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Petitioner: Mst. Sana Khursheed VS Respondent: Government Of The Punjab through Chief JUDGMENT
Court Name: Lahore High Court Judge(s): Jawad Hassan Title:Mst. Sana Khursheed vs Government Of The Punjab through Chief
JUDGMENT
Reported As: PLD 2022 Lahore 346 Result: Petitions allowed Judgment "Those who are weak have great difficulty finding their place in our society . The image of the ideal human as powerful and capable disenfranchises the old, the sick, the less-abled. For me, society must, by definition, be inclusive of the needs and gifts of all its members. How can we lay claim to making an open and friendly society where human rights are 'respected and fostered when, by the' values we teach and foster , we systematically exclude segments of our population? I believe that those we most often exclude from the normal life of society , people with disabilities, have profound lessons to teach us. When we do include them, they add richly to our lives and add immensely to our world." Jean V anier , Becoming Human, Paulist Press, New Jersey , USA 1999 JUDGMENT JAWAD HASSAN, J.---This constitutional petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution ") and the Court, at initial stage, on 07.05.2021, while issuing notices, has mentioned the following quote of Tammy Duckworth, a US Senator from Illinois and the first women with a disability elected to Congress. "Don't look at me with pity. I earned this wheelchair . I own this wheelchair . I am proud of it and I am going to use it to get places a hell a lot faster than you could ever run" 2. The Court thereafter , relying on judgments of Hon'ble Supreme Court of Pakistan on fundamental rights of Persons with Disabilities (the "PWDs") reported in "Dr. Shahnawaz 'Munami and others v. The Federal Government of Pakistan and others" (2020 SCMR 1713 ) and by the UK Supreme Court in the case of Paulley v. Firstgroup PLC (2017 SCMR 407)=[(2017) UKSC 4] summarizes that "people who cannot walk to justice, the justice can walk to them". However , this judgment will discuss in detail how the justice has walked by delivering writ of mandamus and appreciating the role of civil society , Government to draft law i.e. Punjab Empowerment of
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Persons with Disabilities Act, 2021 (the "Act") which gives rights to people with disabi lity including rights of privacy , accessibility and mobility , equity in educa tion, right to home and family , access to justice and right to inherit and own property etc. This Court in its order dated 20.05.2021 also recognizes Report of the Child Care Commission (the "Commission ") authored by Dr. Parvez Hassan, Senior Advocate Supreme Court of Pakistan on the orders of Mr. Justice Mansoor Ali Shah, the then Chief Justice (Now Hon'ble Judge of august Supreme Court of Pakistan) which have been complied with by the Respondents in this case while following the recommendations of the Commission. 3. While writing this judgment, I recall the illustrious quote of Stephen Hawking, English Theoretical Physicist, Director of Research at the Centre for Theoretical Cosmology at the University of Cambridge which reads as follows: "The downside of my celebrity is that I cannot go anywhere in the world without being recognized. It is not enough for me to wear dark sunglasses and a wig. The wheelchair gives me away ." 4. Through this single judgment, I intend to decide this writ Petition as well as conn ected Writ Petition No.22253 of 2021 titled as "Judicial Activism Panel, Human Rights and Public Interest Litigation Association through its Chariman v. Federation of Pakistan and 15 others" as common questions of law and facts are involved in both the cases. I. BRIEF F ACTS 5. The Petitioner/Sana Khursheed has filed this writ of mandamus under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the " Constitution ") with the following prayer: "In view of the foregoing, it is most respectfully prayed that this Honourable Court may graciously be pleased to direct, monitor and ensure: 1. Strict tangible enforcement of Regulation 5.2.3 of the 2019 LDA Building and Zoning Regulations for provisions of ramps, lift and toilets at public buildings, commercial buildings and apartment for differently-abled persons with a definitive period of time as determined by this Honourable Court, against the Respondent No.2(Secretary , Housing, Urban Development and Public Health Engineering Department), Respondent No.3 (Director General, Lahore Development Authority", and Respondent No.4 (Chief T own Planner , Lahore Development Authority). 2. Strict tangible enforcement of Serial No.53 of the DHA Lahore's Construction and Development Regulations of 2014 for providing at commercial building s meaningful access/exit, entrances through handrail ramps, and space for parking for differently-abled persons, within a definitive period of time as determined by this Honourable Court, against the Respondent No.5 (Chairman, Defense Housing Authority , Lahore) and Respondent No.6 (Administrator , Defense Housing Authority , Lahore) and 3. That the Respondents enact meaningfu l legislation whereby the rights of differently-abled persons in their pursuit of fundamental rights related to meaningful accessibility of public facilities are advanced to place such differently- abled persons on equal footing with the able citizens of Pakistan. Any other relief which this learned forum deems fit and proper may also kindly be granted in the interest of justice. 6. The connected Writ Petition No.22253 of 2021 has also been filed seeking directions to the concerned quarters to provide special facilities, recreational activities, special institutions, special libraries and other basic facilities which would help the Special Children immensely; and to formulate policies and mechanisms as well as enact laws for the said purpose. II. PETITIONERS' SUBMISSIONS Submissions of Mr . Ali Rasheed Chughtai, Advocate. 