Page 25 - Mainstreamer e-Magazine 01 June 2022 - Final (4)

CRITICAL THOUGHTS
employees, customers, visitors and/or the public
in general normally access. The local authorities
of the laws and standards, due to the limited “
are specifically empowered to exempt buildings
with less than 280 square meters of floor area per
level from providing access for disabled people
to the upper floors, but the ground floor must be
accessible to them. However, despite the passing
power of the National Council for Persons with
Disabilities, and the absence of punitive provision
in the Act, many buildings are still inaccessible to
persons with disabilities.
There is an obvious systematic discrimination
on the Act , as can be seen in Sections 41 and
42 of the Act. In the light of Section 41 of the
Act, any person who intends to bring a legal
suit arising from a breach is estopped by these
provisions, since no suit and legal proceeding can
be filed to the courts in any event of act, omission,
neglect or default done in good faith towards the
government, especially to the council members.
In fact, the word ‘good faith’ poses uncertainty,
as good faith has many meanings and most of
the meanings are complex and contradictory
to each other. The phrase ‘good faith’ has been
discussed in various commercial contract cases,
but its definition in torts has been vague. It is used
interchangeably with the word malice. Malice may
be shown either from the nature, character and
relevance of the words used or from evidence as
to the behaviour, motive and knowledge of the
defendant when publishing them, in defending
the action, or in failing to take appropriate steps
in correcting, retracting or apologizing for the
defamatory remarks.
The Act is found out to be inferior to the Public
Authorities Protection Act 1948, as mentioned
strictly in Section 42 of the Act. The manner of
construction of the provision has made the Persons
with Disabilities Act 2008 inferior to the Public
Authorities Protection Act 1948, wherein with
the clauses constructed as such, the government,
especially the Council, is protected from any legal
suit that arose from a breach of the Act. After a
decade since the enactment of the Act in 2008, not
much has been done to upgrade the protection
and security of persons with disabilities. It was not
a priority in budget allocation. The fragmentation
of the institutional framework as a source of power
caused inefficiency.
... Persons with Disabilities Act 2008
and protection of the lives of
aims to promote the development
persons with disabilities.”
The most important step is to strengthen the
Act as a source of power to show a more serious
commitment. It is suggested that the Act needs
to be upgraded to include judicial remedies or
penalties provision to strengthen it. Section 41
and 42 of the Act should be removed, since they
are bias. Also, a specific provision should be added
to prohibit the discrimination against disabled
persons by explaining what bias means. The
language of the Act should be more layman-friendly
by upholding the inherent and constitutional
rights of persons with disabilities; the current Act
is merely advisory in nature and not binding. The
Act should include provisions which confer power
to the court to adjudicate on disability issues. A list
of orders or remedies that the court can provide is
available for reference. The most comprehensive
laws include specific injunctive, declaratory
and judicial remedies, including compensatory
damages for victims of disability discrimination.
In addition, the act is too general and it was not
inclusive to cover the needs of the seven domains
of impairment. Therefore, it is suggested to include
a specific segment for each domain. Furthermore,
it is highly recommended to establish a Disability
Discrimination Act and mechanism for monitoring
activities in Malaysia. It is also timely to withdraw
the reservations made by the Government on
Article 15 and Article 18 of the Convention on the
Rights of Persons with Disabilities and ratify the
Optional Protocol, which reaffirms that all persons
with all types of disabilities must enjoy all human
rights and fundamental freedom.
The author is currently working on a project with her
student entitled “Work opportunity to PWDs in pursuant
to the 1% PWDs circular (2010) in the civil services”. She
enjoys coloring adult colouring book and group bicycle
riding with her teammates.
Vol. 01, Issue 1 | June 2022 24