Despite the Persons with Disabilities Act 2008, the disabled in Malaysia are still discriminated against in many areas. Photo: Freepik
When Samad* (not his real name) contacted a bank for a housing loan, the officers were initially receptive, but his application was rejected after the bank discovered that he was blind.
“My disability isn’t a valid reason for the bank to turn down my application and this is blatant discrimination,” says Samad, who works as a lecturer and is financially capable of servicing the loan.
And then there is Chan*, who has a bachelor’s and a master’s degree and has been working with the Health Ministry as a psychology officer since 2020, at a clinic in Penang.
Despite his education and work capabilities, when Chan applied for a permanent position through the Public Services Commission (PSC), his application was denied. Chan has level one autism spectrum disorder (ASD) which “requires support” without any intellectual impairment.
“I passed the psychometric test and made it to the final stage of the interview. But I have an OKU card and declared my disability on the PSC website. My application for a permanent position was denied, twice,” says the 31-year-old.
He said he was later informed that the rejection was due to his disability.
This is unfair, says Chan, adding that his condition has never interfered with his job.
“In fact, being disabled has made me a better counsellor because I’m able to empathise with my patients’ conditions and difficulties. And being from the B40 community helps me resonate with my patients’ struggles as most of them are from this demographic too,” he adds.
“I really want to contribute to society and I’m able to do so in my current position. Through the Ministry, I can reach out and serve the underprivileged and help ensure they have access to affordable mental health services,” he explains.
It is with all these issues in mind that the Bar Council is advocating for the word “disability” to be included in Articles 8 (2) and 12 (1) of the Federal Constitution.
Although there is a Persons with Disabilities Act 2008, the disabled in Malaysia continue to be discriminated against in many areas, including education, employment and financial services.
Unless the word 'disabled' is included in Articles 8 (2) and 12 (1), the disabled in Malaysia will continue to be discriminated and not given 'reasonable accommodation'. Photo: Pixabay
The organisation has a long list of outstanding issues that need to be addressed: The definition of disability must permit the rights of other disability groups (it is only recently that other diseases such as dementia, psychological disabilities and temporary disabilities are recognised); discrimination and harassment need to be defined and penalties must be introduced for non-compliance; remedies must be included and a Tribunal must be established to handle infringements; ouster clauses of the Act that prevent and protect public officers from being sued for discrimination should be removed; and a critical phrase “on an equal basis with others” should be introduced throughout the Act, where appropriate.
“Article 8 (2) of the Federal Constitution does not provide explicit prohibition of discrimination against disability. It states there shall be ‘no discrimination on the basis of religion, race, descent, place of birth or gender’ but the word ‘disability’ is missing.
“As such, existing legislation is insufficient to protect PWDs from discrimination,” says Association of Women Lawyers committee member and parent advocate for PWDs, Meera Samanther.
The word “disability” is also missing from Article 12 (1), which refers to the rights of all Malaysians to an education, and this results in disabled students being discriminated against and not given reasonable accommodation for proper education, says AWL committee member Anit Kaur Randhawa.
Meera says disability shouldn’t be welfare-based, but rights-based.Despite their achievements and abilities, many PWDs in Malaysia face discrimination, highlights Meera.
An example is 19-year-old Hema*, a straight-A student who applied for a spot in university through the University Central Unit (UPU) in 2021.
Due to an illness, she uses a wheelchair and holds an OKU card. When she declared her status as a person with disability (PWD), the system automatically limited her choices to two diploma and 20 certificate courses under its Mesra OKU programme.
“It was extremely upsetting. Because of my PWD status, my study options were limited to only vocational courses even though I obtained 9As for my SPM and have no issues with learning,” says Hema.
But through the advocacy of many groups and a meeting with the Minister of Higher Education (MOHE), the discrimination was highlighted. The Mesra OKU status was removed from her application and Hema was then able to apply to 275 institutions of higher learning.
“The Malaysian Bar is concerned that PWDs are being treated unfairly. There are cases of the disabled being discriminated in education, health, employment, financial services, physical and digital accessibility, sports and political participation,” says Meera, who also co-chairs Harapan OKU Law Reform Group, which is the Bar Council’s ad-hoc committee to advocate the rights of PWDs.
“Furthermore, to access justice, PWDs face multiple barriers, including the lack of professional Malaysian Sign Language (BIM) interpreters, physical inaccessibility of courts, and non-adherence to web content accessibility guidelines in the court electronic filing system,” she says.
According to the World Health Organisation (WHO), in 2022, approximately 16% of the world’s population, or one billion people, live with some form of disability. The types and severity vary widely, from physical impairment to sensory, intellectual and mental health conditions.
As at February 2024, 2.1% of the Malaysian population hold the OKU card issued by the Social Welfare Department.
“The PWD Act 2008 was enacted before the International Convention on the Rights of Persons with Disabilities (CRPD) – which sets out the fundamental human rights of people with disability – was ratified in 2010. It is a rights-based document with no penalties or redress mechanisms for non-compliance and as a result, PWDs are not protected against discrimination,” she says.
