Nethra Silva

This article provides a better understanding of the legal framework available for the rights of people with disabilities in relation to very essential areas. the article is widely discussing the international laws available for individuals with disabilities.

The robustness of the legal system for the rights of people with disabilities.
The legal system is a spectrum of certain establishments which regulates the certainty and the quality of life. Legal perspective is an objectively interpreted framework that has been executed the law rather than polishing some moral perspectives. Morality is an individualized identification. More of the moral perspectives are subjective and scientifically challenged. The term ‘Disability’ is defined in a number of ways depending on the ‘criteria’ which has been taken into consideration. In accordance with health and medical perspectives, any disability has its own identification as a health condition. In legal perspective, rights, participation, recognition, and accessibility are thoroughly scrutinized although unfortunately the vast majority of individual experiences of people with disabilities elaborates the loopholes in rule of law. Even Though the law expects it to be a fair and justifiable doctrine, its execution has number of deliberate or accidental breakdowns.

What are the Most Significant Laws Related to Human Rights?

According to the sources of United Nations, human rights can be defined as the rights that every individual is entitled to relish during their lifetime regardless of race, ethnicity, gender, nationality, religion, or any such categorization. The United Nations organization has created a code which was universally and internationally protected. This code included the rights in certain areas and mechanisms to ensure their protection. The foundation for this legal body was established in the General assembly held in 1945 and 1948.

The introduced ‘Charter’, of the United Nations and the universal declaration of human rights was a clear elaboration of the rights for women, children, persons with disabilities and other vulnerable people groups who had been severely discriminated and restricted for a period of time (Source: UN official web page). Major adaptations have taken place in international human rights treaties since 1945. As a result of these expansions, ‘The convention on the rights of persons with disabilities (2006)’ was established with its optional protocol in New York. Most remarkably the convention could create an attitudinal hurricane changing the charitable, medical, and social perspectives towards persons with disabilities. convention on the rights of persons with disabilities has introduced certain policies (50 articles) to ensure the rights of individuals with disabilities. This document includes the definitions of reports, depositories, and amendments. Article 5 of the convention elaborates the concept of equality and non-discrimination.

The basis of this article repeatedly defines the concept that I have stated a while ago which is ‘rule of law’. British jurist A.V Dicey has introduced few concepts under this rule. The second rule of Dicey states that no one is above the law. This concept establishes the equality between genders, social classes and any such categorizations. Later, Lord Bingham drew out several ingredients from the concept of rule of law. ingredient number 3, defines how the laws of the land need to be applied to all. Specific presentation in this case is that the concept has elicited the term “equal”. Also, according to the explanation of Lord Bingham, human rights need to be protected and of course they must receive adequate protection. This exact concept goes hand-in-hand with the article 12 of Fundamental rights of Sri Lanka.

The 3rd chapter of the constitution of the Democratic Socialist Republic of Sri Lanka has introduced several fundamental rights for the well-being of the citizens living in the territory. Article 12 is obvious about the laws relating to equality and discrimination. Article 12- section 1 states that “all persons are equal before the law and are entitled to the equal protection of the law.” section 2 elaborates how the discrimination needs to be avoided treating everyone equally. ‘Protection of the Rights of Persons with disabilities Act, no 28 of 1996 was introduced by the Sri Lankan parliament in October that year. Section 23-subsection 1 has constituted the law which has been enacted and manifested through the other resources. Section 23 of ‘Protection of the Rights of Persons with disabilities Act’ and the Article 6 of the convention define the rights of women with disabilities. Gender biases and discrimination can be widely discussed on the grounds of execution in relation to these declarations. This concept defines in section 2 of the article 12 of Fundamental rights of Sri Lanka. It has been discovered that, girls and women with disabilities have been experiencing very traumatic events in comparison to boys and men with disabilities. These measures establish the fact that fundamental freedom needs to be a transparent and a realistic presentation. Article 13 of the convention has brought out a remarkable legal point which requires the attention of everyone including the legal professionals. “Access to justice”; this explicates that every person with a disability is entitled to be served with justice, the way that it has been done for everyone else. Also, article 14 has a descriptive statement on the right of persons with disabilities to access liberty and security.

Gender Biases and Violence

Gender is a concept, simply a certain criterion created by humankind. According to the United Nations (IASC Guidelines, 2019, inclusion of persons with disabilities in humanitarian action), 1 in every 5 females is experiencing a disability during her lifetime. According to the World health organization estimates in 2013, 30% of women (15 years & above) have been subjected to physical /sexual violences. Adults with disabilities have experienced violence 1.5 times in comparison to the typical individuals while the individuals with intellectual disabilities were bearing the risk of violence as four times as the typical individuals do. (Hughes, Bellis, Jones, Wood, Bates et al 2012). Article 16 of the convention on the rights of persons with disabilities has provided a descriptive analysis about their rights to have an independent life, which is completely free from exploitation, violence, and abuse. Section 1 of this article has a specific statement about the gender-based aspects. Section 5 of this article has kept a close eye on the rights of women and children with disabilities in relation to the violence and abuse. States and responsible parties have been directed towards the policy making environment and the legislative process to ensure the execution of these written laws.

