An Introduction to Disability Rights in Malaysia: Comparative Notes

Malaysia ratified the Convention on the Rights of Persons with Disabilities on 6^th July 2010. Prior to that, Parliament enacted Act 685: Persons with Disabilities Act 2008 that is progressive in the sense that it uses the social model of disability as opposed to the physical/clinical model of disability.[1]

The Act recognizes that ‘disability results from the interaction between persons with disabilities and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with persons without disabilities’.[2] [Emphasis added.]

Michael J Prince notes that ‘people positively identify with the idea of disability legislation, believing it can energize the movement, raise public awareness, and help forge alliances through an inclusive policy development process...’[3]

I personally love the idea of disability rights legislation and I think that its promulgation was long overdue. However, Prince also speaks about the danger of lawmakers believing that drafting and enactment of a disability rights Act would be the major response, and post-enactment shift their priorities elsewhere.[4] Has that happened here? Certainly our PDA 2008 has not raised sufficient public awareness about disability rights. People still don’t know that when they set up a business, they have to make sure that the walkways, entrances, stairways and hallways are disability-friendly.[5]

Other countries with disability discrimination/disability rights law include the United Kingdom, the United States, Australia and Thailand, among others. The UK Equality Act 2010 states that a person has a disability if the person has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities.[6] What I like about the UK Act is that based on this definition and s6(1) of Schedule 1 Part 1 of the Act, HIV is expressly categorized as a disability, enabling persons who have HIV to be protected under this law.[7] In Malaysian law, this is not the case.

You could also say that although disabled persons’ rights are better protected as a result of the enactment of the PDA 2008, a pitfall of non-harmonization has resulted in the infringement of the rights of disabled persons under other laws, notably the Malaysian Pensions Act 1980 in relation to persons with mental illness. The Pensions Act states that children can inherit pension, but defines a disabled child as being ‘of any age and is mentally retarded or physically and permanently incapacitated...’[8] Hence, according to this definition, a child with long-term mental illness cannot inherit pension from their parent who is a deceased officer for the purposes of the Act, as it does not come under their definition of disability. This is a clear and overt violation of the Convention on the Rights of Persons with Disabilities (CRPD).

Another defect of our disability rights law is contained in its definitions. The Act defines persons with disabilities as ‘those who have long term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society’[9] however, does not define what constitutes ‘long term’. The UK Equality Act, on the other hand, expressly provides: The effect of an impairment is long-term if – (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected. The non-definition of ‘long-term’ in Malaysian law can and will result in injustice, especially where the categorization of the disability is uncertain.

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[1] The clinical model defines disability in terms of physical impairment whereas the social model states that the disability arises as a result of environmental and attitudinal barriers.

[2] Persons with Disabilities Act 2008 (Act 685), Laws of Malaysia

[3] Michael J Prince, ‘What About a Disability Rights Act for Canada? Practices and Lessons from America, Australia and the United Kingdom’ (2010) XXXVI(2) Canadian Public Policy – Analyse de Politiques 199 at 200

[4] Ibid.

[5] In October last year I wrote about the idea of Petaling Jaya becoming a ‘health metropolis’ and the notion that it cannot truly be deemed one if it was not smoke-free and was not disability friendly. http://msianhealthlawdebates.blogspot.com/2010/10/making-pj-health-metropolis-brief.html

[6] Equality Act 2010 (UK), s6

[7] Id, s6(1), Schedule 1, Part 1

[8] Pensions Act 1980 (Act 227), Laws of Malaysia, s2(b)

[9] Persons with Disabilities Act 2008 (Act 685), Laws of Malaysia, s2