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Ratify, and nothing will change: Is it as simple as that? — Shahrul Mizan Ismail

NOV 18 — Those who propagate the ratification of ICERD also contend the idea that the Convention does not in any way contradict the Malaysian constitution.

Reference was made mostly to Article 2(2) of the Convention which states that when the circumstances so warrant, take, in the social, economic, cultural and other fields, states are permitted to take special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them

Further reference was also frequently made to Article 1 (4) of ICERD which says that “Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination ” .

These lead to the understanding that ICERD allows certain forms of discrimination, and thus Article 153 of our constitution is actually consistent with ICERD. Consequently, some have also conveniently conclude that what we have in our constitution is safely unaffected by ICERD’s provision and no constitutional amendment whatsoever will be necessary even if we were to become a member to the convention. Is this really true?

Does our Article 153 of the Federal Constitution fall explicitly within the definition of the ‘allowed’ discrimination under ICERD as mentioned above? Is it true that all so-called ‘privileges’ related to the special position of Malays and Bumiputras in Malaysia are imperturbable by the ratification, hence will remain intact and unchanged? Most importantly, is it as easy as ratify but nothing will change? This article aims to answer exactly these questions, and hopes to help clarify any misunderstandings that some may have in interpreting ICERD provisions.

It must firstly be emphasized here that simply declaring our Constitution to be falling under the ‘permitted’ discrimination, and hence we do not have to change anything in our domestic laws, will NOT be consistent with the requirements of the Convention. The truth is, this supposed exception to the general rule is not provided without any pre-required conditions and restrictive provisos. For Article 2(2), the convention clearly mentions that such ‘permitted discrimination’ is only allowed for the purpose of guaranteeing full and equal enjoyment of human rights and fundamental freedoms to the intended group that enjoys the special measures. Whereas reading Article 1(4) as a whole illuminate two constrictive provisos namely:

That such special measures are allowed only if they do not, as a consequence, lead to the maintenance of separate rights for different racial groups. Gen. Recommendation 32 (Para 26) of Article 1, paragraph 4, provides that the measures “should not 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.

Hence, based on the above, there are three main question that we should be asking ourselves, which we must sincerely have answers to:

Are our alleged ‘special measures’ (the one that we have in our constitutions and local laws) solely designed for the purpose of ensuring that the target group i.e. the Malays and the Bumiputras are able to enjoy full rights and freedom which are equal to others? Or are these measures intended to do more than that? Does our concept of special position of the Malays and Bumiputras explicitly match ICERD’s definition of special measures and ‘allowed’ discrimination.

Do our so-called special measures lead to the maintenance of separate rights for the Malays and the Bumiputras? In simple words, do they (as a group) have certain rights and privileges allocated only for them that others don’t?

Is the special position that we accord to the Malays and Bumiputras truly temporary until the aims have been achieved? Do we intend for it to stop at any point in time? Or is it here to stay for longer if not forever due to historical reasons? How do we decide whether the aims have been achieved and who gets to decide that? Is the Malay and Bumiputra special position something that is uniquely different about our pluralistic Malaysian society that ICERD does not and/or unable to contemplate within its scope?

Regardless of what our answers are, the crucial thing to remember here is that we ourselves do not get to decide whether our situations entitle us to implement the said ‘special measures’ under Art 2(2) and 1(4). It’s not our government that has the say in terms of whether what we have in our laws and constitution should be allowed under the convention. Once ratified, we are obliged to submit to ICERD’s monitoring body, known as the ICERD Committee. And it must be highlighted that the exceptional allowance is not without any strict monitoring and meticulous control. General Recommendation 32 (Para 37) issued by the ICERD committee implicitly states that any state parties intending to implement special measures under the aforesaid Article 2(2) and 1(4) of the Convention should clearly describe their special measures, and they must be in the purview of any articles of the Convention to which the measures are related. States are required to submit reports on a periodical basis to the committee and their reports must include the following items:

The aforesaid signifies one very important reality of this so-called ‘allowed discrimination’. It is not going to be allowed forever, and while being allowed, we don’t get to make any decisions on how and how long it will be carried out. It’s the committee that will make the evaluation, and any conclusions ultimately reached will consequently become a recommendation that we must adhere to as a state party to the convention. According to Gen. Recommendation No.32 (para 27),Special Measures should be stopped when the objectives for which they were taken have been achieved. And once again, it must be remembered that it is not the state parties themselves that have the discretion to determine this. This limitation on the operation of special measures is essentially functional and goal-related: the measures should cease to be applied when the objectives for which they were employed i.e.the equality goals, have been sustainably achieved. The length of time permitted for the duration of the measures will vary in the light of their objectives, the means utilized to achieve them, and the results of their application. Special measures should, therefore, be carefully tailored to meet the particular needs of the groups or individuals concerned.

The conscientious nature of every each of the above mentioned criteria and the procedural requirements and monitoring steps by the ICERD committee crucially demonstrates how meticulous the control is upon all state parties. To say that nothing will change after ratifying ICERD is an oversimplification of the issue at hand. The unalterable reality about any ratification of any human rights treaty is that we are letting ourselves being evaluated by a third party who may or may not understand the reasons and historical origins of why things are they way they are. Presuming that we do ratify ICERD with the hope that our Article 153 falls within the definition of special measures as provided in the convention, we still have to satisfy the above mentioned 15 items before it can be deemed as special measure. There’s of course good and bad in this. But we need to be really careful in studying what they are. Honest discussions and sincere analysis of the realities are inevitable. Oversimplifying things, and side-stepping real risks is not the way to go about doing this.

*Shahrul Mizan Ismail is associate professor of Human Rights Law, Faculty of Law, UKM
* *This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.