The Harapan OKU Law Reform Group (Harapan OKU) is calling for amendments to the Federal Constitution and the PWD Act 2008 to protect and prevent discrimination against persons with disabilities (PWD).
“PWDs make up 15% of the Malaysian population. Together with their families, care partners, allies, volunteers and professionals in disability services, it’s 30%,” says Harapan OKU Law Reform Group member Meera Samanther.
“They make up a sizeable part – nearly one third – of society and their needs should be addressed,” says Samanther, who is a parent advocate on disability issues and also speaks on behalf of the PWD community.
In July 2010, Malaysia ratified the Convention on the Rights of Persons with Disabilities (CRPD). But since then, the domestic legislation has not been harmonised with the CRPD, she highlights.
The Law Reform Group has looked over the review of the PWD Act 2008 and identified certain inconsistencies.
“Firstly, no rules and regulations have been developed for the implementation of the PWD Act, and nothing has been done by the Women, Family and Community Development Ministry or by the National Council established under the Act.
“Secondly, there is no mechanism for enforcement of the PWD Act 2008.
“Currently, disability is handled by a department within another department in the ministry.
“Within the Social Welfare Department, disability is treated as an anak tiri (stepchild)... it seems to be given less importance,” says Samanther.
She highlights the need for there to be harmonisation of the Domestic Legislation with the CRPD (CRPD Art. 33).
“Article 8 (2) of the Federal Constitution doesn’t prohibit discrimination against PWDs and it’s time for this House to expressly prohibit discrimination on the grounds of disability in Article 8(2) of the Federal Constitution,” she says.
Course of action
The Law Reform Group proposes the following course of action: Update the definition of disability to include persons with dementia and other such disabilities, rare diseases, psychosocial disabilities, neuro-diversity, and temporary disabilities; and include definitions of discrimination and harassment.
It also calls for the establishment of remedies for PWDs affected by discrimination and/or harassment, penalties for non-compliance with the Act, rules and regulations for implementation of the PWD Act and CRPD and mechanisms for enforcement of the rights of PWDs, including a tribunal system to address grievances and handle infringement on the rights of PWDs.
The group is also calling for an independent Disability Commission to be established.
The Disability Commission must have the power to mainstream disability issues.
It must investigate disability issues and provide legal advice, compel any person to appear before it and produce any document regarding disability-related issues in an enquiry initiated by the Commissioner, initiate action relating to non-compliance with the Act and intervene where necessary in legal suits concerning disability issues, initiate action relating to discrimination against persons with disabilities, raise issues concerning PWDs and submit an annual report to parliament for review and debate.
The Law Reform Group says that domestic legislation must cover all sectors, including education, communications and multimedia, health, human resources development, employment and self- employment, access to financial services, housing and local government, works, transport, finance, and domestic trade and consumer affairs, in line with the CRPD.
Beyond this, they urge the government to develop and implement rules to uphold and protect the rights of persons with disabilities and address discrimination and harassment experienced by PWDs and their families or caregivers.
The government announced in 2019 that a task force would be established to reform the PWD Act 2008. But to date, no task force has been set up, highlights Samanther.
“Malaysia has not ratified the Optional Protocol to the CRPD.
“Following ratification of the CRPD (July 2010), Malaysia must meet its international obligation, to submit its initial report, which has been pending since 2012, to the Committee on the Rights of Persons with Disabilities,” she says.
PWDs must have access to justice and there must be disability inclusion in the criminal justice system, says Samanther.
“The Malaysian police force (PDRM) made a promising start by adopting the Autisme Garis Panduan Polis Diraja Malaysia.
“But PDRM needs to develop regulations and rules to implement this and systematically conduct training on its implementation and enforcement,” she says.
Samanther says that the Law Reform Group is keen to work with PDRM and disability civil society organisations, to develop SOPs, conduct disability–inclusive training programmes and develop similar guidelines and SOPs for other disability groups.
The SOPs must provide disability-sensitive support for all PWDs to cover all possible roles that PWDs might play in the criminal justice system.
And, all SOPs must be followed in the case of any PWD who is subjected to the criminal justice system in any capacity – as legal counsel, as a judicial officer, or as a victim, accused, suspect or witness.
