Assalamualaikum and good morning to everyone
YBhg Professor Dato' Noor Aziah binti Hj Mohd Awal, Child Commissioner, Human Rights Commission of Malaysia (SUHAKAM);
Mr AG Kalidas, Chairperson of the Bar Council Civil and Law Reform Committee;
Our panel of eminent speakers:
Ms Helen LM Chin, Committee member of Civil Law and Law Reform Committee;Mr Francis Johen Anak Adam, Hon Secretary of Sarawak Cheshire Home;Dr Pang Jee Cheng, Lecturer (Special and Inclusive Education), SEGI University;Mr Pathmanathan Nalasamy, Senior Principal Assistant Director, Department for the Development of Persons with Disabilities;
Ladies and Gentlemen;
It is my pleasure to see so many important and valued stakeholders present today for this morning's Public Forum titled "One Decade Later: A Review of the Persons with Disabilities Act 2008", organised by the Bar Council Civil Law and Law Reform Committee.
The Malaysian Bar has been a consistent and proactive advocate for the rights of persons with disabilities in fulfilment of the Malaysian Bar's rule of law mandate, Section 42(a) of the Legal Profession Act 1976, which obligates the Malaysian Bar "to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour". In addition, Section 42(g) of the Legal Profession Act requires us "to protect and assist the public in all matters touching ancillary or incidental to the law".
Article 8 of the Federal Constitution, the supreme law of the land, assures all persons of equality and equal protection before the law. It is trite to say, yet it is imperative to state that as equal members of this nation, persons with disabilities must not be excluded from the guarantee of constitutional rights that we hold so dear.
I recall the words of Hubert Humphrey, who was Vice President of the United States of America from 1965 to 1969, who spoke of the treatment of the weakest members of society as a reflection of its government. He said,
"The moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; those who are in the shadows of life; the sick, the needy and the handicapped."
A watershed moment for us, in the recognition of the rights of persons with disabilities, was when Malaysia signed the United Nations Convention on the Rights of Persons with Disabilities ("the Convention") on 8 April 2008, and proceeded to ratify it on 19 July 2010. Malaysia stated in its declaration to the United Nations that,
"Malaysia acknowledges that the principles of non–discrimination and equality of opportunity as provided in articles 3(b), 3(e) and 5(2) of the said Convention are vital in ensuring full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity, which shall be applied and interpreted on the basis of disability and on equal basis with others."
The Convention was implemented in Malaysia via the Persons with Disabilities Act 2008 ("PWD Act"). The PWD Act, which came into force on 7 July 2008, was the next significant step forward for the rights of persons with disabilities in this country. However, the PWD Act is neither comprehensive nor inclusive enough as it only incorporates selected objectives of the Convention, and its relatively narrow language does not adopt the full spirit and intent of the Convention, which calls for governments to take steps to "ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability".
It is thus disappointing, but not surprising, that although over a decade has passed since the PWD Act came into force, persons with disabilities continue to face significant challenges in exercising their basic rights despite the constitutional guarantee and Malaysia's international obligations, the PWD Act notwithstanding.
The number of disabled persons registered with the Welfare Department is 540,986 persons as reported in the Star Online on 26 June 2019. The report stated that 37% were persons with physical disabilities, 33% were persons with learning disabilities and 8% were persons with visual impairments. The proportion of disabled persons in Malaysia could be as high as 15% of the population based on the World Bank's statistics as stated in its website on Disability Inclusion.
There is therefore an urgent need for legislative and institutional reform to realise the principles of non–discrimination and equality of opportunity in the lives of persons with disabilities, both currently and in preparation for the future. The Malaysian Bar holds the position that the review of the PWD Act should be with the aim of ensuring its effectiveness towards achieving the objectives of providing rehabilitation, self–development and self–reliance of persons with disabilities, and to enable their integration into mainstream society.
This was the thrust of the submission on the PWD Act made by the Malaysian Bar to the Institutional Reforms Committee ("the Committee") set up by the new Government after the 14th General Elections.
We highlighted to the Committee that the PWD Act does not have any specific provisions that prohibit the discrimination against disabled persons. The language of the PWD Act appears to merely advise the authorities to consider persons with disabilities instead of upholding the inherent and constitutional rights of persons with disabilities, with the usage of words like "merayu" and "meminta izin". Thus, the PWD Act appears to be merely advisory in nature and not binding.
We also highlighted to the Committee that there is no provision for judicial remedies or penalties contained in the PWD Act. With no penalties for any party who fails to comply with the PWD Act, the PWD Act therefore lacks bite. The result is that persons with disabilities have little to no legal recourse when they face discrimination in areas such as access to public transport, housing, education, employment and health care, leaving them more vulnerable. Their very ability to meet basic needs remains at risk.
What is more glaring in the PWD Act is that the Government enjoys an express exclusion from being sued for any wrongdoing. The exemption of the Government casts serious doubt on the Government's own commitment to uphold the rights of persons with disabilities. We proposed to the Committee that Sections 41 and 42 of the PWD Act, which provides immunity from prosecution to the Government, must be abolished in order to ensure the effectiveness of the PWD Act.
This position of the Malaysian Bar had been stated in a press release dated 5 May 2009 shortly after the then–Bar Council Law Reform Committee held a public forum on 17 January 2009 on the Persons with Disabilities Act. At the request of the participants, the Law Reform Committee held a round table dialogue session on 7 September 2010 and 17 December 2010 between the representatives of all relevant ministries and representatives of non–governmental organizations. The positive effect was the deletion of the term "non–educable" in 2013 and the amendment of the Special Education Regulations to include persons with autism and other learning difficulties and to provide for early intervention programme and other provisions.
However, after a decade, there is still no redress, no penalties for infringement, and no deletion of Sections 41 and 42. It is our hope that the Government will give due consideration to our proposals to strengthen the PWD Act. We also continue to strongly urge the Government to sign and ratify the Optional Protocol to the Convention.
It is the Malaysian Bar's hope that today's gathering of minds will provide a conducive platform and avenue for substantive views on strengthening the Persons with Disabilities Act 2008 to be more effective in implementing the provisions of the United Nations Convention on the Rights of Persons with Disabilities. Views and suggestions expressed at this forum will be collated for preparation of a memorandum from the Malaysian Bar to the Government of Malaysia for consideration.
The Malaysian Bar will continue to do our utmost to protect the rights of persons of disabilities at all times.
Ladies and gentlemen,
Let us work together to fulfil our collective duty to ensure equality and non–discrimination for persons with disabilities.
With that I wish you all a fruitful forum.
Abdul Fareed Abdul Gafoor
19 September 2019
 worldbank.org dated April 4, 2019