Disable person case; PHC directs to ensure implementation of International convention

Humayun Khan

PESHAWAR: Peshawar High Court (PHC) has accepted a writ petition and directed federal and provincial governments concerning the implementation of international conventions regarding disable persons to which the Federation of Pakistan is signatory.

The Peshawar High Court on Tuesday accepted a writ petition filed by two disabled citizens namely Asad Khan and Sher Alam Khan for the enforcement of their fundamental rights shielded by the Constitution of Pakistan and for honouring of international treaties to which the Federation of Pakistan is a signatory.

The counsel for petitioners Barrister Asad-ul-Mulk cited the relevant provisions of the Universal Declaration of Human Rights (1948), the Declaration on the Rights of Disabled Persons (1975) and pointed out that in Pakistan, there were approximately 27 million persons with disabilities with around 0.5 million disabled persons residing in Khyber Pakhtunkhwa (KP). Yet, it was averred, very little policy and legislation had resulted to give effect to the Equality of Treatment Social Security Convention (1962), the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Right (1966), the Vocational Rehabilitation and Employment Disabled Persons Convention (1983), the Convention on the Rights of the Child (1989) and the Convention on the Rights of Persons with Disabilities (2007).

Justice Musarrat Hilali inquired about  the status of international law and its applicability in Pakistan. In response lawyer for the Petitioners explained that “monism” and “dualism” referred to two contrasting doctrines on the relationship between international and municipal law and incorporation of the former into the latter. It was pointed out that essentially all the varieties of monism postulated the unity of the international and municipal order. Whereas according to dualism; international law and municipal law were two intrinsically different and separate systems of law. As a result, for the rules of international law to have effect in a municipal legal order, they must be specifically adopted as prescribed under the national municipal law.

While conceding that Pakistan had a dualist approach towards international law, Barrister Asad-ul-Mulk cited judgments of the Lahore High Court wherein the Lahore High Court had ordered the Government to honour the commitments it had made at the international level and introduce appropriate beneficial policies and legislation to that effect.

In a judgment reported as 2007 PLD 403 (Lahore) the Lahore High Court had held that “State functionaries are bound by contractual obligation under international treaties to take effective measures for elimination of vehicular pollution”. A similar judgment had been passed again by the Lahore High Court for the enforcement of the Beijing Declaration (1995) reported as 2016 PLD 857 (Lahore).

AG Raja Sami-ul-Haq Satti and DAG Muhammad Ishaq Shah in response stated that the Federal and Provincial Government had taken all appropriate measures, in accordance with their means and capacity, to safeguard the rights of disabled citizens. Owing to the paucity of funds and especially in the given economic situation, it would be unreasonable to expect the Governments to do more.

The counsel for petitioners responded saying that these may be political replies but cannot qualify as legal replies to the grievance at hand. It was further submitted that when the respondents have admitted in their comments that the Federation of Pakistan is a signatory to the legal instruments under discussion, and voluntarily taken upon itself the obligation to honour those treaties, it is not open for Federal or Provincial Government to renege from responsibility citing paucity of funds especially when there are multiple social welfare programmes being run by them. Barrister Asad-ul-Mulk cited the Commentaries on the Law of England wherein Sir William Blackstone wrote “It is a general and indisputable rule, that where there is a legal right, there is also a legal remedy”. It was argued on behalf of the petitioners that the respondents while admitting the legal rights of the petitioners were declining to admit that they had any remedy available under the law, which notion contravenes one of the fundamental tenants of jurisprudence.

The court stated that it was accepting the Writ Petition and would issue an appropriate order in that respect. Detailed judgment is expected to follow.

The two member bench of Peshawar High Court comprising of Justice Musarrat Hilali and Justice Nasir Mehfooz heard arguments in the case. The Petitioners were represented by Barrister Asad-ul-Mulk, whereas the Federation and Province were represented by AG Raja Sami-ul-Haq Satti and DAG Muhammad Ishaq Shah.