PWDs are particularly vulnerable when they are victims and have limited or no means to articulate their issues.
Infrastructural and communications concernsPWDs, especially those who are mobility-impaired and the blind, face many issues with accessibility in the areas of infrastructure.
“Even though the PWD Act 2008 states that buildings must be accessible to PWDs, this isn’t implemented and currently, there aren’t any penalties issued for non-compliance,” says Samanther.
“Local authorities must enforce the implementation of the Street, Drainage and Building Act 1974 Act 133, for accessibility of all public infrastructure, including transport,” she says.
PWDs, especially the blind, have limited digital accessibility.
“The Malaysian Income Tax Department (LHDN) website is accessible to blind persons who can easily file their tax online. However, other government websites are not and need to be updated to be accessible to all PWDs,” says Samanther.
“This is vital, especially as witnessed during the Covid-19 pandemic when society became increasingly digitalised. Commercial, financial and government transactions and services are conducted online, causing those who aren’t or don’t have access to be at a disadvantage,” she says.
“Internet WiFi coverage needs to be expanded to cover remote and rural areas in the country and Internet packages must be affordable to B40 and M40 households and their disabled family members,” she adds.
Education and healthcare
There needs a support system for deaf persons and persons with hearing loss, especially in the areas of education (CRPD Act 24), highlights Samanther.
Since 2021 when the Ministry of Higher Education introduced the Mesra-OKU initiative, disabled students have only been allowed to apply for courses tagged "Mesra-OKU" in the UPU system (a centralised platform that manages the application process to public institutions of higher learning in Malaysia).
This limits them to community colleges and polytechnics where they can only choose from two diploma courses and 10 vocational training courses.
Such a practice is clearly discriminatory and goes against the United Nations CRPD and PWD Act 2008 on access to education, says Samanther.
But, through the intervention of Senator Datuk Ras Adiba Radzi's Education Task Force comprising academics from several local universities and the Legal Reform Group, qualifying PWDs can now select from 237 courses in public universities.
“We commend the Higher Education Ministry in rectifying the Portal Rasmi Bahagian Kemasukan Pelajar Institut Pengajian Tinggi Awam and in time for 2021-2022 academic year.
Samanther highlights that while the national policy on inclusive education has improved via the government’s zero reject policy, in reality, segregation still occurs and children with disabilities and their families experience many obstacles.
“Inclusive education must start at preschool level and not primary school level only. Universal Design for Learning is not a reality in classrooms: physical access is poor,” she says.
Information and Communications Technology (ICT) access such as teacher aides (teachers trained in special needs), infrastructure (Braille equipped facilities) and digital aides (digital devices for a non-verbal person to communicate) are not readily available in government schools.
“While wealthy parents have the option of using private services such as expensive tuition, this is beyond the means of most families, especially the B40s and M40s,” says Samanther.
Such services are also very limited in rural, remote and under-served urban communities, with some indigenous communities having no access, she adds.
Despite government measures to improve the employment of PWDs, including the 1% employment quota scheme, and engaging (via the Ministry of Human Resources and the Social Security Organisation) the cooperation of the private sector, large numbers of PWDs are still not gainfully employed.
“Many university graduates with disabilities are jobless years after graduation, despite continuous attempts to seek employment,” highlights Samanther.
To resolve this, several courses of action are recommended, such as the training and job coaching for more PWDs in skills that meet evolving labour market needs.
There should also be disability inclusion awareness raising with incentives for civil service heads of departments to encourage hiring, retaining and accommodating employees with disabilities and comprehensive policies, financial and tax initiatives for the private sector to support employees with disabilities.
When PWDs have chronic illnesses, they are often isolated, have limited access to health services, and their livelihoods impacted, says Samanther.
“The pandemic has highlighted that PWDs have been further disabled by a healthcare system that is ill-prepared for disability inclusion, especially under crisis conditions,” she says.
“Meeting the healthcare, habilitation and rehabilitation needs of PWDs and their families shouldn’t be an afterthought. SOPs and resource allocations are necessary to ensure regular, uninterrupted provision of healthcare to PWDs and support for caregivers,” says Samanther.