LOW HONG PING jameslow.124@gmail · empowering persons with disabilities act 2008 memperkasa akta...

EMPOWERING PERSONS WITH DISABILITIES ACT 2008

MEMPERKASA AKTA ORANG KURANG UPAYA 2008

LOW HONG PING

[email protected]

FACULTY OF LAW

UNIVERSITY OF MALAYA

2014/2015

mailto:[email protected]

i

ABSTRACT

It seems that the absence of remedial provisions in Malaysia’s disability legislation –

the impossibility to remedy the wrongs suffered by disabled persons through discrimination –

mirrors the value that the society holds; that the society does not treat disabled persons as

fellow, equal human beings. Whether the law influences the society or vice versa,

empowering the local legislation on disability would not only encourage disabled persons to

step out and relish the purpose that God has ordained to us, but also remind the society to

peer through and look at “this ability,” which everyone uniquely possesses. To empower the

Persons with Disabilities Act 2008 (the Act), this paper examines international obligations,

studies foreign legislation, investigates the passing of the Act and finally proposes the

empowering provisions. This paper is written with the hope that it will be a step, however

small, towards enabling disabled persons and the society at large to act.

ii

ABSTRAK

Ketiadaan peruntukan remedi dalam undang-undang orang kurang upaya –

kemustahilan untuk meremedi diskriminasi yang dialami oleh orang kurang upaya – seolah-

olah mencerminkan bahawa masyarakat tidak menganggap orang kurang upaya sebagai

manusia yang samarata. Sama ada undang-undang mempengaruhi masyarakat atau

sebaliknya, memperkasakan undang-undang orang kurang upaya bukan sahaja akan

menggalakkan mereka untuk melangkah keluar dan menikmati tujuan yang Allah telah

mengurniakan kepada kita, tetapi juga mengingatkan masyarakat bahawa semua ialah OKU

– orang kelainan upaya. Untuk memperkasa Akta Orang Kurang Upaya 2008 (Akta) , kertas

kerja ini mengkaji obligasi antarabangsa, mengkaji undang-undang asing, menyiasat

kelulusan Akta tersebut dan akhirnya mencadangkan peruntukan remedi.

iii

ACKNOWLEDGEMENT

All glory to God. His strength has sustained me throughout the research and the

writing journey. Whatever that is good is from Him and whatever that is otherwise is from my

fallacy.

I am eternally indebted to my family – my parents and elder sister. If not for the love

that they have showered upon me, I would not have the positive mindset that an advocate

must surely have. My mother deserves a particular mention; for saying that even a disabled

person needs education.

Once my teachers, always my teachers. The confidence I have has been grown by

all the teachers who have taught me, particularly Dr Gan Ching Chuan – my supervisor for

this research – who has let me excel independently while making sure I improve in areas I

have overlooked.

My friends – one of my pillars of strength. For making fun of me as if I was normal,

giving me the little push I needed when writing was moving mountains. Through their

acceptance, I have never felt isolated. It is a privilege, a blessing I intend to make use of to

the share with the society the need for inclusion.

Last but not least, the people who have walked into my life and made a difference. I

am not able to name them all, but the list has been added with the names of the

interviewees who were willing to share their time and expertise. They have made this paper

more credible.

iv

TABLE OF CONTENTS

ABSTRACT ............................................................................................................................ i

ABSTRAK ..............................................................................................................................ii

ACKNOWLEDGEMENT ........................................................................................................ iii

TABLE OF CONTENTS ........................................................................................................ iv

LIST OF ABBREVIATIONS ................................................................................................... vi

LIST OF STATUTES ............................................................................................................ vii

CHAPTER 1: INTRODUCTION ............................................................................................. 1

1.1 Background............................................................................................................. 1

1.2 Research Questions ............................................................................................... 1

CHAPTER 2: THE OBLIGATIONS OF THE CONVENTION ON THE RIGHTS OF

PERSONS WITH DISABILITIES ........................................................................................... 2

2.1 Why A Convention? ................................................................................................ 2

2.2 Conceiving the Convention ..................................................................................... 3

2.3 The Obligations of the Convention .......................................................................... 3

2.4 Conclusion .............................................................................................................. 4

CHAPTER 3: THE REMEDIAL PROVISIONS OF FOREIGN LEGISLATION ........................ 5

3.1 Australia Disability Discrimination Act 1992 ............................................................ 5

3.2 The Remedial Mechanism ...................................................................................... 5

3.3 Critique of the DDA ................................................................................................. 6

3.4 Conclusion .............................................................................................................. 6

CHAPTER 4: PERSONS WITH DISABILITIES ACT 2008 .................................................... 7

4.1 Why A Special Legislation? ..................................................................................... 7

4.2 Drafting of the Act ................................................................................................... 7

4.3 Parliamentary Debate ............................................................................................. 8

4.4 The Persons with Disabilities Act 2008 ................................................................... 9

4.5 Absence of Enforcement Mechanism in the Act .................................................... 10

4.6 Conclusion ............................................................................................................ 10

CHAPTER 5: ENFORCEMENT MECHANISM .................................................................... 11

5.1 Why Is There a Need for an Enforcement Mechanism? ........................................ 11

5.2 Enforcement Body ................................................................................................ 11

v

5.2.1 National Council for Persons with Disabilities................................................. 12

5.2.2 Human Rights Commission of Malaysia (SUHAKAM) .................................... 12

5.3 Persons with Disabilities Commission ................................................................... 13

5.4 Remedies ............................................................................................................. 13

5.5 Conclusion ............................................................................................................ 14

CHAPTER 6: CONCLUSION .............................................................................................. 15

BIBLIOGRAPHY ................................................................................................................. 16

APPENDIX A ...................................................................................................................... 20

APPENDIX B ...................................................................................................................... 33

APPENDIX C ...................................................................................................................... 37

APPENDIX D ...................................................................................................................... 40

vi

LIST OF ABBREVIATIONS

CRPD Convention on the Rights of Persons with Disabilities

DDA Australia Disability Discrimination Act 1992

PWD Act Malaysia Persons With Disabilities Act 2008

SUHAKAM Human Rights Commission of Malaysia

SUHAKAM Act Human Rights Commission of Malaysia Act 1999

vii

LIST OF STATUTES

Australian Constitution

Australian Disability Discrimination Act 1992

Australian Human Rights Commission Act 1986

Human Rights Commission of Malaysia Act 1999

Malaysian Federal Constitution

Malaysian Persons with Disabilities Act 2008

1

CHAPTER 1: INTRODUCTION

1.1 Background

One billion people and counting are disabled. That is approximately 15% of the

world’s population. Realising that disability rights had been sidelined to an extent that they

were not treated as rights but as charities, States came together and explicitly laid down the

rights in an international document called the Convention on the Rights of Persons with

Disabilities (CRPD).

Malaysia ratified the CRPD in 2010. In pursuant of the obligations of the CRPD,

Malaysia passed the Persons with Disabilities Act 2008 (PWD Act) in late 2007. However,

what is absent is more glaring than what is present. Various parties have commented that

the PWD Act is toothless because of the absence of remedial provisions. The problem,

therefore, is the non-enforcement of those rights. As such, this paper seeks to discuss the

empowerment of the PWD Act through remedial clauses.

1.2 Research Questions

a) To study the legal obligations of the CRPD with regards to national legislation on

disability rights.

b) To examine Australia Disability Discrimination Act 1992.

c) To scrutinise the PWD Act, from its drafting, to the parliamentary debate, and

until the passing.

d) To research on the available bodies that could enforce the disability rights and

make suggestions where necessary.

e) To recommend on the remedial provisions that should be included into the PWD

Act.

2

CHAPTER 2: THE OBLIGATIONS OF THE CONVENTION ON

THE RIGHTS OF PERSONS WITH DISABILITIES

2.1 Why A Convention?

Persons with disabilities have not been explicitly recognised in the binding

instruments of international human rights law. The Universal Declaration of Human Rights

1948; the International Covenant on Civil and Political Rights 1966; and the

International Covenant on Economic, Social and Cultural Rights 1966 do not

specifically protect persons with disabilities in their equality clauses.

As such, disability has been traditionally regarded as an aspect of social security,

welfare legislation, health law or guardianship. They were not treated as subjects with legal

rights but were depicted as objects of welfare, health and charity programmes.1

The Convention on the Rights of Persons with Disabilities (CRPD) is the first

United Nations human rights treaty of the 21st-century and is reported to be the most rapidly

negotiated ever.2 The CRPD was a response to an overlooked development challenge –

approximately 15% of the world’s population are persons with disabilities, out of which 80%

live in developing countries. Although pre-existing human rights conventions have the

potential to promote and protect the rights of persons with disabilities, disabled persons have

been kept at the margins of society and been continuously denied of their rights.

The CRPD responds by reaffirming that the rights of persons with disabilities are

human rights and by strengthening respect for these rights. 3 The CRPD does so by

changing the perception of the society, from one of regarding disabled persons as charitable

objects to one of respecting their rights.4 True to that, three out of eight General Principles of

1 Quinn G. and Degener T., Human Rights and Disability: The Current Use and Future Potential of United

Nations Human Rights Instruments in the Context of Disability, p 1, UN DOC HR/PUB/02 (2002)

2 Secretary General Hails Adoption of Landmark Convention on Rights of People with Disabilities , Official

Statement of the UN Secretary-General, 13 December 2006, UN DOC SG/SM/10797, HR/4911, L/T/4400, 29

May 2014 <http://www.un.org/News/Press/docs/2006/sgsm10797.doc.htm>

3 UN E a le, Frequently Asked Questions regarding the Convention on the Rights of Persons with Disabilities ,

29 May 2014 <http://www.un.org/disabilities/default.asp?navid=24&pid=151#iq6>

4 Co e tio o the Rights of Perso s ith Disa ilities, Why the o e tio ? , 7 Fe ruary

<http://www.un.org/disabilities/convention/questions.shtml>

3

the CRPD are based on respect.5 In short, the purpose of the CRPD is to promote, protect

and ensure full and equal enjoyment of all human rights by persons with disabilities.6

2.2 Conceiving the Convention

In 19 December 2001, the United Nations General Assembly established an ad hoc

committee to consider “proposals for a comprehensive and integral International Convention

to promote and protect the rights and dignity of persons with disabilities.”7

A few days short of five years later in 13 December 2006, the United Nations General

Assembly adopted a treaty on the rights of persons with disabilities and optional protocol.

Then in 30 March 2007, the CRPD opened for signatures. On that day, 82 countries

signed, with 44 also signing the Optional Protocol. It was the highest number of signatories

of a convention on an opening day. Malaysia signed on 8 April 2008 and ratified on 19 July

2010.8

2.3 The Obligations of the Convention

State parties are obliged to realise the rights provided by the CRPD by adopting

appropriate measures to ensure the enjoyment of the rights by all.9 In this vein, State parties

are obliged to adopt legislative and other measures to eradicate discrimination and stop any

practice that breaches the rights of persons with disabilities.10

It has been submitted that the monitors of national legislation should ensure that the

legislation:

a) Recognises that discrimination can occur in relation to mental, intellectual,

sensory or physical impairments;

5 Convention on the Rights of Persons with Disabilities art 3

6 Why the o e tio ? , loc. cit.

7 Ka ter A. “., The Pro ise a d Challe ge of the U ited Natio s Co e tio o the Rights of Perso s ith

Disabilities , 7 Syracuse J. I t’l. L. & Co . 287, p 288

8 United Nations Treaty Collection, Convention on the Rights of Persons with Disabilities, p 2, 29 May 2014

<https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-15.en.pdf>

9 Lavagnoli S., The Convention on the Rights of Persons with Disabilities: Key Legislative Measures for its

Effective Implementation (United Nations), para 10

10 Supra at 3, para 19; Supra at 14

4

b) Incorporates the social model by referring to disability as the result of the

interaction between the person with disabilities and external barriers; and

c) Focuses on the prohibition of discrimination and the promotion of equality rather

than on the categorisation of various disabilities.11

In addition, Article 11 of the CRPD states that persons with disabilities should have

effective access to justice on an equal basis with others. A crucial component of access to

justice is grievance redress.12 However, most legal systems fail to provide redresses that are

preventive, timely, non-discriminatory, adequate, just and deterrent.13

Besides, Articles 35 and 36 of the CRPD laid down the mechanism for State parties

to submit State Reports after two years of signing the Convention. The report should contain

the challenges, suggestions and recommendations on the promotion and protection of the

rights of persons with disabilities.14 However, Malaysia has not submitted its State Report,

the deadline of which was 19 August 2012.

