NOVEMBER 8 — The Malaysian government confirmed last month that it plans to ratify ICERD — International Convention on the Elimination of Racial Discrimination. While the Pakatan Harapan government is seen to be progressing on institutional and anti-corruption reforms, ratifying ICERD will be a test of the government’s resolve to address race and inclusivity.

Some interest groups and political parties have vocally opposed ratifying ICERD. They argue ratifying ICERD would erode the constitutional special position of Malays and Bumiputeras. To address these fears, proponents of ratifying ICERD have responded in at least two ways.

One response is that ICERD opponents have misinterpreted the Federal Constitution. Perhaps an implied point is that many racial policies defended by ICERD opponents are not in fact guaranteed by the constitution. Many persons more learned than myself have elaborated on this point.

A second response is that ICERD opponents are overplaying the impact of ratifying ICERD. Even if ICERD is ratified, it would have no legal impact, the Federal Constitution would supersede ICERD, and ICERD can be ratified with reservations. The government has also ensured opponents that ICERD will not affect key Malay and Bumiputera institutions.

This response — that ratifying ICERD will have no legal impact — needs further elaboration. It leaves observers ambivalent ("why bother?”) and ICERD opponents suspicious ("is there a hidden agenda?”).

In this essay, I attempt to explain why ratifying ICERD — or any other United Nations (UN) human rights convention — is worthwhile (without any hidden agenda), even if ratification won’t give the convention legal force.

Ratifying ICERD is worthwhile because it introduces a framework for civil discourse on racial discrimination, that is systematic, participatory, and substantive. Such civil discourse is (or ought to be) the bedrock of democratic policy-making.

Good faith

From an international law perspective, treaties are technically binding but are generally not enforceable in countries — relying instead on a government’s good faith to be implemented. (Refer to the Vienna Convention on the Law of Treaties.)

When it comes to enforceability, what really matters is national law. Malaysia is a "dualist” state (as opposed to "monist”). This means that any international convention Malaysia ratifies will not have the force of law, unless Parliament passes national legislation to the effect.

This position is confirmed by the 2014 Court of Appeal ruling in AirAsia Berhad v Rafizah Shima binti Mohamed Aris, which held that although Malaysia has ratified Cedaw (the Convention on the Elimination of All Forms of Discrimination Against Women) "Cedaw did not have the force of law in Malaysia because the same was not enacted into any local legislation” and "for a treaty to be operative and enforceable in Malaysia, it requires legislation by Parliament.”

Unless national legislation is passed, ICERD it will not legally affect any law, policy, institution, or programme. And any national legislation cannot override the Federal Constitution. So why ratify ICERD?

Framework for civil discourse

The real value of ratifying ICERD — or any other UN human rights convention — is the introduction of a "review process.” When Malaysia ratifies a UN human rights convention, it agrees to be reviewed periodically by an expert committee. The committee monitors Malaysia’s progress implementing the convention.

The expert body associated with ICERD is the Committee on the Elimination of Racial Discrimination. Upon ratifying ICERD, the Committee will periodically review Malaysia on Malaysia’s implementation of ICERD.

The outcome of such a review — comments by the Committee to Malaysia — would not be legally binding. But the review process would facilitate civil discourse that is systematic, participatory, and substantive.

Systematic discourse

The review process will facilitate systematic discourse on racial discrimination, by introducing clear rules of engagement. A review broadly consists of the following steps:

1. The government (the "state under review”) and stakeholders send written reports to the committee. The reports inform the committee about the status of implementation of the convention.
2. The government and the Committee engage in public dialog, through a series of written and in-person communications.
3. The Committee publishes written comments and recommendations to the government.

Reviews occur periodically — ideally every two years in the case of ICERD. An important limitation is that a review only starts when the government chooses to report to the Committee. Malaysia has a poor record of reporting, under the previous government.

Malaysia has ratified three core UN human rights conventions, and has missed every reporting deadline. Malaysia has not reported even once to the Committee on the Rights of Persons with Disabilities, having ratified the CRPD (the Convention on the Rights of Persons with Disabilities).

We expect the new government to improve on Malaysia’s past tardiness. In any case, civil society can use the government’s failure to report as an opportunity to engage in public discourse.

Participatory

The review process will facilitate participatory discourse — between the government, civil society groups, the public, and the international community.

The government submits a report and engages in public dialog with the Committee. In preparing its report, the government consults with relevant government bodies, civil society groups, and the public.

Civil society groups, statutory bodies (e.g. Suhakam — the Human Rights Commission of Malaysia), and UN agencies can submit reports to the Committee. Groups can consult stakeholders and the public when producing their report. Civil society groups may also have the opportunity to engage with the Committee in-person. Reports and other communications are made public, and can be used for public awareness and advocacy initiatives.

During Malaysia’s most recent review by the Cedaw Committee in 2017-2018, 43 civil society organisations participated by sending (a total of nine) individual or joint submissions. Suhakam also submitted reports. The outcome of the review was highlighted publicly in various channels.

Substantive

The review process is designed to be substantive, and not (or less) political. Committee members are nominated by their home countries, and are voted in by UN State parties. Once elected, Committee members serve in their personal capacity — they do not represent their countries or governments. This is meant to ensure Committee members are impartial, and focus on substantive policies, rather than global or national politics.

Groups participate in the review process mainly by submitting written reports to the Committee. This format encourages groups to formulate evidence-based arguments on policies — as opposed to political posturing.

Further, as Committee members do not have a personal interest in the country being reviewed, their comments help provide a non-parochial viewpoint to national policies.

Commitment to discourse

I’ve attempted to explain why ICERD is worth ratifying, even though ratification will not make ICERD enforceable. I argued that ratifying ICERD is worthwhile because it would facilitate systematic, participatory, and substantive civil discourse on racial discrimination — through the review process based on the convention. I also gave an overview of the review process, explaining how it would facilitate this civil discourse.

This reasoning applies not just to ICERD, but also to any core UN human rights convention. The value of improved civil discourse should not be underestimated. In a democracy, policy decisions ought to be made through civil discourse.

While ICERD is an international mechanism, the discourse generated will largely take place at the national level. This national level discourse will continue when the review process is over. Ratifying ICERD is a commitment to talk. And that makes it worthwhile.

* Yu Ren Chung is a Malaysian human rights activist.

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.