7. Mr. Ali Rasheed Chughtai, Advocate has submitted that the Petitioner/Sana Khursheed is an Advocate, based in Lahore and has been quadriplegic due to a car accident which left her wheelchair bound since 2002 and due to this helplessness, she has to face obstacles in her access to the public, educational, and commercial places, as a quadriplegic wheelchair user. The learned counsel further states that the Petitioner has approached the Respondents Nos.3 and 5 to make arrangements for construction of ramps, lifts and toilets for Petitioner's alike disabled persons but no action in this regard has been taken by either of the said Respondents. Further submitted that the Petitioner earlier filed a writ Petition which was disposed of with directions in the light of the judgments of
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the august Supreme Court of Pakistan but no action has been taken so far. Learned counsel further submitted that the LDA established under Lahore Develo pment Act, 1975 (the "Act of 1975 "), which functions under Section 6 of the Act of 1975 along with its Rules and Regulations while the Defense Housing Authority (DHA) functions under Defense Housing Authority Ordinance, 1999 (the "Ordinance of 1999 "). Further submitted that it is the duty of the Respondents to construct ramps, lifts and toilets for disabled/wheelchair users and Regulations 5.2.3 of 2019, Lahore Development Authority building and Zoning Regulations (LDA Wheelchair Regulation) and Serial No.53 of the Defense Housing Authority Lahore Construction and Development Regulations of 2014 (the "DHA Regulations of 2014"). He further urged that inaction on part of the Respondents to comply with their own Laws and Regulations compelled the Petitioner to file this writ Petition. Further averred that due to non-provision of ramps and other facilities Petitioner's fundamental rights of life, dignity and freedom of movemen t have been infringed. Learned counsel relied on the judgment reported as Paulley v. First Group [PLC( 2017 SCMR 407)] = [(2017) UKSC 4] in which the scope and enforcement of the policy relating to rights of a disabled person has been discussed in detail. Submissions of Mr . Muhammad Azhar Siddique, ASC. 8. Mr. Muhammad Azhar Siddique, ASC submitted that provision of special facilities, including special education, special libraries, recreational activities, special care, health facilities and other basic necessities of life is fundamental right of a special child, denial of which will offend the Constitutional mandate of Articles 3, 9, 14 and 25 of the Constitution. He explained that under Article 3 of the Constitution it is sole responsibility of the State to ensure elimination of all forms of exploitation and play a vital role for providing better lifestyle to special children as per provisions of Article 9 of the Constitution. He submitted that if the provisions pf Article 14 of the Constitution are read together with the provisions of Article 9 of the Constitution then the question will arise whether a special child/person can be said to have dignity of man if his right to life is below bare necessity line without proper food, clothing, shelter , education and health care. He maintained that under Article 25 of the Constitution it is right of the special children to be provided special education as per the standard being maintained in the country for (other) normal children. 9. The attention of the Court has also been drawn towards the constitutional values declared in Articles 35, 37 and 38 of the Constitution. Mr. Muhammad Azhar Siddique, ASC contended that protection of fundamental rights of special children comes within the mandate of Article 35 of the Constitution while Article 37 of the Constitution promotes social justice which covers the provisions of special facilities to special children in Pakistan. Moreover , Article 38 of the Constitution deals with the principle of policy and states in unequivocal terms that the State shall secure the well-being of the people by raising their standards of living after ensurin g equitable adjustment of rights between employers and employees and provide for all citizens, which also includes the special children/persons, within the available resources of the country , facilities for work and adequate livelihood. He 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. In this regard , he has placed reliance on the judgments reported as Subay Khan v. Secretary , Labour , Government of the Punjab (PLD 2019 Lahore 253) and Sheikh Asim Farooq v. Federation of Pakistan and others (PLD 2019 Lahore 664) wherein this Court has held that public interest litigation is a powerful tool for individuals and groups for combating illegalities, injustice and social ills, which promoted and protected the larger public interest in case of violation of any fundamental right. Mr. Muhammad Azhar Siddique, ASC further stated that there are a number of pronouncements by the Hon'ble Supreme Court of Pakistan as well as this Court on the issue in hand and he specifically referred to the judgments reported as Malik Ubaidullah v. Government of Punjab and others (PLD 2020 SC 599), Hafiz Junaid Mahmood v. Government of Punjab and others (PLD 2017 Lahore 1), Muhammad Yousaf and another v. Chairman. Federal Public Service Commission and 4 others (PLD 2017 Lahore 406) and Mian Muhammad Tanvir Ibrahim v. Parks and Horticulture Authority and others (2016 CLC 1508 ). Reference has also been made to the judgment passed by the Supreme Court of UK in the case of Paulley v. First Group [PLC( 2017 SCMR 407)] = [(2017) UKSC 4] in which the scope and enforcement of the policy relating to rights of a disabled person have been discussed in detail.
