Handicapping discrimination - give the disabled a foot up!
Donia Fuller, Guest Columnist
The Charter of Rights 2011 in many ways, notwithstanding perceived limitations, may be heralded as legislation in respect of which all Jamaicans can be proud. It unequivocally states that persons have the right to freedom from discrimination on the basis of, among other things, their gender, place of origin and political opinions. To that end, while other grounds of discrimination manifest themselves in our society, disability being chief among them, the Charter may seem like an amputee, functional but in some sense incomplete. Thus, the proposed Disabilities Act is indeed long overdue and is a welcomed piece of legislation.
The act seeks to promote, protect and ensure the full and equal enjoyment of persons with disabilities of privileges, interests, benefits and treatment, on an equal basis with others. Thus, one of the features is the creation of the Jamaica Council for Persons with Disabilities as well as a Disabilities Tribunal which ought to hear complaints concerning breaches of the act, etc.
However, on the note of the tribunal, there is, in one's humble opinion, an ominous feature of the new legislation. Section 18(1) quite rightly provides that the council may provide assistance to an aggrieved person making a complaint, but in the same pen stroke section 18(2) stipulates that this assistance does not include assistance with legal representation. Understandably, the implications of mandating the tribunal to provide legal assistance in every case where it is requested are potentially far-reaching and may be unsustainable. However, I humbly submit that Section 18(1) by its very phraseology gave the council discretion in relation to whether legal assistance would be granted or not. Therefore, there was no need for Section 18(2) which removed that discretion altogether. To one's mind, Section 18(2) is an incapacitating blow to what is generally a commendable piece of legislation. Some may reason that this only relates to the making of a complaint. However, I would respectfully submit that this reasoning is faulty. Persons affected by personal acts of violence are oftentimes so traumatised that the making of a complaint to them seems like reliving the experience. Simply having someone to assist with this process often makes all the difference. Undoubtedly, discriminatory acts suffered by members of the disabled community may be just as traumatic, and in those circumstances legal representation may be the crutch needed to facilitate this process. Why then is this option being ruled out with no possibility for discretion? In the same way some attorneys volunteer to represent individuals pro bono in some criminal matters, I feel confident that in this scenario many attorneys would be all too happy to do the same.
cause for concern
Thus, this prohibition is particularly a cause for concern when the new legislation should promote equality in relation to persons with disabilities. The only reprieve here is that there is scope for legal assistance following a decision of the tribunal, but the question remains, what of the aggrieved person who needs assistance to get the process started and, as such, may be prevented from even reaching the middle where legal aid is available? In light of the fact that Section 45 of the proposed act stipulates that an offending body corporate may face a fine of up to one million dollars and some of its officers may face fines of half that, amount or imprisonment, it stands to reason that at the very outset when a complaint is made, such entities will likely engage the services of an attorney. After all, they usually can afford it.
Can the same be said of all disabled persons who will seek to wield this legislation as a sword? The reader may answer that question. The bill has been passed by the paltry number of attendees on both sides of the House and it is time now for the Senate to indicate its stamp of approval, notwithstanding this blatant shortcoming. The weeks after the bill becomes an act shall be interesting ones, and I wait to see how the lives of those in the disabled community will improve.