BLAST and others v Bangladesh and others [‘JSC Disability Discrimination’ Case]

Writ Petition No. 2867 of 2010

High Court Division of the Supreme Court of Bangladesh

Fact:
Shapan Chowkidar, a lawyer with visual disabilities, along with BLAST, Action on Disability and Development (ADD), and the National Council of Women with Disabilities (NCDW), filed a writ petition challenging Schedule III of the বাংলাদেশ জুডিসিয়াল সার্ভিসের প্রবেশ পদে নিয়োগ বিষয়ক আদেশ, ২০০৭ [Bangladesh Judicial Service Appointment Order, 2007], which bars persons with disabilities from being eligible for employment in judicial service. Shapan Chowkidar had participated in competitive examinations throughout his academic life with the aid of scribe and/or by use of documents in Braille. He obtained his Secondary School Certificate (S.S.C) with star marks in 1999, and his Higher Secondary Certificate (H.S.C) with a First Division in 2001. He was admitted to the Department of Law, University of Dhaka in 2002, where he obtained his LL.B. (Hons) and LL.M. degrees in 2008 and 2009 respectively. In 2009 he was enrolled as an Advocate with the Bar Council after qualifying in both the written and viva voce examinations.  However, when he submitted his application for appearing for the JSC examinations he received an admit card, but his request for the aid of a scribe was denied by the Secretary of the Judicial Service Commission (JSC) on the grounds that no such facilities could be made available, and that in any event, persons with disabilities were not eligible for admission to the judicial service.

Arguments:
The petitioners argued that institutionalized discrimination in the form of the JSC Rules violates the fundamental rights of all persons with disabilities to equality before law, particularly the rights to equal opportunities to public employment and to freedom of profession as guaranteed under Articles 27 and 29 read with Articles 15 and 19(2), and that the failure of the concerned authorities to make any accommodation for employment of persons with disabilities amounts to non-compliance with their statutory obligations under the Disability Welfare Act 2001, as well as their constitutional duties and their international obligations under the Convention on the Rights of Persons with Disabilities.

Order:
The High Court issued a Rule Nisi on 08.06.2010 on the respondents, including the Ministry of Law, Justice and Parliamentary Affairs and the Judicial Service Commission, to show cause as to why certain provisions the JSC Rules [বাংলাদেশ জুডিসিয়াল সার্ভিসের প্রবেশ পদে নিয়োগ বিষয়ক আদেশ, ২০০৭] should not be declared to be unconstitutional to the extent that they are inconsistent with the fundamental rights of persons with disabilities to equality, equality of opportunity and the right to a profession. It also directed the respondents to show cause as to why they should not be directed to apply their discretionary powers and to perform their duties as prescribed by law to identify cadre posts within the Bangladesh Judicial Service as appropriate for citizens with disabilities as well as to ensure the hiring of citizens with disabilities for these posts. Earlier, on 25.04.2010, the Court had directed the Judicial Service Commission to submit a report within thirty days on the steps taken to date implement their obligations under Section 6(2) and Schedule ‘Cha’ of the Disability Welfare Act, 2001.

Laws Cited:
Constitution, Articles 27, 29, 15 and 19 (2); Disability Welfare Act 2001; বাংলাদেশ জুডিশিয়াল সার্ভিস (সার্ভিস গঠন , সার্ভিস পদে নিয়োগ এবং সাময়িক বরখাস্তকরণ, বরখাস্তকরণ ও অপসারণ) বিধিমালা, ২০০৭, বাংলাদেশ জুডিসিয়াল সার্ভিসের প্রবেশ পদে নিয়োগ বিষয়ক আদেশ, ২০০৭

International Instrument Cited:
United Nations Convention on the Rights of Persons with Disabilities

Status: Pending hearing

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