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DISABILITY LAWS
At present there is no legislation that provides specifically for the protection of the rights of the disabled. The provisions in the existing laws are inadequate and do not deal with the issue of disability comprehensively. There is an urgent need for legislation that covers comprehensive guidelines to ensure that all forms of discrimination against disabled people are eliminated. In addition, mechanisms for addressing complaints should be set in place and enforcement officers appointed to ensure that the laws are implemented.
- Uniform Building (Amendment) By-laws 1993
- Married Women and Children (Maintenance) Act 1950 (Revised 1981)
- Inheritance (Family Provision) Act 1971
- Pensions Act 1980, Pensions Regulations 1980 and Employees' Provident Fund
- Employees Social Security Act 1969, Regulations and Rules (505(0)
- Law Reform (Marriage and Divorce) Act 1976
- Income Tax Act 1967 (as amended)
- Education Act 1996 and Education (Special Education) Regulations 1997
- Employment Provident Fund Act 1991
- Summary of the proposed Persons with Disabilities Act 2002
Uniform Building (Amendment) By-laws 1993
Under By-law 34A, all new public buildings must be provided with access to enable disabled people to get into, out of and within the buildings and be provided with facilities for use by disabled people, such as disabled-friendly toilets. This by-law also covers existing buildings completed before 1993 (except shop houses). Old buildings were required to be modified by 1996 to comply with the Malaysian Standards (MS1183, MS1184 and MS1331) unless the local authority allowed the owners to vary or be exempted from the requirements.
The requirements apply to all public buildings including offices, banks, post offices, department stores, administration and commercial buildings, rail, road, sea and air travel and associated concourses, car parking buildings, factories, hospitals and other health and welfare buildings, restaurants, concert halls, cinemas, conference buildings, community buildings, sports buildings and other entertainment and recreation buildings, religious buildings, schools, colleges, universities, libraries and other educational cultural and scientific buildings, hostels, hotels and other residential buildings other than single family private dwelling houses.
It is the responsibility of all local authorities such as the MPPP and MPSP to ensure that all building plans contain access features in accordance with the Malaysian Standards before they are approved and before the Certificates of Fitness are issued. Owners who do not comply with the by-law can be punished under the provisions of the Street, Drainage and Building Act 1974.
Married Women and Children (Maintenance) Act 1950 (Revised 1981)
If a father is not providing for the maintenance of a disabled child, the “child of his who is unable to maintain itself” can apply to the Court for an order to compel the father to make a monthly allowance for his/her maintenance in proportion to the means of the father. This Act does not apply to Muslims.
Inheritance (Family Provision) Act 1971
It is expected that the dependents of a person who has died (the deceased) be reasonably provided for out of the assets and money of the deceased (the deceased’s estate). The dependents are defined to include “a daughter who has not been married or who is, by reasons of some mental or physical disability, incapable of maintaining herself” and “an infant son or a son who is, by reason of some mental or physical disability, incapable of maintaining himself”.
If the distribution of a deceased’s estate carried out under the deceased’s Will or the law relating to intestacy (died without a Will) or under the combination of both does not make reasonable provision for the maintenance of that dependent, e.g. the disabled child, that dependent can apply to the Court under the provisions of this Act to vary the Will or the distribution.
Any application under this Act must be made within six months from the date on which any application for distribution of the deceased’s estate has been made. This Act does not apply to Muslims or natives of any of the states in East Malaysia.
Pensions Act 1980, Pensions Regulations 1980 and Employees' Provident Fund
A disabled child of a government servant is entitled to share in the derivative pension of the parent after his/her death. If both his/her parents are government servants, he/she is entitled for life to a share of both their derivative pensions after their deaths. Under Regulations 15 and 16, the derivative pension is payable to the widow or widower, the child or the widow or widower and the child. The child is defined under Section 2 as a child under 21 years and of any age if disabled, i.e. "is mentally retarded or physically and permanently incapacitated and is incapable of supporting himself provided such child is mentally retarded or physically and permanently incapacitated before the child reaches the age of 21 years".
However, employees in the private sector do not have pensions. They contribute to the Employees' Provident Fund (EPF) and if they wish that upon their death their savings under this scheme go to their disabled children, then it is important that they must nominate these children as the beneficiaries to receive the savings. This applies to non-Muslims only. For Muslim employees, the nominees will hold the savings on trust to be distributed in accordance with the Syariah laws.
Download Pensions legislature on Disability (310KB)
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Employees Social Security Act 1969, Regulations and Rules (505(0)
Benefits will be given to insured employees (those who qualify under this Act) who suffer disablement, temporary or permanent, partial or whole, as a result of an employment injury. Apart from grants and/or periodical payments, insured employees are entitled to medical benefits under SOCSO as well as facilities for physical and vocational rehabilitation. If the injured insured employee dies before reaching the age of 55 years, his or her dependents (as defined in Section 2 of the Act) will be entitled to a survivor's pension or dependent's benefit.
