LAM2220 Negotiated Study

THE RIGHT OF CHILDREN WITH LEARNING DISABILITY TO AN ADEQUATE

STANDARD OF LIVING AND SOCIAL PROTECTION

Introduction

Being a signatory to the Millennium Development Goals, Malaysia has achieved its aim to
halve poverty and eradicate hardcore poverty within households between 1990 and 2015.1
Despite great achievements in tackling poverty, pockets of poverty nevertheless remain a
great challenge to the fulfilment of economic, social and cultural rights in Malaysia amongst
the poor. In this respect, child poverty is of particular concern because of its long-term effects
on cognitive, physical and emotional development.2 Children with disabilities in this regard
are greatly impeded from leading a good quality of life. Therefore, it is pertinent that domestic
laws regarding children aim towards helping such children achieve their right to an adequate
standard of living as enunciated under the Convention on the Rights of the Child 1999
(hereinafter “CRC”) and the Convention on the Rights of Persons with Disabilities 2007
(hereinafter “CRPD”).

The paper aims to explore of the right of children with learning disabilities to an adequate
standard of living in Malaysia as enunciated under Article 23 and 27 CRC and Article 28
CRPD. In order to do so, this paper will look at the normative and definitive content of the
right to an adequate standard of living in international law for children with learning
disabilities. Particular attention will be paid to states parties’ corresponding responsibilities
under both Conventions to realise this right. This will in turn lead to an examination of how
and to what extent this right has been realised in Malaysian domestic law. Having done this,
this paper will conclude on the gaps of domestic law in light of Malaysia’s international
obligations and make recommendations where possible.

1
Economic Planning Unit, “Millenium Development Goals Report 2010”(2011) United Nations Country Team, Malaysia at
p.10
2
ibid. at p.16
General Principles

The best interests of children with disabilties

Before examining the right to an adequate standard of living, it must be noted here that
States are obliged under Article 3(1) CRC and Aricle 7(2) CRPD to make the best interest of
the child a primary consideration in formulating legislation, policies and in any action of any
agents of the State which touch or concern children with disabilities.3 Hence, States parties
must respect and implement the right of the child to have his or her best interests assessed
and taken as a primary consideration.4 This may involve changing existing laws in order to
ensure that public and private entities who make decisions that concern or impact children
assess that primary consideration has been given to the best interests of the child. To this
end, Article 7(1) CRPD obliges states to ensure that children with disabilities can attain the
full enjoyment of all human rights and fundamental freedoms on an equal basis with other
children.5

Non-discrimination

Besides the best interests of the child, non-discrimination and equality are also essential to
the exercise and enjoyment of economic, social and cultural rights.6 Article 2 CRC explicitly
mentions disability as a prohibited ground of discrimination within Article 2. This can be
explained by the fact that children with disabilities belong to one of the most vulnerable
groups of children due to multiple discrimination based on a combination of factors in
addition to their disability. Article 2(1) of the CRC not only prohibits discrimination against the
child but also against “his or her parent’s or legal guardian's race, colour, sex, language,
religion, political or other opinion, national, ethnic or social origin, property, disability, birth or
other status.” In this vein, States Parties are obliged to take all appropriate measures to

3 Article 3(1) CRC states that: “In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary
consideration.” On the other hand, Article 7(2) CRPD reads: “States Parties shall ensure that children with disabilities have
the right to express their views freely on all matters affecting them, their views being given due weight in accordance with
their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate
assistance to realize that right.”
4 UNCRC General Comment No. 14 on the Right of the Child to have His or Her Best Interests Taken as a Primary
Consideration, (CRC/C/GC/14) 29 May 2013, at para.11
5 Article 7(1) reads: States Parties shall take all necessary measures to ensure the full enjoyment by children with
disabilities of all human rights and fundamental freedoms on an equal basis with other children.
6 UNCESCR General Comment 20 “Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the
International Covenant on Economic, Social and Cultural Rights)”
protect the child against all forms of discrimination or punishment on the basis of the status,
activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family
members.7

According to the UN Committee on Economic, Social and Cultural Rights (hereinafter

“UNCESCR”), discrimination towards persons with disabilities means “any distinction,
exclusion, restriction or preference, or denial of reasonable accommodation based on
disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise
of economic, social or cultural rights”8 In this vein, the UN Committee on the Rights of the
Child(hereinafter “UNCRC”) has stated in General Comment No. 5 that States are required
to take active steps in identifying groups of children whose rights demand special measures
for their recognition and realisation.9 The Committee further stated that to this end, that state
parties should include disability as an explicit ground of prohibition on discrimination within
national laws, provide effective and readily accessible remedies for violations of rights of
children with disabilities and their parents, and conduct awareness and educational
campaigns to prevent de facto discrimination against children with disabilities.10

With this in view, we will now examine the right of children with learning disabilities to an
adequate standard of living as provided for in international law.