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10. Mr. Abuzar Salman Khan Niazi, Advocate submitted that the Federal Government is also responsible in taking necessary steps for enforcement of rights of special children because under Article 146 of the Constitution it may, with the consent of the Government of a Province, confer powers and impose duties on a Province for making proper legislation in certain cases. III. RESPONDENTS' SUBMISSIONS Submissions of Barrister Umair Khan Niazi, Additional A.G. 11. Barrister Umair Khan Niazi, Additional Advocate General, Punjab has placed on file a copy of the Accessibility Code of Pakistan, 2006 and conceded the fact that access to public places/facilities is a statutory right of the persons with disability , particularly the persons on wheelchairs, under the afore said legislation. He also drawn attention of the Court towards the provisions of Section 3 of the Special Citizens' Act, 2008 (the "Act of 2008 "), which clearly states that it is the responsibility of the Government to bound the concerned authorities, before construction of buildings in public or private sectors, particularly in Educationa l 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. In this regard, he has referred to the detailed order dated 14th of July, 2020, passed by the Hon'ble Supreme Court of Pakistan in the case of Dr. Shahnawaz Munami and others v. The Federal Government of Pakistan and others (2020 SCMR 1713 ), the relevant portion of Paragraph-10 of which is reproduced hereunder for ease of the matter:- "We are satisfied that the broad framework of guidelines provided by this Court from time to time to ensure implementation of laws and providing Fundamental Rights to persons with disabilities are being followed and implemented by the Federal as well as the Provincial Governments. Much more needs to be done. It is however encouraging to note that the process has been initiated and earnest efforts are being made to create an environment and framework where citizens with disabilities are given respect, protection and support and the requisite facilities are also made available to provide them opportunities of getting education of getting education, training and a conductive environment where they can be assimilated in the mainstream of the society . " Submissions of Mr . Waseem Badar , Advocate for LDA 12. Mr. Waseem Badar , Advocate for Lahore Development Authority (the "LDA") stated that the Respondent/LDA vide Notification No.LDA/TP/829, dated 15.05.2021, constituted a Committee to provide Recommendations for implementation of meaningful access to Public facilities for persons with Disabilities and the Committee vide its minutes of the 2nd/2021 meeting recommended certain amendments in their Building and Zoning Regulations, 2019 (the "Regulations"). Submissions of Mr . Ali Awais, Advocate for the Respondents Nos.5 and 6 13. Mr. Ali Awais, Advocate for the Respondents Nos.5 and 6/DHA stated that they have already taken steps regarding provision of facilities to disabled persons at all Commercial Properties falling within the DHA. He made available copy of letter No.395/1A/Ph-XI, dated 16.07.2021, the relevant paragrap hs of which are reproduced as under:- "1. DHA do cater for provision of ramps in the cmrl bldgs. As per para _53 of DHA Construction and Development. Regulations, 2014:- a. Every Commercial building having an area of 4500 square feet or above shall have at least one access/exit for the disabled persons, which shall be indicated with proper signage. The entrance shall be through a ramp (slope not more than 25 degrees with non-slip surface) together with stepped entry . If floor of the building is more than two steps high or the riser of step is equal to or more than 6 inches ramp, thus provided shall start in line with the lowest steps but inside the property line. b. Therefore a survey was carried out on 21 Mar 2018 to ensure implementation of this rule in constructed bldgs having area of 4500Sft or above. After complete survey BC Branch issued letters to owners of those buildings where ramps were constructed. In the result almost all of those bldgs. Have constructed ramps. 2. DHA has also carried out fol actions:- a. A letter has already been issued to all DHA registered Architects on 28 Jun 2021 for provision of Wheel Chair Ramps in proposed drawings of cmrl bldgs. Of 4 Marla and above.
