Will Malaysia’s ratification of Icerd injure ‘Malay rights’?

Yesterday, all hell broke loose in Parliament when Waytha Moorthy, the Minister in the Prime Minister’s Department, began to speak on the Government’s desire to ratify the United Nations’ International Convention on the Elimination of All Forms of Racial Discrimination (Icerd).

Moorthy was cut off mid-sentence. They raked him over hot coals. First, they accused him of being a ‘racist’ and ‘liar’. Next, they said that Moorthy ‘had no right’ to speak on the issue because of a Dutch interview some 10 years ago.

Then, BN’s Kepala Batas MP Reezal Merican asked Moorthy, whether there was a time frame to do away with Article 153, “as there could be pressure from the UN to do away with it”.

We might ask Reezal – and his ilk – three questions: 

• Can UN pressure Malaysia to amend its Constitution?
• Does the Opposition oppose racial discrimination in all its forms?
• What rights does Article 153 of the Constitution grant?

Icerd’s title is self-explanatory but it best that we first understand its nuances.

The convention was resolved by the United Nations on Dec 21, 1965, and came into force on Jan 4, 1969. This was four months before the May 13 riots in Malaysia.

Some 179 countries are ‘state parties’ to Icerd. Each UN Member State had a choice: it could either ‘denounce’ or ‘ratify’ it. It could also agree to it ‘with reservations’.

Fourteen countries have not ratified the Convention. Malaysia is one of them.

Preamble to Icerd

Icerd starts with the following preambles – to the effect that: -

1. the UN Charter is based on the principles of the dignity and equality inherent in all human beings;
2. all Member States have pledged to take … action… to promote... universal respect for - and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion;
3. the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights;
4. everyone is entitled to all the rights and freedoms … without distinction of any kind, in particular as to race, colour or national origin;
5. all human beings are equal before the law and are entitled to equal protection of the law against any discrimination;
6. any doctrine of superiority based on racial differences is scientifically false, morally contemptible, socially unjust and dangerous;
7. there is no justification for racial discrimination, in theory or in practice anywhere; and
8. the existence of racial barriers is repugnant to the ideals of any human society.

Do members of the Opposition believe that there is something wrong with these values?

And what did member states agree to? After the preamble, the state parties agreed to eradicate racial discrimination. So how is ‘racial discrimination’ defined?

The Convention defines it as any ‘distinction’, ‘exclusion’, ‘restriction’ or ‘preference’:

'...based on race, colour, descent, or national or ethnic origin which [has the] effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’: [Article 1].

This is the passage that has attracted the criticisms of the pro-Article 153 group. This group did not ‘debate’ the issue. They shouted; so much so that the speaker was forced to turn off their microphones.

Again, we ask, do members of the Opposition disagree with this definition?

Firstly, no UN resolution can force Malaysia to change its Constitution. We are a sovereign state. No one in the UN may force us to do anything against our will.

Icerd also allows any State Party to ‘denounce’ the Convention. Malaysia has not done so – not for 49 years.

Then comes the fact that it is the Malaysian government’s post-GE14 position that it has agreed to commence talks to ratify the convention, it is expected to invoke certain “reservations”.

What are Icerd ‘reservations’?

Every country has a right to agree, or disagree, with parts of or all of any international convention. This is done denouncement, or by claiming a ‘reservation’.

In Icerd itself there is such an embedded right.

Under article 20, a State Party may declare a reservation – yet still agree, in principle, to Icerd.

How other countries dealt with Icerd

Let us look at two clauses and how certain countries have dealt with them.

Article 4(a) is touchy. It asks States Parties to walk the talk.

It states that they are to:

… condemn all propaganda and all organisations… based on … superiority of one race… or which attempt to justify or promote racial hatred… [and] undertake to adopt immediate measures … to eradicate [them] by declaring such ideas an offence.

Australia did not like that at all. It declared it would not treat matters covered by Article 4(a) as ‘offences’. So did Japan.

Another touchy provision is in Article 22. If parties to the Convention could not settle their disputes by negotiations, the dispute was to be ‘… referred to the International Court of Justice (ICJ) for decision’.

