace injury or death and depending on the nature of injury (permanent or temporary) the amount is listed in Schedule of the Act.

Section 1 of the Fatal Accidents Act 1855 states that whenever the death of a person is caused by a worngful act/neglect/default, the executor, administrator or representative of the deceased may sue for compensation to the family of the deceased for loss occasioned due to the death of that person. Under this Act, the Court may give such damages as it may think proportionate for such loss.

The Motor Vehicles Ordinance 1983 allows for a claim of compensation to be made in the event of a personal injury arising from the use of a motor vehicle in a public place.[13] It also sets out the duty[14] of a driver in case of an accident/injury to a person and the insurance policy requirements and procedures for making a claim.

The National Human Rights Commission Act, 2009 enables aggrieved persons facing human rights violations to bring complaints to the Commission to inquire into whether any public servant was responsible and to provide remedies.

Disabled persons like Swapan Chowkidar, lawyer with visual disabilities, have used the existing national laws to achieve a landmark ruling[15] from the High Court Division of the Supreme Court of Bangladesh. This decision allowed PWDs to sit in the 33rd Bangladesh Civil Service Examinations (BCS)[16] and also directed the Public Service Commission to arrange ‘reasonable accommodation’ in examination halls thus enabling 44 disabled candidates to appear for the 33rd BCS exams for the first time in the history of Bangladesh.[17] Other similar cases filed sought recognition of their rights to sit in JSC and PSC exams. [18]

Limits and Gaps of the Law

Courts are not disabled-friendly. Non-compliance with Schedule 12 of the 2013 Disability Act is means PWDs have to deal with police, prison and court officials who are not trained on disability rights and issues.[19] While Schedule 12 also reuires arrangments (including the appointment of an interpreter) by police, prison and court officials to ensure access to justice for disabled victims of violence, both the Act and Schedule are silent on the procedures required for disabled offenders.

Giving evidence in courts is difficult for women who are intellectually disabled. Section 118 of the Evidence Act, 1872 prevents evidence to be accepted from those who are incompetent to testify due to their being unable to comprehend the questions asked during the trial process. This contravenes Articles 5 (2), 12 (2) and 16 (5) of the CRPD which requires the State to provide equal protection of law to all persons.

PWDs with visual, hearing and speech impairments face barriers while communicating with police officers at thanas and while giving evidence in court. Where the court permits the use of Bengali sign language interpreters, they are provided by DPOs specialized in Bengali sign language interpretation such as the Society for the Deaf and Sign Language Users (SDSL)[20] who also provide interpreters to disabled women and children in Victim Support Centers. However state funded remuneration for such interpreters is inadequate leading to a dearth in the availability of interpreters for PWDs seeking justice.

Although the Disability Rights Act gives PWDs the right to inherit,[21] the Act does not supersede personal laws discriminating against PWDs with mental/intellectual disabilities. The Hindu Inheritance (Removal of Disabilities) Act, 1928, for example, excludes persons with intellectual disabilities and psycho-social disabilities from inheritance or any right or share in joint family property. The 2013 Act entrusts the Upazilla and Shohor Committee with the duty to appoint a guardian for overseeing a PWD’s property on application from the PWD’s parents/legal guardians/DPO. Such a guardian must inform the committee from time to time about any income or interest generated from the PWD’s property.[22] The ‘Survey Findings’ below discuss how lack of implementation of these provisions leads to disabled people (especially women) from being able to exercise their inheritance rights.

Lack of awareness or knowledge of laws on the part of both duty bearers and rights holders is a major barrier to justice. For instance, women with disabilities are not aware that the general laws on violence against women also apply to them. The National Legal Aid Rules 2014 expressly refers to PWDs as a priority group for receiving state legal aid and services.[23]

Survey Findings

Many PWDs report being discouraged from pursuing a legal battle or from seeking a remedy due to certain practical barriers:

Barriers related to enjoyment of inheritance rights of disabled women and children: 73 % of women respondents stated that intellectually disabled women are denied inheritance rights. 27% felt that they had the right to inherit and 7% had a court appointed guardian to manage their property in comparison to the 93 % who did not have an appointed guardian.

Legal Protection for PWDs: According to 63% respondents, when a PWD is arrested, the Court does not take into account their disability and is often reluctant to grant bail to the arrested disabled offender.

Fig1_A2JFig 1: When a disabled person is arrested, does the court grant him/her bail on the basis of disability?

Jails have no adapted facilities, such as toilets and PWDs who are held under-trial are compelled to use non-adapted facilities.[24]

Accessibility issues: Most court buildings are inaccessible. The Bogra District Court, for example, is four stories high and has no separate access points for persons with disabilities, while the witness box has no adapted seating arrangements.[25]

Delays in trial: Accumulation of appeals, adjournments and the general lack of logistics and human resources are the main factors causing delays in trials preventing PWDs from achieving remedies[26].

