To ratify or not to ratify no longer the question

But the ICERD remains a tempest in a political teapot, and so the discussion on the UN Convention must continue in Malaysia, a nation at the crossroads.

A NUMBER of individuals and groups denounced the proposal to ratify the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) on the ground that it will destroy Malay rights, weaken the position of Islam and erode the power of the Malay Rulers.

Most of the criticisms have no legal basis. However, as hate and fear are potent weapons in politics, the perpetrators have succeeded in polarising society and raising the spectre of violence. The Prime Minister has, therefore, strategically retracted the proposal to ratify.

The debate on this UN Convention will, however, continue and this necessitates a brief discussion of the Federal Constitution and the ICERD.

Equality

The Constitution in Articles 5-13 protects many human rights and these are available irrespective of race. Article 8(1) declares that all persons are equal before the law and entitled to the equal protection of the law. Article 8(2) states that except as expressly authorised, there shall be no discrimination on the ground of religion, race, descent, place of birth or gender.

Many other Articles explicitly forbid racial discrimination. Among them are Article 12(1) relating to education and Article 136 regarding impartial treatment of federal employees.

Citizenship (Articles 14-22); the electoral process; membership of Parliament; and positions in the Cabinet, public services, judiciary and the constitutional commissions are all free of racial differentiation.

Permissible exceptions: To the general rule of racial equality, a number of exceptions are explicitly provided. Foremost are protection for the aborigines (Article 8), Malay Regiment (Article 8), Malay Reserves (Article 89) and special position of the Malays and the natives of Sabah and Sarawak (Article 153). These preferential provisions are not based on the idea of racial superiority or exclusiveness but on a mixture of historical realities and the impulses of affirmative action. Their primary purpose is to engineer society through the law and to ensure that those left behind in socioeconomic development are able to catch up with the others.

Article 153’s provisions have much in common with India’s special provisions for the Scheduled Castes. Like in India, Article 153 provisions are hedged in by clear limits. For example, Article 153’s quotas do not apply across the board but only in four areas: positions in the public service; scholarships and educational and training facilities; licences and permits; and post-secondary education.

It is also notable that Article 153 enjoins the King to safeguard the “legitimate interests of other communities”.

Likewise, Article 89(2) requires that where land is reserved for Malays, an equal area shall be made available for general alienation.

ICERD

This piece of international law takes a strong stand against apartheid, segregation, discrimination and racial superiority. However, it recognises the need for affirmative action. It acknowledges the need to rectify historical injustices and to enrich formal equality with functional and substantive equality. Articles 1(4) and 2(2) of ICERD permit “special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection”.

This is quite in line with Articles 89 and 153 of Malaysia’s Constitution. However, the ICERD seeks to set limits on the duration for affirmative action. The measures “shall not be continued after the objectives for which they were taken have been achieved”.

This has riled up the ICERD critics because Articles 153 and 89 contain no time limits. It is submitted that for all practical purposes the differences between Article 153 and ICERD are insignificant. ICERD opposes “eternity clauses” but imposes no time limit. Article 153 imposes no time limit but is capable of amendment subject to the special procedures of Articles 159(5) and 38(4) – two-thirds majority plus the consent of the Conference of Rulers and the Governors of Sabah and Sarawak.

ICERD in Article 20 allows nations to ratify it with reservations. For example, the United States adopted ICERD but objected to any provision in the Convention that breached the US Constitution. Malaysia can do the same and indeed has done so in a number of situations.

We adopted the Universal Declaration of Human Rights 1948 in section 4(4) of our Human Rights Commission of Malaysia Act 1999 but subjected it to our Federal Constitution. We adopted the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) but subjected it to our Constitution’s Article 8(5) which exempts personal laws from the Constitution’s gilt-edged provisions for gender equality.

ICERD and Islam

To bolster their opposition to the ICERD, its critics are claiming, amazingly, that ICERD will weaken the position of Islam. To give this claim any credibility requires a willing suspension of disbelief. The ICERD is against racial discrimination and does not address itself to official religions or secularism or theocracy. In any case, Islam promotes racial equality. The ICERD has been ratified by 179 nations, of which 48 are Muslim nations. Out of 50 Muslim countries, only Malaysia and Brunei are non-signatories.

ICERD and Malay Rulers

The ICERD is not anti-monarchial and in no way affects the honours and dignities of the 27 monarchies existing in the world today, six of whom are absolute monarchies.

International law is not law

Even if ratified by the executive, ICERD cannot displace Article 3 (Islam), Article 153 (special position of the Malays and natives) and Article 181 (prerogatives of Malay Rulers). This is due to the legal fact that our concept of “law” is defined narrowly in ArticIe 160(2) and does not include international law.

The constitutional position on the ICERD is, therefore, this: Even if the ICERD is ratified by the executive, it is not law unless incorporated into a parliamentary Act. Even if so legislated, it is subject to the supreme Constitution’s Articles 3, 153 and 181. Unless these Articles are amended by a special twothirds majority and the consent of the Conference of Rulers and the Governors of Sabah and Sarawak, the existing constitutional provisions remain in operation.

The ICERD is not a law but only a pole star for action. Its ideals cannot invalidate national laws. The agitation against it is contrived for political purposes and perceptive Malaysians must not allow themselves to be exploited by politicians.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is a holder of the Tunku Abdul Rahman Chair at Universiti Malaya.