7 Article 2(2) CRC

8 UNCESCR general comment No. 5, at para. 15.
9
UNCRC General Comment No.5, at para.27
10 UNCRC General Comment 9, at para. 9
The Right to an Adequate Standard of Living in International Human Rights Law

The right to an adequate standard of living is commonly classed as an economic and social
right. This right was first promulgated under Article 25 of the Universal Declaration on Human
Rights 194511 (UDHR), and subsequently provided for in Article 11 of the International
Covenant on Economic, Social and Cultural Rights 1969.12 The right was further expressed
in Article 27 of the CRC. Although these two provisions do not precisely define what an
adequate standard of living means, the right can be understood from the context of the
provision in which it is placed in. This can be done through looking at the list of matters
included within the respective provisions which are considered essential for achieving an
adequate standard of living.13

Article 25(1) UDHR includes, with the right,“food, clothing, housing and medical care and
necessary social services, and the right to security in the event of unemployment, sickness,
disability, widowhood, old age or other lack of livelihood in circumstances beyond his
control.”14 Article 11 of the ICESCR states that the right includes “adequate food, clothing
and housing, and to the continuous improvement of living conditions.”15 Further to Article 11,
Article 12 ICESCR states that state parties have recognised the right of everyone to the
highest attainable standard of health. Although these list of needs are essential, they are by
no means exhaustive as implementation of the right is relative to the circumstances of each
country. The overarching goal of this right is that everyone should be able to live without

11 Universal Declaration on Human Rights, 10 December 1948, General Assembly Resolution 217 A (III). Article 25 reads:
“1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family,
including food, clothing, housing and medical care and necessary social services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 2.
Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall
enjoy the same social protection.”
12 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, UN General Assembly Resolution
2200A(XXI). Article 11(1) reads: “The States Parties to the present Covenant recognize the right of everyone to an
adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous
improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right,
recognizing to this effect the essential importance of international cooperation based on free consent.”
13 Asbjorn Eide, “Adequate Standard of Living”, in Moeckli, Shah, and Sivakumaran (eds.), International Human Rights Law,
2nd Edition, Oxford University Press, 2014 Chap.10, at p.196
14 Article 25(1) Universal Declaration on Human Rights 1948 [UN General Assembly Resolution 217 A (III)] (available at:
http://www.refworld.org/docid/3ae6b3712c.html [accessed 2 May 2015])
15 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, UN General Assembly Resolution
2200A(XXI). Article 11(1)
shame and unreasonable obstacles to full participation in everyday ordinary interaction with
other people.16

Bringing this right into the context of children’s rights, the CRC espouses the right to an
adequate standard of living for children under Article 27. Article 27(1) espouses the right to
be one “which is adequate for their physical mental, spiritual, moral and social development.”
Thus, the child’s development cannot be divorced from his or her standard of living. They are
both intrinsically linked.17 In this vein, Article 27(2) states that parents have the primary
responsibility to secure the conditions of living necessary for the child’s development
showing that children’s right to development are linked with their parents’ responsibility to
secure such development.18 Although parents have the main responsibility to ensure such
conditions of living, Article 27(3) places a secondary responsibility on the State to assist
parents in meeting such development necessary to the development of the child. In its 2006
General Comment, the UNCRC urged state parties to take positive action to implement
systemic strategies to reduce poverty in early childhood as well as combat its negative
effects on children’s well-being.19

The Right of Children with Disabilities to an Adequate Standard of Living.

In the context of children with disabilities, several provisions of the CRC come into focus.
Article 23 states that every child with a disability should enjoy a “full and decent life” in such
conditions that ensures the child’s dignity, promote the child’s self-reliance and facilitate the
child’s active participation in the community.20 While Art.23 does not describe what
constitutes a mental or physical disability, the UNCESCR relies on the approach taken from
the 1993 UN Standard Rules on the Equalisation of Opportunities for PWDs in defining
‘disability’. It states that:

16 Asbjorn Eide, supra n.13, at p.196

17 Alistair MacDonald QC, “The Rights of the Child: Annotated Materials”, Family Law Jordan Publishing Ltd. 2014, p.53
taken from Newell and Hodgkin Implementation Handbook for the Convention on the Rights of the Child (2008 UNICEF 3rd
Ed.
18 Alistair MacDonald QC, “The Rights of the Child: Annotated Materials”, Family Law Jordan Publisihing Ltd. 2014, p.53
See also Arts. 7 and 8 CRC.
19 UN Committee on the Rights of the Child General Comment No. 7 HRI/GEN/Rev 8 (2005-2006) at para. 26
20 Sharon Detrick “A Commentary on the United Nations Convention on the Rights of the Child”, Martinus Nijhoff Publishers
1999 at p.377. Article 23(1) CRC 1989 reads:“States Parties recognize that a mentally or physically disabled child should
enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance, and facilitate the child's active
participation in the community.”
“The term “disability” summarises a great number of different functional limitations
occurring in any population… People may be disabled by physical, intellectual, or sensory
impairment, medical conditions or mental illness. Such impairments, conditions or illnesses
may be permanent or transitory in nature.”21

Article 23 is linked to Article 6 CRC which provides that every child has the right to life, and
that States parties must ensure their survival and development to the maximum extent
possible. This right was first proclaimed in the UDHR with Article 3 stating that “Everyone
has the right to life, liberty and security of person.”22 In this vein, the International Covenant
on Civil and Political Rights states that “Every human being has the inherent right to life. This
right shall be protected by law. No one shall be arbitrarily deprived of his life.”23Asbjorn Eide
in Moeckli and Shah

Article 28 of the Convention on the Rights of Persons with Disability 2007 supplements
Article 23 and Article 27 CRC. Although the wording of Article of the CRPD is very similar to
Art.11 ICESCR, Article 28 stresses on the principle of non-discrimination in particular, to
ensuring equal access of persons with disabilities to clean water services, necessary
assistance, social protection and poverty reduction programmes, and public housing.