2.4 Conclusion

As such, though it is not explicit and specific in the CRPD that a national legislation

must have a remedial mechanism, it is implicit that effective remedies must be available to

address violations if the general obligations were to be complied with. If administrative

remedies are inadequate to vindicate the rights, judicial protection of rights are indispensable

to satisfy the requirement of the CRPD.15 Hence, it is important to have a national legislation;

it is imperative to develop specific plans to enforce it.16

11

Supra at 1, para 16

12 Aditya Singh, Envisioning Grievance Redress in the Persons with Disabilities Act: The Disability Rights

Commission and the Commissioners for Persons with Disabilities , Ce tre for Disa ility “tudies, Nalsar

University of Law, 29 May 2014 <http://www.disabilitystudiesnalsar.org/aboutus.php>

13 United Nations Development Program, Access to Justice: Practical Note, (2004), p 6, 29 May 2014

<http://www.undp.org/governance/docs/Justice_PN_English.pdf>

14 Ikmal Hisham bin Md. Tah, A Need For Remedial Provision To Protect Persons With Disabilities In Malaysia,

Proceeding of the Kuala Lumpur International Business, Economics and Law Conference at Kuala Lumpur,

December 2-3, 2013, 9-15, p 11

15 United Nations Human Rights Council, Thematic Study by the Office of the United Nations High

Commissioner for Human Rights on enhancing awareness and understanding of the Convention on the Rights

of Persons with Disabilities, 10th

sess, Agenda Item 1, UN DOC A/HRC/10/48 (2009), para 57

16 United Nations General Resolution, Outcome document of the high-level meeting of the General Assembly on

the realization of the Millennium Development Goals and other internationally agreed development goals for

persons with disabilities: the way forward, a disability-inclusive development agenda towards 2015 and beyond,

68th

sess, UN DOC A/68/L1 (2003), para 4c

5

CHAPTER 3: THE REMEDIAL PROVISIONS OF FOREIGN

LEGISLATION

3.1 Australia Disability Discrimination Act 1992

An American law professor who wrote the original draft of the Americans with

Disabilities Act has observed: "The Australian Disability Discrimination Act 1992 (DDA)

is extremely comprehensive, forceful, and specific. With some accuracy one can describe it

as having out-ADAed the ADA....17

The DDA has three objectives:

a) to eliminate, as far as possible, discrimination against persons on the grounds of

disability

b) to ensure, as far as practicable, that people with disabilities have the same rights

to equality before the law as the rest of the community

c) to promote recognition and acceptance within the community of the principle that

people with disabilities have the same fundamental rights as the rest of the

community.

3.2 The Remedial Mechanism

The provision allowing for court action is s 46PO(1) of the DDA:

If:

a) a complaint has been terminated by the President under section 46PE or

46PH; and

b) the President has given a notice to any person under subsection 46PH(2)

in relation to the termination;

any person who was an affected person in relation to the complaint may make

an application to the Federal Court or the Federal Circuit Court, alleging

unlawful discrimination by one or more of the respondents to the terminated

complaint.

The remedies that could be provided as stipulated under s 46PO(4):

17

Prince M. J., What about a Disability Rights Act for Canada? Practices and Lessons from America, Australia,

and the United Kingdom , (2010) Canadian Public Policy / Analyse de Politiques Vol. 36 No. 2, 199-214, p 209

6

If the court concerned is satisfied that there has been unlawful discrimination

by any respondent, the court may make such orders (including a declaration of

right) as it thinks fit, including any of the following orders or any order to a

similar effect:

a) an order declaring that the respondent has committed unlawful

discrimination and directing the respondent not to repeat or continue such

unlawful discrimination;

b) an order requiring a respondent to perform any reasonable act or course of

conduct to redress any loss or damage suffered by an applicant;

c) an order requiring a respondent to employ or re employ an applicant;

d) an order requiring a respondent to pay to an applicant damages by way of

compensation for any loss or damage suffered because of the conduct of

the respondent;

e) an order requiring a respondent to vary the termination of a contract or

agreement to redress any loss or damage suffered by an applicant;

f) an order declaring that it would be inappropriate for any further action to be

taken in the matter.

3.3 Critique of the DDA

It has been reported that by mandating conciliation, the process attempts to balance

education and awareness raising (through conciliation) with coercion (through the courts).18

However, it was also found that 70% of people who thought that they had had their rights

abused did not file a complaint because of fear of victimisation, cost and exposure that the

complaint process may entail.19

3.4 Conclusion

The author is of the opinion that the remedies provided by the DDA are exhaustive

and thus, protective of the rights of persons with disabilities. Given such an embracing list of

remedies, whether conciliation is mandated before an action in court is allowed would not

weaken the protection of the rights. Should Malaysia requires conciliation, the outcome of the

conciliation should be made legally binding agreements.

18

Australian Government Productivity Commission, Productivity Commission Inquiry Report: Review of the

Disability Discrimination Act 1992, (2004), p 365

19 Id. 367

7

CHAPTER 4: PERSONS WITH DISABILITIES ACT 2008

4.1 Why A Special Legislation?20

The reason is simple: disabilities issues are comprehensive issues, dealing with a

group of substantial minority of the society. In the World Report on Disability published by

World Health Organisation and World Bank, 15% of the world’s population are disabled

people.21

Assuming that every disabled person has a family, issues concerning the disabled

would have a triple or even quadruple effect. In this vein, the Australian law protects persons

related to the disabled people by prohibiting discrimination against them too.22 Therefore,

since it is a comprehensive issue concerning the substantial minority of the society, it was

proposed to the government to enact a special legislation for disabled persons.

4.2 Drafting of the Act

A Technical Committee under the National Advisory and Consultative Council on the

Disabled (NACCD) was set up and headed by Dato Mah Hassan, who was given a free

hand to choose the members of the committee. The work started in 2000 and finished in

2002. In December 2002, the committee submitted a draft of the legislation to the Ministry in

charge, Menteri Perpaduan dan Pembangunan Masyarakat.23 From then on, the Technical

Working Group on Legislation under the National Advisory and Consultative Council on the

Disabled24 was responsible for further drafting the Bill.

Before the draft became a Bill, the Attorney General Chambers had several meetings

with disability organisations.25 Only in 2007 – five years after the first draft was completed –

was the draft brought to the Parliament. On 18 December 2007, the Bill, which had deviated

20

I ter ie ith Dato’ Mah Hassa , Chair a of the Worki g Group o Legislatio , Natio al Ad isory a d Consultative Council on the Disabled, on 25 February 2014. See Appendix A.

21 World Health Organisation and World Bank, World Report on Disability Summary, (2011), p 7

22 Australia Disability Discrimination Act 1992, ss 7-9

23 Supra at 44, p 54

24 Supra at 7

25 Interview with Bathmavathi Krishnan, YB Senator, on 7 May 2014. See Appendix B.

8

from the original draft,26 was passed unanimously by the Dewan Rakyat.27 The Persons

with Disabilities Act 2008 (PWD Act) came into force on 9 January 2008.

4.3 Parliamentary Debate

The Bill was read for the first time on 10 December 2007 by Dato’ Seri Hajah

Shahrizat binti Abdul Jalil, the then Menteri Pembangunan Wanita, Keluarga dan

Masyarakat. On 18 December 2007, the second and third reading of the Bill started at

4:58pm. The readings coincided with the appointment of Yang Berhormat Senator Prof.

Datuk Dr. Ismail bin Md. Salleh as the Senator. He was the first disabled Senator.

At 5pm, Shahrizat said that the Bill was to protect and elevate the rights of the

disabled persons so that they can live independently and with integrity and dignity.28 It is

worth noting that in describing the appointment of the aforementioned disabled Senator,

Dato’ Raja Ahmad Zainuddin bin Raja Haji Omar said “belum pernah berlaku dalam sejarah

negara kita seorang yang tidak berupaya tidak dapat lihat dilantik menjadi Senator.” He, as a

Member of Parliament, used the words “tidak berupaya,” 29 which reveals the pitiful

perception of even the representative of the society on the disabled.

Datin Seri Dr. Wan Azizah binti Wan Ismail pointed out that there is no penalty clause

in case anyone fails to abide by the provisions. She opined that penalty clause is necessary

to compel them to follow the provisions,30 similar to the views of all three interviewees of this

paper.

In the similar vein, Fong Po Kuan asked what the remedy is if the rights are violated.

She argued that remedies are important to vindicate the rights. She pointed out that although

there has been a bylaw, OKU have not been remedied.31 Whereas Fong Kui Lun pointed out

26

Pang Hin Yue, Falli g short , The Star, 28 January 2009, 29 May 2014

<http://www.clovetwo.com/articles/story.asp?file=/2009/1/28/parentthesis/3096554&sec=parentthesis>;

Interview with Bathmavathi Krishnan, Ibid.

27 Supra at 7

28 Parliamentary Debates, House of Representatives, Eleventh Parliament, Fourth Session, Third Meeting, 18

December 2007, p 68 (Dato’ “eri Hajah “hahrizat inti Abdul Jalil)

29 Id. at 53, p 70 (Dato’ Raja Ah ad )ai uddi i Raja Haji O ar)

30 Id. at 53, p 80 (Datin Seri Dr. Wan Azizah binti Wan Ismail)

31 Supra at 53, p 97 (Fong Po Kuan)

9

that the Bill is more of a guide than a mandatory document in which breach of the rights

would be an offence liable to a penalty.32

In a reply to the questions and comments, Shahrizat simply replied that the Bill was a

charter of rights but not a punitive legislation. If particular rights are violated, the offences are

provided under other Acts which are already in force.33 She said that the Bill was a realistic

Bill.34

4.4 The Persons with Disabilities Act 2008

The Persons with Disabilities Act 2008 (PWD Act) consists of five parts and 46

sections. The parts are Preliminary, National Council for Persons with Disabilities,

Appointment of Registrar General, et cetera, and Registration of Persons with Disabilities,

Promotion and Development of the Quality of Life and Well-Being of Persons with

Disabilities, and General.

Particular mention should be made of Part IV of the PWD Act. Although the

provisions under this part lay down the rights of disabled persons, they fall short of being

offences if the rights are violated. This is in stark contrast with Australia’s Disability Discrimination Act 1992 in which the word “unlawful” is used to label prohibited

discriminations. Further, the Human Rights Commission of Malaysia submitted that it is

important for the legislation to make discrimination of a person’s disability an offence.35

As aforementioned, the PWD Act has no remedial clauses. Further still, ss 41 and 42

of the PWD Act become the shield for any legal proceedings against the government. It is

opined that the sections must be abolished to ensure there is serious implementation of the

PWD Act in accordance with international standards and laws in developed countries.36

32

Supra at 53, pp 102-3 (Fong Kui Lun)

33 Supra at 53, p 106

34 Supra at 53, p 107

35 Human Rights Commission of Malaysia, Report on Persons with Disabilities: Submission on the Proposed

Legislation on the Rights of Persons with Disabilities, Appendix F.