The concept of gender biases cannot be framed only to the males and females. The concept of LGBTQ+ was recently came into global conferences in relation to the rights and the perspectives of people that are contributing towards the constitutions of the countries. LGBTQ+ refers to the individuals who are Lesbian (emotionally and sexually attracted women), Gay (emotionally and sexually attracted men), Bisexual (emotionally and sexually attracted to more than one gender), Transgender (transferring to their opposite gender naturally) and Queer (not providing details on their gender identity). The plus mark was included to view LGBTQ concept in an inclusive manner. In 2021, 29 and 34 countries have provided equal legal identification for marriage and monosexual relationships respectively. According to the Universal declaration of human rights 1948, discrimination on the grounds of gender also violates the rights of individua freedom.

Women with disabilities and LGBTQ+ individuals are experiencing certain challenges compared to the typical individuals. Restricted social participation, reduced opportunities to build up an independent career, limitations for education, mythologies and violence are some of the burdens that most of them have to cope with yet, that is not impossible to overcome the burdens maintaining the awareness and up to date knowledge on the legal procedures.

General Discrimination and Education for Children with Disabilities
Discriminations are very individualized yet, some of the subtle factors are shared and commonly identified. Educational rights of children with disabilities have been widely discussed in many international platforms. Article 24 of the convention has a multi-sectional description about the disability and their rights to be educated. One of the position papers published by UNICEF in 2012 has expressed their views on a rights-based initiative. Fundamental expectation of UNICEF is based on a very inclusive approach respecting the rights of children with disabilities. According to the position report of UNICEF, two thirds of children with disabilities have been discriminated against typical children in the matter of pre-school enrollment. This means that only one third of kids with disabilities have been accepted into pre-schools. Everyone must be considered under the law of human rights regardless of their physical and mental capacities. Creating an accessible and feasible environment is really a responsibility of the government (UNICEF). The individual or the family of the individual is not required to create a platform for themselves to live the life that the other people are living with their loved ones. If someone is demanding and expecting them to create their own platforms for the typical enjoyment of life, that is unjust and illegal. The law itself states that every person needs to be treated equally. This relevant fact does not make the law radically different. ‘Equal’ in the sense, everyone needs to be treated with equal opportunities. For instance, if only the typical children are enrolled into educational settings, children with disabilities will be left out with no educational access. They simply lose a fair opportunity to achieve their dreams. If stairs are to access a higher floor, either an elevator or a ramp needs to be accessible for people with mobility impairments. It is unfair to expect a person with a wheelchair to use stairs to reach his/her destination. Most of the people would consider it an exceptional opportunity given to people with disabilities yet, it is crystal clear that the individuals with disabilities are receiving the exact opportunity that everyone has received. Inclusive education has become a well-nourished concept with the influence and intervention of UNICEF and laws related to disability. UNICEF has elaborated three approaches for education relying on its notion. (1) Segregation; an impairment-based approach. This approach focused on impairment and how to address the core of it. (2) Integration; mainstream settings were made accessible for children with disabilities as long as they are capable of fulfilling the demands. (3) Inclusion; this approach was adapted to the system considering the external adjustments. Not only the accessibility but also the way of enabling the non-biased participation was widely considered.

Inclusion is more of a spectrum. Article 7 of the Convention on the rights of persons with disabilities has given a descriptive view on how to treat children with disabilities on an equal basis just as the other children. Section 3 of article 7 has provided the idea that children with disabilities are entitled to receive appropriate assistance in relation to their age. Education is a right not a benefit. Disability inclusive communication guidelines presented by the United Nations have an optimistic view on the mode of communication. Communication shares a strong link with education. The United Nations believes that this approach would reduce the unnecessary discriminations and biases. As it has been estimated and stated in the Disability inclusive communication guidelines, 15% of world’s population have some kind of disability. Also 1 out of 10 children is diagnosed with a disability. Further, as it has been stated in Disability inclusion strategy entity accountability framework, choosing an appropriate communication medium or a method needs to be one of the principal considerations. Braille documents, audio recordings, sign language interpreters, Subtitles, and augmentative and alternative communication methods are some of the well-known strategies utilized to make the communication accessible for everyone.

Codification and Execution of Laws
A very few countries such as United Kingdom, Israel, New Zealand, and Canada, have uncodified constitutions. Uncodified in the sense that the law has not been written in a single legislative document yet, it can be found on statutes and other legal tools. Most of the other countries including Sri lanka has a codified constitution where the laws are written on a single document. Regardless of the legislative procedure, every nation has a binding responsibility towards their citizens to rule the country in good faith protecting the rights and ensuring the equality.

References
Sueur, A. L., Sunkin, M., & Murkens, J. E. K. (2019). Public Law: Text, Cases, and Materials. Oxford University Press
Protection of the Rights of Persons with Disabilities Act, No.28 of 1996
Convention Rights of Persons with disabilities.
Disability-Inclusive Communications Guidelines (United Nations)
World Health Organization 2013
IASC Guidelines,2019, inclusion of persons with disabilities in humanitarian action.
International Labour Organization Guide on LGBTQ+
Chapter III – Fundamental Rights of democratic socialist republic of Sri Lanka.