Largest but voiceless minority plead at ‘Court of last resort’

• Says new CJ fresh hope for speedy redress 

By a Special Correspondent

Fervent accessibility rights activist Dr. Ajith C. S. Perera, Hony. Chief Executive of IDIRIYA, has moved the Court to re-activate invocation of a Fundamental Rights Public Interest Litigation of utmost importance to Sri Lanka, nationally and internationally.

Its main purpose is to seek redress for a most vulnerable and fast increasing, voiceless and underprivileged marginalised group of persons with limited mobility, estimated at 20% of Sri Lanka’s population.

The subject matter here concerns continual poor compliance with laws and a Court Order on accessibility made 12 years ago.  This results in continual infringement of the inherent rights of nearly 4 million people who are unable properly to access even new buildings and facilities. 

Perera’s Motion is supported by four affidavits - one by himself and three by other eminent Sri Lankans. 

He has appealed for an Order from the Supreme Court to strengthen the earlier Order, dated 27 April 2011 issued under SCFR 221/2009.

In view of the UN Convention for the Protection of the Rights of People with Disabilities (CRPD) being ratified by Sri Lanka on 8 February 2016, the need for implementation of this legally binding agreement is urgent. We have already been found in default of our obligations to comply with international law when compliance would be easy to achieve starting with Article 9 - Accessibility. The fact that several major development projects – which will need to be used by future generations – are just being started, the need for action is urgent if yet more people are not to be severely disadvantaged.

The initiatives taken here by Dr. Ajith Perera is thus indispensable.

New Chief Justice – new hope

Sri Lanka now has a new Chief Justice. In Hon. H. N. J. (Nalin) Perera we have the most senior career judge appointed in a welcome move at the apex position as the head of the Judiciary of Sri Lanka. 

In his speech at the ceremonial sitting, he said he has a passion to be a voice to the voiceless and is sensitive towards the plight of the weakest in being inconvenienced by a case being unnecessarily dragged on.  SC Rules thus should promote speedy redress and prevent violators tormenting victims by dragging cases - justice delayed is justice denied.

Outcome of the last proceedings

At the last hearing on Thursday 4 October, the Petitioner Dr Perera appeared in person and the Senior State Counsel Rajitha Perera appeared for the Attorney General representing the Respondents, before a Bench presided over by Justice Hon. Vijith K. Malalgoda PC and Justice Hon. Murdhu N.B. Fernando PC

Leave was granted to proceed for Violation of the Fundamental Rights of the Petitioner representing 4 million underprivileged people experiencing physical impediments, guaranteed in terms of Articles 12(1), 12(4) and 14(1) of the Constitution.

During the proceedings, Dr. Perera summarised and presented the following facts: “The Ministry of Social Services promulgated a comprehensive detailed set of Regulations gazetted under 1, 4657/15 dated October 17, 2006. They specify clearly the manner in which steps, railings, toilets and other key parts of all types of buildings the public needs to use in life, shall be designed and constructed enabling access and safety to persons with disabilities. They were then passed unanimously by Parliament on March 20, 2007.

“Despite valiant renewed efforts by this Ministry over 12 long years to implement these access regulations and in spite of an Order issued by the Supreme Court dated April 27, 2011 under SCFR 221/2009, we have seen a proliferation of new buildings being completed, which still largely fail to comply with the requirements and thus continue to pose a potential threat to safety of life and loss of productive opportunities, thereby causing unwanted dependency and added burdens on society economically, socially and mentally, infringing the rights of nearly 4 million people.

“At my own costs, I have visited personally over 30 places and have observed the correctness of cries, complaints and grievances by the public and several medical practitioners. Worst offenders include many 5 and 4 star hotels, even numerous places of higher education institutes and universities, private sector hospitals, high-end shopping complexes, supermarkets and all forms of transport. The parts affected most are toilets, steps and railings, signage and ramps at entrances. Even the design of tables and desks at receptions and in restaurants continue to pose inaccessibility.”

Perera further stressed that:

• The substance in this re-activated case remains the same as of 221 Application
• The Respondents also remain same as in SCFR:221 / 2009
• The same facts stated in 2009 under 221 were taken up on a number of occasions and, after several delays over 2 years when the respondents sought more time, and the Court was pleased to make order on 27 April 2011. Perera pleaded for early disposal to this case, in view of the long time already taken and the increasing need for urgent action for the reasons set out in his case. However, the Bench stated they were bounded by the rules of the Court and thereby, in their opinion, had to grant Respondents further fair opportunity to submit objections or further material before this court. 

Perera then reminded the Court that at the first hearing the Respondents had been given two weeks. Yet, the Court then granted the Respondents an adequate and reasonable time period of further six weeks, agreed by the Attorney General.

As the next hearing was first put off until January 2019 and at Perera’s objections, was brought forward until 14 December, to which Perera further pleaded and appealed to expedite early disposal before 03 December, the International Day of People with Disabilities, reminding the Courts of this date as it marks the 70th anniversary of the Declaration of Human Rights.

Perera further stressed that he is prepared to forget and forgive the violators and was appealing for a strengthened order applicable only to new buildings, where there could be no excuse for failure to comply. 

As a result of this continual pleading of the Petitioner Dr Ajith Perera, backed by justifications of supporting facts, His Lordship’s Court fixed the following two dates: 

• 15 November 2018 for the next hearing
• 29 November 2018 for Arguments. 

Excerpts of a discussion with Dr. Perera 

For a dis-abled person – a wheelchair user in particular - especially for those with hardly any resources, to pursue a legal battle as of a public interest litigation, at a Court in Sri Lanka over extended periods of time is often a nightmare. As such it prompted us to contact (with much difficulty) Dr Ajith Perera – The Petitioner – to know what really inspired him to fight such a battle, amidst his own daunting daily struggles as a now unemployed paraplegic - now also a senior citizen.

Here below are excerpts of a discussions we had with Dr. Perera, based on the contents of his Petition, Motion and Affidavits and the outcome of the Court hearing dated 04 October.

“Life is all about accessibility to what you need day-to-day. Accessibility, hence, is fundamental and indispensable. Its continual denial causes loss of earning opportunities, unwanted dependency, poverty and segregation. Rules are man-made but should bring fast redress to the helpless victims, not kill time as violators want.

“Rightly, people are outraged at continual poor accessibility at buildings and facilities as they are often a potential threat to most senior citizens and those with limited mobility or / and visually impaired. But the real significant improvement will come only when people’s attitudes change. The way people think and believe has the most dis-abling impact on individuals, on society and on country. Understanding key issues causing dis-ability is a prerequisite to change.

“It is one key reason I founded IDIRIYA in 2005 April; to put a lot of time and effort as a team to play a fundamental role to enable changing people’s minds, trying to achieve a world without prejudice. Acts, regulations, laws and persuasions are essential and indispensable. But, still, in this country more than any of them, it is Orders of national interest issued by the highest and final Court – The Supreme Court – that inspire trust, boost confidence, infuse hope, generate respect and give that much needed impetus to bring a change in people’s attitudes and thereby enable to propel meaningful implementation. That is why, amidst growing hardship from many sides simultaneously, I am back here to re-start from where I stopped in 2013.”