Fig2_A2JFig 2: Are there any ramps, lifts, etc to facilitate access to court premises/building for disabled judges, lawyers, witnesses, victims, or accused?

Obstacles to the trial process: There are no clear procedures or guidance for court officials on how to record witness statements of PWDs with speech and hearing difficulties. Lawyers and court officials alike are also usually unmindful of the need for a sign language interpreter in these situations.[27]

Recommendations

Ensure disabled friendly court environment through implementation of Schedule 5 (Accessibility); 6 (Mobility) and 12 (Freedom from Violence, Access to Justice and Legal Aid) of the 2013 Act to ensure accessibility in all spheres of the justice system and to make all public places accessible (especially courts, police stations, victim support centers, one stop crisis centers).

Disabled friendly washrooms/toilets in all places including jails can be ensured through compliance with Rules 5 (5) and 13 of the Building Construction Rules, 1996 and Part 3 of the Bangladesh National Building Code 2008.

Build Capacity of Justice Sector Officials by incorporating disability issues in the training module for police, prison officials etc and in the Bar Council’s ‘Canons of Professional Conduct and Etiquette’ for practicing lawyers. Rules and guidelines set out in the Bench book for Judges and Magistrates needs implementation to facilitate the proper treatment of PWDs in court.[28]

Arrest of offenders Chapter V (Arrest, Escape and Retaking) of The Code of Criminal Procedure, 1898 should be amended to include additional provisions on the extra care and precautionary measures that needs to be carried out during the arrest of a disabled offender.

Protect Inheritance Rights by amending Section 1 of the 2013 Disability Rights Act and stating that it overrides any other laws, to prevent PWDs (especially those with intellectual disabilities) from being denied inheritance rights through the application of discriminatory personal laws.

State to raise public awareness of disabled people’s rights to access to justice by encouraging NGOs, CSOs, DPOs and the national media and cellular service providers to run public information campaigns and disseminate information on rights under various laws (especially on Legal Aid Act 2000; offences and punishment under the Penal Code, Suppression of Violence against Women and Children Act, 2000; the Domestic Violence (Prevention and Protection) Act, 2010) and the scope for their use by all including PWDs. Guest Lectures in schools for the disabled could also be arranged to raise awareness amongst PWDs.

Protection of disabled victims can be achieved by implementing Schedule 12 of the 2013 Disabilities Act to ensure better protection for PWDs who are victims of violence.

Effective implement Section 31 of the Suppression of Violence against Women and Children Act 2000 to provide better protection of victims of violence through safe custody. For PWDs facing domestic violence, proper implementation of Section 14 of the Domestic Violence (Prevention and Protection) Act, 2010 is required. Similarly, Section 6 of the Act ought to be implemented more effectively to ensure that the Enforcement Officers perform their duties to such victims.

Amend existing laws to ensure victim and witness protection. Alternatively, amend the 2013 Disabilities Act to ensure protection for disabled victims and witnesses as a priority.

For better compensation of witnesses, amend Section 544 CrPC to allow for related expenses incurred by witnesses (for travelling, accommodation) to be reimbursed from the state.

For better protection of witnesses, amend Section 545 CrPC to address any injury suffered by a PWD whilst performing witness duty (either through compensation or by providing free medical services in any private or public hospital or clinic at the expense of the office with full security protection).

Ensure Participation of PWDs in trials through implementation of Schedule 6 (ka) and (kha) by utilizing technology to share legal information with PWDs and implementation of Schedule 12 and especially Schedule 12 (gha) of the 2013 Disabilities Act and Chapter XXV of the CrPC. These would overcome the practical barriers that PWDs face in relation to participation in trials. To tackle the difficulties faced by PWDs with speech and hearing difficulties, Section 119 of the Evidence Act, 1872 needs to be followed. Adherence to rules contained in Chapter XVIII of the CPC (hearing of suit and examination of witnesses) would alleviate the practical barriers faced by PWDs in civil suits.

For PWDs who are intellectually disabled, Section 118 of the Evidence Act needs amendment to allow them to testify in court. Amendment of the law could include separate arrangements for such victims and the appointment of a counsellor to allow for a combination that would enable PWD’s with intellectual difficulties give evidence in a less intimidating environment.

Fast-Tracking Cases by Persons with Disabilities can be made possible through strict compliance of provisions related to summons of persons, trial in absentia, adjournment and appeals (Sections in Chapter VI, Section 339 B, Section 344 and Sections contained in Part VII respectively) of the CrPC would help in fast tracking of cases whilst Section 32 of the CPC can be used by courts to compel attendance of those to whom a summon has been issued. The Court can also apply the same section to impose penalties for failing to comply with court orders. Factors causing delay in trials can be resolved through the application of Order-XVII, rule-1, sub-rule-1 and sub-rule 3 (for adjournments) and the sections contained in Part I (for summons) and Part VII (appeals) of the CPC. In addition to all of the above, Case Coordination Committees (CCC) can be used to ensure quick disposal of cases by prioritizing ones involving PWDs. Good practices derived from NGO[29] projects running such committees to reduce overcrowding in prisons could also be used to minimize the delay in trials involving PWDs.

