AN ACID TEST FOR THE STATE

SC: DE­STRUC­TIVE MARGINAL­I­SA­TION & FR VI­O­LA­TIONS BY BUILT EN­VI­RON­MENTS

Daily Mirror (Sri Lanka) - - FEATURE - By Dr. Ajith C. S. Per­era

The Supreme Court of Sri Lanka, af­ter hear­ing sub­mis­sions and ar­gu­ments on a na­tion­ally and in­ter­na­tion­ally im­por­tant Pub­lic In­ter­est Fun­da­men­tal Rights Ap­pli­ca­tion No. SCFR 273 / 2018, gave a LAND­MARK Or­der on April 18, 2019. It was suc­cess­fully pur­sued sin­gle-hand­edly by this writer - since 2009 ap­pear­ing at all times in per­son seated on a wheel­chair.

MAIN CON­CERNS:

The Supreme Court judge bench com­pris­ing Jus­tices Prasanna Jayawar­dana PC, Vi­jith Malal­goda PC, and Murdu Fer­nando PC con­cluded: In­spite of (i). A com­pre­hen­sive set of Reg­u­la­tions - made un­der the en­acted Act No: 28 of 1996 - that are eas­ily un­der­stood and unan­i­mously ap­proved by Par­lia­ment (in 2007 March) AND (ii). Re­in­forced by an Or­der given un­der SCFR 221/2009 to over 70 re­spon­dents by the SC on 27 April 2011, AND (iii) Rat­i­fy­ing the UN Con­ven­tion for the Pro­tec­tion of the Rights of the dis-abled – a legally bind­ing agree­ment - on 08th Fe­bru­ary 2016, AND (iv). Since 1996, State’s duty and obli­ga­tion to pro­tect, pro­mote and ad­vance their Rights, STILL,

“Mean­ing­ful im­ple­men­ta­tion of these Ac­ces­si­bil­ity Laws by the State and the Pri­vate Sec­tor - even at nu­mer­ous NEW Build­ings peo­ple need daily - be­yond doubt, is a CON­TIN­UAL FAIL­URE and thereby SAFE ac­cess and their use by the Coun­try’s largest mi­nor­ity – Peo­ple with restricted mo­bil­ity”.

In a 28 page long judge­ment SC clearly states: “The stark truth is, there is large scale and sub­stan­tial non-com­pli­ance of NEW con­struc­tions with and non-en­force­ment of the ACT and Ac­ces­si­bil­ity Reg­u­la­tions, de­spite the pas­sage of 13 years and con­tin­ual fail­ure by the STATE in com­pli­ance. The pho­to­graphs and other doc­u­ments sub­mit­ted to SC by the pe­ti­tioner [i.e. this writer] sup­port these SC con­clu­sions.”

Ruled as the in­sti­tu­tions that have con­tin­u­ally vi­o­lated the Fun­da­men­tal Rights of dis-abled per­sons are those in­sti­tu­tions com­ing un­der the purview of the Min­is­ter of Provin­cial Coun­cils, Lo­cal Govern­ment and Sports, Min­is­ter of So­cial Ser­vices and So­cial Wel­fare, Min­is­ter of Me­gapo­lis and Western De­vel­op­ment, Min­is­ter of Hous­ing and Con­struc­tion, Min­is­ter of Ed­u­ca­tion; Min­is­ter of Jus­tice and Prison Re­form along with Sri Lanka Tourism De­vel­op­ment Au­thor­ity and the Ur­ban De­vel­op­ment Au­thor­ity.

COC DILEMMA

In both rul­ings given by the SC on 27 April 2011 AND again on 18 April 2019, it is ad­e­quately em­pha­sised that Cer­tifi­cates of Con­form­ity (COC) CAN­NOT and SHALL NOT be is­sued by a rel­e­vant au­thor­ity un­less and un­til ALL PARTS of the con­cerned com­pleted con­struc­tion (i) Have been phys­i­cally inspected by that rel­e­vant au­thor­ity recog­nised un­der Clause 10, AND (ii) He clearly tes­ti­fies that (iii). Con­struc­tion com­plies in full with the pro­vi­sions, the Ac­ces­si­bil­ity Reg­u­la­tions and the SC or­der.

