The OKU community of Malaysia applauds Justice Quay Chew Soon for his historic 16 January 2025 decision on OKU right to freedom from discrimination in employment.

This decision upholds the constitutional right of all Malaysians under Article 8(1) of the Federal Constitution, regardless of ability, to seek public sector employment. 

Ch’ng B’ao Zhong (B’ao), a counsellor on contract, since October 2020, with the Ministry of Health (MoH), has a Master’s in Counselling Psychology and works at Pejabat Kesihatan, Daerah Daya Barat, Pulau Pinang.

In 2021, B’ao applied for a permanent position as a Pegawai Psikologi. He fulfilled the MoH academic criteria, passed the various screening stages, was shortlisted for an interview but was not selected after the interview. 

In 2022, he was issued an OKU card based on his diagnosis: autism spectrum disorder level 1.

His disability does not affect his work performance, as evidenced by the 2,000+ hours of counselling provided to over 1,000 patients. 

In mid-2022, B’ao updated his disability status in his online government account with the “Sistem Pendaftaran Pekerjaan Suruhanjaya Perkhidmatan Awam (SPA)” portal. 

In December 2023, when a vacancy arose, B’ao reapplied for the same permanent position (Pegawai Psikologi). However, he was not shortlisted for an interview; the SPA portal indicated B’ao did not meet the academic criterion for the position. 

On many occasions, B’ao contacted the Human Resources Department of the SPA for clarification and was given a verbal indication that he failed to be shortlisted because he was an OKU card holder. 

Aggrieved, B’ao applied to the Penang High Court for a judicial review seeking declaration that he had been discriminated against on the ground of disability during the process of accessing employment in a public sector permanent position.

The basis of seeking the declaration was on the grounds that the SPA decision was not consistent with Article 8(1) of the Federal Constitution and Section 29 of the Persons with Disabilities Act 2008 which guarantees equal access to employment. 

On 16 January 2025, Justice Quay Chew Soon ruled in favour of B’ao and declared as follows:

1. The SPA and Government of Malaysia, in considering any OKU application for employment in the public sector, must act consistently with Article 8(1) of the Federal Constitution and Section 29 of the Persons with Disabilities Act 2008.

2. A direction to quash the decision of the SPA and the Government of Malaysia in rejecting B’ao’s application for the position of Pegawai Psikologi which was communicated to B’ao on 8 February 2024.

3. B’ao be granted an online interview and be allowed a psychometric examination for his application for the position of Pegawai Psikologi in a Klinik Kesihatan in Penang.

4. The SPA and the Government of Malaysia must ensure that B’ao is not discriminated against on the basis of disability in any of his future applications for the position of Pegawai Psikologi. 

Justice Quay also found that there was a breach of legitimate expectation concerning the Convention on the Rights of Persons with Disabilities (CRPD) which prohibits discrimination against persons with disabilities. 

This case highlights the many discriminatory barriers that persons with disabilities face in Malaysia and it is time for the Government to urgently amend Article 8(2) of the Federal Constitution to expressly prohibit discrimination on the ground of disability. 

Similarly, urgent and comprehensive amendment of the Persons with Disabilities Act 2008 is essential to align it with the CRPD that Malaysia ratified in July 2010.

All Malaysians with disabilities have a legitimate right to, and expectation of, not being discriminated against. 

We commend B’ao’s courage in pursuing this legal challenge, and his Counsel Surendra Ananth for his tireless and passionate advocacy and commitment to disability justice. 

We thank the Malaysian Bar, represented by Shahareen Begum, for supporting this case as amicus curae.

Signatories:

Harapan OKU Law Reform Group Members:
Dato’ Dr Amar-Singh HSS
Datin Anit Kaur Randhawa
Mary Chen
Meera Samanther
Sangeet Deo Kaur
Yuenwah San