10

4.5 Absence of Enforcement Mechanism in the Act

Indeed, the PWD Act does not provide for rights of redress against those who

discriminate against or fail to provide amenities for persons with disabilities.37 As such, it has

been said that the PWD Act is toothless because there is no sanction or penalty.38 However,

it has been submitted that the absence of penalty clauses, though makes the PWD Act

toothless, is not the main issue considering that the PWD Act is still at its infancy.39

However, the author is of the opinion that it is pertinent that the principal legislation

on disability rights has remedial provisions. Besides, the absence of an enforcement

mechanism reflects serious doubts as to whether the government is committed in pursuing

and advancing the rights of persons with disabilities. 40 Some quarters even questioned

whether the PWD Act is disabled friendly or an attempt to discriminate.41

4.6 Conclusion

There is a need for authorities to take a proactive stance in improving and enforcing

the existing laws to realise the goal of full inclusion and equal opportunity for all.42 There

must political will to resuscitate what Dato Ambiga remarked succinctly, “perhaps it is an

indication that our ambitions with respect to persons with disabilities is still very small, which

is such a pity.”43

37

The Coalition of Malaysia NGOs in the UPR Process, Universal Periodic Review On Malaysia For The 4th

Session Of UPR February 2009, para C6

38 Supra at 7

39 Email interview with Ikmal Hisham bin Md. Tah, lecturer from Universiti Teknologi Malaysia. See Appendix C.

40 Supra at 8

41 Supra at 10, p 4

42 Supra at 8

43 Supra at 9

11

CHAPTER 5: ENFORCEMENT MECHANISM

5.1 Why Is There a Need for an Enforcement Mechanism?

To implement and enforce the rights protected by any human rights legislation, there

is a need to adopt antidiscrimination measures, one of which is the existence of remedial

provisions to address breaches and infringements.44 The remedial provisions in turn should

contain punitive remedy such as fine and summons to strengthen the enforcement

mechanism through judicial process.45 This judicial grievance redress is a crucial component

of access to justice, which is the recognition of a fair and free adjudication and to ensure the

enforcement of the remedy.46

When the Persons with Disabilities Act 2008 (PWD Act) was drafted by the

committee headed by Dato Mah Hassan, a sizeable attention was given to the enforcement

because according to him, an “Act without enforcement mechanism would be a failure.” It is

critical for the ability of the PWD Act to be enforced because the enforcement mechanism

ensures that the PWD Act protects what is needed to be protected.47

According to Dato Mah Hassan, whether the enforcement is successful is not

material; what is important is that the enforcement power must be present. As

aforementioned, the basis for enforcement is not provided by the law, the failure of which,

according to him, lies with the drafters. Without the weapon, it cannot be enforced.48

5.2 Enforcement Body

A key step in ensuring legal empowerment of persons with disabilities is to create

institutions that respond quickly and effectively to disability rights claim. 49 One such

institution is the court. The judicial process would focus public attention on the problem,

unlike the informal methods, which at best package victories as compromises with no

publicity, that could be provided by a human rights commission, council or tribunal. 50

44

Supra at 32, p 12; Supra at 67, p 70

45 Supra at 32, at 13

46 Supra at 30



49 Supra at 30

50 Supra at 30

12

Nonetheless, as disputes are best settled out of court to avoid adversarial feelings, the

existence of the commission, council or tribunal is important as they provide the first stop for

discriminated disabled persons to voice their grievances.

5.2.1 National Council for Persons with Disabilities

s 9 of the PWD Act empowers the National Council for Persons with Disabilities

(National Council) with a wide range of functions. However, the National Council is not

empowered to investigate into complaints of discrimination. Consequently, the National

Council does not have the power to penalise or prosecute any persons, bodies or agencies

for failing to comply with the provisions of the PWD Act.51

5.2.1.1 Recommendations

The function of the National Council for Persons with Disabilities must be

strengthened to include the provision of legal and technical assistance to individuals who

desire to complaint against the government or any private entity. Depending on the

existence of the power to do the same in SUHAKAM, the National Council can be

empowered to be like a conciliatory body to remedy the discriminatory practices.52

5.2.2 Human Rights Commission of Malaysia (SUHAKAM)

The SUHAKAM is a statutory body established by the Human Rights Commission

of Malaysia Act 1999 (SUHAKAM Act). Under s 4(1)(d) of the SUHAKAM Act, the

commission is empowered to inquire into complaints regarding infringements of human

rights. However, the SUHAKAM Act falls short of empowering the commission to resolve

any issue that would arise from the alleged infringement. As such, disabled persons in

Malaysia, unlike those in Australia, do not have a body to turn to seek redress when they

have been unlawfully discriminated.

5.2.2.1 Recommendations

The strengthening of SUHAKAM is crucial in ensuring legal empowerment of persons

with disabilities. This is important because if disabled persons feel that their grievances are

not taken seriously, they are unlikely to feel that the right bearing citizens.53

To strengthen the commission, it is recommended that SUHAKAM be empowered to

facilitate resolution of disputes through informal methods.54 This power can be taken up by

51

Supra at 10, p 9


53 Supra at 30

13

either SUHAKAM or the National Council for Persons with Disabilities. Besides, in line with

the effectiveness factors of the United Nations High Commission for Human Rights, the

commission must be independent, competent and has a pluralistic membership. With

regards to the membership, SUHAKAM should include more disabled representatives into its

task force so that the commission is more attentive to the plight of disabled persons.

5.3 Persons with Disabilities Commission

When Dato Mah Hassan drafted the PWD Act, the committee proposed to set up a

special commission. Setting up of an independent commission was also proposed by the

Human Rights Commission of Malaysia (SUHAKAM). According to SUHAKAM, the

independent commission should have the following characteristics:55

a) tasked to ensure coherence, comprehensiveness and effectiveness of measures

set out in the legislation

b) have the power to conduct enquiries into the breaches of rights of persons with

disability

c) include persons with disabilities into the independent commission

Specific details of the commission can be gathered from Chapter 3 of the draft, within

which it is stated that the functions of the Persons with Disabilities Commission include

looking into complaints.56 More importantly, the commission is vested with the same power

as is vested in a court on the courts of judicature act in respect of summoning and enforcing

the attendance of witnesses, requiring the discovery and production of any document,

requisitioning any public record or copy thereof from any court or office and receiving

evidence on affidavit.57

5.4 Remedies

It is submitted that should the National Council for Persons with Disabilities, Human

Rights Commission of Malaysia (SUHAKAM) or the proposed Persons with Disabilities

Commission fail to conciliate a disability issue, our courts should be empowered to

adjudicate on civil claims of discrimination. This power must be accompanied by a list of

remedies that the courts could enforce:

54

Supra at 30

55 Supra at 62, para 11.3

56 Draft of the Persons with Disabilities Act 2002, s 6. See Appendix D.

57 Id. s 7

14

a) make a declaration that the respondent has engaged in conduct, or committed an

act, that is unlawful, and order that the respondent shall not repeat or continue

such unlawful conduct or act;

b) order that the respondent shall perform any reasonable act or course of conduct

to redress any loss or damage suffered by the claimant;

c) order that the respondent shall employ or re-employ the claimant;

d) order that the respondent shall promote the claimant;

e) order that the respondent shall pay to the claimant damages by way of

compensation for any loss or damage suffered by reason of the respondent's

conduct or act;

f) order that the respondent shall pay to the claimant punitive or exemplary

damages; or

g) make an order declaring void in whole or in part either ab initio or from such date

as may be specified in the order, any contract or agreement made in

contravention of this Ordinance.

5.5 Conclusion

Therefore, the author is of the opinion that a body must be empowered to enforce the

rights enshrined in the PWD Act. In this regard, the powers of the National Council for

Persons with Disabilities or the Human Rights Commission of Malaysia may be enlarged.

Alternatively, the Persons with Disabilities Commission, as it was proposed in the first draft

of the PWD Act, may be set up to carry out the function. With the enforcement body in place,

the remedies the courts could enforce should conciliation by the body fails must be listed

down in the PWD Act.

15

CHAPTER 6: CONCLUSION

With the ratification of the Convention on the Rights of persons with Disabilities,

Malaysia has a responsibility to give effect to disability rights through national legislation.

Although Malaysia has passed the Persons with Disabilities Act 2008 (PWD Act), the

PWD Act does not contain remedial provisions.

In Australian Disability Discrimination Act 1992, there is a compulsion to

conciliate disability issues by appointed enforcement bodies. Should conciliation fails, there

are provisions allowing actions in courts, reinforced by a list of exhaustive remedies that the

courts can provide.

Therefore, the author is of the opinion that the PWD Act should be amended to

include power conferring provisions of the court. Besides allowing the court to adjudicate on

disability issues, the amendments must include a list of orders that the court can provide.

The most comprehensive laws include specific injunctive, declaratory and judicial remedies,

including money damages for victims of disability discrimination.

In addition to this method of access to justice, the powers of the National Council for

Persons with Disabilities or the Human Rights Commission of Malaysia should be enlarged

to encompass the power to investigate and conciliate on disability matters. Should either

body be unsuitable, the proposed Persons with Disabilities Commission must be looked into.

This is pivotal as although court actions can garner public attention, they may not be suitable

for discriminated disabled persons who merely intend the responsible parties to apologise or

pay compensation in return.

All in all, there is much scope for improvement if political support can be leveraged to

strengthen the national institutional machinery devoted to disability.58 “Disabilities are not

what we do or do not have. They are what people create to satisfy their own ideals of living

in the society.”59 It is up to us then to decide whether we want a facade society or a society

that appreciates everyone’s unique abilities. Let us have the ideals of having enabled,

encouraged and empowered persons with disabilities.

58

United Nations General Resolution, The way forward: a disability-inclusive development agenda towards

2015 and beyond, UNGR, 68th

sess, UN DOC A/68/95 (2003), para 32

59 Wong K. F. and Syamsuriatina Ishak, Forum on Persons with Disabilities Act 2008 , The Malaysian Bar, 21

December 2010

16

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20

APPENDIX A


21

During the course of my research, I realised that you were the one who drafted the Act.

What was your role in drafting the Act back then?

By the year 2000, the world has overseen many developments with regards to disabled people

affairs – disabled people welfare issues. And one of the areas is about legislation. Many of

our neighbouring countries has adopted a special legislation with respect to disability affairs.

In fact, the most famous one in the world is, at that time, the ADA – American Disabilities

Act, which took place in 1991, if I’m not mistaken. But before that, we have also other

countries like the British and also the Australian who took up the initiative to establish a

special legislation to deal with disability.

Why do we need a special legislation? That is an important question for you to answer in

your paper. Why do we need a special legislation where these disabilities issues can also be

addressed in a normal legislation. For instance like fundamental liberties. You can speak in

the Constitution, Article 5, Article 8. About the owning of land, you can mention in the

National Land Code. About the education, you can mention in the Education Act. About the

housing, you can deal with the Housing Act. So why do we need a special Act? So that is the

challenge, the question, which I have to explain to the Administration, to the government,

especially the Ministry, and also to the public. To the public is not so much problem, but the

government, because eventually when you have a special Act, the government is the one that

is going to enforce it. The government on behalf of the rakyat will pass it in the Parliament

and then to enforce it. And any contravention of the Act will be penalised. That is the

straightforward, normal scenario for any infringement of what has been stated in the Akta

Parlimen.

