Memorandum on Legislation for Education of Individuals with Special Needs

By Bar Council Malaysia

I Summary Outline

A dire and urgent need exists on introducing legislation for individuals with special needs. It is proposed that the term "individuals with special needs" is to be defined for the purposes of this Act as referring to "individuals with special needs assessed and identified by medical standards and having a physical, mental or other impairment which has a substantial and/or long term adverse effect on their ability to carry out normal day-to-day activities". The rationale for legislation is based on the following considerations:-

i. to implement and give full credence to the following:-

(a) UN Convention on the Rights of the Child;
(b) UN Declaration on the Rights of Disabled Persons;
(c) Proclamation on the Full Participation and Equality of Opportunity for the Disabled in Asia and Pacific Region; and
(d) the Recommendations of United Nations ESCAP's Regional Forum on Education for Children and Youth with Disabilities into the 21st century made on 19th November 1999

ii. to reflect the primary responsibility and statutory role of the Government in providing appropriate education for all citizens including and especially individuals with special needs so that special education in Malaysia is not seen to be a tokenism but a truly effective means of training such individuals to be more independent and realise their fullest potential as far as possible;

iii. to enhance the dignity and standing of the child with special needs as a member of Malaysia's caring society;

iv. to minimise the public cost of institutionalising individuals with special needs, vocational training and employment opportunities including sheltered workshops and others are essential;

II UN Provisions on the right to education of children with special needs

The relevant articles of the Convention on the Rights of the Child relating to education are outlined in this section.

III Overview of legislation in neighbouring countries

Amongst legislation of other countries that have been considered are the following:-

i. Social Security Act 1991, Australia;

ii. Special Education Promotion Law (1977); Welfare Law for Persons with Disabilities; Employment Promotion of the Handicapped Law of the Republic of Korea;

iii. Disabled Persons' Community Welfare Act, New Zealand;

iv. Rehabilitation of Disabled Persons' Act (1991) Thailand;

v. Disabilities Discrimination Ordinance (No.86 of 1995) Hongkong;

vi. Disability Discrimination Act, U. Kingdom;

vii. Education Act, Republic of China;

viii. Individuals with Disabilities Education Act, United States of America.

The judicial attitude towards the issue of education for individuals with special needs in Malaysia based on the High Court judgement in Renner v International School of Kuala Lumpur (1999) is encouraging. Citing relevant cases in the UK Dato Low Hop Bing held that a child with special needs should not ipso facto, be denied his basic rights to and his needs for education. Financial considerations are to take a back seat and give way to the child's basic right to education.

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