LETTER | Access to justice fundamental human right

LETTER | Rangkaian Solidariti Demokratik Pesakit Mental (Siuman) is perturbed by the recent news of a deaf e-hailing driver being allegedly assaulted while working near KL Sentral on May 28.

According to his account, the 46-year-old driver was punched in the face by a “VIP bodyguard”, resulting in soft tissue injury, which was diagnosed and treated at the Kuala Lumpur Hospital.

Ong Ing Keong was advised to file a police report, where at one point he was eventually given two options, ie to have his phone confiscated if he decided to proceed with the case or to drop the case and be compensated. Under duress, the deaf driver opted for the second option.

Throughout his visit to the police station, he was also left unattended for hours, given no explanation as to why his phone was inspected for an extended period of time, and given no immediate access to a sign language interpreter to communicate and defend himself.

Siuman would like to draw attention to the jarring gaps in accessing justice for people with disabilities as highlighted throughout this case.

A disabled complainant’s right to communicate was withheld through action - confiscation of phone as assistive technology - and omission - unavailability of a competent sign language interpreter or other sufficient reasonable accommodations.

Access to justice is a fundamental human right. It enables everyone, including people with disabilities, to live a dignified life. This case (and many others) points to an urgent need to address the gaps in accessing justice for people with disabilities.

The gaps in protection mentioned in the Malaysian Deaf Advocacy and Well-being Organisation’s (Dawn) statement affect all people with disabilities.

Contradicting laws

Even though Malaysia enacted the Persons with Disabilities Act in 2008, universal access, reasonable accommodations and discrimination protections are not mandated in any area of life.

Section 30(3) in the act states: “The government and the private sector shall accept and facilitate the use of Malaysia sign language, braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official transactions.”

However, Section 41 of the same act precludes the government and state bodies from any remedial or court actions by stating: “No action, suit, prosecution or other proceedings shall lie or be brought, instituted or maintained in any court against the government… in respect of any act, neglect or default done or committed by him or it.”

This is further supported by Section 42 of the act which states: “The Public Authorities Protection Act 1948 [Act 198] shall apply to any action, suit, prosecution or proceedings against the government… in respect of any act, neglect or default done or committed by it.”

This clearly highlights the jarring contradiction and reluctance of the state to uphold disability rights.

Furthermore, Article 8(2) of the Federal Constitution on discrimination does not mention disability. The Federal Constitution was amended in 2001 to include gender as part of our obligations under the Convention on the Elimination of All Forms of Discrimination against Women.

However, the same was not initiated for disability after Malaysia ratified the Convention on the Rights of Persons with Disabilities in 2010.

We have also arguably failed to domesticate the convention and its principles in Malaysian legislation. We had no reservations about Article 13 (access to justice) of the convention, but it is apparent that we have not operationalised it.

This all needs to change and justice must be accessible to everyone throughout the whole process.

Protect the disabled

The International Principles and Guidelines on Access to Justice for Persons with Disabilities offer practical suggestions for the state to design and implement justice systems that provide equal access to justice for people with disabilities.

Multiple administrations have excluded people with disabilities from meaningful social participation in all areas of life, ignoring the promotion and protection of disability rights.

We call upon the state and state actors to view this incident with urgency and proactivity to ensure the rights of people with disabilities in Malaysia are protected.

Pursuant to that call to action, Siuman has made several recommendations in the Universal Periodic Review process that we hope will lead to better discrimination protections and mandated reasonable accommodations via policies and laws. All our materials and references can be downloaded from here.

Our collective stands in solidarity with Dawn, our deaf peers and the deaf community.