So the answer to this is simple: the disabilities issues is an over the board issue, is a

comprehensive issue. It’s not like you deal with a particular issue in life, but you are dealing

with a group of substantial minority of the society. Underline the word substantial; we might

be the minority, but as a matter of fact, we are a substantial minority of the society. In terms

of numbers, I think we are some of the minority groups. In terms of implications, we have a

long way where any actions taken with respect to disability matters will go to impact the

society. For example, now from the statistics point of view, we have the WHO and the World

Bank in the last disability report last year, in August last year, mentioned 10 to 15% of the


22

population of each nation are disabled people. So we are talking about 28 to 30,000,000 of

Malaysian population. We are talking about 2.8 million of the population are disabled people.

And I think it has some truth in it because, kalau you tengok, each time we have a festival –

Hari Raya ke Chinese New Year – berapa ramai orang yang accident. Daily pun berapa ramai

yang accident. Kita tengok dalam working environment, in factories, how many people get

involved in accidents. And in hospitals, dalam lab, experiment, ramai orang yang kena mata,

become blind. Even nowadays the way of life, diabetic for instance, take large toll with

regards to blind people; many blind people nowadays became blind because of diabetic. So

these, all these figures, can easily come up to 3,000,000. It’s not a false figure. 3 million

disabled people, I think, is easily proven.

Okay, 3 million, we are talking about the disabled people. What about people around them.

One blind person might have a parent. They have father, mother, some have wife, some have

children. So taking a general statistics suggestion that one blind person has three other people

around him, his father, his mother or even his wife or even his friends, so we can safely

conclude that any issues dealing with disability will have a triple effect; a quadruple effect in

fact, four times. So if you are dealing with 2.8 million, actually you are dealing with 2.8 times

4, which is 9.2 million. So anything to do with the disabled people will have an impact on 9

million rakyat in the country.

So that is my proposal. Because of that, from the statistical point of view, from the nature of

the disability, and from the wider scope of disability issues, that’s why I proposed to the

government to have a special Akta for the disabled people. Good enough, that time, the

Minister agreed to set up a committee headed by me. So I were given a free hand to choose

who to sit on my committee to start the ball rolling, to draft a legislation and to propose to the

Minister. So we worked in 2000 and we finished in 2002, December. In 2002, December, I

handed over to the Minister – Menteri in charge of disability issues, Menteri Pembangunan,

masa tu, Menteri Perpaduan dan Pembangunan Masyarakat – handed to her. And then, the

matter was up to the Minister to bring it to the cabinet. I don’t know what has been going on

inside there. Only by year 2007, it came to the Parliament. It went to the cabinet, Cabinet

approved, it went to the Parliament in 2007, and it received the approval from the Parliament

in July. July 8, 2008, it received the assent from the Agong and was enforced in 2008.

Parliament, 2007. 2008 got the royalty assent. You know kan yang processs, the process for

any Bill to become Akta. I tak payah clarify on that.


23

So that is my answer. First is why should we have an Act and how we struggled to convince

the government that the Act is important. We are not only the first country; we are not the

only country, there are other countries. In fact in the process of my drafting, I made reference

to the American Disabilities Act, UK, Indian, Japanase and also Australia. These are the five

countries I made reference and I built up the Bill and I called the committee and we have

studied the draft and then finally we submitted to the Minister in 2002.

Generally, do you think the provision of the remedies is necessary to enforce any rights-

based legislation?

When we drafted the Act, we gave a sizeable attention to the enforcement because we do

realise that having an Act without the enforcement mechanism would be a failure, any Act

without a proper mechanism for enforcement is not welcoming Act. Because the Act must be

able to be enforced to make sure that the provisions in the Act has the ability to protect what

is needed to be protected by the Act. So the idea of the Act, at least, has five objectives.

One is to define the meaning of disability. Because at that time, in the year 2000, many

approaches by many sectors with regards to the definition of disability. In fact, at the

international level even, they have differences in approaching the word disability. We were

quite fortunate in a way because at the international scene at that time, there is an ongoing

movement of drafting the Convention on the Rights of People with Disabilities. So in the

process of drafting the Convention, they adopt a definition which I think is quite satisfactory

and do away with all the differences about the definition. So we adopt the definition taken by

the CRPD and put it into our Bill. So the definition is there.

Second, we have an engine to make sure that the Act moves smoothly. In our original

proposal, we proposed a commission. We proposed a commission which supposed to be an

independent board to run the Act and then to make the report to the Parliament. So that was

our original idea. But, I’m sorry to say, I don’t know, the Cabinet or the Attorney General, is

not happy with our proposal. So they decided to have the council – Council for Persons with

Disabilities, which is reported to the Minister but represented by head of various related

departments. Which is better than the other is not me to decide, but the way we can see it, the

council that they have decided as at present prove not much difference to the earlier initiative.

So I think, still, we need to have an independent council, if you like, if you want to insist to

have the word council, you are not happy with the work commission, then okay, take it as


24

council but with more freedom, more energetic power for them to go on, not so much being

bound by bureaucratic decisions. So these are the comment I want to make with regards to

the second point.

The third point is, I need a legal declaration about the rights of people with disabilities.

People with disabilities need the rights to be spelt out legally in a legal document so that

eventually, when people question about the rights of people with disabilities, these are the

papers to back us up. So to tell them look, the Parliament, is supposed to represent the rakyat,

has already declared that these are our rights. So the law must follow suit to recognise, to

give a due legal recognition to our rights. And these I think is a success. Now at least I can

tell the world with our small effort that we have made way back in the year 2000, now the

whole nation can declare that disabled people have a legal right. Kalau dulu, all based on

charity, kesian. Right of education, for instance, kalau ada disabled people, oh kesian sama

dia, kasi dia sekolah; kesian sama dia, kasi dia makan; kesian sama dia, kasi dia wang; kesian

sama dia, kasi dia kerja. But now is no more kesian. It’s a must. The blind people are the

rightful citizens of the country. They are born here, they are the rightful citizens here, why do

they be discriminated, why do they be sidelined to have the same rights. If normal people can

go to work, they also want to go to work. If normal people go to school, they also want to go

to school. They must be given the right to go to school and so on. So these are the areas

which I think something that we should all be proud of with the Akta.

And fourth, number four, is about, when we are talking about disabled people, we do

recognise that there are more fortunate disabled people and the lesser fortunate disabled

people. The blind can speak. You on wheelchair, you can see, you can go to school. The only

thing is that because you are on wheelchair, perhaps certain areas you cannot handle

independently but still, you can write, you can read, you can use computer. But what about

our other groups – like people who are bedridden, people who are mentally retarded, mentally

disabled, they are helpless! And who are going to see them? Who are going to look after them?

We cannot say that oh, we have the mentally retarded, we push them away, no, that is not the

way the society supposed to be. The society should be equally responsible for the disabled

children. They never ask to be born mentally retarded. Nobody asks to be disabled. I never

ask to be blind. But fate has defined me to be blind and I accept it. It’s good enough a

disabled person is courageous enough to accept the fact that he is blind or otherwise. Now it

is the duty of the country, duty of the society to step in to help them. So I need the social


25

support to be spelt clearly in the Act with regards to these groups. And I think, with the

drafting of section, section 40 ah, something to do with, people with, orang dengan

ketidakupayaan teruk, section 38. So section 38 meletakkan kewajipan ke atas sektor swasta

dan pertubuhan bukan kerajaan jagaan institusi bagi orang kurang upaya untuk mengambil…

untuk… for these people with serious disability. So I think this is a success also.

And finally, number five, is about enforcement. Enforcement has been one of the area where

we give a sizeable emphasis. We set up a special commission. We define who, at least people

with, five years experience with disability issues should chair the commission and the

commission should investigate into any complaints or discrimination et cetera. But

unfortunately when they drafted, when they set up this Bill to the Parliament, this provision

with regard to enforcement was taken out, which I regret very much. Well what can I say,

you know. So much as we did, but they decided to take half and throw the other half. So

that’s the end. So I regret about it.

Do you know why was the chapter on penalties and the remedies omitted from the Bill

that was tabled in the Parliament?

I don’t know. I have no idea. They did not even consult me. They did not give me even an

opportunity to explain why there is a need for such an enforcement. In fact I made a thorough

study about the Independent commission based on my experience in the stock market. I could

see the success of Suruhanjaya Sekuriti, a body set up under a special Act, under the

Parliament, and the Security has been a very successful in terms of controlling the stock

market. So based on their experience and on my experience with them, I took up the idea and

tried to put it under the Akta – Akta OKU. But when it went to the Attorney General office,

the AG Chambers, eventually they decided to omit it, to leave out. Now we are left with no

enforcement provision in the Act.

When the Bill was debated, the Minister in charge said that the Act is not supposed to

be punitive. Rather, it is an act on human rights. And the Minister also said that other

laws such as the Uniform Building Bylaws already have penalties in the Act themselves.

So with that explanation, do you think it is still necessary for the Persons with

Disabilities Act to have remedies and penalty clauses?

Yes, I think penalty clauses is still necessary. Very much necessary. I give one example. The

Education Act. The Education Act says that every children must be given a basic education,


26

must go to school, a basic formal education. So what if parents decided not to send their boys

or girls to school? It’s a matter of rights. It is also a human rights-based provision. So the

parents fail to send the children go to school, what can you do? I think it’s the same thing to

compare with basic rights of people with disabilities. If any specific right spelt out in the Act

is not, is violated by anybody, then it’s question of enforcement. Whether the enforcement is

successful or not is not for us to debate. It is a question of the enforcement power must be

there. So you must provide enforcement power. If you don’t have the enforcement power,

how can the enforcement authorities enforce it? Even now, in many areas of life, there are a

sizeable degree of enforcement power given, still are the failure to enforce it. For instance

like parking. We have the enforcement provision. But still, a lot of enforcement world not

there. So what do you expect when you don’t have the enforcement provision at all? So the

basis is not provided by the law. So where is the failure? The failure is for us drafters. When

we draft the Act, we must give the authority the enforcement provision. For them to enforce

is not our question anymore, it is their responsibility. But if you don’t give them the weapon,

how can they enforce it? So this is the failure, to say that because it is a human rights based

provision, I don’t think it holds water. The argument is to me not correct.

Compare about the UBL. UBL fails not because of the enforcement provision, but because of

the nature of the terms of reference of each level of ministry. The UBL is given to the

Ministry Perumahan, Kementerian Perumahan. Kementerian Perumahan cannot enforce it

until get the cooperation from the local authority. But the local authority is also acting under

a special Act for the Local Authority Act. So the local authority prefers to work on their own.

And they are the worst animal because they have the authority, they want to work on their

own, and they will not respect the UBL at all. So UBL must be revised. In order for the UBL

to be fully enforced, in my opinion, there must be a revise to make sure that the local

authority is bound by the decision of the of the Act, of the Kementerian Perumahan under the

UBL. But as at present, local authority are not bound, are not, does not fall within, does not

bound by the decision of the UBL. So that is the problem. Even if they show the UBL, they

say it is the Kementerian Perumahan punya business, it is none of our business. Correct, we

under the Perumahan but on other issues, not on the enforcement. For instance like bus

terminal, I give you a good example. Bus terminal, the law says, UBL says, when you build a

public building for reuse, you have two abide by specified measurements – the height of the

railing is so much, how many feet; and then the drop zone; how many millimetres; and then

every toilet, you have to meet with the uniform measurements. So these are the UBL. But the


27

local authority says, look we have already provided what is necessary, we have already got

our contractor, contractor has already done the job, we have got the building approved, we

have got the, what is necessary. So why should we follow exactly the UBL. Who is going to

punish us? UBL also has no power against the local authority. Local authority must give

cooperation in order to enforce the UBL. UBL supposed to enforce against the contractor.

But the contractor is hiding behind the local authority. So there is no end to the story, I tell

you. It is a matter of practice, a matter of practical points, until and unless the UBL being

revised, or the local authority has given their commitments, then only the UBL can give a

proper enforcement value. Otherwise, it will become useless Act, I’m sorry to say.