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b. BC Branch is going to issue letter to under constructed/ constructed buildings for provision of portable ramps with entrance step. These Ramps can be placed with entrance when required." IV. SUBMISSIONS OF AMICUS CURIAE 14. Keeping in view the sensitivity of the issue, it was directed that Kh. Issam Bin Haris, Advocate /Amicus Curiae, was directed to be included in the LDA Committee to assist the LDA authorities in implementing the recommendations given in the Dr. Parvez Hassan's Commission Report. He was further directed to make a deep research work with regard to the jurisprudence developed by other countries on the issue in hand. 15. Kh. Issam Bin Haris, Advocate/ Amicus Curiae by submitting his written submissions stated that accessibility is a fundamental right under "triangular construct of right to life, dignity and equality" as provided in Articles 9, 14 and 25 of the Constitution. He relied on the judgment of the Hon'ble Supreme Court of Pakistan cited as "Malik Ubaid Ullah v. Government of the Punjab and others" (PLD 2020 SC 599) and the judgments of this Court cited as "Hafiz Junaid Mahmood v. Government of the Punjab and others" (PLD 2017 Lahore 1) and "Muhammad Yousaf and another v. Chairman, Federal Public Service Commis sion and 4 others" (PLD 2017 Lahore 406). He further submitted that in other Provinces of country specific legislations dealing with ease of access and mobility of disabled persons, have already been made, which are as follows:-- i). The Balochistan Persons with Disabilities Act, 2017. ii). The Sindh Empowerment of Persons with Disabilities Act, 2018. iii). The ICT Rights of Persons with Disabilities Act, 2020. Kh. Issam Bin Haris, Advocate/ Amicus Curiae further submitted that unless and until the similar legislation is not enacted by the Government of the Punjab and exercised through Social Welfare Department, Government of the Punjab, this issue will not permanently be resolved. He added that already under the direction of this Court certain Laws/Acts have been promulgated. He relied on the judgments of this Court cited as "Sheikh Asim Farooq v. Federation of Pakistan and others" (PLD 2019 Lahore 664), "Mian Ali Asghar v. Government of the Punjab and others" (2020 CLC Lahore 157, 2021 MLD 370) [The Punjab High Security Zones (Establishment) Act, 2020], "M C. R. (Pvt) Ltd, Franchisee of Pizza Hut v. Multan Development Authority and others"( 2021 CLD 639),"Muhammad Ahmad Pans. ota and others v. Federation of Pakistan and others" ( PLD 2020 Lahore 229 ). 16. Arguments heard. Record perused. V. COURT'S PROCEEDINGS 17. Both the writ petitions were admitted and notices were issued to the Respondents with the direction to file their report and parawise comments. On 20.05.2021, the Petitioner filed an Applicati on (C.M. No.02 of 2021) under Section 151 read with Order XIII and Rule 1 of C.P.C. for placing on record the report of the Child Care Commission (the "Commission"), dated 27th of October , 2018 (the "Report"), prepared by Dr. Parvez Hassan, Senior Advocate Supreme Court of Pakistan, after being appointed as the Chair of Commission, pursuant to a direction issued by the Hon'ble Mr. Justice Syed Mansoor Ali Shah, the then Chief Justice of this Court (now Hon'ble Judge of the august Supreme Court of Pakistan) in Writ Petition No.107273 of 2017, vide order dated 22nd of December , 2017. 18. Mr. Ali Rasheed Chughtai, Advocate for Petitioner submitted that the aforesaid Report be made part of the main case because extensive work has been done by all Members of the Commission, including Secretaries of relevant Government Departments, Mr. Saad Rasool, Advocate, Dr. Faisal Bari, Associate Professor , LUMS, Dr. Naeem Zafar , Head of Department, Child Rights Department, University of Lahore, Ms. Sarah Belal, Advocate, Syed Miqdad Mehdi, Advocate, Ms. Rukhsana Shah, former Federal Secretary , Ms. Muniba Mazari, Motivational Speaker and Pakistan's first national (Goodwill) Ambassador to UN Women, Professor Dr. Shazia Maqbool, Head and Consultant, Children's Hospital, Lahore, Ms. Sana Khurshid, Motivational Speaker , Dr. Amjad Saqib, Managing Director , Punjab Welfare Trust for the Disabled, Lahore, Ms. Huma Omar Mansoor and Dr. Eaisha Tareen, Joint Secretary , National Society for Mentally and Emotionally Handicapped Children, Lahore. He further submitted that after extensive meetings, visits to various institutions of special education as well as other related sectors and in depth research by the Members of the Commission chaired by Dr. Parvez Hassan, Senior Advocate Supreme