This paper now turns to examine some of the various components which are necessary for
an adequate standard of living for children with learning disabilities. In this respect, we shall
examine, inter alia, the right to health, right to education and right to social security. It must
be noted at the outset here that the duty to implement economic and social rights are
progressive in nature, i.e.: they require time, resource and measures to achieve the full
realisation of such rights. Although the following rights need to be implemented progressively,
such rights should be read in conjunction with the second sentence of Article 4 of the CRC
which obliges state parties to undertake all appropriate legislative, administrative and other
measures for the implementation of the right set forth in the CRC “to the maximum extent of
their available resources”24

Components of the Right

21 UN GA Declaration on the Rights of Disabled Persons in 9 Dec 1975 through Res. 3447(XXX) at para.1
22 Article 3 UDHR supra n.11
23 Article 6 International Convention on Civil and Political Rights 1966 [General Assembly resolution 2200A (XXI)]
24 Article 4 CRC reads “States Parties shall undertake all appropriate legislative, administrative, and other measures for the
implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights,
States Parties shall undertake such measures to the maximum extent of their available resources and, where needed,
within the framework of international cooperation. ”. See also Sharon Detrick at p.447
Right to the Health and Adequate Food

Article 24 CRC on the right to health mirrors Article 12 ICESCR. Article 24 requires State
Parties to implement the right through adopting measures to inter alia diminish infant and
child mortality, ensure the provision of necessary medical assistance and health care for all
children, combat disease and malnutrition through the provision of adequate nutritious foods
and clean drinking water, taking into account the dangers and risks of environmental
pollution.25 In this vein, Article 25(b) CRPD obliges the state to provide those health services
needed by persons with disabilities specifically because of their disabilities, and services
designed to minimize and prevent further disabilities among children.

According to the UNCRC, the notion of “The highest attainable standards of health” takes
into account both the child’s biological, social, cultural and economic preconditions and the
State’s available resources.26 States must therefore ensure that no child is deprived of his or
her provision necessary medical assistance and healthcare to all children, combat diseases
and malnutrition and develop preventive healthcare.27

Taking into account Article 24’s predecessor viz. Article 11(2) ICESCR, the right to food can
be read within the context of the right to health. Article 11(2) ICESCR states that State
Parties recognise the right of everyone to be free from hunger, to which state parties are
obliged to take measures and carry out programmes to produce, conserve and distribute
food equitably.28 In this vein, the UNESCR takes the view that States parties are obliged to
ensure access to nutritionally, adequate culturally appropriate and safe food.29 Moreover, in
relation to drinking water, the UNCRC has also stated that government departments and
local authorities responsible for water and sanitation should actively consider child indicators
on malnutrition, diarrhoea and water-related diseases and household size when planning and
carrying out infrastructure expansion and water services maintenance. This is
notwithstanding the privatisation of water services within the state which therefore means

25 Article 24(2) CRC

26 UNCRC General Comment No. 15 (2013) on the Right of the Child to the Enjoyment of the Highest Attainable Standard
of Health 17 April 2013, at para 23
27 Asbjorn Eide, supra n.13, at p.207
28 Article 11(2) ICESCR supra n.12
29 UNCRC General Comment No. 15 at para.43
that private companies handling water services have secondary obligations in relation to
respecting and fulfilling the children’s right to the highest attainable standards of health.30

In carrying out the implementation of realising children’s right to health, States parties are
obliged to address the dangers and risks that local environmental pollution poses to
children’s health in all settings. States should therefore regulate and monitor the
environmental impact of business activities that may compromise children’s right to health,
food security and access to safe drinking water and to sanitation31

Right to Education

Besides the right to health, children with learning disabilities have the right to education as all
other children. This right is quintessential in helping them to achieve a “full and decent life” as
education is commonly seen to be an effective tool in combating poverty. Articles 28 to 30
address the right to education wherein States parties are obliged to make primary education
compulsory, available, and free for all. They are to encourage the development of secondary
education, make higher education accessible to all and encourage regular attendance.32 In
this vein, Article 24(2)(a) CRPD obliges the State to ensure that children with disabilities are
not excluded from public education.33

In General Comment No.9, the UNCRC stressed that states must ensure that children with
disabilities have effective access to education.34 This would require schools to modify their
practices in order to remove communication barriers and also assimilate children with
learning disabilities within the schooling community. Teachers should also be trained in
methodology and techniques, including communication skills, to teach assist and support
such children as such children might need personal assistance in order to achieve positive
educational outcomes.35 Education in this respect should achieve the goals set out in Article
29 CRC especially in relation to strengthening the child’s positive self-awareness, enabling
the child to observe that others respect him/her.36 Integration of children with learning
disabilities into school life and community is also crucial in the development of the child’s

30 UNCRC General Comment No. 15 at para.48

31 UNCRC General Comment No. 15 atpara.49
32 Article 28(1) CRC
33
United Nations Convention on the Rights of People with Disabilities and Optional Protocol 2008 [UN General Assembly
Resolution A/RES/61/106], Article 24(2)(a)
34
UNCRC General Comment No. 9 at para.14(b)
35 UNCRC General Comment No.9 para 65
36 UNCRC General Comment No.9 para 64
identity and sense of belonging in the community.37 Integration should take into account of
the challenges and needs of the children and that the school’s curricula must be re-evaluated
and developed accordingly.38

In relation to integration, it is mainly the case, as will be seen, that many children from
indigenous communities and migrant populations face discrimination and marginalisation
from education. In this respect, Article 30 CRC makes special mention of children from
indigenous and minority communities. In addition, the UNCRC stated in General Comment
No.11 that the close linkage between Article 30 CRC and Article 27 ICESCR obliges the
state to ensure that the existence and the exercise of the right to education by indigenous
children are protected against their denial or violation. Therefore, positive measures of
protection are required, not only against the acts of the State but also against the acts of
other persons within the State.39

