Written by: Averroes
(1.0) Introduction
On the 19th June 2022, I recently participated in the Bengkel Daya Klang organised by UiTM Shah Alam's Student Community Law Club (SCLC) where we, as a group of law students interacted with people of exceptional needs (PEN) and engaged in a gotong-royong to clean the premises there.
My first thought was that, I felt very nervous and anxious of going there, because I was afraid that I may cause some controversies, since we live in a world of cancel culture. One slight mistake when communicating with PEN, one person may spread news about us on social media and our reputation would spiral downwards.
It's not that I am being narcissist or being selfish, but I'm also afraid that I may end up offending or insulting the person in question too. Sometimes, it is always fear that drags us down and stops us from trying new opportunities.
The topic of PEN can be quite sensitive, and one must discuss or tell their experiences with caution.
We were divided into groups to remove weeds from a small farm, some went to clean the sewing unit, some to the bakery unit, some unclogged the sewers and another fraction went to prepare lunch. The highlight of the day was that we had refreshing coconuts.
I had the chance to talk to Cikgu Linda, who is a lecturer, specialising in Education and Mr. Ikmal from the law faculty.
What touched me the most was that, I don't think that they should be called as people with disabilities. In fact, I think they have more skills than what the majority of people would do, even without mental and physical constraints.
They are good at sewing, producing textiles, clothes, food or catering and I was completely astounded by it. By the end of the day, we performed on stage according to groups of 10, and Kak Hidayah proposed for a Hari Raya Haji sketch.
She also suggested that our group should be called as Light and Darkness, with the slogan 'kekalkan bercahaya'. Even if life can be hard and difficult, do know that there is always a shimmer or glow of hope. I will always remember her as she will be one of my motivations in life.
It felt very pure, sacred and angelic of her to come up with the idea. Attending the programme was humanising. She reminded me the importance of family and our connection with other fellow humans and society at large.
I sat there, thought and reflected my life in so many aspects, how many mistakes have I made in my life, and how do I achieve happiness. In the end, everyone is the same with their own limitations, but even people who face 100x more pain than us can still live a fulfilling and satisfying life till their death.
Though, I was highly perturbed that not many people are informed of the struggles of PEN, and discrimination is still rampant. This comes in terms of access to convenient facilities and infrastructure, employment, poverty and low wages, education and the ignorant prejudice of some people.
(2.0) Analysis of Law and Governmental Policies
International Law
According to the World Bank, PEN when excluded in mainstream society causes the estimated loss of global gross domestic product of between USD$1.37 trillion to USD$1.94 trillion. For Malaysia, that would be between USD$1.68 billion to USD$2.38 billion (Perry, 2002).
Taking note of this, there are international laws and domestic laws to counter this. The rights of PEN may be traced from the non-binding instrument of the Universal Declaration of Human Rights and further under the International Covenant on Economic, Social and Cultural Rights that everyone has the right to work or employment.
Soon, the United Nations passed the Convention on the Rights of Persons with Disabilities (CRPD), with 130 ratifications and 155 signatories (United Nations, 2013). Malaysia became a signatory to the CRPD on 8th April 2008 and ratified it on the 19th July 2010.
After signing and ratifying CRPD, Malaysia committed to legislate the Persons with Disabilities Act 2008 (PWD). It reflects the PWD goals as to promote equal opportunities of PEN by their full and effective participation in society from accessibility, mobility, health, education, employment, rehabilitation and participation in politics, economics and more.
Before the CRPD, the position was under the Declaration on the Rights of Mentally Retarded Person and the 1993 Resolution 48/96 on Standard Rules on the Equalization of Opportunities for Persons with Disabilities. Therefore, it is no longer of a charity view to assist PEN, but rather as a fundamental human right.
Domestic Law
There are two canons of law that protects PEN. First is under the Federal Constitution (FC) and the PWD as mentioned.
According to the Federal Constitution, PEN are afforded the same rights as any Malaysians as under article 5 and 8 of the FC. The PWD is a law that is legislated which may be founded congruent to the speech by LP Suffian in Datuk Haji Harun bin Haji Idris v Public Prosecutor (1977) 2 MLJ 155, whereby in real life, it is generally accepted that the law should protect the poor against the rich and the weak against the strong.
Therefore, it seeks to protect PEN for their constitutional right from discrimination and are treated equally as any other persons. Their right to life, including right to livelihood is also protected by referencing to the PWD.
In Tak Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 CLJ 771, Gopal Sri Ram JCA mentions that the word life, does not refer to mere existence, but all facets that are an integral part of life itself and which go to form the quality of life. These includes to seek and be engaged in lawful and gainful employment to receive those benefits that society has to offer to its members.
According to the PWD, the purpose the Act is to "provide for the registration, protection, rehabilitation, development and wellbeing of persons with disabilities, the establishment of the National Council for Persons with Disabilities, and for matters connected therewith."
