Let people with disabilities into our judicial service
Sudip Das, a person with visual disability, has always aspired to join the judicial service of the country. He obtained LLB (Honours) degree in 2014 and LLM in 2016, from the Department of Law at Chittagong University, and since then has been diligently trying to enter the judicial service. He attempted to take four successive—11th to 14th—Bangladesh Judicial Service (BJS) examinations, regulated by the Bangladesh Judicial Service Commission (BJSC). Because of his visual impairment, he asked for permission to bring a scribe into the exam hall to be able to take the recruitment test. Not once did he get the permission. In his latest attempt, Sudip applied to take part in the 14th BJS exams, but his application was rejected by the BJSC on September 19, 2021. On September 25, the day of the test, Sudip entered the exam hall and then walked out in silent protest against the discriminatory recruitment process of the BJSC.
According to various reports, as well as the experiences of individuals with some form of disability and the organisations that advocate for them, there is a crisis in Bangladesh regarding the employment of people with disabilities. Despite strong legal protection in place, a large number of young people with disabilities are unemployed even after completing higher studies from universities. The stigma of unemployment, combined with that of having a disability, has jeopardised and dehumanised the lives of youths with disabilities in the country. As Bangladesh, along with the rest of the world, observes the International Day of Persons with Disabilities today (December 3), this article intends to review the existing legal framework related to employment and their implementation status.
According to the constitution of the country, existing laws and various international human rights instruments, the recruitment process of government and non-government organisations should be inclusive of persons with disabilities, based on the principle of non-discrimination. Article 29 (1) of Bangladesh Constitution guarantees equal opportunity for all citizens regarding employment or office in the service of the Republic. Any action or inaction of the government or any law that may exclude people with disabilities from employment opportunities is unconstitutional.
In addition, Bangladesh is party to the United Nations Convention on the Rights of Persons with Disabilities (CRPD). As a ratifying state, Bangladesh is responsible for taking appropriate measures to eliminate discrimination on the basis of disability by government and non-government organisations in accordance with Article 4 of the CRPD. The country is also responsible to eliminate discrimination on the basis of disability from the overall recruitment process, per Article 27 of the CRPD.
In compliance with the UN convention, the Bangladesh government has enacted the Rights and Protection of Persons with Disabilities Act, 2013 (RPPDA). Pursuant to Section 16 (1) (i) of this act, every person with disability shall have the right to employment in public and private sectors. In other words, the recruitment process in all organisations should be such that people with all types of disabilities can participate in said process. Recruiters cannot put any condition in place that may exclude applicants with disabilities from the recruitment process at any stage. Meanwhile, according to Section 16 (1) (m) of the RPPDA, individuals with disabilities have the right to reasonable accommodation at work. Section 35 of the same act states that a person with a disability shall not be deprived or discriminated against or barred from engaging in any suitable work on ground of disability, subject to eligibility. According to the existing laws of Bangladesh, any recruitment system should be accessible to and inclusive of people with all kinds of disabilities.
According to Section 2 (20) of the RPDDA, discrimination means treating people with disabilities differently—and unfairly—compared to people without disabilities. Unfair treatment constitutes depriving a person with a disability, acting in a biased manner, or refusing to provide any privileges or benefits due to their disability, or providing less privileges or any other benefits prescribed by the government. Section 36 (1) of the act expressly prohibits discrimination based on disabilities.
Sub-rule 4 under Rule 5 of the Bangladesh Judicial Service (Formation, Appointment in the Service and Temporary Dismissal, Dismissal and Removal) Rules, 2007, and Article 10 of the Entry to the Bangladesh Judicial Service Order, 2007, refer to the health qualifications of a candidate and are relevant only for those applicants who pass preliminary, written test and viva-voce stages. The authority to certify after this health examination is also in the hands of the medical board constituted by the director general of health services. The BJSC does not have the authority to disqualify a candidate due to health reasons before the health examination.
The National Coordination Committee constituted under the RPPDA has the sole authority to issue directives in case any question arises as to which job would be best suited for which type of disability. Therefore, if a candidate with visual disabilities passes all the assessment stages and becomes eligible for the health examination, then it would be appropriate to make a decision based on the advice from the National Coordination Committee.
Taking all these regulations and the law into account, legally the BJSC was obligated to make arrangements so Sudip could take the recruitment test, including a scribe. Whether or not he would be appointed to the service could have been decided after his performance in the test and his review by the Medical Board and the National Coordination Committee. Failing to do so, the BJSC violated provisions of the constitution and the RRPDA, and the CRPD mandates. Such failure, coupled with excessive use of authority and unlawful practices by an organisation that is responsible for regulating the recruitment of judges in the country, is detrimental for the rule of law and good governance in the state.
People with visual disabilities have been regularly participating in different recruitment processes in the country, including the Bangladesh Civil Service (BCS) exams, with the help of scribes. Why would they not be given the same opportunity in our judicial service? Sudip Das filed a writ petition with the High Court, seeking justice; unfortunately, the court recently dismissed his application. We hope he will get justice from the Appellate Division.
People with visual disabilities in other countries—including Pakistan and Kenya—have been successfully serving as judges in the High Courts and the subordinate courts. The judiciary of Bangladesh is strong and is becoming increasingly modern. I expect that the existing barriers to the recruitment of people with visual disabilities into our judiciary will be removed, keeping pace with the modern world. In order to achieve that, necessary legislative reforms should be undertaken on an immediate basis.
Md Rejaul Karim Siddiquee is an advocate at the Supreme Court of Bangladesh.