Right to Social Security

Article 26 CRC deals with the right of the child to social security and Article 27 deems social
security as a factor which enables children to attain an adequate standard of living. Article 26
reflects Article 22 of the UDHR and Article 9 of the ICESCR.40 In its General Comment No. 5,
the UNCESCR stated that income support for persons with disabilities should reflect the
special needs for assistance and other expenses often associated with disability.41 In
addition, and in so far as possible, such support should also cover those who provide care for
them including their family members.42 The Committee stresses that institutionalisation of
persons with disabilities cannot be regarded as an adequate substitute for persons with
disabilities’ right to social security and income support unless there are compelling reasons to
do so.43 Indeed, social security is important for children with disabilities who come from
families trapped in hardcore poverty as such public assistance would help alleviate the

37
See UNCRC Gen Comm No.9 paras 65-67
38
UNCRC Gen Comm No.9 at para 67
39 UNCRC General Comment No. 11 para.17
40
Article 9 ICESCR provides that “The States Parties to the present Covenant recognize the right of everyone to social
security, including social insurance.” while Article 22 UDHR states that “Everyone, as a member of society, has the right to
social security and is entitled to realization, through national effort and international co-operation and in accordance with
the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and
the free development of his personality.”
41
UNCESCR General Comment No.5 at para.28
42
UNCESCR General Comment No.5 at para.28
43
UNCESCR General Comment No.5 at para.29
barriers they face in addition to their disability. In this vein, Article 26(1) obliges state parties
to take necessary measures to achieve the full realisation of the right in accordance with their
national law.44

Children’s Rights in Malaysia: The Domestic Landscape

Malaysia is a signatory to the CRC and more recently a party to both Optional Protocols to
the CRC in 2012.45 Furthermore, Malaysia has signed and ratified the 2007 Convention on
the Rights of Persons with Disabilities (CRPD) in 2008.

Malaysia’s entry into the Convention was initially done with reservations to Articles 1, 2, 7,
13, 14, 15, 28(1)(a) and 37 of the Convention. Despite withdrawing reservations to Article 1,
13 and 15 in 2010, remaining reservations are nevertheless, made against fundamental
provisions within the CRC46 to which many quarters have called for their removal.47 At the
time of ratification and signature of the CRC, several states within the UN General Assembly
expressed their objection to the abovementioned reservations holding that these reservations
are against the object and purpose of the Convention which not only casts doubt on
Malaysia’s commitment to accession of the treaty, but also renders these reservations
themselves void and without effect.48

In ratifying these treaties, Malaysia has enacted the Child Act 2001 and the Persons With
Disabilities Act 2008 (PWD Act 2008). The Child Act deals primarily with physical welfare of
the child and their treatment within the justice system but not social welfare.49 In particular,
disability is not addressed under the Child Act 2001 since Malaysia does not have a
comprehensive set of laws to protect the interests of persons with disabilities, especially

44 Article 26(1)
45 Date of accession 17 Feb 1995; Optional Protocol to the Convention on the Rights of the Child on the involvement of
children in armed conflict (2002) and Optional Protocol to the Convention on the Rights of the Child on the sale of children,
child prostitution and child pornography (2002)
46 Reservations are currently on non-discrimination (Article 2); name and nationality (Article 7); freedom of thought,
conscience and religion (Article 14); free and compulsory education at primary level (Article 28(1)(a)); and torture and
deprivation of liberty(Article 35)
47 See inter alia The Malaysian Bar,“Press Release: Time to remove all reservations and sign the Optional Protocols”
(available at:
http://www.malaysianbar.org.my/press_statements/press_release_time_to_remove_all_reservations_and_sign_the_option
al_protocols.html [accessed on 25 April 2015]) and Status Report on Children’s Rights in Malaysia at p. 6
48 CRC 1989, 1577 United Nations Treaty Series 3 See in particular the replies to reservations from Austria, Germany,
Finland, Norway, Belgium, Sweden, Portugal, the Netherlands and Ireland (available at:
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en)
49 Malaysia Human Development Report 2013: Redesigning an Inclusive Future, United Nations Development Program
(2014) at p.262
children with disabilities. Prior to the PWD Act 2008, most of the disability legislation relates
to persons with disability who are in their adulthood.50 which took a welfare-based approach
to disability, making persons with disability recipients of charity and welfare who are
powerless and inferior to others.51 Thus, PWD Act 2008 could be seen as the start of
reforming disability legislation within Malaysia in order to incorporate a more rights based
approach to the protection of persons with disabilities.

The PWD Act is replete with explicit pronunciation of rights of persons with disabilities to
matters such as access to infrastructures and public transport, education and employment.
However, the Act is silent on provisions on enforcement actions for a breach of the rights
provided for under the Act when compared with disability legislation from other jurisdictions
such as the Equality Act 2010 in the United Kingdom52 or the Disability Discrimination
Ordinance (2013) in Hong Kong. In both jurisdictions, explicit provisions on enforcement are
made. For instance, the Hong Kong Ordinance provides for the establishment of a Equal
Rights Commission and confers powers of investigation and obtaining information to the
Commission for any allegation of discrimination based on disability.53 Therefore, in contrast
with legislation from other jurisdictions, enforcement for discrimination against persons with
disabilities in Malaysia is left entirely to the aggrieved individual to take the dispute to suit.
This can be a long and expensive process for dispute resolution and may even become a
hinderance to access to justice.

