Page Contents

• Introduction
• Ensuring effective access to justice
• Judicial Training for Disability-inclusive Access to Justice: some examples
• Situation in Malaysia
• Resources

Access to justice is fundamental for the enjoyment and fulfilment of all human
rights. Everyone should, on an equal basis with others, regardless of gender and disabilities, enjoy the rights to:

• Equality before the law;
• Equal protection under the law;
• A fair resolution of disputes;
• Meaningful participation;
• Have their voice be heard.

However, many barriers prevent persons with disabilities from accessing justice on an equal basis with others. Such barriers include:

• Laws and policies that fail to uphold the rights of persons with disabilities;
• Restrictions on the exercise of legal capacity;
• Lack of physical access to justice facilities, such as police stations, courts, and witness stands;
• Lack of accessible and affordable transportation to and from justice facilities and legal aid services;
• Obstacles in accessing legal assistance and representation;
• Lack of information and legal literacy programmes in accessible formats to enable persons with diverse disabilities to understand their rights and how the legal system works;
• Limited or no access, throughout the justice system, to national/local sign language interpreting services and support for alternative modes of communication for persons requiring those to communicate, including during investigations and court/tribunal proceedings;
• Lack of provision of reasonable accommodation and supported decision-making mechanisms that enable the barrier-free participation of persons with diverse disabilities throughout the justice system;
• Ableist, paternalistic, negative attitudes that question and undermine the ability of persons with disabilities to participate in all phases of administration of
  justice;
• Lack of training in disability rights and disability-sensitive responses for professionals and other personnel working in the justice system;
• Fear of stigma, retribution and heightened risk to personal safety arising from the reporting of rights violation;
• Poverty, lack of financial autonomy and inability to afford the expenses of accessing legal representation, advice and justice.

In the justice system, persons with disabilities are often treated as unworthy of, and unable to benefit from, due process protection provided to all other citizens. Some take perverse pleasure in mocking and bullying disabled persons as they attempt to seek justice, trampling on their right to due process protection. Even fundamental rights, such as the right to remain silent and the presumption of innocence, may be denied either directly in law or policy or indirectly in custom and practice.

Attempts by persons with disabilities to access justice entail risks with possible extreme consequences. Such risks include being treated as suspects; giving in under duress to make false confessions; as well as remaining helplessly silent in the face of erroneous verdicts and being unlawfully deprived of liberty.

For disabled persons, communication and way-finding in the justice system are obstructed by disability-based discrimination and a host of other factors, for example, poverty, low social and economic status, and low levels of education and legal literacy. Thus, the vulnerability of disabled persons can be conveniently exploited in victim intimidation and to force the withdrawal of police reports that might pose an inconvenient reputation damage risk for those in positions of high social standing.

It is the duty of Government to ensure that persons with diverse disabilities have appropriate support that enables their access to justice. This includes mandating the provision of reasonable accommodations and reforming, for disability inclusiveness, the justice system and practices. Such reform (of the justice system and practices) must be accompanied by institutionalized and regular awareness-raising and training conducted on a continuous basis for all personnel in all three (police, legal and judiciary) arms of the justice system.

In the same way that every citizen has the right to lodge a police report, file a petition or complaint in court, and provide a statement as a witness, it is incumbent on State authorities to remove barriers that obstruct citizens with disabilities from exercising the same right on an equal basis with others.

Source: International Principles and Guidelines on Access to Justice for Persons with Disabilities, 2019

Article 13 – Access to Justice, Convention on the Rights of Persons with Disabilities

Ensuring effective access to justice

The Delhi Government has approved the creation of special courts for persons with disabilities, in pursuance of Section 84 of the Rights of Persons with Disabilities Act, 2016 of India. This is a historic step towards ensuring justice for persons with disabilities. It is also a crucial step towards reforming the judicial system of India to better serve the interests of persons with disabilities.

Inclusive Design: The courts will be designed to accommodate the specific needs of individuals with disabilities, ensuring that judicial proceedings are conducted in an inclusive manner.
Swift Justice: The establishment of these courts is expected to streamline legal proceedings involving persons with disabilities, promoting timely resolution of cases.

https://timesofindia.indiatimes.com/city/delhi/delhi-launches-special-courts-for-persons-with-disabilities-a-milestone-in-justice/articleshow/114437937.cms

Delhi Government Establishes Special Courts for People with Disabilities

Judicial Training for Disability-inclusive Access to Justice: some examples

Some of Malaysia’s neighbours have introduced judicial training that facilitates disability-inclusive access to justice. Below are examples of work under way in China, India and the Republic of Korea – excerpted from United Nations ESCAP publications.