The most ef­fec­tive fea­si­ble way to ar­rest this Na­tional tragedy in min­imis­ing the gap be­tween the laws and ground re­alty, is that:

“No Court of Law can and shall recog­nise as a legally valid doc­u­ment any Cer­tifi­cate of Con­form­ity is­sued since 18 April 2018 by an au­thor­ity con­cern­ing any build­ing or part of a build­ing stated un­der the above Ac­ces­si­bil­ity Reg­u­la­tions, if ob­tained cir­cum­vent­ing coun­try’s Apex Court rul­ings.”

VI­O­LA­TORS, STILL, GO FREE

SC also has recog­nised NEW fa­cil­i­ties at sev­eral re­puted Ho­tels, Shop­ping com­plexes and Hos­pi­tals – TOI­LETS, Wash­rooms and Coun­ters in par­tic­u­lar – STILL, do not com­ply with SC or­ders and thereby pose nu­mer­ous un­wanted hard­ship to most clients / pa­tients.

The real tragedy is that, YET, they fail to recog­nise OPEN­ING DOORS EQUALLY TO ALL is un­tapped lu­cra­tive busi­nesses.

SC states: “De­spite 13 years have elapsed since Ac­cess Reg­u­la­tions were made, com­pli­ance here by the Sri Lanka Rail­way and Sri Lanka Trans­port Board, is only work in the pipe­line”. It is equally im­por­tant to note that many NEW Court Houses fail to com­ply with SC rul­ings and Ac­ces­si­bil­ity Reg­u­la­tions. ALL HIGH COURTS and MAG­IS­TRATE COURTS re­main user-un­friendly and pose a po­ten­tial threat to safety for increasing num­bers of peo­ple with restricted mo­bil­ity – Wheel­chair users in par­tic­u­lar.

TRAPPED TO­WARDS ISO­LA­TION?

Most of us never thought that, in the blink of an eye, our ABIL­ITY to at­tend to the usual daily ne­ces­si­ties would be taken away from us.

At this time, not less than an es­ti­mated 20% of Sri Lanka’s pop­u­la­tion – i.e. 4 Mil­lion Peo­ple - face im­ped­i­ments to their phys­i­cal mo­bil­ity, sta­bil­ity, dex­ter­ity or eye­sight to re­main the most vul­ner­a­ble, voice­less yet the largest mi­nor­ity group.

This means one in ev­ery five peo­ple of Sri Lanka has to deal with lim­i­ta­tions in abil­ity in day-to-day liv­ing in an un­de­sir­able BUILT so­cial en­vi­ron­ment ex­plained above.

This in­cludes those over 65 years (al­most a SIXTH of our pop­u­la­tion), peo­ple liv­ing with nu­mer­ous de­bil­i­tat­ing med­i­cal con­di­tions, those con­va­lesc­ing, those who use wheel­chairs and sticks, and the preg­nant.

Look at the tor­ment­ing con­se­quences that await you. Hence, it is EV­ERY­ONE’S, duty – YOUR’S too - to ar­rest soon­est this na­tional dis­as­ter.

TOR­MENT­ING CON­SE­QUENCES AWAIT­ING YOU

(i). Dan­ger of In­jury and po­ten­tial threats

to SAFETY to life

(ii). Waste pro­duc­tive hu­man po­ten­tial (iii). Drive to­wards poverty and as SC

con­cluded

(iv). “De­nial of op­por­tu­nity of equal­ity and the pro­tec­tion as­sured by the pro­vi­sions of this Act and thereby con­tin­ual vi­o­la­tion of the Fun­da­men­tal Rights guar­an­teed by Ar­ti­cle 12(1) and Ar­ti­cle 14 (1)(h) of the Con­sti­tu­tion, to the Pe­ti­tioner Dr. Per­era and oth­ers sim­i­larly cir­cum­stanced with restricted abil­ity / mo­bil­ity”.

(v). EV­ERY ONE of us, is cer­tain to spend some time – long or short - liv­ing with lim­i­ta­tions in abil­ity - phys­i­cal, sen­sory and in­tel­lec­tual.

(vi). The long-term mega-de­vel­op­ment projects are in­ex­tri­ca­bly en­twined with the fu­ture of fu­ture gen­er­a­tions of Sri Lankans. With this on-go­ing ad­verse trend the next gen­er­a­tion of per­sons suf­fer­ing from mo­bil­ity im­ped­i­ments much larger than at present – will face far wors­en­ing con­se­quences.