The child (or children) of a deceased insured person is entitled to two-fifths of the daily rate of either the permanent total disablement benefit or the survivor's pension. If there is no widow or if the widow remarries or dies then the child is entitled to three-fifths of either the permanent total disablement benefit or the survivor's pension.
The pension or benefit for a disabled child (or children) shall continue to be paid for as long as the child is incapable of self-support, even beyond the age of 21 years.
All these benefits are not available to those who are self-employed or unemployed or whose employers failed to contribute to the fund. The sums given out are more often than not inadequate and applications, appeals and payments are known to take a long time.
Law Reform (Marriage and Divorce) Act 1976
In divorce or separation proceedings under this Act for non-Muslims, the Court will order that provisions be made for the custody and maintenance of children of the marriage. The order will "expire on the attainment by the child of the age of 18 years or where the child has physical or mental disability, on the ceasing of such disability, whichever is the later".
Income Tax Act 1967 (as amended)
A. Personal relief
Everyone who has an income is liable to pay income tax unless that income is exempted by law from tax. Normally from a person's chargeable income, the person can claim RM8,000 as personal relief, RM3,000 for spouse and RM800 for child.
Where the taxpayer, spouse, child or parent is disabled, the government allows the following tax relief:
- If taxpayer is disabled, an additional personal relief of RM5,000
- If taxpayer’s wife is disabled, an additional wife relief of RM2,500 (for joint assessments)
- If taxpayer, spouse, child or parent is disabled, a tax relief of up to RM5,000 for the purchase of basic support equipment
- If taxpayer is disabled, a tax relief of up to RM5,000 for medical expenses
- If taxpayer’s child is disabled, a tax relief of RM5,000 per child
Download Income Tax (Personal Relief) legislature on Disability (60KB)
B. Tax Incentives For Employers
Employers are allowed double deductions from tax for remuneration paid to each of their disabled employee and for expenses incurred in training of any disabled person who is not an employee (Section 132). They are also allowed a deduction from the gross income of a business for expenditure incurred on the provision of any equipment necessary to assist disabled employees in the performance of their duties (Section 34(b)(c)).
Download Income Tax (Incentives) legislature on Disability (195KB)
Download Income Tax (Training) legislature on Disability (236KB)
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Sales Tax Act 1972
Sales tax is imposed on certain locally manufactured goods and for similar goods imported which tax is then passed on to the customers in the higher prices they have to pay. Only assistive devices or supporting equipment that are classified as medical or educational equipment are exempted from this sales tax.
Import duties are levied on certain goods imported thereby making their prices higher. There are no specific provisions to exempt equipment and aids used by disabled persons from import duties.
Download Sales Tax legislature on Disability (Warning: large file, 828KB)
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Education Act 1996 and Education (Special Education) Regulations 1997
The Education Act 1996 and the Education (Special Education) Regulations 1997 make provisions for special education for pupils with special needs. Section 40 of the 1996 Act states that the Minister of Education shall provide special education in special schools or in such primary or secondary schools as the Minister deems expedient and Section 41 empowers the Minister to make regulations on the categories of pupils requiring special education and the duration, curriculum and other matters relating to special education.
Regulation 2 of the 1997 Regulations defines pupils with special needs to mean pupils with visual impairment or hearing impairment or with learning disabilities and the special education programme to include special schools, integrated programme in regular schools and "inclusive education programme for pupils with special needs to attend normal classes together with normal pupils".
Regulation 3 states that "pupils with special needs who are educable are eligible to attend special education programmes except for ... (those who are) physically handicapped with the mental ability to learn like normal pupils and pupils with multiple disabilities or with profound physical handicap or with severe mental retardation". A pupil is considered educable "if he is able to manage himself without help” and is confirmed by a panel consisting of a medical practitioner, an officer from the Ministry of Education and an officer from the Department of Welfare as capable of undergoing the national educational programme (Regulation 3(2)).
As a result of this exclusion, many disabled children are denied the opportunities to education which is all the more important to them given their disabilities. However, with the current proposal to make primary education compulsory, the Education Ministry should ensure that all disabled children are provided full and equal educational opportunities.
Employment Provident Fund Act 1991
An EPF member is entitled to withdraw the full amount of his contributions before attaining the age of 55 years if the member is prevented from engaging in any further employment by reasons of physical or mental incapacitation.
Where a member experiences physical or mental disability which robs him or his ability to continue working, he can withdraw the entire of his EPF savings under the Physical or Mental Incapacitation Withdrawal Scheme. Under this scheme, if a member has withdrawn all the EPF savings before reaching 60 years of age, he will also receive a Disability Benefit.
To withdraw under this scheme, a member must submit the KWSP 9B (AHL) Form and a photocopy of his identity card and a medical report must be attached. The medical report must include information on the illness or accident that caused the disability and information on his present state of health. Reports from a Government or University Hospital must not be more than one year old while reports from private hospitals or clinics must not be more than six months from the issuing date.
Member's letter of resignation stating the cause of resignation or retrenchment from employer must also be enclosed. Where such letter is not available, a member may also submit a Statutory Declaration made before a Magistrate stating: name of last employer, date of resignation, last position held, and reasons for resignation.