For example, China provides judges, police officers and lawyers with training on the human rights of persons with disabilities (p. 21). An experimental programme of a national public university aims to produce outstanding legal practitioners for the public sector who would also be proficient in Chinese Standard Sign Language (p. 126). Since 2020, four consecutive batches of law undergraduates in Chinese Standard Sign Language have been trained. The programme includes community service and field opportunities for the trainee legal practitioners to interact directly with Deaf persons to understand their legal aid needs. It provides training in Everyday Chinese Standard Sign Language and legal terms in Chinese Standard Sign Language.

India has mandated the inclusion of material on the human rights of persons with disabilities in judicial training and continuing education (p. 42).

In accordance with section 47 (1) of India’s Rights of Persons with Disabilities Act, 2016,

“(1) Without prejudice to any function and power of Rehabilitation Council of India constituted under the Rehabilitation Council of India Act, 1992, the appropriate Government shall endeavour to develop human resource for the purposes of this Act and to that end shall,—

1. mandate training on disability rights in all courses for the training of Panchayati Raj Members, legislators, administrators, police officials, judges and lawyers;
2. induct disability as a component for all education courses for schools, colleges and University teachers, doctors, nurses, para-medical personnel, social welfare officers, rural development officers, asha workers, anganwadi workers, engineers, architects, other professionals and community workers; ….”

Sessions on disability laws and the rights of persons with disabilities are being conducted in all induction training and other training for officials at all levels. The guidelines for training and sensitization of the judiciary recommend modules on disability rights. Legal Service Authorities at the State- and District-level organize capacity-building programmes for judicial officers.

The Supreme Court of the Republic of Korea published in 2013 “The Guidelines for Judicial Assistance for Persons with Disabilities” (p. 25) which were revised and updated in 2020. The Guidelines cover ways of providing assistance at each stage of civil and criminal judicial processes according to, among other matters, the types of disabilities a person may live with. It is noteworthy that the court has shown its commitment by preparing guidance for the judiciary, court personnel and the public, as well as by increasing the quality of and updating the Guidelines.

In its 2014 Concluding observations, the United Nations Committee on the Rights of Persons with Disabilities noted its concerns about insufficient awareness of the rights of persons with disabilities on the part of judicial personnel and recommended training programmes for police officers, prison staff, lawyers, the judiciary and court personnel. In its combined second and third periodic reports in 2019 to the United Nations Committee on the Rights of Persons with Disabilities Research, the Government of the Republic of Korea presented education for raising awareness of disabilities as its efforts for judicial training and education.

This section was prepared in collaboration with Beatrice Leong, Autistic Rights Advocate and Founder of Autism Inclusiveness Direct Action Group (AIDA).

In Malaysia, the legal and social protection mechanisms for persons with disabilities are based on a welfare/charity model. This model views and treats persons with disabilities as passive recipients of charity who are devoid of dignity, agency and autonomy. This perpetuates among many people in mainstream society the ableist perception that persons with disabilities are incapable of exercising their full rights in all aspects of life, including regarding access to justice.

Even if laws, policies, regulations, guidelines and Standard Operating Procedures (SOPs) on accessing justice exist, persons with disabilities may not be able to exercise their legal rights in full capacity due to the abovementioned barriers. This drives persons with disabilities into a corner; if they cannot find on time those who are willing and able to help, they will likely not be able to exercise their rights.

Furthermore, guidelines and SOPs for accessing justice have thus far been developed based on the norms decided on by non-disabled persons and with minimum or no consideration of the lived experiences of disabled persons. Provision of reasonable accommodation and supported decision-making, especially for persons with intellectual and psychosocial disabilities, has not been mandated in the Malaysian justice system.

Without the timely provision of reasonable accommodations and disability-inclusive legal assistance, persons with disabilities are not in a position to make informed decisions within the time frame stipulated according to justice system SOPs. When they finally gain the necessary access and support to exercise their legal rights in full capacity, they may be viewed as unreliable or fickle-minded.

Malaysia does not as yet have any legislation, policies, guidelines or SOPs for actors in all three arms of the justice system regarding training them on the disability-inclusive roles and responsibilities of the justice system in upholding and protecting the rights of persons with disabilities. This means that many Malaysian justice system actors lack the necessary understanding and skills for appropriate and timely action that enables persons with disabilities to access justice. Furthermore, they may harbour doubts about the reliability and credibility of statements provided by persons with disabilities.

Ableist and patriarchal attitudes and practices are formidable barriers that prevent persons with disabilities from accessing justice. These barriers manifest as limited or a skewed understanding of disability rights, and an inability to ensure disability-inclusive implementation and enforcement in the justice system.

Access to Justice for Women and Girls with Disabilities

Resources

*Note: Resources linked are in English and pdf or webpage format, unless stated otherwise.

United Nations Convention on the Rights of Persons with Disabilities (CRPD) General Comment No. 1 – Article 12 : Equal recognition before the law (Adopted 11 April 2014) – Plain English version