Let’s move away from Malaysia and look at other countries. In Hong Kong, they based

their Act on Australia, and the court is empowered to order that the respondent shall

perform any reasonable act to redress any loss or damage. And besides that, the court is

also empowered to order the respondent to pay compensation to the claimant. So should

Malaysian courts be empowered to order the same kind of remedies?

As you are equally aware, the court has two source of power. Whether the power derives

from a legally, parliamentary issued statute, or from the inherent power of the court. So

whether the court wants to use the statutory approach on equity approach is up to the court.

But of course, if there is a clear statutory provision, then that would be the first choice of the

court, to use this statutory provision as a source for them to give direction with regards to any

penalty, failing which they also may use the equity approach for equitable purposes; even if

the statutory provisions are not there, they still can use the inherent power of the court to

make decisions. But we have to depend on the attitude of the court. So that is where, that is

also risky, because some courts may have a better understanding than the others; judges are

also human beings, some are more passion about the disability issues than other judges. So

here, this is another choice, the next choice, available for our propounders that when we fail

with our statutory provisions, then perhaps the next choice is to seek redress from the judge.

Hopefully, matters will be better.

You mentioned that the powers can be derived from the statute. So let’s say if we amend

our current Act, are the said powers, that is the power to order the respondent to pay

damages, is this suitable in our legal and social context?


28

From a legal practice, I can see that many disputes are better settled out of court. Pre-trial

settlement has less adverse effects on parties. When matters go to court, the adverse effects

will have a longer repercussion on the parties. But if you can settle out of court, before any

open trial, that would be best in the interests of both parties. So in that, taking that as a

positive suggestion, I would suggest that we should have a tribunal, macam tribunal

perumahan. An independent tribunal to deal with disability issues and this, I think, will help

not only to speed up any case to be heard but also to reduce cost and also to reduce adverse

effects on the parties so that matters can be decided in house rather than the open to the

public.

In this respect about tribunal, I came to know that other international level, they have already

an initiative about setting up a tribunal on disability rights. In Europe, it’s already established

– disability rights Tribunal, but in Asia-Pacific, we yet to have. So I would suggest that a

special tribunal should be established in our country first, at the national level, a tribunal on

disability rights. And then this tribunal will focus on disability issues more than anything else

and will have people with experience, knowledge to deal with these issues, with disability

issues. We don’t want people who have no experience, no knowledge about disability issues

and sit there on the bench decide on disability issues. We want people who have certain

amount of knowledge so that the decision is practicable to be carried out. So that the decision

can be a long-term solution to any dispute with regards to disability matters.

And once this tribunal has been enforced in our country and we perhaps also can introduce

education so that the upcoming graduates from the University should be taught about the

disability rights. And with regards to this disability Tribunal, we can join our counterparts in

other countries and perhaps also can, we can establish one in ASEAN countries. So we can

have the ASEAN disability Tribunal. So that would be, I think, a more practical and ideal

approach with regards to the enforcement of disability issues.

If the Tribunal finds that the person has been discriminated, what are the appropriate

remedies that the tribunal should enforce?

My suggestion is good as yours. It depends very much on the circumstances of the case.

Because when dealing with disability issues, first and foremost we have to understand the

requirements needed by, or the, to satisfy the issues. For instance, if you are dealing with

blind person who does not attend at their work because of transportation difficulties and he


29

being dismissed of employment because of that. If you take it from the Workmen’s

Compensation Act, or even if you go under the Employment Act, a straightforward case will

say that you have failed in your duty to be at your workplace as such time that as been agreed

in the employment document. But if you take from the disability rights, the person can argue

that I’ve failed to attend, I fail to be at my workplace, because I were not given equal access

to transport to my place of employment. So the best address is, to address the issue of

transportation. So if the office of the company can provide, for instance, a transport to shuttle

from a particular point to the office, that will solve all the problems. And the problems solved

is not only for that particular claimant but also for other employees as well. If the company,

the office of the company, stay way out of the main road, then any employees who wants to

come to the office can make a point to wait for the shuttle somewhere and come to the office

and everything resolved. So that’s what I mean tribunal is the best. Because a tribunal will

look into the issues not only from the legal point but how to address the issues. It’s not the

question of compensation; it’s not a question of assertion of rights, more than that. It is more

meant to resolve the issues for both parties. Naturally in this case, the employer would like to

have the staff as long as he can work efficiently and effectively. The employees also would

love to work if he be given the equal access of transportation. But if you look only from the

legal rights, then the case will be dismissed and the case will be decided but both parties will

have a long-term adverse effect. They will say that the company is not concerned about the

rights of persons with disabilities. And the company may have a mind that disabled people

are not sufficient people. So that would be a loss to our country, you see what I mean. So I

think a tribunal would be a better solution, a better mechanism to resolve the disability issues

more than anything else.

That is the reason why in our original proposal, we decided to set up a special commission,

because a special commission headed by someone who have ample experience with regards

to disability issues would be in a better position to resolve such issues, and they can resolve

more issues, faster than ordinary courts, because ordinary courts, they base purely on legal

rights and nothing else. This will have long adverse effect on everybody.

My last question is that you mentioned that we should set up a tribunal, but at the same

time we already have the Human Rights Commission (SUHAKAM) and also the

National Council of Persons with Disabilities. Do you think these two bodies are able to

carry out the task that the tribunal you mentioned should be enforcing?


30

I’m afraid not. I have little belief in SUHAKAM. I have little confidence in National Council

for the Disabled simply because of three reasons.

One, SUHAKAM has too many things on their plate. They have so many things and they do

nothing. They do this a bit, here a bit and a bit there. And no satisfactory results that can see.

No concrete results we can see. Because there were not given the enforcement power. They

were given the investigation power and come up with suggestions and up to the government

or any other relevant authorities to carry out the suggestions. But whether the suggestions are

carried out or not is beyond them.

And secondly, the Human Rights does not have, until at present, a representative from the

disabled group. If you see from the many documents with regards to promoting disability

issues, for example, if you see from the CRPD, if you see from the Biwako Millennium

Framework For Action, or even if you see from the international document, IYDP –

International Year of the Disabled Persons, all of these documents suggesting that in order to

have a concrete result with regards to disability issues, you must have disabled people in the

decision making process. You must give the disabled people opportunity to speak for

themselves. You must give the disabled people opportunity to decide for themselves. Any

decision-making with respect to disability issues must be involved to disabled people. And

SUHAKAM, they never invite any disabled people into their board.

And thirdly, SUHAKAM is more on a rights-based approach. But here we’re not talking

about when you rights. We want the rights to be given, implemented and decision be made

with respect to the enforcement of the rights. You can speak so much about the rights but

when the rights to be implemented is not within your purview, then that would be the start of

failure, where the failure starts. So until and unless the SUHAKAM given more concrete

power with respect to the enforcement, then only I think SUHAKAM can help us better than

what they are doing now.

When come to National Council, yes National Council, if you read from the Act, has a very

wide power, a very wide range of power to make sure that disability issues be dealt with

effectively. And why they fail? They fail simply also of three main reasons.

One, they don’t meet as often as we would like it to be. I remember when I was on the

council, the Akta says they have to meet three times a year, at least three times a year. You

know, the first meeting was called in August. The first eight months tak ada meeting. The


31

first meeting in August. The second meeting in November. And the third meeting is end of

December. What does it mean? Simply means that the three meeting is only to meet the

calendar, it’s only to meet the requirement of the Act, but it does not meant. So that’s where

council is failing.

Secondly, the council is headed by the Minister responsible for disability issues, and the

members of two types: one, a group heads of ministries, of the Parliament and another group

is individuals as appointed by the Minister. We thank very much for the Minister. At least for

the past years, they have appointed disabled people into the council. That we congratulate the

Minister. But when come to the first group, there are certain ministries which is very relevant,

very important but were left out. One good example is the Ministry of Housing and Local

Government, which also involve the local authority. More often than not, the accessible

issues are within the local authority powers. People want to travel to work, to school, we need

transportation. We need good infrastructure, bus stops, taxis and so on. We want to go for

shopping, we need accessible shops, accessible markets. We need office with accessible

facilities for disabled people. Like my office here, we don’t have lifts. I want to employ

people with wheelchair, tak boleh, because cannot go up. You know I have, in my office,

altogether I have 12 staff, seven of them are disabled people. Seven of them, basically many

of them are blind. I have one on crutches. Happen that she can climb up the staircase. I want

to engage people on wheelchair, tak boleh, because no lift. What can I do? I can’t afford to

build my own lift. So that’s the problem. The problem are within the local authority, my local

authority are not within the National Council punya listing. That’s also a failing factor.

And the last failing factor is, the council have so wide power, so wide opportunity, but has

not been fully utilised. By right, if they want the success activities, they should get the public

involvement. The parents, for instance, the parents are mostly, they love their children, they

want, even though they have disabled children, they love their children. If they were given

the opportunity to contribute, to come along to help, they would be very happy to do so. But

until now, the council never approach the public. The council keep the things to themselves.

It is only for them to decide, for them to meet, for them to use the money. They never get the

public involvement. Even the NGO, the NGO only get involved when you have the Hari

OKU. And then they invite the NGO to come in. But besides that, the NGO takda. Takda apa.

So if they decide to work only inside, in-house, within themselves, the want to get involved


32

the rakyat, then that’s where they fail. So these are the three failures which I think contribute

to the failure of National Council.

Thank you so much. It’s my honour to listen to the person who drafted the Act.

Interview with Bathmavathi Krishnan, YB Senator, on 7 May 2014 33

APPENDIX B


What was your role when the Act was drafted?

I was involved in many disability organisations – the Malaysian Confederation of the

Disabled, Malaysian Spinal Injuries Association, Persatuan Orang Cacat Anggota Malaysia.

I started off in 1978 when I was a committee member in Persatuan Pemulihan Orang Cacat

Selangor. That was my first involvement in disability organisation. Over the years, in 1998, I

was a member of the National Advisory and Consultative Council on the Disabled (NACCD).

So in that organisation, there were mainly people from government department and able-

bodied, and only three individual disabled people were in that committee. So in that

committee we could only voice out; couldn’t make very much changes.

Then the International Convention was going on; the International Convention on the Rights

of Persons with Disabilities (CRPD). CRPD was being drafted and I think around 2007, it

was completed and countries were asked to ratify. And Malaysia, we have signed and ratified.

So one of the provisions is you have to have the legislation and all that. So in preparation, in

a way, it enhanced the formulation of the Act, and because of that the government also felt a

need to have the Act. But over in the past, in all our disability organisations meetings with the

government and seminars, we have always asked for legislation. I think way back in 1993,

there was a regional conference on legislation measures in ASEAN or SEA, and I

participated in that also.

As an individual and as a member of an organisation representing the disabled, are brought

up on several occasions the need to have legislation. So it was drafted. The first draft was

done by, there was a technical committee under NACCD; there was a technical committee

formed where Mah Hassan Omar was the chairman of the committee, Tuah Tan, also a

disabled person, who is a lawyer, and Helen Chin. These are the three that I know of. There

may one or two other people inside. So they drafted and in that draft, it was quite different

from what we have now. That draft, they left the penalty and offences section free because

they wanted the AG office to come up with the offences and penalties. After that, the draft

went in and the AG Chambers had several meetings with disability organisations; they had

consultations with us, I think at least about three, four, five consultations. And then the

Malaysian Confederation of the Disabled also organised seminar on the PWD Act, and we

also gathered input, and we submitted to the government. I think one or two organisations did

the same as well. Once the draft was out, we were consulted and given input and all that. And

all of the meetings, we also brought up why there was no offences and penalties.