Endorsed by:

Organisations

1. All Women’s Action Society (Awam)
2. Architects of Diversity
3. Association of Women Lawyers
4. Autism Inclusiveness Direct Action Group (Aida)
5. Angkatan Belia Islam Malaysia (Abim)
6. Agora Society
7. Aliran
8. Association of Women with Disabilities Malaysia
9. Boleh Space, Disabled-led Disability Rights Advocacy Movement
10. Centre for Independent Journalism
11. Crib Foundation (Child Rights Innovation & Betterment)
12. Cybher Collective
13. Demokrat UKM
14. Empower
15. Engage
16. Family Frontiers
17. Freedom Film Network
18. Gegar
19. Gabungan Pilihan Raya Bersih dan Adil (Bersih)
20. Hayat
21. Ikatan Mahasiswa Demokratik Malaysia (MDM)
22. Jaringan Kampung Orang Asli Semenanjung Malaysia (JKOASM)
23. Jentayu
24. Justice for Sisters
25. Kemban Kolektif (Intersectional Human Rights Activists)
26. KauOKTak (Community Building and Mental Health Outreach for Teenagers)
27. Kryss Network
28. Kuala Lumpur and Selangor Chinese Assembly Hall, Youth Section (KLSCAH Youth)
29. Klima Action Malaysia (Kamy)
30. Kuala Lumpur and Selangor Deaf Media and Technology Association
31. Kedah Sports Deaf Association
32. Legal Dignity
33. Mahasiswa Keadilan Malaysia
34. Maju Foundation
35. Martabat PJ
36. Malaysian Sign Language and Deaf Studies Association
37. Muda
38. Mental Health Association of Sarawak
39. Monsters Among Us (MAU)
40. National Organisation of Malaysian Sign Language Instructors
41. Negeri Sembilan Association of the Deaf
42. North South Initiative
43.Our Journey (Probono legal representation for migrants in labour immigration and criminal cases)
44. Pusat Pembangunan Rakyat (Mandiri)
45. Persatuan Sahabat Wanita Selangor
46. Project Stability and Accountability for Malaysia (Projek Sama)
47. Pemuda Sosialis PSM
48. Pertubuhan Rangkaian Pembangunan Kesinambungan Malaysia (Susden Malaysia)
49. PSM
50. Pusat Komas
51. Persatuan Advokasi Diri Orang Bermasalah Pembelajaran Selangor & Kuala Lumpur (United Voice)
52. Projek Wawasan Rakyat
53. Persatuan Promosi Hak Asasi Manusia (Proham)
54. PurpleLily Social Association Kuching
55. Pergerakan Pemuda UMNO Bahagian Damansara
56. Persatuan Ikatan Serikat Serantau (Ikrar)
57. Saya Anak Bangsa Malaysia
58. Sisters in Islam
59. Suara Rakyat Malaysia (Suaram)
60. Sabah Deaf Muslim Association
61. The OKU Rights Matter Project
62. The Talisman Project
63. Teater Untuk Semua
64. Teoh Beng Hock Association for Democratic Advancement
65. Women’s Centre for Change (WCC)
66. Women’s Aid Organisation