Hence, people who fit into the interpretation of people with disabilities are protected under the Act, but must first be registered under the law.
Explicitly, under section 29(1) of the PWD, "persons with disabilities shall have the right to access to employment on equal basis with persons without disabilities."
The Act further states section 29(2) and 29(3), whereby they should be afforded favourable conditions, equal opportunities, remuneration, safe and healthy working conditions, protection from harassment and redress of grievances.
Employers know of these laws, but are reluctant to hire PENs, since they also know of the 'so-called' burdens of costs to be involved and stereotypical perceptions towards them.
The law also has its flaws as under section 41 of PWD, no action, suit, prosecution or other proceedings shall be instituted against the government, the Minister, the Council, any member of Council and any person acting on behalf of the council.
This is in respect of any act, neglect or default done or committed by him or it in good faith or any omission omitted by him. Therefore, the exception of 'good faith' is applied to those members from being taken legal action and may be abused as an excuse.
However in Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] MLJU 576, section 15B of POCA strips the Courts of their constitutionally entrenched supervisory judicial function in both articles 4(1), 5(2) and 121(1) FC for judicial review. Hence, when an ouster clause as such that contradicts the FC would be unconstitutional.
It is void and of no effect. It cannot operate to immunize all decisions made under POCA by use of the ouster clause save for procedural irregularities. If we take this approach, then section 41 of the PWD should also be unconstitutional and non-operative.
Case Study
In Shaffarizan bin Mohamad v tan Sri Zulkarnaen bin Haji Awang & 9 Lagi [2018] MLJU 1968, whereby the plaintiff was a former probationary teacher employed by the Ministry of Education. The plaintiff was still under observation at Unit Psikologi dan Kaunseling, Pejabat Pendidikan Daerah (PDD) Miri.
He was was under observation and regularly came late, and frequently look sick leave. It was disclosed that he was suffering from depression. He was later terminated by the defendant. The plaintiff then applied for certiorari to quash the decision of the defendant under Order 53 of the Rules of High Court.
In the High Court before appealing to the Court of Appeal, the plaintiff failed to prove that he was a person with disabilities under the PWD as to enable him to take action against the defendant under section 29. He also failed to produce an OKU card as well from a registration as another precondition.
On appeal, he argued that he was a person with disabilities as a medical report provided stating that he had bi-polar disorder and suffered from it for the last five years which is a long-term mental impairment, regardless if he registered.
Court held that the issue of res judicata should be addressed first, before dealing with the interpretation of persons with disabilities. The principle of res judicata applied to bar the plaintiff from re-litigating the High Court 2015 suit. As such, the plaintiff's claim was dismissed with no order to costs.
This was because, they applied the same facts and circumstances, as well as similar documentary evidence as they did back in their 2015 judicial review.
In Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189, Peh Swee Chin FCJ observed that, res judicata is where parties should accept the truth and that it is a form of estoppel, whereby a matter has been adjudicated, parties are not permitted to litigate once more. There should be finality in litigation. No one should be vexed twice for the same cause of action.
Domestic Policies
The National Social Policy was launched in 2003, was enforced so that all Malaysian society, including the disabled, have the opportunity to achieve social integrity, stability, national fortitude and well-being for a progressive and established Malaysian society.
The Persons with Disability Policy is to assist PENs to live independently and assure that they have the same rights and opportunities, participation in society, enjoy same opportunities and equal acces to law, eliminate discrimination, educate and raise public awareness.
The Services Circular no. 10/1988 by the Public Service Department also allows the government to at least recruit 1% of PENs in the public sector. Though, there are still challenges which should be addressed, with firstly, job-match qualifications and secondly, there is no proper infrastructure at the workplace.
Lastly, the Code of Practice for the Employment of Persons with Disabilities in the Private Sector, is applied in 1990 by the government as to allow more room for employment opportunities for PENs. However, the quota is still low, despite some PENs being well-educated.
(3.0) Conclusion
To conclude, Malaysia should continuously advocate and uphold the rights of PENs in our country as they also contribute economically, politically and socially to our country. They should be afforded the same equal rights as any other human beings and we must recognise their true potential in nation-building.
There are still many weaknesses and impediments in our laws and policies, which requires actual implementation so that they would become effective. Without awareness and education related to PENs, no initiative will come to a successful fruition.
(4.0) References;
Harlida Abdul Wahab & Zainal Amin Ayub. (2016) Persons with Disabilities Act 2008: The Economic Promises for People with Disabilities? International Journal of Economic and Financial Issues. 6(s7), Pp. 313-319. Retrieved from, http://repo.uum.edu.my/id/eprint/21896/1/IJEFI%206%20S7%202016%20313-319.pdf
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