So I don’t know what is the reason why they didn’t include; don’t know whether they will

include later, but in my recent session, in our Dewan session from 21 April to 6 May, I

brought up the issue with Kementerian Wanita to ask them to include offences and penalties,

and also went to see Nancy Shukry and also mentioned to her. Nancy Shukry is in charge of

legal aspect. She’s a minister in the Prime Minister Department.

When asked on the absence of penalty clauses, the Minister at the point of time said that

the Act was on rights. It was not supposed to be punitive…

Not to say it was not supposed to be punitive. They acknowledged that it was not punitive.

But then again, the answer to my question, I’ve got a written answer, the answer was there

are other laws to look after. For example, the Building Bylaws; there is penalty. Here, at least

our rights are enshrined. A lot of people think this is the only Act that is going to look after us.

Since other Acts provide penalty clauses, then do you think this particular Persons with

Disabilities Act still needs the…

I don’t know. Let us see how will that work. Based on the answer from the Kementerian

Wanita, and also there is a section in the Akta which says that other laws must be amended to

be in line with this Act.

The bylaws has been existence for quite some time, and I don’t think it is enforced. So

even if the penalty clauses are in other Acts…

No one has ever taken any building to court. Let me tell you about the Bar Council – Edmund

Bon and group. Prior to elections, yes they were very interested in disabled people. Where are

they now? So they come to us with an agenda. Don’t you think so? There are so many people

who want to make use of disabled people for their own ends. Now they’re not interested in us

anymore. So they wanted to know anyone who had got an issue. We met and we gave some

issues. They didn’t take it up. So I don’t know who will. So now, individually, if people are

aware of the law, they can, they can lodge a report and say your building is inaccessible, we

have to take action against the building. Let there be a start somewhere. I would definitely

encourage that.

So you think it is unnecessary for enforcement clauses to be included in our PWD Act.

The UBBL has got its own penalties. So therefore, if once people start suing and people start

taking whoever authorities and the private buildings to court, we can do it. But then again,


there is one section 63 of one particular Act which exempts government buildings. We have

to get around it once the other things are in place. We have to take action and the government

also has a responsibility to make the building accessible. In fact, they have made some

schools, they said they have accessibility. We were told in the council meeting, but we were

given a list of schools which have got facilities, but we don’t have enough personnel to go

and check, which are the schools which actually claim to have and whether they have

according to specifications or not.

In your opinion, we must make use of…

Yes, what we have in the UBBL, the penalty. There are so far no test case. I think people are

afraid. You don’t have to be; you are not going against the law, you are preserving, you are

making use of the law.

In Hong Kong and Australia, they have a commission to conciliate or mediate

complaints. Do you think our National Council or even SUHAKAM should have this

kind of conciliatory power to mediate disability complaints?

Yes, definitely a need, definitely a need for mediation.

Do you think the National Council and SUHAKAM are capable to…

They are capable, but they are not that willing.

Email interview with Ikmal Hisham bin Md. Tah, lecturer from Universiti Teknologi

Malaysia

37

APPENDIX C


Malaysia

38

Is the provision of remedy a necessary form of enforcement method for a rights-based

legislation?

It’s necessary for any right-based legislation to have remedial clause in order to ensure the

right being enforced. If not, the act will only like ‘toothless tiger’. However time must be

given to ensure what kind of enforcement we should have. Maybe at this moment penalty

clause is not main issues since the act itself is at infant stage. Even in Malaysian context, we

are bit slowly and the law is not comprehensive yet, still loopholes and needed to be reviewed.

In response to the absence of penalty clauses, Dato Shahrizat said that the Act is not

supposed to be punitive. Rather, it is an Act on rights. Further, there are already other

legislations with penalty clauses such as the Uniform Building Bylaws. Nonetheless, do

you think penalty clauses and the subsequent remedies in the Act itself are necessary to

give effect to the rights?

In my opinion, the Act itself is at early stage and even Dato Shahrizat said it should not be

punitive, the act still need to address the concern in future. It has been argued by Bar Council

President and other disability advocates, the act itself is toothless tiger without remedial

clause. Majlis OKU Kebangsaan must address this matter. Maybe we need to give an ample

time to study the possibility of including penalty clause. But at the end, there must be

political will and strong pressure from NGOs.

In Hong Kong, the court is empowered to order that the “respondent shall perform any

reasonable act or course of conduct to redress any loss or damage…” Besides, the court

can also order that the “respondent shall pay to the claimant damages by way of

compensation…” Should Malaysian courts be empowered to order the same remedies?

(If yes, what are the implications of such remedies in our legal and social context? If no,

what are the appropriate remedies and the subsequent implications?)

Even if we given the power to the court to reward compensation, how to attract PWD file

their complaints to the court? In most cases I observed, they want to bring their

discrimination to the court. Many factors involved here including afraid to come forward and

seek lawyer’s advice, financial problems etc. PWD may file their cases to the court under

various law or tortious matters, but it’s important how to raise awareness or attention of

society?


Malaysia

39

Australia provides that disabled persons shall file their complaints to its human rights

commission. The commission will then try to conciliate the complaint. If the conciliation

fails, the commission will provide legal assistance to the complainant to file an action in

the court. Should our Human Rights Commission or even the National Council of

Persons with Disabilities have a similar function?

In my opinion, National Council of PWD should have similar function as they are required

under the act. However, it’s not under Section 9 of PWD Act 2008 except if Minister allowed.

That’s why in my article I’m suggesting that National Council should have power like

tribunal (e.g consumer, house tribunal) to address on discrimination issues regarding PWD.

With regards to complaints, Hong Kong is different from Australia in that Hong Kong

has the option to allow the complainant to directly file an action in the court, whereas in

Australia, the complainant has to first go through the conciliation conducted by its

human rights commission. Which approach should we adopt?

In my opinion, Australia approach is much preferable compared with Hong Kong. Even we

can file complaint to the court, unfortunately not many PWD are able to bring their matters to

the court especially on discrimination issue. They might be afraid or felt being isolated.

Draft of the Persons with Disabilities Act 2002 40

APPENDIX D


Proposed Amendments (as at 28 January 2003) to Persons with disabilities ACT, 2002 By Coalition of Societies for Persons with Disabilities and NGOs in

Penang (Society of Disabled Persons, Penang Eden Handicap Service

Centre, Old Nicolites Association , St. Nicholas Association for the

Blind, Society of the Blind, Malaysia (SBM), Penang Branch, Penang

Deaf Association, The Cerebral Palsy (Spastic) Children's Association

Of Penang, Asia Community Service, Autism Support Association

Penang, Penang Down Syndrome Association, and Socio-economic &

Environmental Research Institute.) PREAMBLE. Comments An act to provide the basis for the equalization of opportunities for persons with disabilities and to avoid eliminate discrimination and harrassment of the same.

The objects of this Act are:

i) To ensure that persons with disabilities in Malaysia have the same rights to equality before the law as the rest of the community in the country.

ii) To eliminate, as far as possible, discrimination against persons on the grounds of disability and persons who have a relationship or association with them in various all areas of life.

iii) To promote recognition and acceptance within the community of the principle that persons with disabilities as equal members with the right to be afforded equal opportunities and full

participation to enable them to live as a rightful citizen of the country. CHAPTER i PRELIMINARY 1. Short title and commencement. This act may be cited as the Persons with disabilities Act, 2002.

Not to use the word

2. Definition.

"Disability" means any restriction or lack of ability, resulting from “normal” as it

an impairment, to perform an activity in the manner or within the implies that

range considered normal for a human being. a physical or mental disability is

impairment that substantially limits one or more major life abnormal. For

activities. further definitions,

see WHO’s

"Equalization of opportunities" means the process through which “International

the various systems of society and the environment, such as Classification of

services, activities, information and documentation, are made Functioning,

equally available to all, particularly to persons with disabilities. Disability and

Health”.

"Impairment" means any loss, or abnormality total or partial of a

person’s psychological, physiological or anatomical structure or function.


"Handicap" means a disadvantage for a given individual, resulting

from an impairment or disability, that substantially limits or

prevents the fulfillment of a role that is normal, depending on age,

gender, and social and cultural factors for that individual. one or

more major life activities. "Minister" means the Minister of National Unity and Social

Development. in the Prime Minister’s Department with the

special task of promoting the rights of disabled persons. "Rehabilitation" is a process aimed at enabling persons with

disabilities to reach and maintain their optimal physical, sensory,

intellectual, psychiatric and/or social functional levels, thus

providing them with the tools to change their lives towards a

higher level of independence. Rehabilitation may include

measures to provide and/or restore functions, or compensate for

the loss or absence of a function or for a functional limitation. "relevant authorities" includes any ministry or department of the

Federal Government of Malaysia, an authority of the state

government or local government for the time being in-charge of

the subject matter. CHAPTER ii EQUALIZATION OF OPPORTUNITIES AND FULL PARTICIPATION PART 1. PREVENTION OF CAUSES OF DISABILITIES AND EARLY DETECTION OF DISABILITIES. 1. Within the limit of its economic capacity and development, relevant authorities, with a view to preventing the occurrence of disabilities, shall:- The Minister of Health shall:- (a) undertake or cause to be undertaken surveys,

investigations and research concerning the causes and of occurrence of disabilities;

(b) promote various implement appropriate methods of preventing disabilities;

(c) ensure that all relevant medical and paramedical personnel at the primary health centres care level are adequately trained and equipped to give medical care and rehabilitation to persons with disabilities and that they

have access to relevant treatment methods and technology and

this shall include early intervention; (c a) Ensure trained mid-level personnel and doctors are made

available for tertiary care and that the necessary

infrastructure for rehab. is provided; (d) take adequate measures to provide for pre-natal, peri-

natal and post-natal care of mother and child; (e) create awareness amongst the masses through television,

radio and other mass media on the causes of disabilities

and the preventive measures to be adopted;

Since many parts of

this Act involve

other Ministries, it

is suggested that

this Act not be

sponsored by the

National Unity

Ministry. Each Minister and

Department in

charge of the

respective

responsibility be

named to ensure

implementation and

prevent passing of

the buck.


(f) Carry out compulsory registration of all disabled

persons. 2. Within the limit of its economic capacity and development, relevant authorities The Minister of Health shall ensure that

persons with disabilities are provided with any accessible and

affordable regular treatment and medicines they may need to

preserve or improve their level of functioning. PART 2. EDUCATION. 1. Every child person with any kind and any level of

disability shall have access to early intervention programmes

and free education in an appropriate environment till he or she attains the age of eighteen years. 2. Education for persons with disabilities should form an

integral part of national educational planning, curriculum

development and school organization. 3. Relevant authorities The Minister of Education shall

endeavour to promote the integration inclusion of students with

disabilities in the normal mainstream schools so long as it is in

the best interest of the disabled students. To accomodate educational provisions for persons with disabilities in the mainstream, relevant authorities The Minister of

Education shall:- (a) have a clearly stated child-centered approach and policy,

understood and accepted at the school level and by the community at large;

(b) allow for curriculum flexibility, addition and adaptation;

(c) provide for quality and accessible materials, appropriate

assistive devices, ongoing teacher training and support

teachers. 4. Special education may be considered in situations where

the general school system does not yet adequately meet the needs

of all persons with disabilities or where special education is

deemed to be the most appropriate form of education for some

students with disabilities. It should be aimed at preparing students

for education in the general school system. The quality of special

education should reflect the same standards and ambitions as

general education and should be closely linked to it. At a

minimum, students with disabilities should be afforded the same

portion of educational resources as students without disabilities. 5. In order to ensure that quality education is accessible to

all, special attention shall be focussed on the following areas

namely, curriculum educational programmes, teaching methods

and support services.

The Minister should

spell out guidelines

which will make

registration simple

and accessible

unlike the current

system which is

cumbersome. It is unrealistic to

stop at eighteen as

the disabled person

requires more time.