With this background in mind, this paper now turns to assess the extent to which domestic
laws facilitate the realisation of the right of children with learning disabilities to an adequate
standard of living. This section will look at how each component of the right of children with
learning disabilities to an adequate standard of living discussed above has been

50 Ikmal Hisham Md Tah, “Rights of Persons with Disabilities (PWD): The “Almost Forgotten”Protection under the Federal
Constitution” in Khairil Azmin Mokhtan (ed), Constitutional Law & HUman Rights in Malaysia: Topical Issues and
Perspectives Chapter 23 at p.419-423
51 M Rezaul Islam, “Rights of the People with Disabilities and Social Exclusion in Malaysia” (2015) 5(2) Int'l J SS H 171.pdf.
In Malaysia, persons with disabilities had historical stigma with naming. In the Malay language, persons with disabilities
used to be called “orang cacat” or “orang dengan kecacatan” (literally meaning: defective person, or person with defect
being the equivalent of “disabled person”) and later on, “orang kurang upaya” (literally meaning: person with lesser
abilities). These terminology of persons with disabilities have been denounced by various advocates of rights of people with
disabilities as derogatory and disrespectful.
52 Equality Act 2010, (2010 Chapter 15) UK Parliament Acts
53 Hong Kong Disability Discrimination Ordinance, Chapter 487, Gazette No. E.R. 1 of 2013 (available at:
http://www.legislation.gov.hk/blis_pdf.nsf/4f0db701c6c25d4a4825755c00352e35/D72F7A7DE6892EEE482575EF000ED
92F/$FILE/CAP_487_e_b5.pdf [accessed on 30 April 2015]
implemented in domestic law. We will examine constitutional guarantees and other legislation
which do, and potentially, realise the right to health, education and social security.

General Guarantees under the Federal Constitution

There are several provisions under the Federal Constitution which are applicable to the right
of children with learning disabilities to an adequate standard of living. The first of these is
Article 5 which states that “No person shall be deprived of his life or personal liberty save in
accordance with law.”54 Although liberty under conventional constitutional jurisprudence
arguably imports broad notions of liberalism covering freedom of expression and right of
equal opportunity, the Courts have given Article 5 an uncertain and restrictive interpretation.
In the first instance, the Court of Appeal in Tan Teck Seng v Suruhanjaya Perkhidmatan
Pendidikan55, “life” under Article 5 was interpreted to incorporate “all those facets that are an
integral part of life itself and those matters which go to form the quality of life.”56 However, a
restrictive approach was subsequently adopted in Suguman Balakrishnan57 wherein the
Federal Court overruled the interpretation in of Article 5 in Tan Teck Seng and interpreted
“personal liberty” to only mean “liberty related to the person or body of the individual or
coercion” and that the quality of “life” encompassed only the matters enunciated under Part II
of the Federal Constitution rather than a more liberal interpretation as initially adopted.58

Besides Article 5, persons with disabilities are equal before the law and have the right to
equal protection of the law in accordance with Article 8 of the Federal Constitution.59 Article
8 of the Federal Constitution is not absolute in itself as several provisions within the Federal

54 Article 5(1) Federal Constitution of Malaysia

55 Tan Teck Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261
56 Tan Teck Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261 at p 288
57 Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ at 72.
58 See Government of Malaysia & others v Loh Wai Kong ( 1979) 2 MLJ 33, and Berkuasa Negeri Sabah v Sugumar
Balakrishnan [2002] 3 MLJ at 72 at p.101
59 Article 8 of the Federal Constitution reads as follows:
“(1) All persons are equal before the law and entitled to the equal protection of the law.
(2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground
only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment
under a public authority or in the administration of any law relating to the acquisition, holding or disposition of
property or the establishing or carrying on of any trade, business, profession, vocation or employment.
(3)There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State.
(4)No public authority shall discriminate against any person on the ground that he is resident or carrying on business in
any part of the Federation outside the jurisdiction of the authority.
(5)This Article does not invalidate or prohibit—
(a) any provision regulating personal law;
(b) any provision or practice restricting office or employment”
Constitution allow for special treatment and would necessitate positive discrimination in
certain circumstances.60 Moreover, Article 8 precludes discrimination by a private entity. As
such, the claimant claiming for a violation of this right must show that harm or injury has
occurred from discrimination by a public entity.61 Hence, equality under Article 8 is not
applicable to all aspects of life. Despite the circumscribed nature of Article 8, it could be said
that the PWD Act 2007 espouses the intention that PWDs must be treated based on an equal
basis with persons without disabilities.62 Therefore, in light of the PWD Act 2007, both public
and private entities are to treat persons with disabilities, including children with disabilities on
an equal basis.

Having examined these general constitutional provisions, this section will now examine how
and to what extent the right to an adequate standard of living is realised in Malaysia. This
examination will includes reports from the UNCRC, the United Nations Special Rapporteur
for Economic Social and Cultural Rights on the Right to Food, comments from the National
Commission for Human Rights Malaysia (SUHAKAM) and various non-governmental bodies.