SC RE­ME­DIAL MEA­SURES

In ad­di­tion to the direc­tions given by the SC in 2011 un­der SCFR 221/2009 to the Chief Min­is­ters and the Chief Sec­re­taries of the Nine Provinces, the Supreme Court on 18 April 2019, AGAIN, is­sued sev­eral direc­tions to six (06) Min­istries, their Sec­re­taries and two (02) Govern­ment au­thor­i­ties men­tioned ear­lier to take im­me­di­ate ef­fec­tive mea­sures to en­sure the de­sign and con­struc­tion of all parts of new build­ings, fa­cil­i­ties and ser­vices the pub­lic needs to use - as de­fined in Clause 10 of the Ac­ces­si­bil­ity Reg­u­la­tions - must be com­pleted en­abling easy and safe ac­cess and use by per­sons with restricted mo­bil­ity.

On 17 June 2013 SC ordered the At­tor­ney Gen­eral to en­sure Or­ders given by the SC are given full ef­fect.

AG is the prin­ci­pal le­gal of­fi­cer of this coun­try and as the pro­tec­tor of the pub­lic Rights of the pub­lic. If and when he also fails con­tin­u­ally to com­ply with SC or­ders, it sets a very bad ex­am­ple to all oth­ers.

The NEW Build­ing com­plex of the AG and Kochchikad­e Church un­der­go­ing ren­o­va­tions shall be the acid tests for STATE in mov­ing to­wards AC­CES­SI­BLE SRI LANKA for ALL, a re­al­ity.

PUN­ISH­ABLE SE­RI­OUS OF­FENCE

SC states: “The spe­cific pro­vi­sions of the Act to pun­ish the vi­o­la­tors, al­though in force for 23 years, have NEVER BEEN used.”

No won­der the Vi­o­la­tors of the law go away free and, thereby con­tinue to vi­o­late the Law.

Dur­ing the pro­ceed­ings this Pe­ti­tioner AND the At­tor­ney Gen­eral both prayed that STATE must amend the Clause 34(e) of the ACT made 23 years ago, to make of­fences look se­ri­ous and make pu­n­ish­ments ef­fec­tive enough to de­ter vi­o­la­tions.

SC hence, has to RULE AGAIN that: im­me­di­ate com­pli­ance is MANDA­TORY, to de­sign build­ings, to ap­prove build­ing plans, to cer­tify com­pleted build­ings and to is­sue ‘Cer­tifi­cate of Con­form­ity’. and di­rected to FILE LE­GAL ACTION against any Pub­lic Of­fi­cers / Au­thor­i­ties / Bod­ies / Re­spon­dent(s) which breach / vi­o­late / fail to com­ply fully with these SC or­ders.

POP­U­LAR MYTH

Im­ple­men­ta­tion of Ac­ces­si­bil­ity mea­sures and SC or­ders for NEW BUILD­INGS ARE NOT COSTLY as 85% work is just ma­sonry. It re­quires NO al­lo­ca­tions of ad­di­tional funds.

Most of us never thought that, in the blink of an eye, our ABIL­ITY to at­tend to the usual daily ne­ces­si­ties would be taken away from us

There are sev­eral low cost mea­sures to sig­nif­i­cantly im­prove safety and ac­ces­si­bil­ity. The colos­sal wastes to the coun­try and hu­man life caused by the fail­ures to im­ple­ment SC or­ders, is HUGE com­pared to the money needed.

The im­me­di­ate cru­cial task is to cre­ate the widest pos­si­ble aware­ness of these SC Or­ders to has­ten im­ple­men­ta­tion.

We ap­peal to so­cially re­spon­si­ble Mem­bers of So­ci­ety, Me­dia, Or­gan­i­sa­tions and In­di­vid­u­als - to HELP us - for the ben­e­fit of EV­ERY­ONE - em­pow­er­ing hu­man­ity with dig­ni­fied lives.

[ The writer ([email protected]­net.lk) - a Para­plegic since 1992 - is a Pro­fes­sional and a for­mer Se­nior Man­ager in in­dus­try. Per­sonal ad­ver­sity has turned him the Pioneer Vol­un­tary Ac­ces­si­bil­ity Rights Ac­tivist and an in­ter­na­tion­ally recog­nised and a com­pe­tent ad­vi­sor on Ac­ces­si­bil­ity – trained even in Eng­land - with over 21 years of widest prac­ti­cal ex­pe­ri­ence. See: goo.gl/tz­zsmz]

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