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The Malaysian Bar is deeply concerned that Persons with Disabilities (“PwD”) (Orang Kurang Upaya, “OKU”) are still being discriminated against. PwDs are still facing discrimination in education, health, employment, financial services, physical and digital accessibility, sports, and political participation.
Article 8(2) of the Federal Constitution (“FC”) does not provide explicit prohibition of discrimination against disability. Article 8(2), inter alia, provides that there shall be no discrimination on the basis of religion, race, descent, place of birth or gender “except as expressly authorized by the Constitution.”
Article 8 is also the basis of the fundamental right to education in Article 12(1) of the FC, as follows:
“12. (1) Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth—
(a) in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or
(b) in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution (whether or not maintained by a public authority and whether within or outside the Federation).”
Malaysia ratified the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”) in July 2010. To date (May 2024), 14 years have elapsed without Malaysia harmonising any domestic legislation with the CRPD. Harmonisation must start with the FC and the Persons with Disabilities Act 2008, and must continue with other legislation covering all aspects of every citizen’s life.
The FC — as the supreme legislation of the nation — has to be harmonised with the CRPD. As it stands, the FC does not cite disability as a ground for prohibition of discrimination, and is thus not aligned with the CRPD. In summary, it does not uphold and protect the rights of a vulnerable and growing section of society. For 67 years since Merdeka, PwDs have continuously been overlooked.
According to the 2022 World Health Organization’s estimate, PwDs are 16% of the population. As at 29 February 2024, 2.1% of the Malaysian population are holders of OKU cards issued by the Department of Social Welfare (Jabatan Kebajikan Masyarakat). Malaysia has become an ageing nation, with 11.3% of the total population aged 60 and above.1 This would be a contributing factor to the increase of PwDs in Malaysia in the near future.
Failure to uphold the rights and social protection of PwDs in Malaysia is inconsistent with the nation’s international legally-binding obligations under the CRPD. PwDs continue to face laws that embody discriminatory attitudes, policies, and practices; and face marginalisation in education, employment, health, access to goods and services (including financial products and services), housing, public transport, digital accessibility and communications, and sports.
By omitting a specific guarantee of equality and non-discrimination on the basis of disability, the FC, as it stands, perpetuates marginalisation. That omission undermines the dignity and equality of Malaysians with disabilities.
The concept of equal protection of the law means effective protection against laws that discriminate on the basis of disability. This means that a person who is discriminated against must have a remedy through the law. Such protection includes the opportunity to have discriminatory legislation declared null and void. This is only possible if the guarantee of equality and non-discrimination on the ground of disability is included in the FC. With that, any Malaysian would have the right to file a constitutional challenge in court.
The Malaysian Bar therefore calls on the Government to urgently amend Articles 8(2) and 12(1) of the FC to ensure that it accords explicit protection of rights to PwDs. The proposed amendment (underlined and in bold) is to include the word “disability” in both Articles 8(2) and 12(1), as follows:
Equality
8. (1) All persons are equal before the law and entitled to the equal protection of the law.
(2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth, disability or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.
Rights in respect of education
12. (1) Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent, disabilityor place of birth—
(a) in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or
(b) in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution (whether or not maintained by a public authority and whether within or outside the Federation).
The proposed amendments will pave the way for Malaysia’s long-overdue progress on harmonisation of domestic legislation with the CRPD. To ensure these important legislative amendments are executed, the Bar Council has set up an Ad Hoc Committee on Persons with Disabilities and appointed Meera Samanther and Anit Kaur Randhawa as its Co-Chairpersons. The Malaysian Bar is committed to upholding PwD rights in the nation.
Mohamad Ezri b Abdul Wahab
President
Malaysian Bar
8 May 2024
1 Department of Statistics Malaysia, 2nd Quarter Report, 2023.