Individuals

1. Ali Amir Razali, political activist
2. Amin Zuhaili Bin Mansor, deaf advocate
3. Adrian Pereira, executive director, North South Initiative; people with disabilities rights advocate
4. Albert Wong Tuong Chui, deaf advocate
5. Beatrice Leong, autistic rights advocate; founder, Autism Inclusiveness Direct Action Group (Aida)
6. Bathmavathi Krishnan, wheelchair user, senator representing people with disabilities (2013-2016; 2016-2019)
7. Calysta Tay, BIM interpreter; ally of people with disabilities
8. Christopher Yap, deaf person
9. Dr Ikmal Hisham Md Tah, legal academic, disability law researcher
10. Dr Vilashini Somiah, feminist anthropologist, ally of people with disabilities
11. Dr Benjamin YH Loh, digital media researcher, ally of people with disabilities
12. Dunstan SG Lim, Sarawak OKU Skills Development Association (Sosda), disabled disability advocate and person with lived experience
13. Dayangku Syarizat, person with lived experience
14. Dr Lim Chee Han, public health researcher, Manifesto Rakyat coordinator
15. PH Wong, Childline Foundation
16. Durrah Sharifah Ahmad Azlan, mental health advocate
17. Freida Pilus, chairperson, Cempaka Education Group; president, Persatuan Siswazah Wanita Malaysia
18. Gigi Teoh, hearing ally, a member of JupeBIM, an employer to four deaf persons
19. Hasbeemasputra Abu Bakar, disabled disability advocate, person with lived experience
20. Ho Lee Ching, theatre maker
21. Iskandar Khoo Kuan Yiaw, ketua, badan perhubungan, Perikatan Nasional Kawasan Kepong
22. ‘Izz Daenie, disability justice advocate, person with lived experience
23. Jonah Ong, deaf advocate/BIM interpreter, human rights activist
24. Jessica Mak Wei-E, deaf advocate
25. Joan Sim Jo Jo, social worker, advocate for the deaf, BIM Interpreter
26. Khor Ai-Na, CEO, Asia Community Service
27. Kelvin Lee, KLSCAH youth wing
28. Koh Lianne, e-hailing driver
29. Kaveinthran, native blind person, independent disabled human rights activist
30. Kya Cahya, human rights advocate, activist
31. Lavinia Abirami, deaf person with lived experience, Global Institute For Tomorrow
32. Leong Wai Min, deaf person, e-hailing driver
33. Lee Siow Hua, Declan, RRC Grab team (Rakan Representative Community for Klang Valley deaf drivers)
34. Leben Siddarth, ketua penerangan, Muda
35. Lee Nyook Loong, deaf person, e-hailing driver
36. Laura Kho, mental health policy consultant, Mind Brew, ally of people with disabilities
37. Muhammad Mustaqim Badrul Hisham, person with lived experience
38. Muhamad Nadhir Abdul Nasir, independent disability issues consultant and researcher
39. Murugeswaran Veerasamy, president, Damai Disabled Person Association Malaysia
40. Meera Samanther, co-chair of Ad Hoc Committee on Persons with Disability, Bar Council
41. Maizan Mohd Salleh, president, Kuala Lumpur and Selangor Albinism Association
42. Mohd Asraf Sharafi Mohd Azhar, ally of people with disabilities
43. Maria Chin Abdullah, social activist
44. Mutharasapan Lakshmanan, deaf advocate
45. Marzuki Ong Maliki Ong, deaf advocate
46. Mohamad Faezal Muktar, chairman, Persatuan Ikatan Serikat Serantau (Ikrar)
47. Mimie Rahman, managing director and registered counsellor, Mindakami
48. Ng Lai-Thin, dementia care partner; project lead, National Early Childhood Intervention Council; member, The OKU Rights Matter Project
49. Nurafirah Jaharuddin, masters student, Universiti Kebangsaan Malaysia
50. Ong Hwei Ling, deaf advocate
51. Nasrul Noor, disability advocate
52. Norman Goh, person with lived experience
53. Ong Hwei Ling, Annie, president, National of Organisations Malaysia Sign Language Instructors (Nowbim); deaf advocate; co-founder, Dawn; RRC Grab (Rakan Representative Community for Klang Valley deaf drivers)
54. Wong Chin Huat, political scientist; member, Projek Sama
55. Quah Jia Tian, president, Universiti Malaya Student Union, Faculty of Business and Economics; vice-president, YouthCare Malaysia
56. Sofea Rozhan, founder, untuksemua.my
57. Sharifah Tahir, dementia and care partner advocate; founder, UMI, Dementia Care and Resource Center
58. Shawn Sharif, patient advocate and person with lived experience
59. Srividhya Ganapathy, co-chairperson, Crib Foundation
60. SK Lee, deaf person
61. Shane Capri, human and animal rights advocate, disabled disability advocate
62. Sya A, autistic self-advocate, person with lived experience
63. Shah Fariq Aizal Sha Ghazni, entrepreneur; director, private security firm; member, Generation Democracy (Malaysia Chapter); committee member, Asia Pacific Security Association (Malaysia Chapter)
64. Sariah Ibrahim, deaf advocate
65. Tay Chia Yi, speech-language therapist, Malaysian Association of Speech-language and Hearing (Mash)
66. Thilaga Sulathireh, researcher
67. Tashny Sukumaran, human rights advocate
68. Wong Yan Ke, human rights defender
69. Yana Karim, co-founder, Boleh Space; disabled disability rights advocate
70. Yuenwah San, disability rights advocate; dementia care partner; co-founder, member, The OKU Rights Matter Project
71. Yeong Moh Foong, senior job coach trainer

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