Right of Children to an Adequate Standard of Living in Malaysia

At the outset, it must be mentioned that information specifically relating to the economic well-
being of children is scarce. In particular, the UNCRC highlights in its 2007 report that there is
insufficient data on children with disabilities, especially those living in remote areas who do
not have the same level of services as children living in other parts of the country.63 This is
due to the fact that statistics on poverty and economic wellness are only based on
households and families. Such statistical information is, however, disaggregated and limited
only to geographical location (districts and rural and urban populations) and three main

60 See inter alia Article 12 on Education where schools are allowed to limit admissions based on religion, and Article 153
on the Special Privileges of Malays and the Natives of Sabah and Sarawak which authorises the Yang-Di Pertuan Agong
(the Constitutional monarch under Article 32) to reserve inter alia employment positions within public services,
scholarships, and pensions for Malays and Natives of Sabah and Sarawak.
61 Beatrice Fernandez v. Sistem Penerbangan Malaysia & Anor (2004) [2005] 4 AMR 1 (available at:
http://www.malaysianbar.org.my/selected_judgements/gender_discrimination_beatrice_fernandez_v._sistem_penerbanga
n_malaysia_anor_2004_ca.html [accessed on 30 April 2015]
62 Laws of Malaysia, Act 685, Persons with Disabilities Act 2007, para1 of the preamble reads: “RECOGNIZING that
disability is an evolving concept and that disability results from the interaction between persons with disabilities and
attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with
persons without disabilities.”
63
UNCRC Concluding Observations: Malaysia (CRC/C/MYS/CO/1) 25 June 2007 at para.60
population groups (Chinese, Indians and Bumiputra). Such broad categories do not, however,
allow for more detailed identification of poor and vulnerable groups in society.64

According to the 2013 United Nations Human Development Report, Malaysia has made
significant improvements in poverty eradication seeing income gaps between ethnic groups
shrink and a reduction in poverty levels from 16.5% in 1990 to 1.7% in 2012,65 and hardcore
poverty from 0.7% to 0.2% in 2012.66 Despite these achievements, the Human Development
Report estimates that there are still around 400,000 children living in households with
incomes below the poverty line.67 In this vein, the Special Rapporteur highlights the need to
tackle pockets of poverty especially amongst indigenous communities and non-citizen
population of whom many of the reports by the Committee on CRC and NGOs highlight are
significantly at a disadvantage in terms of fulfilling their right to an adequate standard of
living.68

With this in mind, this section turns to look at the specific elements needed to realise the right
to an adequate standard of living.

Right to Health and Adequate Food

According to the Committee’s 2007 observations, Malaysia has made significant progress in
its healthcare and the provision of health services especially on its efforts to improve
maternal health care and to reduce infant mortality rates.69 SUHAKAM claims that the
progress in Malaysian healthcare is comparable to several developed countries. This is
reflected by Malaysia’s Human Development Index in 2013 in which Malaysia is ranked 62
under the category of high human development.70 Despite such progress, the challenge
faced is to do with provision of healthcare to communities in rural and isolated areas which
consist of mostly indigenous population. According to SUHAKAM’s study on equitable

64
Olivier De Schutter, “Report of the Special Rapporteur on the right to food”, Special Rapporteur on the Right to Food,
Mission to Malaysia (A/HRC/25/57/Add.2) 3 February 2014 at para.12
65
Human Development Report, supra n.49, at p.33 and 35-36
66
Olivier de Schutter, supra n.62, at para.8
67
Human Development Report, supra n.49, at p..264
68
See inter alia, UNCRC, supra n.61, at paras. 60-72, Olivier de Schutter, supra n.62, paras 6-12, Report on Human
Rights and Access to Equitable Healthcare, Human Rights Commission of Malaysia (SUHAKAM) (2011), Report on
Access to Education in Malaysia, Human Rights Commission of Malaysia (SUHAKAM) (2013), SUHAKAM and Lim,
Perlindungan Sepanjang Hayat dan Sistem Sokongan Sosial “Orang dengan Ketidakupayaan Teruk” di Malaysia: Dari
Perspektif Hak Asasi Manusia (2014) Malaysia Journal of Human Rights 41
69
UNCRC, supra n.61, at para.62
70
UN Human Development Index 2013 (available at: http://hdr.undp.org/en/content/table-2-human-development-index-
trends-1980-2013 [accessed on 2 May 2014])
access to healthcare,71 physical access to healthcare facilities in such areas is considerably
low due to the distance between these communities and available healthcare facilities. This
problem is further exacerbated by the lack of social mobility in these communities due to the
lack of transport available. 72 Another problem is documentation. Many villagers in Sarawak,
especially the Penan people, are faced without complete identification documents which
causes them to be charged for medical services on par with foreigners.73 Similarly, children
of migrant workers and undocumented migrants who are not citizens and do not possess
identification documents are forced to pay higher fees for treatment compared Malaysian
citizens.74 SUHAKAM further notes that in the long run, costs of medical services would
increase due to the use of new technologies in healthcare coupled with the current shortage
of medical staff.75 In light of this, unless the government tackles the shortage of staff in the
public healthcare sector, and establish a new system to effectively continue supply of vital
healthcare services to such communities, children with learning disabilities situated within
these communities would suffer severe disadvantage that their right to health is impaired.

In relation to the right to food, Special Rapporteur Olivier De Schutter was commissioned to
report on the Right to Food in Malaysia and has produced his report in 2014. The Special
Rapporteur found that Malaysia has adopted a wide range of policies and programmes under
the Tenth Malaysia Plan76 to ensure the effective enjoyment of the right to food as part of the
right of an adequate standard of living.77 In relation to children, the Special Rapporteur notes
the important achievements in reducing malnutrition in children and introducing healthy
eating education at an early stage.78 However, he found concerns that such schemes were
only having a limited impact as they tend to end too early, leaving children entering primary
school undernourished. Moreover, there were concerns that the quality and nutritional value