The member will be referred to the EPF panel of doctors for a check-up and approval when the EPF is satisfied with the application. The member can also obtain approval from a Medical Practitioner in a Government Hospital.
Download EPF legislature on Disability (Warning: large file, 1.6Mb)
(You will need Acrobat Reader to open this file)
Summary of the proposed Persons with Disabilities Act 2002
The Ministry of National Unity and Social Development through its Working Group on Legislation headed by En Mah Hassan Haji Omar had drafted a proposed Act to be called the Persons with Disabilities Act to provide the basis for equalization of opportunities for persons with disabilities to eliminate discrimination and harassment against them and to promote their full participation as equal citizens of this country.
Chapter 1 of the Proposed Act covers definitions. Among the definitions, “disability” is defined as “any restriction or lack of ability, resulting from an impairment, to perform an activity in the manner or within the range considered normal for a human being” and “impairment” is “any loss or abnormality of psychological, physiological or anatomical structure or function ”.
Chapter 2 provides for the equalization of opportunities and full participation for disabled persons. This chapter is divided into 7 parts.
Chapter 2 Part 1 sets out the responsibilities of all the relevant authorities to prevent and detect disabilities. Among the responsibilities are the carrying out of research on the causes of disabilities and providing adequate training for primary health care personnel to assist disabled persons and regular treatment to improve their level of functioning.
Recognising that education provides the key to the development of disabled persons, Chapter 2 Part 2 covers in detail the requirements to provide disabled persons with equal access to quality education. It requires the relevant authorities to provide every disabled child with free education in an appropriate environment until the age of 18 years. It advocates integration of such students into mainstream schools where possible, the provision of flexible and suitable curriculum, assistive devices and properly trained teachers. The relevant authorities are also required to prepare a comprehensive education scheme to implement individualized education plan for every disabled child and to provide transport and financial assistance to parents and NGOs working in this aspect.
Chapter 2 Part 3 provides for ways to promote the employment and self-employment of disabled persons so that they can contribute to nation building and lead more independent lives. It sets out incentives for employers and financial and training assistance for disabled persons to carry out their own businesses.
Chapter 2 Part 4 covers the rehabilitation facilities and services to be provided for disabled persons.
Chapter 2 Part 5 covers access. It requires the relevant authorities and local governments to implement policies to reduce physical barriers in the environment and to increase access to information and communication for the disabled persons.
Chapter 2 Part 6 on support services requires all relevant authorities to ensure the participation of disabled persons and their organizations in the development of government policies and in decision-making.
Chapter 2 Part 7 provides for better social security coverage for disabled persons by requiring the relevant authorities to give them adequate income support, incentives for seeking employment and protection from abuse.
Chapter 3 makes Discrimination on the ground of disability unlawful. It provides the mechanisms for disabled persons to seek redress if they are discriminated on the ground of their disabilities. It has 5 parts.
Chapter 3 Part 1 defines direct and indirect discrimination. Discrimination is said to occur if a person treats a disabled person less favourably than a person without the disability in circumstances that are the same. Indirect discrimination is defined as treating a disabled person less favourably on the ground of his/her disability by requiring that person to comply with a requirement which he/she cannot comply with and which requirement is not reasonable having regard to the circumstances of the case.
Chapter 3 Part 2 covers all the areas where disability discrimination is prohibited. The areas include employment, agencies, partnerships, qualifying bodies, registered organizations, education, access to buildings, in the provision of goods, services, facilities and accommodation, in sports and recreational activities and in land and property dealings.
Chapter 3 Part 3 prohibits discrimination involving harassment in employment and education.
Chapter 3 Part 4 covers exemptions. Acts done in compliance with statutory authorities, order of court or tribunal or any law or regulation or to protect public health cannot be considered as discriminatory and are therefore not unlawful.
Chapter 3 Part 5 sets up a Commission for Persons with Disabilities. The Commission consists of a chairperson, 4 persons from the government and 4 persons representing disabled persons. The functions of the Commission, among other things , are to enforce the Act, advise the Minister, submit reports to Parliament, safeguard the rights of disabled persons and look into complaints of discrimination. It has powers to investigate complaints and to take up the matter with prosecuting authorities to prosecute those who discriminate against disabled persons and/or those who fail to comply with the requirements of the Act.
Chapter 4 on Offences sets out the punishments for those who discriminate against disabled persons and/or those who fail to comply with the provisions of this Act.
This summary is prepared by the Coalition of Societies of and for Disabled Persons in Penang which includes the following organizations:
- Society of Disabled Persons Penang
- Eden Handicap Service Centre
- Old Nicolites Association
- St. Nicholas Association for the Blind
- Society of the Blind, Malaysia (SBM), Penang Branch
- Penang Deaf Association
- The Cerebral Palsy (Spastic) Children's Association Of Penang
- Asia Community Service
- Autism Support Association Penang
- Penang Down Syndrome Association
- Socio-economic & Environmental Research Institute
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