Floyd Morris | Seismic shift for persons with disabilities in Jamaica

Monday, February 14, 2022 constituted a critical juncture in Jamaica. It signalled the coming into effect of one of the most far-reaching pieces of social legislation to be implemented in the country since the Child Care and Protection Act of 1998. This legislation that was passed by the Portia Simpson Miller administration in 2014 seeks to eradicate discrimination against the estimated 450,000 persons with disabilities living in the island.

According to the act, “discrimination” means any distinction, exclusion or restriction, on the basis of disability, which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of privileges, legal interests, rights, benefits and treatment, in the political, economic, social, cultural, civil, religious, educational or any other field, and includes all forms of discrimination, including denial of reasonable arrangements, and “discriminate” shall be construed accordingly.

Discrimination is a major socio-economic impediment against persons with disabilities. It prevents these individuals from accessing vital goods and services that would contribute to their development and inclusion in society. Resultantly, most persons with disabilities end up being isolated from education, healthcare, employment and access to public facilities. Such a situation contributes to these individuals being extremely poor as adumbrated in various global research studies.

In 2003, when I was minister of state under the P.J. Patterson administration, I set out on a journey to transform the disability landscape. In doing so, legislation was a foundational part of this journey. In this regard, special attention was placed on the negotiations that were taking place at the United Nations on the Convention on the Rights of Persons with Disabilities (CRPD) and the drafting of the Disabilities Act. The involvement of the community of persons with disabilities was instrumental to the process and I had a consultation with the leadership of the community, of which they told me that legislation, education, employment and public education relating to members of this marginalised community should be the priority of the Government.

Extensive work was done on the legislation while I was minister of state in the Ministry of Labour and Social Security. Kudos must go to two members of the technical team in the ministry at the time, Miss Netricia Miller and Mrs Carla-Ann Roper, for the herculean support they gave in preparing the legislation.

In 2014, after I became the president of the Senate, the legislation was brought to the Parliament. It was debated and passed in the House of Representatives in July 2014 and in the Senate in October 2014. Without any hesitation, as president of the Senate then, I affixed my signature to this seminal piece of legislation. Similarly, the governor general gave his assent in November of that year.

TAKEN A LONG TIME

Unfortunately, it has taken the Ministry of Labour and Social Security a long time to get all the necessary components such as the regulations in place to put the minister in a position to set the effective date for the legislation.

In 2020, upon assuming responsibility of the Ministry of Labour and Social Security, the Hon Karl Samuda, in a consultative meeting with me, committed to having the Disabilities Act brought into effect while he is minister of labour and social security. Thankfully, this has happened and I want to personally congratulate him for honouring this commitment. I am pledging my fulsome support to him and the country, my expertise in the subject area, for the implementation of the legislation as it will require knowledge and understanding for its success.

As one who has been at the forefront of preparing this legislation and advocating for its implementation, I am most elated at its coming into effect. I have a disability. I research disability and have over 20 international publications on the subject. I am a member of the United Nations Committee on the Rights of Persons with Disabilities, and so, I understand the value and quintessence of this legislation. My statement that it will transform the disability landscape in Jamaica is not a mere cheery optimism; it is a statement of fact.

When one examines the provisions of the legislation, one will understand that it will be addressing some fundamental issues affecting persons with disabilities over the years. Discrimination is at the heart of this and the legislation frowns upon any act of discrimination against persons with disabilities. It is discrimination that has contributed to over 90 per cent of the population of persons with disabilities in the island being unemployed. It is discrimination that has caused schools to be built without accessible features for persons with disabilities, and has placed these individuals in a perpetual state of poverty. It is discrimination that has caused only six out of the over 400 buses owned by the Jamaica Urban Transit Company (JUTC) to be accessible to persons with disabilities. And, it is discrimination that causes the vast majority of buildings in the country to be inaccessible to persons with disabilities.

EX ANTE DUTY

According to the Committee on the Rights of Persons with Disabilities in its General Comments on Accessibility, accessibility is an ex ante duty, meaning that parties have the duty to provide accessibility before receiving an individual request to enter or use a place or service. Similarly, reasonable accommodation is viewed as an ex nunc duty. This means that it is enforceable from the moment an individual with an impairment needs it in a given situation. Failure to provide accessibility and reasonable accommodation/arrangement is an act of discrimination.

Now that the legislation is brought into effect, both the public and private sectors must put in place measures for accessibility and reasonable arrangements for persons with disabilities. For example, employers will have to ensure that their recruitment practices take into consideration the needs of persons with disabilities. Similarly, the Government must ensure that schools are accessible to persons with disabilities, another matter that I have been championing through the Parliament. HEART, for example, which is the national training agency, must ensure that all of its institutions are accessible and inclusive of persons with disabilities.

If persons with disabilities believe that their rights have been transgressed, then they can lodge a complaint to the Jamaica Council for Persons with Disabilities (JCPD) that is now a body corporate and they are mandated by law to act. They will have to investigate the complaint and can refer the matter for mediation or send it to the Disability Rights Tribunal (DRT).

The DRT is a quasi-judicial institution that has the authority under the law to hear and make decision on allegations of discrimination against persons with disabilities.

This legislation is going to be a game changer in jurisprudence where persons with disabilities in Jamaica are concerned. It is a results-oriented legislation. I am therefore urging the permanent secretary and the minister to ensure that whosoever is hired as the executive director is someone who is a visionary and transformational leader. It must not be someone who is a profiler and just loves the video light.

The global mantra for persons with disabilities is “Nothing about us, without us”. This means that no issue relating to persons with disabilities should be done without members of this community. Obviously, this is a strong feature of the new board of management that will govern the new JCPD. The law makes it pellucid that the majority of the members of the board must be persons with disabilities or representatives of organisations representing persons with disabilities.

Citizens of Jamaica will have to play a preeminent role in the implementation of the new legislation. It is citizens who have been erecting barriers (knowingly and unknowingly) in society that limit the participation and inclusion of persons with disabilities on an equal basis with others. Thus, all these negative attitudes that citizens display against persons with disabilities will have to stop. Citizens must recognise that disability can happen to anyone. One can be fully abled today and become disabled tomorrow. We must therefore treat these individuals with the love and dignity that they truly deserve. I really, really feel like dancing because a new day is dawning in Jamaica for persons with disabilities. A day that sets the stage for more Monica Bartleys, Sarah Newland Martins, Gloria Goffes, Henrietta Davis Wrays, Wilbert Williamses, Derrick Palmers, Arvel Grants, Conrad Harrises and Floyd Morrises being produced.

Senator Floyd Morris, PhD, is the director for the UWI Centre for Disability Studies. Send feedback to morrisfloyd@gmail.com.