Taking a stand against racism but supporting affirmative action for socio-economic inclusion — Denison Jayasooria

NOVEMBER 22 — May 9, 2018 general election results has 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 in the public space a lot of black lash on the PH government’s proposal to strengthen human rights compliance in Malaysia especially through the ratification of major human rights conventions. Some of reactions is 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 & religious and to the new opposition in Parliament which is predominately of one major ethnic and religious community. Seeing everything from the lese of race and religious is now unavoidable.

The current public discussions/disputes/contestation is with regards to ICERD the International Convention on the elimination of all forms of racial discrimination. Let me make two observations, two points of facts and one recommendation on this matter.

Observations in the contestation

First, the PH government seem totally unprepared for the backlash on this issues from a section of Malaysian society. What was surprising is both at the level of cabinet ministers and backbenchers they do not seem to have the details on ICERD, the Federal Constitution and the implications of ratification.  Next round their think tanks at the political party end and the government agencies must undertake a better preparation and 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 interpenetration of the Federal Constitution with reference to Article 153. They have been successful to 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 convention on Civil & 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 3 countries which have not ratified ICERD namely Myanmar, Brunei & 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 OIC – Organisation of Islamic countries, 55 have ratified them including Palestine. There are only 2 OIC members who have not 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 country ICERD reports which are posted in the UN website. None of them are perfect but they are seeking to comply to global standards against racial discrimination.

As Malaysians, we need to ask the question do we want to be part of the global community taking a stand against racism as we have against apartheid, Palestinian and Rohiyinah issues or be a country counted as a nation together with Myanmar and North Korea. This new Malaysia must make a global 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 the principal of equality of all citizens before the law. There is no two citizenships but that we are all equal citizens of Malaysia. However in Article 153 the Federal Constitution makes a provision for special position and there are specific guidelines for this as well as the legitimate interest 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. In reading the CERD committee reviews on India, they have not reviewed it negatively but commended India for its policies and transparency of the data on affirmative action for specific groups.

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

He writes ”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 problems. To give effect to that decision article 153 has been written into the constitution” (pg 290).

He also writes and affirms that in undertaking this ”the legitimate interest of other communities will be safe guarded; so that whenever something is given to Malays and natives of Borneo nothing is taken away from others” (pg 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 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

Fifthly, politically there seems to be a stalemate as even PH leaders have joint the public objections on this matter, however there is a strong public view for ratification from human rights CSOs as well as academics. It would be best for the government to establish a special committee or a parliamentary select committee with representatives from government, political parties, academia, civil society and private sector to restudy the issues and provide the space for all view 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 & 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 & fairness for all. It is a good balancing 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 will be sad to see Malaysia stand alongside Myanmar and North Korea on this position of ICERD if we don’t ratify soon. We have done well as a nation in terms of harmony, cohesion & 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 Malaysia so as to stand hall among the nations of the world.

*Prof Datuk Dr 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.

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

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