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Court of Pakistan, this Report has been finalized with certain recommendations. Therefore, a direction may be issued by this Court to the Respondents to file report and parawise comments in light of the said recommendations. 19. Perusal of Report shows that the Hon'ble Mr. Justice Syed Mansoor Ali Shah in the aforesaid writ petition had made hectic efforts to protect/safeguard rights of the Persons with Disabilities (the "PWDs") and on this issue he had also passed landmark judgments which are being followed throughout Pakistan. In this connection, reference was made to the cases reported as "Malik Ubaidullah v. Government of Punjab and others" (PLD 2020 SC 599), "Hafiz Junaid Mahmood v. Government of Punjab and others" (PLD 2017 Lahore 1) and "Muhammad Yousaf and another v. Chairman, Federal Public Service Commission and 4 others" (PLD 2017 Lahore 406). However , it was observed with great concern that the recommendations made by the Commission in the Report with regard to provision of free environment after making buildings and public facilities accessible to the PWDs, have not so far been implemented. Under the rule of law, access to justice is provided to all citizens of this country and where a citizen cannot walk due to some disability , the Courts are there to remove the hindrances being faced by the PWDs, especially the persons on wheelchairs, because Tammy Duckworth, a US Senator and the first woman with a disability elected to Congress, said that "Don't look at me with pity. I earned this wheelchair . I own this wheelchair . I am proud of it and I am going to use it to get places a hell a lot faster than you could ever run." 20. The Report mentions the International Framework on rights of the PWDs, which includes the UN Convention on the Rights of the Child, 1990, Standard Rules on the Equalization of Opportunities for Persons with Disabilities, 1993, the UN Convention on the Rights of Persons with Disabilities, 2006; the relevant Articles of the Constitution and the legislation made by the legislators of this country on this issue, i.e. the special laws, including the Disabled Persons' (Employment and Rehabilitation) Ordinance, 1981 (the "Ordinance of 1981"), the National Policy for Special Education, 1999, the National Policy for Persons with Disabilities, 2002, the National Policy for Rehabilitation of the Disabled, 1986 and the Mental Health Ordinance, 2001 (the "Ordinance of 2001"). 21. Moreover , the issue of accessibility of PWDs to public facilities has been discussed in detail by the UK Supreme Court in the case of Paulley v. First Group PLC (2017 SCMR 407) = [(2017) UKSC 4] and then by the Hon'ble Supreme Court of Pakistan in the judgment reported as Dr. Shahnawaz Munami and others v. The Federal Government of Pakistan and others (2020 SCMR 1713 ) wherein the fundamental rights of the PWDs were recognized and certain directions were also issued to the relevant governmental authorities/departments to progressively build proper ramps for PWDs and to ensure making transport accessible to them. Consequently , while relying on the judgments passed by this Court as well as the Hon'ble Supre me Court of Pakistan which are binding on the Respondents under Articles 189 and 201 of the Constitution, they were directed to file a comprehensive report and parawise comments and Application was disposed of. 22. On 26.05.2021, on the request of learned counsel for the Petitioner , the Secretary , Local Government of Punjab; Metropolitan Corporation Lahore through Chief Officer, Punjab; Chief Executive Officer, Walton Board and Chief Executive Of ficer, Cantt. Board, were allowed <to array as Respondents Nos.7 to 10, with red ink 23. On the said date, Mr. Ahmad Aziz Tarrar, Director General, LDA appeared in the Court along with Mr. Tariq Mehmood, Chief Town Planner , LDA and stated that pursuant to the directions issued by this Court on 20th of May, 2021 in C.M.No.2 of 2021,. a Committee for the implementation of meaningful access to public facilities for PWDs (the "LDA Committee ") has…
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