(1) For persons with visual impairment, in the preparatory and

primary levels, a modified curriculum shall include but shall

not be limited to sensory training, daily living skills, special

instruction in braille reading and writing, enhancement of

low-vision efficiency if applicable, orientation and mobility,

basic knowledge in computers with screen-reading software,

mathematics, music and games. Preparation for mainstreaming

must be worked out in the early years of schooling at the pre-

school and primary level to ensure that visually impaired

children just like other children with disabilities, except those

possibly with mental retardation are educated with their non-

disabled peers to the fullest extent possible. In secondary and

tertiary levels, they shall be integrated and mainstreamed and

undergo the regular curriculum. Students with visual

impairment in these levels shall be supported with the

necessary services such as reading materials in braille or audio

form, braille equipments, reading machine, computer with

special applications, low-vision equipments, orientation &

mobility, counseling and resource teachers (in secondary

schools). (2) For persons with hearing impairment, modified curriculum

shall emphasize communication and language development

which is tailored to meet the students' educational needs. The curriculum shall include special instruction in speech,

speech reading, auditory training and rhythm using total

communication, multi-sensory and other approaches. They

shall be referred to support personnel such as sign language

interpreters, audiologists, otologists, speech therapists, auditory trainers and others as needed. Owing to the

particular communication needs of deaf and deaf-blind

persons, their education may be more suitably provided in

schools for such persons or special classes and units in

mainstream schools. (3) For persons with orthopedic handicaps mobility

difficulties, quality education shall be given in the same

manner as those in the regular education and they shall be

allowed to attend classes in the ground floors of the school

buildings whenever possible. Class schedule and other

pertinent considerations shall be made to suit their learning

requirements Efforts shall be made for the removal of

architectural barriers from schools and colleges. (4) For persons with mental retardation, intellectual impairment,

the modified curriculum shall emphasize on training in self-

care, socialization, motor mobility, pre-vocational, vocational

and other daily living skills. For those


with severe retardation, disability emphasis shall be on the

development of self-care skills.

(5) For persons with behavior problems such as those with

autism, for persons with learning disabilities and for

persons with multiple handicaps, modified curriculum shall

include special activities and instructional techniques for

the normalization of behavior, functional and technical

academic skills to rehabilitate them in society. 6. Relevant authorities The Minister of Education and the

Minister of Science and Technology shall initiate or cause to be

initiated research for the purpose of designing and developing new

assistive devices, teaching aids, special teaching materials or such

other items as are necessary to give a child with disability equal

opportunities in education. 7. Relevant authorities The Minister of Education shall set

up adequate number of teacher's training institutions and support

non-governmental organizations to develop teacher's training

programmes specialisation in disabilities so that requisite trained

manpower is available for special schools and integrated inclusive

schools for children with disabilities. 8. Without prejudice to the foregoing provisions, relevant

authorities The Minister of Education shall prepare a

comprehensive education scheme which shall make provision for:- • the implementation of individualized education plan in respect of every children with disabilityies at school; • Transport facilities to the children with disabilities or alternatively financial incentives to parents or guardians to enable their children with disabilities to attend schools; • the supply of free of cost special books and equipments needed for the education of children with disabilities;

• the grant of scholarship to students with disabilities;

• a means to attend to grievances of parents regarding the

placement of their children with disabilities. 9. The Minister of Education shall provide adult

education programmes for disabled persons to enable them to

communicate and to read and write. PART 3. EMPLOYMENT. 1. Relevant authorities The Minister of Human Resource shall organize projects for promotion of promote the employment of persons with disability namely by:- • Job development and diffusion of suitable jobs for persons

with disability;


• measures to design and adapt workplaces and work

premises in such a way that they become accessible for

persons with different disabilities;

• support for the use of new technologies and the development and production of assistive devices, tools and equipments and measures to facilitate access to such devices and equipments for persons with disability to enable them to gain and maintain employment;

• provision of appropriate training and placement and ongoing

support such as personal assistance and interpreter services;

• public awareness-raising campaigns designed to overcome negative attitudes and prejudices concerning workers persons with disabilities;

• measures to improve the work environment in order to

prevent injuries and impairments and measures for the

rehabilitation of employees who have sustained

employment-related injuries. 2. Relevant authorities shall formulate the following policies for

ensuring employment of persons with disability: All employers

with a minimum of ten employees are required to hire a

minimum of 1% disabled employees for any one year.

Employers who fail to meet this quota shall pay a penalty

which shall be utilized as incentives for employers who exceed

the quota. • one percent jobs in the public sector in one year being

reserved for persons with disability; • one percent jobs in the private sector in one year being

reserved for persons with disability;

• The Minister of Human Resource shall give incentives and recognition to any employer maintaining no less than 5 percent employment of persons with disability for a continuous period of no less than 12 calendar months, and a special incentives to any employer maintaining more than 10 percent employment of persons with disability for a continuous period of no less than 12 calendar months;

• The Minister of Finance shall grant tax incentives to

employers acquiring equipments for the benefit of their

employees with disabilities or making adjustments to

accomodate employees with disabilities. 3. Relevant authorities The Minister of Human Resource shall

formulate the following schemes for promoting entrepreneurship

and self-employment of persons with disability: • grants for small business wholly owned by persons with

disability; • loans for capital resources;


• business csites which are accessible for persons with

different disabilities;

• exclusive contracts or priority production rights;

• special agency for marketing of goods produced by

persons with disability. 4. The Minister of Human Resource shall ensure skills

training to be carried out for disabled persons in all

states. PART 4. REHABILITATION. Rehabilitation is not

1. Relevant authorities The Minister of Health, the Minister just medical. of National Unity and Social Development and the Minister of Human Resource shall develop or support the development of national rehabilitation programmes for all groups of persons with

disabilities. Such programmes should be based on the actual individual needs of persons with disabilities and on the principles of full participation and equality. 2. Rehabilitation programmes shall include but shall not be

limited to basic skills training to improve or compensate for an

affected function, counselling of persons with disabilities and their

families, developing self-reliance, and occasional services such as

assessment and guidance. 3. All persons with disabilities, including persons with severe

and/or multiple disabilities, who require rehabilitation shall have

access to it. PART 5. ACCESSIBILITY. 1. Relevant authorities The Minister of Housing and local

government, the Minister of Information and the Minister of Telecommunication and Multimedia shall formulate policies to make the physical environment

accessible and to provide access to information and communication for persons with disabilities.

2. The All Local Governments shall ensure the attainment of

a barrier-free environment that will enable persons with

disability to have access in public and private buildings

through effective implementation of Uniform

Building Byelaws. 3. Relevant authorities The Minister of Housing and local

government shall allocate funds for the provision of

architectural facilities and structural features for persons

with disability in government buildings and related

facilities.


4. Relevant authorities The Minister of Housing and local

government and Minister of Transport shall develop a

comprehensive programme to assist persons with disability

to gain more access to public transport facilities. 5. Relevant authorities The Minister of Information and

the Minister of Telecommunication and Multimedia shall develop programmes to make information services

and documentation accessible for different groups of

persons with disability. Braille, tape services, large print

and other appropriate technologies should be used to

provide access to written information and documentation

for persons with visual impairments. Similarly, appropriate

technologies should be used to provide access to spoken

information for persons with hearing impairments or

comprehension difficulties.

6. In order to facilitate the communication between deaf

persons and others, sign language interpretation services

shall be provided in key places such as educational

institutions and health centres while latest

telecommunication services should be made available such

as web camera, video conferencing and telecommunication

relay services. 7. Relevant authorities The Minister of Information and

the Minister of Telecommunication and Multimedia

shall formulate guidelines for media especially television,

radio and newspapers, and telecommunication operators to

make their services accessible for persons with disability

and to eliminate negative and demeaning images of

disabled persons. 8. Organizations of persons with disabilities shall be

consulted when, (a) developing standards and norms for accessibility to

physical environment;

(b) developing measures to make information services

accessible. PART 6. SUPPORT SERVICES. 1. Relevant authorities shall establish ongoing communication with organizations of persons with disability and ensure their

participation in the development of government policies. All local

governments shall be required to appoint at least one disabled

Councillor representing the interest of disabled persons in

every local council.


The organizations of persons with disability may have the role of

identifying needs and priorities, participating in the planning,

implementation and evaluation of services and measures

concerning the lives of persons with disability, and contributing to

public awareness and to advocate change. 2. Relevant All authorities should involve organizations of

persons with disability in all decision-making relating to plans and

programmes concerning persons with disability or affecting their

economic and social status and make the necessary financial

allocations and resources to carry out such programmes. 3. Relevant authorities The Department of Statistics shall,

at regular intervals, collect gender-specific statistics and other

information concerning the living conditions of persons with

disability. Such data collection may be conducted in conjunction

with national census and household surveys and could be

undertaken in close collaboration, inter alia, with universities,

research institutes and organizations of persons with disability. 4. Relevant authorities should The Minister of Science and Technology shall support, financially or otherwise, the

development, production, distribution and servicing of assistive devices and equipment and the dissemination of knowledge about them. 5. Relevant authorities should The Minister of Science and

Technology, the Minister of National Unity and Social Development and the Minister of Health shall support,

financially or otherwise, the development and provision of

personal assistance programmes and interpretation services, especially for persons with severe and/or multiple disabilities. PART 7. SOCIAL SECURITY. 1. Relevant authorities The Minister of National Unity and

Social Development shall ensure the provision of adequate income support to persons with disability who, owing to disability

or disability-related factors, have temporarily lost or received a substantial reduction in their income or have been denied employment opportunities. 2. Social security programmes should also shall provide

incentives assistance and training for persons with disability to

seek employment or self-employment in order to establish or re-

establish their income-earning capacity. 3. Persons with disabilities and their families need to be fully

informed about taking precautions against sexual and other forms

of abuse, steps to be taken to prevent such abuse and what to

do if it occurs. Persons with disability are particularly vulnerable

to abuse in the family, community or institutions. and need to be

The practice of

giving RM200.00

allowance only to

those who earn

RM400.00 or less

should be changed

as it discourages

people form

working harder

and penalizes those

who cannot work

or find work.


educated on how to avoid the occurrence of Education

programmes must be conducted to empower disabled persons

and their carers on how to stop abuse, recognize when abuse has

occurred and report on such acts. CHAPTER iii PROVISIONS RELATING TO DISABILITY DISCRIMINATION PART 1. INTERPRETATION OF DISABILITY DISCRIMINATION. 1. For the purposes of this act, a person ("discriminator") discriminates against another person ("aggrieved person") on the

ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes

to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability. 2. Indirect Disability Discrimination. For the purposes of this act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons

without the disability comply or are able to comply; (b) which is not reasonable having regard to the circumstances

of the case or, (c) with which the aggrieved person does not or is not able to

comply. 3. Discrimination against persons with palliative or

therapeutic devices or auxiliary aids. For the purposes of this act, a person ("discriminator") discriminates against another person with a disability ("aggrieved person") if the discriminator treats or proposes to treat the aggrieved person less favourably because of the fact that the aggrieved person is accompanied by, or possesses: (a) a palliative or therapeutic device or,

(b) an auxiliary aid; that is used by the aggrieved person, or

because of any matter related to that fact. 4. Persons accompanied by interpreters, assistants etc. For the purposes of this act, a person ("discriminator") discriminates against another person with a disability ("aggrieved person") if the discriminator treats or proposes to treat the aggrieved person less favourably because of the fact that the aggrieved person is accompanied by: (a) an interpreter,

(b) a reader,

Discrimination

against persons

associated or

related to the

disabled should also

be prohibited. It will be easier to

understand if

examples are given.


