Common Misconceptions Of OKU Card – No, It Isn’t A “Get-Out-Of-Jail-Free Card”
Extra considerations are taken in court when it comes to legal proceedings involving an OKU individual.
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The purpose of an Orang Kurang Upaya (OKU) card, or a disabled persons card, is to provide rights, legal protection, and access to vital support services for those with disabilities. This includes the neurodivergent as well.
These days however, there are those who seem to think that holding an OKU card grants them a free pass to commit crimes. Or those who think the card serves as an excuse. For the most part, this stems from a common misunderstanding concerning the card.
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Who gives out the OKU card and who can recieve them?
An OKU card is issued by the Social Welfare Department (JKM), which is under the Ministry of Women, Family and Community Development.
Only Malaysians who fall under the seven officially recognised disability categories are given the card. These include learning disabilities which covers neurodivergence (autism), Attention Deficit Hyperactivity Disorder (ADHD), dyslexia, discalculia and disgraphia.
The card functions as an official acknowledgment that the individual is a person with disability under the Persons with Disabilities Act 2008 (Act 685).
The great misconception: Being an OKU card holder exempts you from the law
The perception that individuals holding an OKU card can evade legal consequences is a misconception that needs to be addressed.
Dr Suri Charles, a licensed and registered Child Custody Evaluator and Guardian ad Litem with International Social Services, recently highlighted this issue in a Facebook post in February. She emphasized that possessing an OKU card does not grant immunity from the law.
In her post, Dr Suri also outlines facts about juvenile justice and neurodivergence. Although persons with disabilities are not exempt from a criminal court of law, there are special considerations that are taken when they hold an OKU card.
One of her points stated that the justice system prioritizes rehabilitation over punishment, but this does not mean offenders “walk free”.
When can an OKU card holder be exempt from crimes?
The only time a person with an OKU card cannot be held responsible for their crime is stated in Section 84 of the Penal Code:
However, Sections 342 through 348 of the Criminal Procedure Code (CPC) outlines procedures for when an accused is found of unsound mind — including medical assessments and detention in psychiatric hospitals.
This means that if the court considers you of unsound mind, it might not hold you accountable for your crime but you will be sent to an institution instead of prison.
How does the legal process work for persons with disabilities in Malaysia?
Several considerations may come into play when a person with disabilities come into conflict with the law.
Mental state
A court may bring mental state considerations into play to determine whether the person understood the nature or consequences of their actions at the time of their offence. Lawyers may raise the insanity defence or diminished responsibility under the Penal Code for individuals with severe intellectual or cognitive disabilities. However, a complex legal process is required for this.
Fit or unfit to stand trial?
If an OKU individual is unable to understand court proceedings or instruct a lawyer, the court may order a psychiatric assessment to determine whether they are fit to stand trial.
When a person is found not fit to stand trial, the criminal legal proceedings are halted and do not result in a conviction or an acquittal in the traditional sense. Instead, the defendant is typically sent for mandatory mental health treatment to see if their competency can be restored. The specific process varies depending on the jurisdiction, but generally involves an initial assessment, a period of treatment, and a reassessment.
Alternative sentencing
In some cases, the court may consider alternative sentencing or rehabilitation including diversionary programs, supervised care, or treatment in place of conventional punishment. However, this depends on judicial discretion, the nature of the offence, and expert evidence from psychiatrists and psychologists.
The bottom line
Having an OKU card does put certain considerations into play in a court of law, but they’re not by any means a way to excuse an individual from a crime they committed completely.
As explained above, even a person who is deemed too disabled to understand what they did wrong will be subjected to further processes in the legal system until it’s determined whether they will be punished conventionally or be placed within an institution.
Furthermore, it’s important to note that misuse or misinterpretation of the OKU card can harm both public trust and people with disabilities.
People may think that the system is being exploited, or that OKU individuals can get off easily with harmful actions. At the same time, persons with disabilities could potentially be falsely accused or denied appropriate support during legal proceedings.
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