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The High Court on 8 June, 2010 issued a Rule Nisi on the Government in two petitions, to show cause why certain provisions of the BCS Rules and the JSC Rules 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 why they would not be directed to apply their discretionary powers and to perform their duties, as prescribed by law, to identify cadre posts within the Bangladesh Civil Service and the Judicial Service as appropriate for citizens with disabilities as well as to ensure the hiring of citizens with disabilities for these posts.

Dr. Kamal Hossain for the petitioners argud that the BCS Rules required urgent review in the current situation, having been promulgated within a few months of martial law being declared in 1982, and being wholly inappropriate for a democratic society. He pointed to rules which bar individuals based on height, weight, visual capacity and hearing ability, from eligibility for the services, as being wholly irrational and arbitrary.

The Rule has been made returnable within four weeks. A Division Bench comprising Justice Momtazuddin Ahmed and Justice Naima Haider issued the Rule. Dr, Kamal Hossain appeared for the petitioners, with Ms Sara Hossain, Mr. Khondoker Shahriar Shakir and Mr. Kazi Zahed Iqbal. The Attorney General Mr Mahbubey Alam appeared for the Government with Mr Mostafa Zaman Islam and Pratikar Chakma, DAGs.

BACKGROUND: On 18 April, 2010, a coalition of disability rights activists and advocates acting in the public interest filed two petitions, respectively challenging Schedule III of the Judicial Service Commission and the Public Service Commission which bar persons with disabilities from being eligible for employment in judicial or public service.  The petitioners argued that such institutionalized discrimination violates fundamental rights, particularly the rights to equal opportunities to public employment and to freedom of profession, and that the failure of the government to make any accommodation for employment of such persons amounts to non-compliance with duties under the Disabled Persons’ Welfare Act 2001.

On 25 April, 2010 the High Court had directed the President and Secretary of the National Disability Welfare Committee 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. The Hon’ble Court observed that it would take steps for effective disposal of the matter. The Committee submitted its report yesterday to Court but did not refer to any steps taken to date to identify opportunities for employment of persons with disabilities. The Judicial Service Commission earlier also filed an affidavit with the Court in which it claimed that persons with visual disabilities were not able to serve as judges, and further submitted that the JSC Rules could not be amended without prior approval of the Appellate Division.

The petitioners were Adv. Shapan Chowkidar, a lawyer with visual disabilities, who had been denied the opportunity for admission to examinations for the JSC and PSC, and four human rights and disability rights groups, namely Action for Disability and Development, Ain o Salish Kendra (ASK), Bangladesh Legal Aid and Services Trust (BLAST), and the National Council of Disabled Women (NCDW).

Report: Barrister Sara Hossain,  Dr. Kamal Hossain and Associates (A famous law firm of Bangladesh).

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