How Far Behind Regional Countries Is Malaysia In Its Disability Legislation? — The OKU Rights Matter Project

An amended PwD Act that is still powerless and not harmonised with the spirit and intent of the CRPD means that we have failed the OKU community and our allies and future generations of Malaysians.

Malaysia made a good start in passing the Persons with Disabilities (PwD) Act 2008 (Akta 685) and ratifying, in 2010, the United Nations Convention on the Rights of Persons with Disabilities (CRPD). 

However, disabled persons (OKU), disability activists, disability civil society organisations (CSOs), and OKU care partners have long voiced that the PwD Act, 2008 has not been implemented, is not enforceable, lacks critical elements, and is thus powerless in upholding and protecting OKU rights.

Hence, the ongoing amendment of the PwD Act 2008 must be harmonised with the CRPD and take into consideration all the general comments and guidelines issued by the United Nations Committee on the Rights of Persons with Disabilities. 

A special project team has been set up to work on the amendments to the PwD Act 2008. However, it is unclear to what extent its members have done the following in order to do justice to their important task: 

  • Studied all the general comments and other relevant documents issued by the United Nations Committee on the Rights of Persons with Disabilities. 
  • Consulted with the wider OKU community.
  • Made comparisons with disability legislation in neighbouring countries.

Malaysia’s neighbours have domestic policies and legislation that are more harmonised with the CRPD in the explicit upholding of the rights of persons with disabilities and protection against discrimination on the ground of disability.

Among them are India, South Korea, Thailand, Indonesia, Singapore, China (including Hong Kong), as well as Fiji, New Zealand, and Australia. 

What progress have regional countries made in their disability legislation? The table below offers a brief comparison with disability laws of selected countries regarding harmonisation with the CRPD.

It does not include harmonisation of other domestic legislation in diverse sectors (federal to local) with the CRPD. A more detailed analysis is available from these links.

IndiaSouth KoreaThailandIndonesia
Name of LegislationThe Rights of Persons with Disabilities Act, 2016, and theRights of Persons with Disabilities Rules, 2017 (subordinate legislation).Act on the Prohibition of Discrimination against Persons with Disabilities, 2007.Persons with Disabilities Empowerment Act, 2007 and the Amendment of Persons with Disabilities Empowerment Act, 2013 (known as Act for Promotion and Development of Quality of Life for Persons with Disabilities).Law on Persons with Disabilities, 2016. Very comprehensive legislation that covers PwD rights in all areas, even politics, disaster, sports, tourism, detention, religion, data collection, etc. 
Definition of DisabilityDoes not define “disability” but defines “person with disability,” as described in the CRPD, and is widely inclusive of various disabilities.A broad definition that covers all disabilities.A broad definition that covers all disabilities.A broad definition that covers all disabilities.
Comprehensive Definitions of Discrimination and HarassmentComprehensive definition of “discrimination,” as in the CRPD; explicitly mentions and prohibits discrimination throughout the Act in various sections (rights, access to justice, education, employment, accessibility, sports, etc).Comprehensive definition: explicit, extensive and strong, covering many areas. Highlighted in the title of the Act.Amendments in progress, to ensure there will be no exceptions for discrimination on the ground of disability. Denial of reasonable accommodation already defined as discrimination in Regulation on Elimination of Discrimination against Persons with Disabilities, 2013. Discrimination is clearly defined and mentioned 21 times in the legislation, including to provide for the protection of women and children with disabilities. Art. 19 clearly states the right to public services, without discrimination, for PwD. 
Independent Disability CommissionChief and State Commissioners for Persons with Disabilities.A strong, active, disability-inclusive, gender equality-responsive National Human Rights Commission.Vibrant, well-informed, actively engaged civil society, including lawyers with disabilities. Noteworthy cases of judicial activism in favour of persons with disabilities.A strong and active National Human Rights Commission that plays this role with a subcommittee on remedies for discrimination against the disabled persons. Work is reinforced by public interest civil society lawyers dedicated to justice for persons with disabilities, and conscientized PwD who are leaders.  National Committee for Empowerment of Persons with Disabilities (chaired by Prime Minister), Department for Empowerment of Persons with Disabilities. In all 77 provinces, the Provincial Committee on Empowerment of Persons with Disabilities is chaired by the Provincial Governor. National Commission on Disability, controlled by Presidential Regulation No.68 (2020), is an independent institution which has the duty to monitor, evaluate, and advocate for the rights of PwD and report directly to the President.
Grievance Redress MechanismA comprehensive grievance redressal mechanism at various levels.Grievance Redressal Officer at every Government establishment and District-Level Committee on Disability as per the Act.Under the Act, Special Courts at district level to try offences and Public Prosecutor or advocate for every Special Court for conducting cases in such Courts.Three grievance mechanisms provide remedies, the:
1. National Human Rights Commission ofKorea, issues recommendations.
2. Ministry of Justice issues remedial orders and correction orders.
3. Act allows cases to be brought to court: sanctions, remedies, correction orders. 
The Sub-committee on Elimination of Discrimination against Persons with Disabilities (one of 14 issue-based subcommittees under the NationalCommittee on Empowerment of Persons with Disabilities) is designed to be the main grievance redressal mechanism. But PwD can also go directly to court.A grievance redressal mechanism is not explicitly mentioned, but the Act stipulates that the National and Local Governments are required to guarantee and protect the rights of and provide legal aid to PwD as legal personalities who are entitled to take legal action like others.
Ouster Clauses(Provision to exclude judicial review of acts by the executive.)None. See details in full documentNone.None.
Care PartnerCare-giver defined with allowance as social securityNot mentioned.Care-giver of disabled persons defined with provisions. The person providing care is not mentioned, while there are 43 references to care for persons with disabilities.

