SC orders protection of minority rights in job quota

ISLAMABAD:

The Supreme Court has asked the respective governments to ensure that the employment quota of the minorities is maintained at all levels while directing them to strictly avoid discriminatory and demeaning advertisements flouting the dignity and self-respect of the minorities.

In a detailed judgment authored by Justice Syed Mansoor Ali Shah while dismissing a petition challenging the seats reserved for minorities and persons with disabilities in employment, the top court ruled that in order to safeguard their rights and to provide equality of status and opportunities, the state has to endeavour to bridge the gap and ensure that they enjoy their fundamental rights under the constitution with the same fervour and force as enjoyed by the Muslim majority and majority of persons with fuller abilities.

Therefore, other than the general seats, the additional provision of quota for persons with disabilities (PWDs) and minorities reaffirms the constitutional commitment, the ruling stressed.

A three-judge bench of the apex court led by Justice Shah also rejected the petitioner’s argument that in case the said seats were not filled by PWDs and the non-Muslim minority in a particular year, they should be opened and made available to the general quota.

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"This is not permissible as it would offend constitutional values, fundamental rights and the principles of policy,” the top court noted and emphasised that the seats earmarked for minorities or PWDs must be retained and carried forward.

“This quota is their constitutional right and cannot be reversed or made available to other citizens.”

The court also directed the Punjab Public Service Commission (PPSC) to ensure that the word “disabled” was not used and instead ‘persons with disabilities’ or ‘persons with different abilities’ was put to use.

The apex court hoped that in future these terms will be incorporated in the official correspondence as well as relevant notifications, including public advertisements, issued by the government.

It ordered that a copy of directives shall be dispatched to the chief secretary of Punjab as well as the chief secretaries of other provinces to ensure that the order was complied with in letter and spirit at the national level.

The judgment noted Article 9 provides that every person shall have a right to life and liberty subject to the law.

It said that “life” includes all the attributes of a healthy and meaningful life, while the right to “liberty” provides freedom, agency and choice to a person to be able to design his or her life in any manner he or she wants.

"Life and liberty of any person in Pakistan is protected and there is no distinction between persons on the basis of religion, sex or creed; Article 14 provides that the dignity of a person is inviolable; Article 18 provides that everyone has a right to a lawful profession or occupation. Articles 20, 22, 26 and 27 of the Constitution provide further safeguards for minorities.”

"Amongst fundamental rights, the right to dignity stands at the top, like a jewel in the crown of fundamental rights. This unique place is because the right to dignity is an absolute right, is non-negotiable and is not subject to any law. Therefore, the minimum right to dignity of the minorities and PWDs is that they ought to be considered equally with the rest of the majority of Muslims and the majority of persons with fuller abilities.

"Under the Constitution, there is no distinction and therefore, these fundamental rights are fully available to the minorities and PWDs in the country as they are available to all other citizens of Pakistan.”

The judgement further enunciated that Article 36 of the principles of policy under the Constitution provided that the state shall safeguard the legitimate rights and interests of minorities including their due representation in the federal and provincial services.

Similarly, the judgement noted that Article 37(a) proves that the state shall promote with special care the educational and economic interests of backward classes. Article 38(b) of the Constitution provides that all citizens (which undoubtedly includes minorities and PWDs) to be provided within the available resources of the country, facilities for work and adequate livelihood.

"Article 38(d) provides that the State shall provide basic necessities of life to all citizens (which once again undoubtedly include PWDs who are unable to earn their livelihood on account of infirmity or sickness. A review of the above constitutional scheme unfolds that the Constitution uplifts PWDs, gives them additional protection so that every effort (reasonable accommodation) is made to bring differently-abled persons at par with fully-abled persons.”

"Similarly, it mandates that minorities are equal citizens of Pakistan and must be protected from all kinds and forms of discrimination. The Constitution, therefore, not only caters to minorities and PWDs as equal citizens of Pakistan, having equal rights and safeguards, it also provides extra protection to them.