71
Report on Human Rights and Access to Equitable Healthcare, Human Rights Commission of Malaysia (SUHAKAM)
(2011)
72
Report on Human Rights and Access to Equitable Healthcare, Human Rights Commission of Malaysia (SUHAKAM)
(2011)
73
Human Rights Commission of Malaysia (SUHAKAM),Report on Human Rights and Access to Equitable Healthcare
(2011) p.28
74
Human Rights Commission of Malaysia (SUHAKAM),Report on Human Rights and Access to Equitable Healthcare
(2011) p.27 and 36
75
SUHAKAM Submission to UNCRC at para.5.0
76
Economic Planning Unit,“Tenth Malaysian Plan 2011-2015” Prime Minister’s Department, Putrajaya, Malaysia (available
at: https://www.pmo.gov.my/dokumenattached/RMK/RMK10_Eds.pdf [accessed on 2 May 2015])
77
Olivier de Schutter, supra n.62, at para.78
78
Olivier de Schutter, supra n.62, at para.76
of foods available in schools were insufficient especially in relation to sufficient intake of fruit
and vegetables.79

These schemes certainly benefit children with learning disabilities who are enrolled in primary
education. However, children with disabilities who are not able to gain access to education
either because of discrimination or poverty would be left out. This is reflected in the Special
Rapporteur’s report wherein it seems that realisation of the right to food in Malaysia is
impeded mainly by problems of insufficient minimum wage and lack of comprehensive social
security frameworks in the context of heavy reliance on imported foods to cover domestic
production of staple food like rice and flour.80

In relation to minimum wage, the Special Rapporteur finds that the minimum wage in
Malaysia does not reflect the living wage.81 This, in turn, impedes workers and their families
from attaining an adequate standard of living, especially families of the poor and the hard
core poor. These effects are felt especially by those residing in rural areas since their
communities lack in government initiatives to help alleviate the high cost burden of
purchasing food as cost of food in rural and remote communities remained above that in
urban areas.82

Right to Education

Education is guaranteed under Article 12 of the Federal Constitution. However, Article 12

only pertains to the prohibition of discrimination against citizens to education but does not
guarantee the provision of free education.83 The grounds of discrimination are only limited to
religion, race, descent or place of birth.84 These grounds lack the protected characteristic of
“disability” which prima facie leaves persons with disability open to discrimination by
educational institutions.

Specific legislation implementing the right to education are carried out by the Education Act
1961 and the Education Act (Special Education) Regulation 2013. Section 29A of the
Education Act 1961 makes primary education compulsory and imposes a duty on parents to
ensure that their children completes primary education. It further provides for the

79
Olivier de Schutter, supra n.62, at para.76
80
Olivier de Schutter, supra n.62, at para.22-27
81
Olivier de Schutter, supra n.62, at para.41
82
Olivier de Schutter, supra n.62, at para.49
83
Article 12 (1) Federal Constitution of Malaysia
84
Article 12 (1) Federal Constitution of Malaysia
establishment of special schools which provide special education under ss40 and 41. In the
implementation of special schools, the 2013 Regulation govern issues of admissibility of
students into special schools and the implementation of special education. Although the
regulation is meant to replace its 1997 predecessor, it is not substantially different from the
1997 Regulation. In the 1997 regulations special schools admission, delineates between
“educable” and “ineducable” students with special needs wherein the former would be
admitted. The 2013 Regulation is no different in that the criteria for admission is now
“suitability”. This prerequisite ability to self-manage still remains for the eligibility to enrol
within the schooling system which makes the system itself discriminatory and contrary to
Article 8 of the Constitution and Article 2 CRC.85

The current framework on education for children with learning disabilities has been criticised
by many NGOs and by the UNCRC in relation to provision of education to indigenous
communities and communities suffering from poverty. In its 2007 Concluding observation,
the UNCRC found that children with disabilities from an indigenous background, from
families trapped in poverty and from families of non-citizens―mostly migrant workers and
refugees―are inhibited from the right to education.86

The main impediment faced by these groups of children to the realisation of their right to
education are financial in nature. On the one hand, children from indigenous backgrounds
and children from poor families are faced with extra costs for extra-curricular activities and
cost of food and transport which must be borne by the parents of these children.87 Children of
non-citizens who are financially constrained, on the other hand, are not only faced with
school fees in addition to these costs; most of these children do not have proper
documentation to evidence citizenship or right of residence within the country which makes
them ineligible for admission into public schools.88 Hence, children with learning disabilities
who come from such background are not only trapped in the poverty cycle, but also
precluded from the protection under Article 12 of the Federal Constitution.

The current national policy on education, the Malaysia Education Blueprint 2013 - 2025,
acknowledges the current challenges faced by the Ministry of Education in meeting

85
Pei Wen Chong, “Moving forwardsor standing still? A reflection of “special” educational provision in Malaysia”, undated
conference paper, Department of Education, Liverpool Hope University, at p.4 (available at:
http://www.docs.hss.ed.ac.uk/education/creid/Projects/33f_ii_SanDiegoMeeting_WP_Chong.pdf [accessed on 2 May 2015])
86
CRC Concluding Observations, supra n.61, at page 23-174
87
Report on Access to Education in Malaysia, Human Rights Commission of Malaysia (SUHAKAM) (2013), at p.10
88
ibid. at p.17 and Human Development Report 2013, supra n.49, at p.263
educational needs of children, inter alia, the lack of qualified and trained staff for special
schools, the need to make vocational curriculum a priority for building life skills of children
with special needs and the lack of disabled-friendly facilities in mainstream public schools
especially in rural communities.89 However, no mention was made of children from non-
citizen families.

