Accession to Icerd does not violate the Federal Constitution

The Malaysian Bar welcomes Prime Minister Dr Mahathir Mohamad’s statement on Sept 28 during the 73rd United Nations General Assembly that “the new government of Malaysia has pledged to ratify all remaining core UN instruments related to the protection of human rights”.

We are further encouraged by the reiteration of the government’s commitment to accede to the remaining six core international human rights instruments, made by Foreign Ministry secretary-general Ramlan Ibrahim when speaking at Malaysia’s Universal Periodic Review (UPR) at the United Nations in Geneva, Switzerland, on Nov 8.

One of the six core instruments that Malaysia has yet to accede to is the International Convention on the Elimination of All Forms of Racial Discrimination (Icerd), which was adopted and opened for signature and ratification on Dec 21, 1965, and enforced on Jan 4, 1969.

There are already 179 countries that are states parties to Icerd, and four countries are signatories. Malaysia stands with the very small minority of 14 countries that have yet to act on Icerd, which include Myanmar, South Sudan, and the Democratic People’s Republic of Korea.

Since the announcement, there has been vocal opposition by certain parties to the government’s intention to accede to Icerd. The critics’ primary objection is that accession to Icerd would offend Article 153 of the Federal Constitution, which enjoins the Yang di-Pertuan Agong to “safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities”.

Article 1(4) of Icerd — which provides that “special measures” (including affirmative action) are permissible — states as follows:

"Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved."

This principle is reinforced in Article 2(2), which provides as follows:

"States parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved."

It is clear from the above provisions that Icerd recognises that formal equality — where the law treats people the same — may not be sufficient to eliminate discrimination. Icerd seeks to bring about effective or substantive equality, including through temporary special measures, where required. These principles are elaborated upon in General Recommendation 32 issued by the Committee on the Elimination of Racial Discrimination, which spells out the meaning and scope of “special measures”.

There is thus no contradiction between Icerd and Article 153 of the Federal Constitution.

The Malaysian Bar holds the view that it is time Malaysia acknowledged the inherent dignity and equality of all human persons irrespective of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. We urge the government to, as a first step, accede to Icerd without reservations, in an expeditious manner.

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GEORGE VARUGHESE is president of the Malaysian Bar. - Mkini