The following was presented by James Low Hong Ping at a forum organised by the Kuala Lumpur Bar Committee Gender Equality and Diversity Committee on 15 October 2018. The forum was titled “Reaching Beyond Boundaries: Transcending Disability.”
James Low is currently a part time tutor of Constitutional Law at Faculty of Law, University of Malaya. He was formerly a committee member of WeCareJourney and has SMA Type 2.
The Federal Constitution of Malaysia and Disability
The Federal Constitution (“Constitution”) is the supreme law of Malaysia and any law which is inconsistent with the Constitution is void to the extent of the inconsistency.14 In other words, the Constitution is the highest law in Malaysia and any other law which is against the Constitution is invalid or unconstitutional.
Part II of the Constitution lists the fundamental liberties accorded to citizens of Malaysia or all persons. If any law restricts the fundamental liberties enshrined under Part II beyond the restrictions permitted by the Constitution, the law is invalid or unconstitutional.
Among the fundamental liberties housed under Part II, art 8(1) of the Constitution provides that “All persons are equal before the law and entitled to the equal protection of the law.” art 8(2) then prohibits discrimination on certain grounds unless sanctioned by the Constitution. Among the grounds, however, disability is not one of them.
Nonetheless, the principle of equality and the protection of equality before the law accorded by art 8(1) is all-encompassing. Although art 8(2) may not provide shelter to discriminated persons with disabilities, art 8(1) is open to all persons who seek refuge from inequality.
Even if our Constitution does not expressly protect our rights, legislation serves as an important role.15 The principal legislation on our rights is the Persons with Disabilities Act 2008.
The Persons with Disabilities Act 2008
The Persons with Disabilities Act 2008 (“PWD Act”) came into force on 7 July 2008.16 The PWD Act consists of five parts and 46 sections. The parts are: (1) Preliminary, (2) National Council for Persons with Disabilities, (3) Appointment of Registrar General, et cetera, and Registration of Persons with Disabilities, (4) Promotion and Development of the Quality of Life and Well-Being of Persons with Disabilities, and (5) General.
Particular mention should be made of Part IV of the PWD Act. This Part lays down the rights of persons with disabilities: Chapter 1 on Accessibility, Chapter 2 on Habilitation and Rehabilitation, Chapter 3 on Health, Chapter 4 on Protection of Persons with Severe Disabilities and Chapter 5 on Situations of Risk and Humanitarian Emergencies. Although the provisions in this Part lay down the rights, there are several issues with the PWD Act being a rights-based legislation:
1. The provisions in Part IV fall short of being offences if the rights are violated. The Human Rights Commission of Malaysia (SUHAKAM) submitted that it is important for the legislation to make discrimination of a person’s disability an offence.17
2. The PWD Act does not provide for an enforcement mechanism against those who discriminate against or fail to provide amenities for persons with disabilities.18
3. ss 41 and 42 of the PWD Act become the shield for any legal proceedings against the Government. Ikmal Hisham has 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.19
An example of unlawful disability discrimination can be found in Hong Kong. s 38 of the Disability Discrimination Ordinance (“DDO”) provides that it is unlawful for a person who provides goods, services or facilities to harass another person with a disability who wants to acquire the goods or services or make use of the facilities.
In the same Ordinance, s 2(6) explains that a person harasses another person if the former engages in unwelcome conduct (which may include an oral or written statement) on account of the person’s disability in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person would be offended, humiliated or intimidated by that conduct.
With respect to enforcement, the Hong Kong’s Equal Opportunities Commission (“Commission”) shall encourage persons who are concerned with the matter to which the act relates to effect a settlement of the matter by conciliation.20 In this regard, the Commission possesses the power to conduct formal investigations,21 power to obtain information22 and may make recommendations and reports on the formal investigations.23
Notwithstanding the conciliatory interference by the Commission, the DDO provides that discriminated persons may initiate civil proceedings in like manner as any other claim in tort.24 If liability is established, the court may various orders, including declarations of unlawful conduct, orders to perform acts to redress any loss or damage and general, punitive or exemplary damages.25
A case from Hong Kong that is worth examining is Ma Bik Yung v Ko Chuen.26 The plaintiff was on a wheelchair and intended to get into the taxi that the defendant was driving. However, the defendant was unwelcome towards and unwilling to help the plaintiff; the taxi driver refused to assist the plaintiff into the car, reluctant to put the wheelchair into the boot and made rude and offensive remarks while they were on the journey.
The District Court held that the defendant’s act amounted to harassment and ordered the defendant to give a written apology and pay damages. However, the Court of Appeal quashed the District Court’s order of an apology from the defendant and the Court of Final Appeal affirmed the quashing.27
The lack of offences and the absence of an enforcement mechanism in the PWD Act reflect serious doubts as to whether the Government is committed in pursuing and advancing the rights of persons with disabilities.28
The Committee on the Rights of Persons with Disabilities33 has found that albinism falls into the definition of persons with disabilities provided by Article 1 of the CRPD. In arriving at its conclusion, the Committee noted that “a human rights-based model of disability requires that the diversity of persons with disabilities… and the interaction between persons with impairments and attitudinal and environmental barriers… be taken into account.”34
The Committee's opinion was made based on paragraphs (i) and (e) of the Preamble of the CRPD, which respectively recognise the diversity of persons with disabilities and that disability is an evolving concept. Interestingly, the PWD Act also recognises that disability is an evolving concept in its Preamble.35
Hence, the PWD Act, specifically the basic human right of the access to health, applies to persons with rare diseases. This follows that persons with rare diseases have the right to the enjoyment of health on an equal basis with persons without disabilities36 and the Government and the private healthcare service provider shall make essential health services available to persons with rare diseases, including genetic counselling, early detection of disabilities, timely intervention to arrest disabilities and treatment for rehabilitation.37
The Government is therefore urged to follow through on its promise prior to 14th General Election to increase the budget allocations and provide incentives to tackle rare diseases. In this regard, the Government has a public and constitutional duty and responsibility to fulfil this promise as access to health is a basic human right provided in the PWD Act.
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