In light of this, it is feasible to note that during the Office of the High Commissioner for Human
Rights’ (OHCHR) Universal Periodic Review of Malaysia, several countries have called on
the government to enhance the educational rights of children from marginalized and
disadvantaged communities through, inter alia, guaranteeing universal access to free
primary education and improving schooling facilities to guarantee access to children with
disabilities.90

Right to Social Protection

In general, social protection schemes in Malaysia are mainly employment oriented schemes
which seek to assist the individual in entering and remaining in the workforce.91 The
overwhelming focus on social protection schemes for providing opportunity for gainful
employment does not benefit significant sections of the population, in particular children and
persons with disabilities. Nevertheless, there are several social protection schemes which
are available for children with learning disabilities. Section 38 PWD Act 2008 provides for the
right of a person with severe disabilities to “lifelong protection and social support system”.
The aim of section 38 is to ensure that the welfare of persons with severe disabilities remain
unaffected under the death of their parents or their caregivers in order to enable the person to
lead a better quality of life.92

Although the Act does not define “lifelong protection and support system”, there are,
nevertheless, several several social protection schemes identifiable for persons with
disabilities.93 According to the Department of Social Welfare, these include financial aid;
community rehabilitation; institutional services; industrial training and rehabilitation centres;
counselling services and other amenities and special facilities provided by other parties such

89
Malaysia Education Blueprint 2013 - 2025, Ministry of Education Malaysia (September 2012) at pages 4-16 to 4-18
90
See United Nations Human Rights Council 25th Session’s Report of the Working Group on the Universal Periodic Review:
Malaysia (A/HRC/25/10) dd. 4 Dec 2013 at paras 146.203, 146.205, 146.207,
91
Olivier de Schutter, supra n.62, at para.45
92
Section 38(1) Persons with Disabilities Act 2008
93
Lim, Perlindungan Sepanjang Hayat dan Sistem Sokongan Sosial “Orang dengan Ketidakupayaan Teruk” di Malaysia:
Dari Perspektif Hak Asasi Manusia (2014) Malaysia Journal of Human Rights 41 at p.48
as the Ministry of Education, Ministry of Finance and the Ministry of Transport.94 In relation to
financial aid, children with disabilities enrolled in special needs education in any national
primary secondary schools are entitled upon registration to a monthly cash allowance of
RM150 provided by the Ministry of Education.95 On institutional services, the public
institution providing residential care and rehabilitation services is Taman Sinar Harapan of
which there are seven of such care institutions throughout the country under the purview of
the Department of Social Welfare.96

Lim notes that the financial support schemes are limited in scope, placing the main
responsibility of care on the person’s household. The aim of these support schemes are
merely to ease the burden of the families but not geared towards the protection and
advancement of right of persons with disabilities. Moreover, the amount of financial aid
conferred on the recipients―of whom most are below the poverty line―are simply not
enough and prevents them from leading “a better quality of life”.97 Furthermore, the reliability
of public residential care has been doubtful as there are no standard care guidance issued by
the Department of Social Welfare, and a lack of well trained staff. In addition, there have
been several reports of physical abuses of children with disabilities in such homes.98

Conclusion

This paper has looked at the right of children with learning disabilities to an adequate
standard of living, one that allows them to live a full and decent life in accordance with Article
23 CRC and deliberated on some of the essential elements required for the realisation of the
right to an adequate standard of living, namely, the right to health and adequate food, the
right to education and the right to social security. The preceding discussion shows that there
are significant gaps between domestic law and international law. In particular, there is a
significant need to improve the livelihoods of children in indigenous communities,

94
ibid at p.48
95
Ministry of Education: “Tatacara Pembayaran Elaun Murid Berkeperluan Khas” Circular available at
http://www.moe.gov.my/upload/galeri_awam/terbitan/2009/2009_BKEW_17_8686_188.pdf.(accessed on 2 May 2015)
See also,National Early Childhood Intervention Council, “Children with Disabilities In Malaysia: Mapping the Policies,
Programmes, Interventions and Stakeholders” dd. May 2013 at p.51.[Available at
http://www.necicmalaysia.org/view_file.cfm?fileid=129 (accessed on 10 Feb 2014)]
96
See Department of Social Welfare: http://www.jkm.gov.my/content.php?pagename=taman_sinar_harapan&lang=bm
(accessed on 2 May 2015) see NECIC ibid. at 51
97
Lim supra n.91 at 50
98
See for instance Singh, S. (2014). “Disabled teen left to fend for himself.”, The Star.
www.thestar.com.my/News/Nation/2014/06/22/Horrific-find-during-raid-Disabled-teen-left-to-fend-for-himself/ (accessed
on 2 May 2014).
communities in rural and isolated areas and non-citizen population of whom are largely
children of migrant workers and refugees. In this vein, a more comprehensive system of
social security for children with learning disabilities is needed amongst indigenous
communities. It is submitted that children of non-citizen populations should not be excluded
from care and education. Instead, a national policy on provision of residential and
rehabilitation of care should be put in place to ensure that such children are able to access
such care. Moreover, more financial and structural aid is needed to establish more
comprehensive support system for children with learning disabilities in order to help them
lead a more independent life. Furthermore, current healthcare delivery systems need to be
revised to ensure the sustainability of the provision of public healthcare especially in rural and
indigenous communities. And finally, education policies need to be revised to ensure the
inclusion of children with learning disabilities in the schooling community and facilitate
children with learning disabilities’ access to primary education through abolishing the
“suitability” test of children with learning disabilities. Support plans for home based or
community based education in this regard would greatly benefit children with learning
disabilities in allowing them to access education through community schooling or home
schooling.

[TOTAL WORD COUNT: 6050]

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