Lawyers: Constitution and Icerd do not clash, no need for amendments

Two prominent lawyers argue that there is no need to amend the Federal Constitution to ratify the International Convention on the Elimination of All Forms of Racial Discrimination (Icerd), as both legal instruments do not contradict each other.

Prime Minister Dr Mahathir Mohamad had been reported as saying on Nov 18 that it was “almost impossible” to implement Icerd, as it would entail amending the constitution.

However, Lawyers for Liberty adviser N Surendran said that amendments were unnecessary as “Article 153 is not inconsistent with the objectives of Icerd.”

"Icerd itself recognises affirmative action policies as envisaged by Article 153.

"Further, by virtue of Article 153(4), the Yang di-Pertuan Agong shall not deprive others in order to achieve the aims of Article 153. 

"There is thus a balance, as well as safeguards, in the provision," he told Malaysiakini yesterday.

It was the previous BN government that had skewed the implementation of Article 153 and gone beyond its ambit, the lawyer noted, which has led to much of the current misunderstanding.

"Much of the controversy has arisen from the failure to understand the provisions of Article 153, and from deliberate mischief-making and politicking by political parties using it to boost their popularity and attack the government."

'Political grandstanding'

Besides, Surendran added, Putrajaya could allay fears about the possible effects of ratification on Article 153 by simply entering reservations to Icerd.

"Those who have been shouting about the effect of Icerd on Article 153 seem to deliberately ignore the simple solution of reservation.

"This indicates that their opposition is not honest, but pure political grandstanding," he said.

Minister in the Prime Minister's Department P Waythamoorthy had previously stated that Malaysia could ratify Icerd with reservations to protect Article 153, although he did not state whether this was Putrajaya's intention.

Universiti Malaya law lecturer Azmi Sharom concurred, saying there is no need to amend the Federal Constitution to make way for Icerd.

"There is nothing (in the Constitution) that goes against Icerd," he said.

The government recently mooted the idea of ratifying Icerd, but has since come under criticism from certain quarters who claim this would affect the special privileges accorded to bumiputera in the constitution. - Mkini