Presto…we now have a Persons with Disabilities Act 2007 (PWD Act 2007), recently passed by the Malaysian Parliament in December 2007. A lot of discontentment has arised where we compared the proposed act in 2002 with this new one. Clearly, the new act is not an anti-discrimination legislation, but more of a policy-driven one. My take on why the Act was changed from an anti-discrimination approach to a policy driven one is based on two reasons : the Malaysian Government is not confident that disabled people could organise themselves to make an anti-discrimination law work and that disabled people had not shown their commitment to an anti-discrimination law.

Proposed Act in 2002

Persons with Disabilities Bill 2007

One way of looking at what is happening at the national level is to compare the PWD Act 2007 (Akta OKU 2007) with what was advised at International level such as the Biwako Millenium Framework (Plus 5), as Malaysia was signatory to the BMF, although Malaysia has yet to sign the Convention on the Rights of Persons with Disabilities. (The Ministerwas quoated as saying Malaysia will sign it next February 2008.)

For its Key Strategy, BMF basically focussed on a rights-based approach as the best way: (Read Strategy 2, 3 & 4 below)

A. Reinforcing a rights-based approach to disability issues

Strategy 1
26. Governments take note of a newly emerging trend in understanding disability as an evolving concept and are encouraged to recognize disability as a result of the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others. Governments are encouraged to incorporate this understanding of disability into their existing and new policies. Particular attention should be paid to the removal of any barriers that prevent persons with disabilities from fully participating in society and exercising their rights.

Strategy 2
27. Governments should consider steps to amend or repeal any laws that are not consistent with the international instruments on human rights and disability to which they are parties, and to adopt laws that would promote the rights of persons with disabilities.

Strategy 3
28. Governments are encouraged to take appropriate measures, including development and implementation of antidiscrimination legislation, to effectively promote and protect the rights of persons with disabilities.

Strategy 4
29. Governments are encouraged to consider the establishment of an effective, independent, advisory and representative mechanism, or the designation of an existing mechanism, to assist in monitoring and evaluating the implementation of the legal, administrative and institutional systems aimed at promoting and protecting the rights of persons with disabilities.

Strategy 5
30. Governments are encouraged to consider signing and ratifying or acceding to the Convention on the Rights of Persons with Disabilities and the Optional Protocol to the Convention as a matter of priority, and to promote and protect the right of persons with disabilities so that they may enjoy all human rights and fundamental freedoms.

Strategy 6
31. Governments, in collaboration with all stakeholders, should take positive measures in facilitating the provision of reasonable accommodation to equalize the opportunities that exist for persons with disabilities in all areas of life. Reasonable accommodation refers to necessary and appropriate modifications and adjustments that do not impose a disproportionate or undue burden, where needed in a particular case, in order to ensure that persons with disabilities can enjoy or exercise, on an equal basis with others, all human rights and fundamental freedoms.

Strategy 7
32. Governments should promote access to justice for persons with disabilities on an equal basis with others

BMF link

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Further deliberation on this would therefore conclude that for Strategy 4, for example, we see the Govt. had taken the 2nd option of “using the existing mechanism” to sort out the monitoring and evaluation part rather than having an independent mechanism. That’s the decision, so we have got to work now with that decision. We could say anything now, but the way I see it is probably the Govt. is not confident enough with disabled people to do the first option…It would take a bold and brave decison to opt for the independent mechanism (first option), ie a with Commission separated from the Min of Women, Family, Community Development (MWFCD) which will probably be imbedded within the Prime Minister’s dept. (for example) This has always been the way, where disabled people do not have a strong voice to lobby for an independent mechanism anyway.

Disabled people in this country still want to debate a lot (and arguably many have yet to differentiate the woods from the trees… ie strategies from policies, policies from regulations, regulations from details etc) and there is no single vision and effort to fight for a rights-based legislation simply because we do not educate ourselves on this issues enough. We like other people to lead us and solve our problems for us.

I personally feel that disabled people often let themselves be in this “charitable state” and should not be “crying after the fact” when they have not worked hard enough to lobby for the anti-discrimination act earlier. We did not seek to meet the PM and the Minister to outline our concern and so they had to interpret themselves that disabled people’s issues need to be approached in a policy-driven one. It’s true the 2002 Act was more rights-based, but how come we could not predict that this is going to happen? At the end of the day, simply the Govt. did not believe that disabled people are organised enough to lead themselves… To me we did a bit here and there and there are no significant and high-profile concerted effort to SHOW that we can get things organise… so we left it to the minister to lead the way all the time, not us… (cue ‘charity’ again) We play into the “hands of charity…”

Apart from that, there were talks to push for amendment to the act, but in order for the fresh act to be amended, it must take some effort to lobby for it and based on pass efforts, I don’t see us being informed enough and together enough to do this. It would probably take another 10 – 20 years befor the Govt. would agree to have an anti-discrimination act, as you cannot really amend this act. In order for disabled people to have an anti-discrimination act, there should be lobbying done at all stages – strategies, policies, regulations and at grass-root level.

So at the end of the day, disparately we shall just have to do our own things again, sapping our energy and spirits yet again….in another Xmas wish list of what could have been….

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Another aspect to consider:

The Act being non anti-discrimination is giving us more work to do.

Perhaps now with the FUNDING we get to articulate our concerns better, as I believe, in the first place, what we have been trying to do HAS NOT BEEN NOTICED by the Government at the Minister’s level.

As you and I know, it all depends on WHO IS ADVISING the Minister at her level. I am not clear about what is happening at the top level, and who is advising her, I do not want to speculate. I know they have been trying to work with Min. of Housing and Local Government and all, as they want to conduct Access Auditing in all Malaysian towns ( I reckon that’s why that project is stalled so that they could get the funding after the PWD Act 2007 has been passed through Parliament.)

But my concern is this – decisions are made at the Ministers level and the act will be enforced and the Council (for the Act 2007) will have its members, ie disabled people representation. My concern is the people in the Council will be “pak turut” (Yes-men) or just okay to projects that will be slow to implement or have no effect or will be poorly executed.

Its the same as education, employment, accessibility to the built environment and transport. They will need policies which are guidelines. Then they will have pilot projects. But the point is WHAT is the most important thing to tackle in all these area. And its not necessarily “pilot projects approach”.

In Accessibility to the Built Environment and Transport, you need to tackle the following: Local Authorities / The Commercial Vehicle Licensing Board / DBKL’s Jabatan Pengangkutan Bandar (and similar departments in other local authorities) / Public Works Department. The concern is that there are no representatives in the Council of people from these departments and ministries so far.

So why have people close to the Minister NOT REALISE this???

There are no evidence in the proposed Act that they really understood the problems.

I am sure in other areas such as education with the issues on compulsory registration and schools must have representatives from the Min. of Education. Likewise in other sectors such as employment.

I used to imagine that ministers from these thoer ministries sat together with the Minister from WFCD and revised the policies in each ministry to include disabled people’s needs and concern. I imagine that in certain ministries that are crucial to succeed, they would include Disabled Persons Advisory Board / Access Advisory Committee / Disability Unit to tackle these issues. In local wuthorities, they should have an Access Officer in the building and planning departments.

If the Minister thinks that only with the PWD Act 2007 in place, will she able to sit with the other ministers and have these units, groups and boards in place and running in these ministries, then to me that is a good step.

But if that does not happen, how will we solve the problems? Expectations are rife and the Minister must have the most able and most critical people around her to be able to pull it off.