We must improve existing laws to cater to Persons with Disabilities (PwD) to ensure that they are able to enjoy the same rights and opportunities as everyone else.
PwD face unique challenges in many aspects of their lives, including education, employment, transportation, housing, and access to public services. Without adequate legal protections and safeguards, PwD are excluded from participating fully in society and face discrimination and barriers to accessing basic goods and services.
By enacting laws that protect the rights of people with disabilities, the government can enhance inclusion and ensure that PwD have access to the same opportunities as others. This should include laws that prohibit discrimination on the basis of disability, provide for reasonable accommodations in the workplace and other settings, and ensure that public facilities and services are accessible to people with disabilities.
Laws that are disability-inclusive reduce social stigma and promote awareness of the challenges faced by PwD. This will encourage a more inclusive and compassionate society that values diversity and recognises the contributions of all its members.
Key Facts
PwD account for 16% of the population; 6.6% of women serve as informal care partners[1].
Malaysia has yet to ratify the Optional Protocol to the Convention on the Rights of Persons with Disabilities (CRPD) the latter of which Malaysia ratified on July 19, 2010.
The Persons with Disabilities Act 2008 (`PwD Act 2008’) was gazetted on 24 January 2008.
Malaysia has not harmonised any domestic legislation with the CRPD.
Proposed Amendments
Article 8(2) of the Malaysian Federal Constitution
There are discussions underway to amend Article 8(2) of the Malaysian Federal Constitution to expressly prohibit discrimination on the ground of disability. Article 8(s) provides,
“Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.”
The provision does not specifically refer to the prohibition of discrimination on grounds of disability, and to serve PwD better, Article 8(2) of the Federal Constitution needs to be revised to expressly prohibit discrimination on the ground of disability.
Malaysia should also sign and ratify the Optional Protocol to the CRPD as soon as possible.
Establish an independent Disability Commission
There is also discussion around establishing an independent Disability Commission. While the details of this are not yet public, this can bring many benefits to PwD and the broader community including:
Increased advocacy and representation: An independent Disability Commission can serve as a strong advocate for the rights and needs of PwD. By working with government agencies, community organisations, and other stakeholders, it can help to ensure that PwD voices are heard and needs are taken into account in policy and decision-making processes.
Improved access to services and resources: The Commission could possibly work to improve access to essential services and resources for PwD. This could include providing information and guidance on available resources, developing partnerships with service providers, and advocating for improvements to public services and facilities.
Promotion of inclusion and diversity: The Commission could also play a key role in promoting inclusion and diversity in all aspects of community life by working with businesses and employers to promote inclusive hiring practices, providing education and awareness-raising initiatives to promote disability awareness, and encouraging PwD participation in community events and activities.
Research and data collection: An independent Disability Commission would also be able to conduct research and collect data on PwD needs and experiences which, in turn, could inform policy and decision-making processes, identify gaps in services and resources, and support the development of evidence-based interventions and programs.
Establish a tribunal as a grievance redress mechanism
Again, while details are not available, essentially such a Tribunal would provide PwD with the means to seek redress against any party that discriminates against them on grounds of their disability.
Arguably, setting up a Tribunal for this purpose can ensure that PwD rights are protected and PwD have access to justice when they experience discrimination, abuse, or other forms of mistreatment. PwD often face barriers in accessing justice, including attitudinal, physical, and procedural barriers. These barriers can make it difficult for them to file complaints and seek redress for violations of their rights.
To overcome these barriers, It is important that such a Tribunal:
Provides a clear and accessible process for individuals to report complaints and seek redress for violations of their rights; and
Such mechanisms can include complaint hotlines, online complaint portals, or designated offices or personnel responsible for handling complaints.
By providing a clear and accessible mechanism for reporting and resolving complaints, the government can support the empowerment of PwD to seek justice and hold individuals and organisations accountable for any form of discrimination against them.
Effectively, the Tribunal could encourage accountability and transparency in government and other organisations because it should require them to respond to complaints and take appropriate action to address violations of rights, and this in turn, can support the creation of a culture of respect for human rights and prevent future violations from occurring.
The Road Ahead
A Special Project Team was set up in March 2023 to amend the PwD Act 2008. To do this equitably, it is important to engage with all disability advocates, including persons with lived experience of disabilities and care partners.
The PwD Act 2008 has to be amended to harmonise it with the CRPD. It is critical that we update existing provisions and add new provisions to adequately uphold and protect the rights of PwD and care partners.
The amendments should ensure the meaningful engagement and equitable inclusion in mainstream Malaysian society of PwD and their care partners.
Proposed amendments to the PwD Act towards harmonisation with the CRPD are as follows:
To include in the PwD Act, the critical phrase, wherever appropriate throughout the Act, “on an equal basis with others.”
To update the definition of disability to permit the rights of more groups.
To include comprehensive definitions of discrimination and harassment.
To establish an independent Disability Commission whose decision makers and policy advisors include persons with lived experience of disabilities and care partners, and with powers to investigate discrimination and rights infringement.
To establish a legal requirement for remedies for those affected by discrimination or harassment, and to establish a Tribunal as a grievance redress mechanism.
To repeal all ouster clauses, including and not limited to sections 41 and 42 of the PwD Act 2008, that prevent and protect government and public servants from being sued.
To pursue comprehensive harmonisation of domestic legislation with the CRPD in diverse sectors and at all levels (federal to local), including education, health, communications, multimedia, digitalization, human resources development, employment and self-employment, housing and local government, works, transportation, youth and sports, elections, financial services and finance, and domestic trade and consumer affairs.
To introduce legal rights, protection and reasonable accommodation as a legal requirement in the forms of assistance, support and anti-discriminatory provision for care partners.
Conclusion
The government has established a task force to reform the PwD Act 2008 and it is critical that the task force consult persons with experience in advocacy and PwD rights issues, including persons with lived experience of disabilities and care partners.
[1] The term “care partner,” as distinct from "caregiver" underscores the value of the relationship with, and the dignity of, the person in need of care. It shifts the perception of dependence to a relationship in which both parties contribute to the interpersonal dynamic
Attributions: Harapan OKU Law Reform Group. Statement jointly prepared by (listed in alphabetical order of family name):
Mary Chen
Sangeet Kaur Deo
Dato’ Dr. Amar-Singh HSS
Anit Kaur Randhawa
Meera Samanther
San Yuen Wah
Sharifah Tahir
Wong Yoon Loong.
Published with permission from Harapan OKU Reform Group (3 May 2023).
For more information: https://www.okurightsmatter.com