Icerd: Taking a stand against racism but supporting affirmative action

The May 9 general election results have ushered a new wave for democratic and institutional reform towards greater accountability and human rights compliance in Malaysia.

However, in recent days, we are experiencing a lot of backlash on the Pakatan Harapan government’s proposal to strengthen human rights compliance in Malaysia especially through the ratification of major human rights conventions. 

Some of the reactions are moving beyond democratic practices to hate speech, provocations and even threats of violent backlash like running amok.

We should not be surprised that this is happening, noting the major shift in the government to one which is multi-ethnic and religious and to the new opposition in Parliament which is predominantly of one major ethnic and religious community. Seeing everything from the lenses of race and religion is now unavoidable.

Let me make five points, of which are two observations, two points of fact and one recommendation on the International Convention on the Elimination of All Forms of Racial Discrimination (Icerd).

Observations in the contestation

First, the Harapan government seems totally unprepared for the backlash on this issues from a section of Malaysian society. What was surprising is, both the cabinet ministers and backbenchers do not seem to have the details on Icerd, the Federal Constitution and the implications of ratification.

During the next round, the think tanks at the political party end and the government agencies must undertake better preparation and a media handling strategy on all matters for reform.

Second, we note that a majority of the opposition MPs including former ministers and many of the NGOs against ratification of Icerd have been more emotive rather than factual, including propagating half-truths, not a full interpretration of the Federal Constitution with reference to Article 153. They have been successful in igniting the fears of the Malay community on this matter.

Checking the facts on Icerd

Third, facts pertaining to Icerd. This was the first of the conventions endorsed by the UN in 1965 even before the International Covenant on Civil and Political Rights. It was done in the fight against the apartheid system of South Africa and the rising racial discrimination globally.

At the global level, 179 countries have made a global stand against racism. This is very significant. There are only 14 countries which have not ratified Icerd. At the Asean level, there are only three countries which have not ratified Icerd, namely Myanmar, Brunei and Malaysia. A majority of the 14 are small-island nations and not any major world power other than North Korea.

It is important to note that of the 57 Organisation of Islamic (OIC) countries, 55 have ratified them including Palestine. There are only two OIC members who have not done so, namely Brunei and Malaysia. How could Icerd be against Islam and against Muslims, if all the major Islamic countries of the world have ratified them? These include Saudi Arabia, Turkey, Egypt, Iran, Iraq, Pakistan and Indonesia. One can read their reservations and the Icerd country reports which are posted on the UN website. None of them is perfect but they are seeking to comply with global standards against racial discrimination.

As Malaysians, we need to ask if we want to be part of the global community by taking a stand against racism as we have against issues such as apartheid, Palestine and Rohingya or be a country counted as a nation together with Myanmar and North Korea. This new Malaysia must make a stand and be measured using global benchmarks as we want to be a developed nation.

Checking the facts on the Federal Constitution

Fourth, the Federal Constitution clearly states in Article 8 about the principle of equality of all citizens before the law. There is no two types of citizenships and it states that we are all equal citizens of Malaysia. However Article 153 the Federal Constitution makes a provision for the special position and there are specific guidelines for this as well as the legitimate interests of other communities.

From the public discussion and contestation, the issue before us is: Are these special measures to be regarded as permanent social rights or as affirmative action?

Icerd makes a specific mention for special measures as well as there is a second document from the UN entitled “General Recommendation No 32” on “The meaning and scope of special measures in Icerd (2009) which clarifies the matter.

In Icerd, affirmative action is not regarded as discrimination because special measures are needed to address historical socio-economic injustice and inequalities. But these in Icerd have to be clearly declared and justified, including timelines.

One country which has affirmative action with quotas for the disadvantaged is India, with a constitutional protection and provision. India has been commended for its policies and transparency of the data on affirmative action for specific groups.

In the Malaysian context, a quick reading of Mohamed Suffian Hashim’s book entitled An Introduction to the Constitution of Malaysia (1976) is helpful as he views Article 153 provisions as affirmative action for a majority of Malaysians who are disadvantaged. He was then the Lord President of the Federal Court.

He wrote: “One of the most important decisions made by the non-Malay leaders was to recognise the weakness of the Malay community in the economic fields and the need in the interest of national unity to remove the weakness, for Malay poverty is a national problem. To give effect to that decision Article 153 has been written into the constitution” (page 290).

He also wrote and affirmed that in undertaking this: “the legitimate interest of other communities will be safeguarded; so that whenever something is given to Malays and natives of Borneo, nothing is taken away from others” (page 294)

This understanding of the Federal Constitutional provisions of Article 153 is consistent with Icerd. Critics are right on the question of permanence of these special measures. A country will have to justify why any special measure needs to be continued. Malaysia’s socio-economic policies of inclusive development and commitment to the UN’s Sustainable Development Goals of ‘leaving no one behind’ as promised in the mid-term review of the Eleventh Malaysia Plan would be sufficient.

One recommendation

Fifth, politically there seems to be a stalemate as even Harapan leaders have joined the public objections on this matter. However, there is a strong public view for ratification from human rights civil society organisations as well as academics.

It would be best for the government to establish a special committee or a parliamentary select committee with representatives from the government, political parties, academia, civil society and private sector to restudy the issues and provide the space for all views to be heard. They might have to receive feedback from different countries as well as the UN for expert opinion. But the government must promise to release the report. There must be a public assurance that all views will be heard and taken seriously.

My position on the Federal Constitution is clear. There is no need to amend Article 153 in order to ratify Icerd. There are enough safeguards within the Federal Constitution to ensure justice and fairness for all. It is a good, balanced document but we need to rightly understand it and implement accordingly. On Icerd, it will be good to get all parties to better understand this anti-discrimination convention and note the implications for Malaysia.

But it would be sad to see Malaysia stand alongside Myanmar and North Korea if we don’t ratify Icerd soon. We have done well as a nation in terms of harmony, cohesion and unity but we must become a society that is willing to put our model to test, using international human rights standards. May God bless us to become a more united Malaysia for all Malaysians so as to stand tall among the nations of the world.

---

DENISON JAYASOORIA is the principal research fellow at KITA-UKM. He is the co-chair of the Malaysian CSO-SDG Alliance. He is also a member of the Consultative Council on Foreign Policy, Ministry of Foreign Affairs, Malaysia. Views expressed are in his personal capacity. -Mkini