Note: in both Thailand and Indonesia, all major organisations of persons with diverse disabilities are united and work together in cross-disability solidarity.

This solidarity enables good representation and advocacy in working with the government on the implementation and enforcement of their respective Acts.

In contrast, Malaysia is very, very far behind regional neighbours in its disability legislation and disability rights. For many years, these countries already have legislation that far outstrips ours — a broad definition of disability, comprehensive definitions of discrimination and harassment, independent disability commissions, clear grievance redress mechanisms, and the absence of ouster clauses.

We are concerned over our nation’s performance record as a leading ASEAN member state in its failure to harmonise domestic legislation following CRPD ratification.

Requiring urgent remedial action is the absence of a viable mechanism supportive of upholding and protecting the rights of disabled persons who have experienced discrimination, i.e., a clear grievance redress mechanism.

It is critical that the ongoing amendment of Malaysia’s PwD Act, 2008 addresses these shortfalls. 

We are also concerned that the lack of transparency of the amendment process violates the fundamental principle of “Nothing About Us Without Us”.

The Ministry of Women, Family and Community Development has a responsibility to Malaysian citizens to enable widespread sharing of the draft amendments with the OKU community and other ministries and departments, as well as provide adequate opportunities for genuinely seeking and considering the views of concerned Malaysian voters.

All this is to generate feedback for further revision of the amendments before the Bill containing the draft amendments is tabled in Parliament for debate. These steps are necessary to enable Malaysia to have a strong amended Act that can be enforced — an amended Act that all Malaysians can be proud of when it is compared with that of other countries. 

Furthermore, it would be of utmost importance to include one word — ‘disability’ — in an amendment of Articles 8(2) and 12(1) of the Federal Constitution, to expressly prohibit discrimination on the ground of disability. 

If the government condones the production of an amended PwD Act that is still powerless and not harmonised with the spirit and intent of the CRPD, then we will, as a nation, have all failed the entire OKU community and our allies and future generations of Malaysians.

Respect and trust are at the heart of Prime Minister Anwar Ibrahim’s Malaysia Madani. We hope to see the reality of Malaysia Madani in the meaningful amendment of the PwD Act 2008 that is genuinely harmonised with the CRPD.

 Dr. Amar-Singh HSS, Yuenwah San and Ng Lai-Thin are members of the OKU Rights Matter Project.

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