The Human Rights Committee (“HRC”) refers to the shocking revelation of the deplorable and inhumane living conditions of Taman Sinar Harapan Kuala Kubu Baru, a government-run shelter for the mentally disabled reported in The Star on 5 July 2009.
It is in the interest of all citizens of Malaysia to see that the rights of everyone to live with dignity and to pursue their economic, social and cultural development are recognised. Persons with mental and physical disabilities certainly deserve no less than the rest of us in society.
However, regrettably, the truth is that these vulnerable groups are more often than not being denied their equal opportunity to avail themselves of the full range of economic, social and cultural rights enjoyed by every one of us. The HRC therefore strongly urges the government of Malaysia that the time is now ripe for us to ratify the International Covenant on Economic, Social and Cultural Rights (“ICESCR”).
Article 12 of the ICESCR encapsulates the right of every human being to enjoy the highest attainable standard of physical and mental health conducive to living a life in dignity. Article 2(2) of the ICESCR calls on State Parties to ensure that the rights enunciated in the ICESCR will be exercisable without discrimination. Although the ICESCR does not refer explicitly to persons with disabilities, the Universal Declaration of Human Rights recognises that all human beings are born free and equal in dignity and rights.
Since the ICESCR's provisions apply fully to all members of society, persons with disabilities are therefore clearly entitled to the same full range of rights recognised in the ICESCR. Thus, despite being mentally disabled, there is no doubt whatsoever that the residents of Taman Sinar Harapan Kuala Kubu Baru are entitled to enjoyment of the highest attainable standard of health.
Article 12 of the ICESCR covers the underlying preconditions necessary for health. “The highest attainable standard of physical and mental health" is not confined only to the right to health care. The express wording of Article 12(2) acknowledges that the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life. It extends to the underlying determinants of health, such as food and nutrition, access to safe and potable water, adequate sanitation and a healthy environment. Looking at the scenes reported, our government has clearly breached its duty to respect, protect and fulfil the rights of those vulnerable residents in Taman Sinar Harapan Kuala Kubu Baru to the highest attainable standard of health.
The right to health is also closely related to torture, cruel, inhuman and degrading treatments, the prohibitions against which are enshrined in Article 7 of the International Covenant on Civil and Political Rights. We strongly condemn the fact that some of the residents are being treated in an animalistic way by chaining and caging them and leaving them in a state of stark nudity. Such inhumane treatment purportedly to prevent them from hurting themselves cannot be justified under international law. Universal principles of equality necessarily demand that they are to be treated no differently from any one of us. Despite their mental ability, certainly they too deserve their right to human dignity no less than us.
One of the critical components within the philosophy of the right to health is its realisation. Whilst the Government has recognised the needs of persons with disabilities through domestic legislation – Persons with Disabilities Act 2008 (“PWDA”) - there must be an effective check-and-balance to fulfil the standard of care towards this vulnerable group in society.
It is therefore critical for the government to take effective measures to the maximum extent of its available resources to hold itself accountable for their minimum core obligations under the ICESCR. Sufficient financial resources must be allocated to the relevant agencies to facilitate the smooth discharge of their duties. Members from the relevant Ministries which constitute the National Council for Persons with Disabilities established under the PWDA must diligently execute their duties and responsibilities fairly and effectively in ensuring the welfare of persons with disabilities by both devising and implementing national and local policies to promote awareness of the public regarding this vulnerable group in society.
The PWDA imposes an obligation on the National Council, private healthcare service providers and non-governmental organisations to assist in taking appropriate measures to ensure the habilitation and rehabilitation services of persons with disabilities. The government must also ensure that the Ministry of Women, Family and Community Development and the Health Ministry have at all times complied with the basic standard of care. This means providing residents with proper individual periodic medical examination and psychiatric and medical care, effective monitoring of the living condition of shelters provided for disabled persons such as food and sanitation. It must include up-to-date research and documentation so as to maintain and improve the living conditions in those shelters.
The HRC acknowledges that this is a long-term commitment requiring the full participation, devoted attention and consistent cooperation of every citizen ranging from government to civil society to members of the public. Our society ought to shift from the current welfare-based approach to a rights-based approach. Much remains to be done to fulfil the needs of disabled persons rather than simply to regard them as objects of charitable giving. This can be achieved if only we are willing to commit ourselves to recognising their inherent human self-worth and providing them with a dignified living environment to carry on their self-determined journey of life.
Dated this 23rd day of July 2009
Human Rights Committee
Bar Council
Committees 
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