Currently, disability issues come under the purview of the Women, Family and Community Development Ministry. It is handled by the Disabled Development Department (JPPWD) under the Social Welfare Department.
But Meera maintains disability shouldn’t be welfare-based, but rights-based, adding that PWDs should be given the same rights as other people.
Anit says even though there is special education in Malaysia, it’s on a one-size-fits-all programme, which isn’t effective.
Harapan OKU Law Reform Group co-chair Anit highlights that even though there are special education classes in Malaysia, it’s a one-size-fits-all programme, which isn’t effective.
“Article 28 of Persons with Disabilities Act 2008 states that special needs children must be given the necessary support to facilitate their full and equal participation in education.
“Often, children with varying disabilities – physical or learning – are placed in one class. They are given access to education but their needs are not always accommodated so it’s difficult for them to reach their full potential.
“There are mildly-disabled children who can, with some reasonable accommodation, adjust to the mainstream syllabus because they have no issues intellectually and can learn like other children,” she says.
“This segmentation limits their education and career choices for their entire life,” she says.
Anit adds that neuro-divergent students should be included too.
“There should be reasonable accommodation provided by schools for these students to assimilate. Some can learn, but perhaps they need extra time, or a quiet room away from bright lights, to do the same exercises because they might have focus issues or get easily distracted,” she explains.
According to Anit, this practice is normal in certain developed countries.
“The vice chancellor of the University of Bristol told me over 10% of those who applied declared themselves as having some form of disability. And more girls discover they have an undiagnosed disability when they are in university. The university has at least 100 individualised exams every year, to provide reasonable accommodation to these students.”
Meera says in some buildings, ramps are so steep that it can be dangerous for PWDs and their caregivers. Photo: Pixabay
Even in employment, if someone becomes disabled due to an accident and needs a ramp or a special chair to support their spinal injury, employers should provide reasonable accomodation according to their financial capacity. If they refuse, they have denied the PWD access to employment, says Meera.
Not providing or denying “reasonable accommodation” in education or employment, is discrimination, she emphasises.
The employment rate of PWDs remains low, with only 0.5% of employees in the civil service made up of PWDs as at April 2024. Despite the government’s efforts, the target of 1% hasn’t been achieved.
They are also segregated in sheltered workshops, which provide living skills and recreational activities, but the CRPD doesn’t encourage this because it excludes PWDs from mainstream employment.
“The disabled are being limited. While some PWDs can’t get into the labour market, there are many who can, so it’s unfair to limit them,” says Anit.
But PWDs aren’t just discriminated by employers in employment but also during hiring, Anit adds.
“As soon as an employer knows the potential employee has a disability, they aren’t offered the job. There are unconscious biases against the disabled. ‘Reasonable accommodation’ isn’t provided so that the PWD has access to employment.”
Physical environment, cultural attitudes and institutional barriers hinder the participation of PWDs in society. Photo: FreepikLegal reforms may be only part of the solution to help PWDs, but they must in place because the impairment of an individual is not the problem that needs to be fixed.
According to Meera, disability is “a result of the interaction between an individual with an impairment and the environment”.
“It’s not the individual’s impairment which is the problem; it’s the environment and attitudes of the society that need to be fixed.
This includes physical environment, cultural attitudes and institutional barriers which hinder the participation of PWDs equally with others,” she explains.
“If there is access to the environment, then PWDs are able to live like any other person, irrespective of what impairment they have.
“For example, blind persons who have access to a Screen Reader can read on their phones or computers; and deaf persons can ‘hear’ using BIM or captions.”
“In schools, students who are physically disabled can be placed in a classroom on the ground floor. This ‘reasonable accommodation’ will ensure they can thrive in that environment,” she explains.
If there is access to the environment, PWDs are able to live like any other person, irrespective of what impairment they have. For example, deaf persons can ‘hear’ using BIM or captions. Photo: Freepik
To date, physical accessibility is still a problem for PWDs, adds Meera.
“Although this is stated as a right in the PWD Act, it’s not mandatory to implement minimum standards and universal design as stated in the bylaw Sec 34 (A) of the Uniform Building Bylaws UBBL 1984.
“Architects should design with these standards and old buildings should be made accessible to the disabled.
For example, there are lifts and escalators to get to higher floors, but if there is no ramp, just stairs, it is still not accessible for them,” she says.
“In some buildings, ramps are so steep that it’s not designed with consideration of PWDs’ needs. This can be dangerous for PWDs and their caregivers,” she adds.
Other facilities for PWDs are often misused or inaccessible, says Anit.
“Although special toilets are provided for them, they are often misused by non-PWDs or made into storage areas,” she says.
Meera says that it is timely to advocate for PWDs because the Malaysian population is ageing and in the future, more people will be having some form of disability.
“With 7.2% of the population over 65 years old in 2022 – an increase from 7% in 2021 – Malaysia is facing the prospect of an ageing nation. And with the rise of age-related illnesses and mental disorders, there’s a reasonable possibility that those who aren’t disabled now may be so in the future, because as people grow older, they might develop some form of incapacity.
“So it’s really not about ‘us’ advocating for ‘them’; this is about advocating for PWDs for ‘all of us’,” she concludes.