Algeria invoked a reservation against Article 22. It refused to accept any dispute being referred to the ICJ. Nor would it recognise the State of Israel. China also invoked an Art. 22 objection, as did India and Iraq.

Iraq, like Saudi Arabia and Lebanon, invoked its reservation against Art. 22, and objected to any recognition of the State of Israel. Lebanon, Mozambique, Syria, Yemen and Saudi Arabia all followed suit.

The United Arab Emirates did not invoke the Article 22 objection, but it refused to recognise Israel.

Indeed, Israel itself did not feel bound by Article 22 of Icerd.

However, Morocco ratified the convention.

Even the United States claimed a reservation against Icerd. It said it objected to any provision in the Convention that breached the US Constitution.

We could do the same.

What does Malaysia’s Article 153 ‘preserve’?

For 47 years, this was a subject no one wished to tread on. During that time, Article 153 has been converted from a provision in the Federal Constitution into an electrified fence. If you touched it, you were scorched.

In summary, Articles 152, 153 and 181 were the 1971 government’s response to the 1969 riots of May 13. The then ruling party entrenched various provisions into the Constitution. It did this with the Constitution (Amendment) Act 1971. Internationally it was condemned for being unconstitutional, and in breach of the rule of law.

So what do these three articles say?

The starting point for any discussion on this issue commences at two places: one is Article 153. The other is Article 159.

Article 153 states that:-

it shall be the responsibility of [the King] to safeguard the special position of the Malays and natives of any states of Sabah and Sarawak and the legitimate interests of other communities in accordance with… this article.

So the King has to protect the non-Malays too. They are the ‘other communities’.

Second, Article 159(3) states that an ordinary Act of Parliament may be used to amend the Federal Constitution, on ‘any matter’ relating to three points: -

• ‘the National Language’ [Article 152];
• ‘the ‘reservation of quotas in respect of services, permits for Malays and natives and their ‘protection’ in the ‘public service’: [Article 153] and;
• '[the] sovereignty, prerogatives, powers and jurisdiction of the Rulers … shall remain unaffected’: [Article 181]

When you look at these ‘Malay rights’ articles, you will note how they do not really give the Malays any ‘superior rights’.

These articles were enacted to ‘protect’ the Malays and the people of Sabah and Sarawak, so that they would not be disadvantaged. That is entirely understandable.

All the answers above show us that we can accept Icerd without any major problems – even if we do have conceptual difficulties with the following point.

Icerd allows affirmative action

Now, the Convention itself has an Article 153 equivalent. It recognises ‘affirmative action’ by granting ‘special measures’. This is similar to the protective reservation in our Article 153.

This is what Icerd says about that:-

‘Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection … necessary … to ensure such groups’ … equal … exercise of human rights and fundamental freedoms shall not be deemed racial discrimination’: [Article 1(4), Icerd].

Look at the italicised words. Contrast them with the words in Articles 152, 153, and 181 above.

Article 1(4) of the Convention then states – to which the opposition, presumably, objects –

‘… provided, however, that such (special) 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.’

What this means is, affirmative action must cease if the ‘objective’ if the ‘special measures’ have succeeded.

Since 1971, successive governments have taken affirmative action for the benefit of a larger community.

So, ask these questions: Have the objectives of Articles 152, 153 and 181 succeeded? If yes, can the ‘special status’ in Article 153 be removed?

Some constitutionalists argue that these provisions are so ‘constitutionally entrenched’ they cannot be taken away.

Others say the provisions in Articles 152, 153 and 181 offend against the ‘Basic Fabric’ of the equality provisions under Article 5(1), and the rule of law.

We’ll need to debate that another day.

Yet, how long do we need, as a nation, to hold on to these ‘protective measures’? That is the larger question. Who will answer that question?

However, more importantly, can our Opposition members answer this question: Does the Opposition and every one of its members formally condemn all forms of racial discrimination? Yes or no?

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GK GANESAN is a senior lawyer, arbitrator and the author of Nation in Paradox. - Mkini

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