 

[1] Section 38 (1) , Rights of Persons with Disabilities Act, 2013.
[2] Section 16 (1) (b), Rights of Persons with Disabilities Act, 2013.
[3] Section 16 (2), Rights of Persons with Disabilities Act, 2013.
[4] Section 37 (1) and Part 12 of the Schedule, Rights of Persons with Disabilities Act 2013.
[5] Schedule 12 (ka), Rights of Persons with Disabilities Act, 2013.
[6] Schedule 12 (gha), Rights of Persons with Disabilities Act, 2013.
[7] Section 2 (a), Rights of Persons with Disabilities Act, 2013.
[8] Jatiyo Ain Shahayota Bidhimala: http://nlaso.gov.bd/wp-content/uploads/2014/06/policy-rules-2014.pdf
[9] NLASO Website: http://nlaso.gov.bd/wp-content/uploads/2014/06/policy-rules-2014.pdf
[10] Section 84, Penal Code, 1860.
[11] Section 118, Evidence Act, 1872.
[12] Section 2 (1), 19 and 151 of the Labour Act, 2006.
[13] Section 129, Motor Vehicles Ordinance, 1983.
[14] Section 104, Motor Vehicles Ordinance Act, 1983 states that: ‘’ When any person is injured or any property is damaged as the result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in charge of the vehicle shall-
(a) take all reasonable steps to secure medical attention for the injured person, and, if necessary convey him to the nearest hospital, unless the injured person or his guardian (in case he is a minor), desires otherwise;…’’
[15] BLAST and another vs. Bangladesh and others [Discriminatory Reservation Case] Writ Petition No. 1783 of 1998 (Judgment date: 20th March 2012) BLAST website “Disability Rights”: http://www.blast.org.bd/issues/disabilityrights
[16] Schedule III of Bangladesh Civil Service (Age, Qualification and Examination for Direct Recruitment) Rules, 1982, being No. S.R.O. 142- L/82/ED/Recruitment/1-15/80 setting the standard for physical fitness of the eligible candidates for appointment to a cadre post of Bangladesh Civil Service, that makes persons with disabilities ineligible for such posts.
[17] Rights Watch, Saturday, November 10, 2012 “High Court directed to allow Disabled Persons to sit for BCS exam”: http://humanrightslawclinic.blogspot.com/2012/11/high-court-directed-to-allow-disabled.html
[18] BLAST and others v Bangladesh and others [‘JSC Disability Discrimination’ Case] Writ Petition No. 2867 of 2010 (pending hearing to allow disabled candidates to appear for the Judicial Services Examinations[18]) and BLAST and others v Bangladesh and others [‘PSC Disability Discrimination’ Case] Writ Petition No. 2932 of 2010 (pending hearing to allow disabled candidates to appear for the Public Services Commission Examinations. BLAST website “Disability Rights”: http://www.blast.org.bd/issues/disabilityrights
[19] Khondoker Shahriar Shakir. Protibondhi Odhikar Ain: Ainjibider Nirdeshika (Disability Rights Law: A Manual For Lawyers). Harvard Law School Project on Disability and Bangladesh Legal Aid and Services Trust (BLAST), 2012. ,
[20] Advocating for inclusion through Bangla sign language, http://www.disabilityrightsfund.org/program_grantees/highlight/SDSL
[21] Section 16 (1) (ga), Rights and Persons with Disabilities Act 2013
[22] Section 25, Rights of Persons with Disabilities Act, 2013.
[23] NLASO Website: http://nlaso.gov.bd/wp-content/uploads/2014/06/policy-rules-2014.pdf
[24] Page 10, Consolidated Report 7 FGDs, 1 October 2013. (on file)
[25] Page 10, Consolidated Report 7 FGDs, 1 October 2013. (on file)
[26] Hasan, Sk.M.Tofayel. ‘Critical Scanning on Civil Litigation: Bangladesh Perspective’. ASA University Review 7.2 (2013): http://www.asaub.edu.bd/data/asaubreview/v7n2sl11.pdf
[27] Page 10, Consolidated Report 7 FGDs, 1 October 2013. (Please see Annex).
[28] Please see Annex for the “CEDAW Bench Book” for judges and magistrates.
[29] Details on IRSOP (Improving the Real Situation of Overcrowding in Prisons) project. See GIZ’s Website: http://www.giz.de/en/worldwide/15042.html and BLAST’s Website on: http://www.blast.org.bd/issues/prisons-rights

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