Public forum: "Persons with Disabilities Act 2008 - What next?"

OPENING SPEECH BY DATO’ AMBIGA SREENEVASAN

PRESIDENT OF THE MALAYSIAN BAR

Yang Berbahagia Dato' Meme Zainal Rashid, Ketua Pengarah Jabatan Kebajikan Masyarakat, distinguished guests, speakers and moderators of today’s Forum, representatives of civil society, members of the Malaysian Bar, ladies and gentlemen.

It gives me great pleasure on behalf of the Malaysian Bar to bid you a good morning and to warmly welcome you to our Auditorium for this Forum. I am sure we are all looking forward to it, and to hearing and learning from the speakers and participants.

The disability rights movement began in the U.S. in the 1970s following on from the civil rights and women’s rights movements in the 1960s. We have come a long way from when John Tyler, himself disabled with severe polio, parked his wheelchair in front of Metro buses in Seattle in the late 1970s as he campaigned for better wheelchair lifts on buses. The aim of such movements was to improve the quality of life of people with disabilities. Simple everyday routines for others proved difficult for disabled persons because of the lack of accessibility and safety in public areas like streets, buildings and transportation. It was more than 30 years later that we were to see the Convention on the Rights of Persons with Disabilities come to light.

The United Nations Convention on the Rights of Persons with Disability (“Convention”) was adopted by the United Nations General Assembly on 13 December 2006, and became opened for signature on 30 March 2007.

The Convention aims to change the perception of disability from one that looks upon it with sympathy to one that deals with it with respect, i.e. it moves from a charity-based model to a rights-based one.

The Convention provided that it would come into force 30 days after the 20th ratification, and 30 days after the 10th ratification in respect of the Optional Protocol. The Convention came into force on 3 May 2008. To-date, 138 countries around the world have signed the Convention.

The Convention itself was negotiated over more than 5 years with a large representation of non-governmental organizations involved.

The Convention underlines eight general principles, namely:-

1. respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
2. non-discrimination;
3. full and effective participation and inclusion in society;
4. respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
5. equality of opportunity;
6. accessibility;
7. equality between men and women; and
8. respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

Malaysia signed the Convention on 8 April 2008. However Malaysia has yet to ratify the Convention. Out of the 138 countries that have signed the Convention, only 46 have so far gone on to ratify or accede to the Convention.

All of the rights under the Convention are actually contained in the Universal Declaration of Human Rights. Nevertheless a specific convention for those with disabilities allows for their issues to be brought into sharp focus for resolution.

There is no doubt a cost element is involved in redesigning public areas and buildings and undertaking obligations. The Convention therefore calls for “progressive realisation” of most of its provisions. That cost, however, will be offset by the greater contributions that can be made by persons with disabilities to society.

The Convention therefore allows countries to set goals towards the full inclusion and equality of opportunity for people with disabilities.

There is also an Optional Protocol to the Convention. This also came into force on 3 May 2008. The Optional Protocol creates additional functions for the Committee on the Rights of Persons with Disabilities which is to be established as part of the Convention. This Committee would be empowered to consider what are known as “individual communications” and “inquiries”. The Committee would then be able to consider communications from individuals or group of individuals claiming to be victims of a violation of the provisions of the Convention by a State Party to the Optional Protocol. The Committee would then also be able to conduct an inquiry on a State Party, following information received indicating grave or systemic violations of the Convention by the State Party. To-date 81 countries have signed the Optional Protocol, and 27 have gone on to ratify or accede to the Optional Protocol. Malaysia has not signed or acceded to the Optional Protocol.

The Malaysian Bar strongly urges the Government to ratify the Convention as quickly as possible, and to also accede to the Optional Protocol.

Pursuant to signing the Convention, the Government has introduced new legislation by way of the Persons With Disabilities Act 2008 (“Act”). This came into force on 7 July 2008. Although not expressly stated, the intention of the Act appears to be to bring into domestic law the principles of the Convention. This can be seen in the fact that the Act borrows heavily from the Convention.

From a human rights perspective, the Act may be seen as a small but significant step forward. However it is my opinion that we need to have much more courage in our beliefs and convictions and adopt the full spirit and intent of the Convention in a more all-embracing and comprehensive manner.

Let me give you an extended example of what I mean. One of the paragraphs (paragraph 3) of the preamble to the Act reads as follows:-

“RECOGNIZING the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully and effectively participate in society.”

This is taken directly from paragraph (v) of the preamble to the Convention which reads as follows:-

“Recognizing the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms.“

The two paragraphs are identical word for word except at the end, when the much stronger and more noble “enjoy all human rights and fundamental freedoms” is removed and replaced with the words “and effectively participate in society”.

Let me quote you the definition of the term "reasonable accommodation", which is a concept introduced in the Convention and adopted in the Act, to cater to the needs of persons with disabilities. In the Convention, this term “reasonable accommodation” means:-

“necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”

In the Act, this term “reasonable accommodation” is defined as:-

“necessary and appropriate modifications and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise of the quality of life and wellbeing on an equal basis with persons without disabilities;

Again, the drafters of the Act have shied away from the fuller language of the Convention, in affirming equality for persons with disabilities with others “of all human rights and fundamental freedoms” and instead only promising “quality of life and wellbeing on an equal basis with persons without disabilities”.

We have to ask why the drafters of the Act changed the last few words of the paragraph in the preamble and in the definition of “reasonable accommodation” to remove the reference to persons with disabilities being able to “enjoy all human rights and fundamental freedoms”?

Perhaps it is an indication that our ambitions with respect to persons with disabilities is still very small, which is such a pity. In terms of this concept of “reasonable accommodation”, the Act provides that this should be implemented only in the area of education. Whereas in the Convention, this concept of “reasonable accommodation” covers not just education but all aspects of life, from access to justice, liberty and security of the person, and employment. The provisions of the Convention are far more comprehensive and inclusive.

As I indicated earlier, it is only in the Optional Protocol that there are measures to challenge one’s own Government as to whether it has lived up to its obligations under the Convention. In the Act, there is no provision for any penalty for any party who does not live up to the obligations under the Act. In fact, the Federal Government is expressly excluded from any wrong-doing for any failure to address the needs of persons with disabilities under the Act.

The Act instead takes on a more advisory and enabling environment. The Act provides for the formation of the National Council for Persons with Disabilities where Government representatives and representatives of persons with disabilities will work to restore and uphold the rights of disabled people in Malaysia.

The Act is far-reaching in that it accepts that persons with disabilities have a right to enjoy the benefits of amongst others public transport, housing, education, employment, health-care, etc. but provides little or no remedies if they face discrimination in this regard.

As a contribution to society and the community of the disabled in Malaysia, the Bar Council’s Law Reform and Special Areas Committee has organised this forum to educate the disabled, their families, caregivers and interested members of the public on the legal rights of the disabled as enshrined in the Act and to promote better understanding and effective implementation of the provisions in the Act.

Ladies and gentlemen, in the area of persons with disabilities we are only limited in what can be achieved by our vision. I am reminded of the words of the writer Hellen Keller, who was blind. She was once asked whether it was a tragedy that she had been born blind. Hellen Keller replied that the greater tragedy was to be born with sight but be unable to see.

I wish to take this opportunity to thank the Organising Committee for its efforts. I wish everyone a fruitful discussion.

Dato’ Ambiga Sreenevasan
President, Malaysian Bar
17th January 2009