The court also noted that backward” and “depressed” classes are not defined in the Constitution, therefore going by their simple meaning, they include any class of people who are marginalized, underprivileged, disadvantaged, lacking choice, agency, autonomy, level-playing field and opportunity.

"The marginalisation and discrimination experienced by PWDs are arguably considered to be similar to the apartheid system in terms of segregation and discrimination based on a particular characteristic, leading to limited access to education, employment, and other opportunities, as well as social and economic marginalization, thereby, marginalizing individuals and communities."

The ruling bemoaned that people with disabilities are segregated from community life and face discrimination due to pervasive attitudinal and systemic barriers that the law, policy and practice frameworks have failed to remove, such as inaccessible or unequal facilities of housing, transport and education, segregated settings, barriers in accessing justice and legal systems, and employment and health discrimination.

"The effects of such discrimination are further expounded when intersecting with sexism, ageism, racism and other forms of inequality. Albie Sachs, the celebrated South African Judge writes: "If there is one thing that the struggle against apartheid has taught us, it is how important it is to manage differences in society. The difference was used as the basis for apartheid. The difference became an instrument of domination and control. What if we can turn difference around to become a source of vitality, of variability, of richness?”

The top court pointed out that the United Nations, Department of Economic and Social Affair’s flagship ‘Disability and Development Report’ highlights that the professional potential of PWDs is often misunderstood and remains untapped due to misconceptions, negative societal attitudes and inaccessibility of workplaces, training and vocational skills centres.

“Lower rates of employment are persistently observed for PWDs. Lower education levels coupled with discrimination, stigma, negative attitudes, inaccessible transport and workplaces, and limited availability of accommodations for PWDs, play a significant role in limiting job opportunities,” it added.

Due to these reasons, the ruling explained, the PWDs are pushed backwards and depressed at the hands of an unfriendly and unaccommodating ecosystem, making them fall under the rubric of the backward and depressed classes, as recognised by the Constitution.

"Under the Constitution, it is the obligation of the State to attend to the legitimate interests of these classes. Legitimate interests are all those interests which can help PWDs actualise their fundamental rights.”

The judgment notes that in order to actualize the constitutional mandate and the vision of our founding father, we have the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 which, post-18th amendment, has translated into provincial laws.

"Provisions of the Ordinance are pari materia to the Punjab law. Section 10 of the ordinance, as applicable in Punjab, provides that not less than three per cent of the total number of persons employed by an establishment at any time shall be PWDs in the manner and procedure provided under the said ordinance.”

"Similarly, notification dated 27.3.2010, issued under section 23 of the Punjab Civil Servants Act, 1974 by the S&GAD (Regulations Wing), 5% quota has to be reserved for minorities (non-Muslims) against the total number of posts advertised in the future, including posts to be filled on the basis of competitive examination to be conducted by the PPSC.”

Later on, through an amendment brought about in the said notification, the judgement said, the vacancies reserved for minorities for which qualified candidates are not available at the time of a particular recruitment process, shall be carried forward and filled through the appointment of persons belonging to minorities.

"We have noted with concern that according to the fact-finding report titled “Unequal Citizens, Ending Systemic Discrimination against Minorities” published in May 2022 by the National Commission of Human Rights (NCHR) established under the National Commission for Human Rights Act, 2012 with the mandate to promote and protect human rights as provided for in the Constitution and the various international instruments to which Pakistan is a State party or shall become a State party, advertisements published in major newspapers all over the country show that religious minorities have been recruited exclusively for sanitary work.”

It highlighted that the report shows that in the advertisements, under eligibility requirements, there is often a clause that states ‘only non-Muslims apply.’

Such discriminatory advertisements and employment selection processes limiting the job quota only for low-level posts, the top court said, was offensive to the constitutional values, and the fundamental rights of the minorities.

"The report recommends ending discrimination against minorities in the employment quota, ending the practice of publishing discriminatory advertisements and ensuring public transparency in the number of minority posts filled across each level of the government.”

“We fully support the said recommendations of the NCHR in the report,” the judgement concluded.