(c) a carer or (d) an assistant; who provides interpretive, reading or other

services to the aggrieved person because of the disability,

or because of any matter related to that fact. PART 2. PROHIBITION OF DISABILITY DISCRIMINATION 1. Discrimination in employment. (1) An employer or a person acting or purporting to act on

behalf of an employer shall not discriminate against a

person on the ground of the other person's disability: (a) in the arrangements made for the purpose of determining

who should be offered employment;

(b) in determining who should be offered employment or, (c) in the terms or conditions on which employment is offered. (2) An employer or a person acting or purporting to act on behalf of an employer shall not discriminate against an employee on the ground of the employee's disability: (a) in the terms or conditions of employment that the employer

affords the employee; (b) by denying or limiting the employee's access to

opportunities for promotion, transfer or training, or to any other benefits associated with employment;

(c) by dismissing the employee or,

(d) by subjecting the employee to any other detriment. 2. Discrimination against agents by commission. (1) A principal or a person acting or purporting to act on behalf

of a principal shall not discriminate against a person on the

ground of the other person's disability: (a) in the arrangements made for the purpose of determining

who should be engaged as an agent by commission; (b) in determining who should be engaged as an agent by

commission or,

(c) in the terms or conditions on which the person is engaged

as an agent by commission. (2) A principal or a person acting or purporting to act on behalf

of a principal shall not discriminate against an agent by

commission on the ground of the agent's disability: (a) in the terms or conditions that the principal affords the

agent as an agent by commission; (b) by denying or limiting the agent's access to opportunities

for promotion, transfer or training, or to any other benefits associated with the position as an agent by commission;

(c) by terminating the engagement or,

(d) by subjecting the agent to any other detriment.


3. Discrimination in Partnerships. (1) Persons who are proposing to form themselves in to a

partnership shall not discriminate against another person on the ground of the other person's disability:

(a) in determining who should be invited to become a partner in the partnership or,

(b) in the terms or conditions on which the other person is invited to become a partner in the partnership. (2) One or more of the partners in a partnership shall not

discriminate against another person on the ground of the other person's disability:

(a) in determining who should be invited to become a partner in the partnership or,

(b) in the terms or conditions on which the other person is invited to become a partner in the partnership. (3) One or more of the partners in a partnership shall not

discriminate against another partner in the partnership on the ground of the other partner's disability: (a) by denying or limiting the partner's access to any benefit

arising from being a partner in the partnership; (b) by expelling the other partner from the partnership or,

(c) by subjecting the partner to any other detriment. 4. Discrimination by Qualifying bodies. (1) No authority or body that is empowered to confer, renew,

extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation shall discriminate against a person on the

ground of the person's disability: (a) by refusing or failing to confer, renew or extend the

authorisation or qualification; (b) in the terms or conditions on which it is prepared to confer

the authorisation or qualification or to renew or extend the authorisation or qualification or,

(c) by revoking or withdrawing the authorisation or

qualification or varying the terms or the conditions upon

which it is held. 5. Discrimination in Registered organisations. (1) No registered organisation, the committee of management

of a registered organisation or a member of the committee of management of a registered organisation shall discriminate against a person on the ground of the person's

disability: (a) by refusing or failing to accept the person's application for


membership or, (b) in the terms or conditions on which the organisation is prepared to admit the person to membership. (2) No registered organisation, the committee of management of a registered organisation or a member of the committee of management of a registered organisation shall discriminate against a person who is a member of the registered organisation on the ground of the member's disability: (a) by denying or limiting the partner's access to any benefit

provided by the organisation; (b) by depriving the member of membership or varying the

terms of membership or,

(c) by subjecting the member to any other detriment. 6. Discrimination in Education. (1) No educational authority shall discriminate against a person on the ground of the person's disability: (a) by refusing or failing to accept the person's application for

admission as a student or, (b) in the terms or conditions on which it is prepared to admit

the person as a student. (2) No educational authority shall discriminate against a student on the ground of the student's disability: (a) by denying or limiting the partner's access to any benefit

provided by the educational authority;

(b) by expelling the student or, (c) by subjecting the student to any other detriment. (3) This section does not render it unlawful to discriminate against

a person on the ground of the person's disability in respect of

admission to an educational institution established wholly or

primarily for students who have a particular disability where the

person does not have that particular disability. 7. Discrimination in Access to public buildings. (1) No person shall discriminate against another person on the

ground of the other person's disability: (a) by refusing to allow the other person access to, or the use

of, any buildings or part of a building, that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not);

(b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such buildings;

(c) in relation to the provision of means of access to such buildings;

(d) by refusing to allow the other person the use of any facilities in

such buildings that the public or a section of the public is

entitled or allowed to use (whether for payment or not);


(e) in the terms or conditions on which the first-mentioned

person is prepared to allow the other person the use of any

such facilities or,

(f) by requiring the other person to leave such buildings or

cease to use such facilities. 8. Discrimination in the provision of Goods, services and facilities. (1) No person who, whether for payment or not, provides

goods or services, or makes facilities available shall discriminate against another person on the ground of the other person's disability: (a) by refusing to provide the other person with those goods or

services or to make those facilities available to the other person;

(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person or,

(c) in the manner in which the first-mentioned person provides

the other person with those goods or services or makes

those facilities available to the other person. 9. Discrimination in the provision of Accomodation. (1) No person shall discriminate against another person on the

ground of the other person's disability: (a) by refusing the other person's application for accomodation; (b) in the terms or conditions on which the accomodation is

offered to the other person or, (c) by deferring the other person's application for accomodation

or according to the other person a lower order of precedence

in any list of applicants for that accomodation. (2) No person shall discriminate against another person on the

ground of the other person's disability: (a) by denying or limiting the other person's access to any

benefit associated with accomodation occupied by the other person;

(b) by evicting the other person from accomodation occupied by the other person or,

(c) by subjecting the other person to any other detriment in

relation to accomodation occupied by the other person. 10. Discrimination in Land and properties. (1) No person shall discriminate against another person on the

ground of the other person's disability: (a) by refusing or failing to dispose of a land or property or

interest in land or property to the other person or, (b) in the terms or conditions on which a land or property or

interest in land or property is offered to the other person.


11. Discrimination in Sports and recreational activities. (1) No person shall discriminate against another person on the

ground of the other person's disability by excluding that other person from a sport or recreational activity.

(2) This section does not render unlawful discrimination against a person if:

(a) the person is not reasonably capable of performing the actions reasonably required in relation to the sports or recreational activity or,

(b) a sport activity is conducted only for persons who have a

particular disability and the first-mentioned person does

not have that disability. PART 3. DISCRIMINATION INVOLVING HARASSMENT 1. Harassment in employment. (1) No person shall, in relation to the disability, harass another

person who: (a) is an employee of that person and,

(b) has a disability. (2) No person shall, in relation to the disability,.harass another person who: (a) is an employee of a person by whom the.first-mentioned

person is employed and,

(b) has a disability. (3) No person shall, in relation to the disability, harass another

person who: (a) is seeking employment by the first-mentioned person or by

an employer of the first-mentioned person and,

(b) has a disability. 2. Harassment in education. No person who is a member of the staff of an educational institution shall, in relation to the disability, harass another person who: (a) is a student at that educational institution or is seeking

admission to that educational institution as a student and, (b) has a disability. PART 4. EXEMPTIONS. 1. Acts done under statutory authority. This Part does not render unlawful anything done by a person in direct compliance with: (a) a statutory authority; (b) an order of a court or a tribunal or,

(c) any law or regulation. (2) Infectious diseases. This Part does not render unlawful for a person to discriminate

against another person on the ground of the other person's disability if:

There is fear that

these exemptions

will nullify the

purpose of this Act.


(a) the person's disability is an infectious disease and, (b) the discrimination is reasonably necessary to protect public health. 3. Commission may grant exemptions. The Commission may, on application by an affected person, by

notification in writing grant an exemption from the operation of a

provision of Chapter iii Part 2 subject to such terms and conditions

as are specified in the notice. CHAPTER iii PERSONS WITH DISABILITIES COMMISSION. 1. Establishment of the Commission.

An independent body to be known as Commission For Persons

With Disabilities (elsewhere to be referred to as "the

Commission") shall be established for the purpose of this act. 2. Membership. The Commission shall comprise of the following members to be appointed by the Minister in the Prime Minister’s Department who is granted the sole task of promoting the rights and well-being of disabled persons: (a) a Chairman, who shall also be the Executive Chairman of

the Commission; (b) four persons to represent from the various relevant the

government departments and, (c) four persons of individuals with disabilities or representing

the organizations of persons with disabilities and the

composition of the Commission shall be such that the

interest of a cross-section of the disabled groups are

represented. A person shall not be qualified for the appointment as members of

the Commission unless he or she has substantial knowledge or

practical experience in respect of matters relating to rehabilitation or other aspects of disabilities. 3. Terms of office. Subject to the terms and conditions as stipulated in the letter of

appointment, a member of the Commission shall hold office for a

term not exceeding three years and shall be eligible for

reappointment. 4. Remuneration and other expenses. The Parliament shall allocate sufficient fund for remuneration of the members of the Commission and other expenses of the Commission. The Commission may develop its own procedures relating to its

general management and procedures in investigating complaints. 4A. Powers to delegate to committees at state and district levels.

They should not

“represent” the government but

instead act for

the benefit of the

disabled persons.


5. Functions of the Commission. • To exercise all the powers conferred on it by this Act. • To advise the Minister with respect to disability It is necessary to discrimination. and make recommendations to any ensure that the Minister to ensure compliance with this Act and Commission is promotion of the rights of disabled persons. accessible to all • Submit reports to the to the Parliament on the disabled persons implementation of the act. especially those in • Takes steps to safeguard the rights and facilities made rural areas and available to persons with disability. outside Kuala • To promote an understanding and acceptance of, and Lumpur.

compliance with, this Act. • To undertake research and educational programmes for the

purpose of promoting the objects of this Act. • To prepare, and to publish in such manner as the

Commission considers appropriate, guidelines for the avoidance of discrimination on the ground of disability.

The Executive Chairman of the Commission shall co-ordinate the work of the Commission and shall be responsible to the day to day running of the Commission. The other members shall discharge of their functions under the general superintendence of the Executive Chairman. 6. Commission to look in to complaints. Without prejudice to the foregoing, the Commission may, of its own motion or on the application of any aggrieved person or of

any person acting on behalf of any aggrieved person, look in to

complaints with respect to matters relating to: • deprivation of rights of persons with disability; • non-implementation of laws, rules, bye-laws, regulations,

executive orders, guidelines, or instructions made or issued by relevant authorities, institutions, corporate bodies and non-governmental organizations for the welfare well-being and protection of rights for persons with disability;

• and take up the matter with the appropriate authorities or

bodies. 7. Commission to investigate. For the purpose of discharging their functions of enquiries and investigations under this act, the Commission shall have the same powers as are vested in a court under the Courts of Judicature act in respect of the following matters: • Summoning and enforcing the attendance of witnesses;

• Requiring the discovery and production of any document; • Requisitioning any public record or copy thereof from any

court or office; • Receiving evidence on affidavit.


8. Prosecution. It is important to

After due investigation, if in the opinion of the Commission there is ensure that the

a violation of any provision of this act, the Commission may take Com. has enough

up shall refer the matter to the relevant prosecuting authority A- powers to carry out

G’s Office for prosecution purposes. its functions and to

make this Act

meaningful and

effective.

CHAPTER iv

OFFENCES. Besides penalties

(to be formulated in consultation with the Attorney-General office).

and punishments

PREPARED BY, including those

against government

departments that

infringe this Act,

(Mah Hassan Haji Omar) provisions should be

Chairman made for the

TWG On Legislation, NACCD. payment of

President, Society of the Blind Malaysia. compensation and

damages to the

Date: 16 September 2002 aggrieved persons.

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