LETTER | Discrimination against the disabled persists

LETTER | The Malaysian Bar is deeply concerned that persons with disabilities are still being discriminated against.

The disabled 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 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 authorised by the Constitution.”

Article 8 is also the basis of the fundamental right to education in Article 12(1) of the Constitution, as follows:

“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 (UNCRPD) in July 2010. To date (May 2024), 14 years have elapsed without Malaysia harmonising any domestic legislation with the UNCRPD.

Harmonisation is crucial

Harmonisation must start with the Federal Constitution and the Persons with Disabilities Act 2008 and must continue with other legislation covering all aspects of every citizen’s life.

The Constitution - as the supreme legislation of the nation - has to be harmonised with the UNCRPD. As it stands, the Constitution does not cite disability as a ground for the prohibition of discrimination and is thus not aligned with the UNCRPD.

In summary, it does not uphold and protect the rights of a vulnerable and growing section of society. For 67 years since Merdeka, the disabled have continuously been overlooked.

According to the 2022 World Health Organisation’s estimate, the disabled make up 16 percent of the population. As of Feb 29, 2.1 percent of the Malaysian population are holders of disability cards issued by the Social Welfare Department.

Malaysia has become an ageing nation, with 11.3 percent of the total population aged 60 and above. This would be a contributing factor to the increase of the disabled in Malaysia in the near future.

Failure to uphold the rights and social protection of the disabled in Malaysia is inconsistent with the nation’s international legally binding obligations under the UNCRPD.

The disabled 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.

Perpetuating marginalisation

By omitting a specific guarantee of equality and non-discrimination on the basis of disability, the Constitution, 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 grounds of disability is included in the Constitution. 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 Constitution to ensure that it accords explicit protection of rights to the disabled. The proposed amendment is to include the word “disability” in both Articles 8(2) and 12(1), as follows:

• Equality (Article 8)

(1) All persons are equal before the law and entitled to the equal protection of the law.

(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the grounds 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 (Article 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, disability 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).

The proposed amendments will pave the way for Malaysia’s long-overdue progress on harmonisation of domestic legislation with the UNCRPD.

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 the rights of the disabled in the nation.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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