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Prime Minister Tun Dr Mahathir Mohamad says a decision to sign the International Convention on the Elimination of All Forms of Racial Discrimination will be made only after a discussion with all races. PIC BY ASWADI ALIAS
Prime Minister Tun Dr Mahathir Mohamad says a decision to sign the International Convention on the Elimination of All Forms of Racial Discrimination will be made only after a discussion with all races. PIC BY ASWADI ALIAS

A JOURNALIST whom I had known for almost two decades called me up last Saturday afternoon, asking for comments on the government’s intention to ratify the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

Three days earlier, Minister in the Prime Minister’s Department P. Waytha Moorthy had announced that the government is committed to ratifying six treaties, including ICERD, in the first quarter of 2019. He stressed that the ratification of these conventions “is in line” with Pakatan Harapan’s election manifesto.

Apart from ICERD, the government also intends to ratify the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and the International Convention for the Protection of All Persons from Enforced Disappearance.

The minister added that although “several matters may become obstacles” in the ratification of ICERD, the government believed the convention could be signed “with exemptions” (or reservations). The minister added that Malaysia had done the same thing (making reservations) when it ratified the Convention on the Rights of Persons with Disabilities, Convention on the Rights of the Child, and Convention on the Elimination of All Forms of Discrimination Against Women.

The minister had also stressed that he is fully aware that the ratification of ICERD “may require the government to modify several existing legislation and policies”.

If the government goes ahead with the ratification without holding a public engagement (preferably a referendum), build a consensus in Parliament, and securing the green light from the Council of Malay Rulers, the move will have a boomerang effect on the government.

If, as stated by Waytha Moorthy, the ratification is in keeping with the government’s election manifesto, there are other items in the manifesto affecting the poor which should be given greater priority.

ICERD was opened for signature and ratification by UNGA on Dec 21, 1965 and came into force on Jan 4, 1969. Containing a lengthy Preamble and 25 Articles, the Convention states in Article 5: “All states’ parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law.”

What constitutes “racial discrimination” is defined in Article 1 Clause (1) as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or 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”.

Although Clause (4) of Article 1 sates that “special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups” are not deemed racial discrimination, a proviso to that clause states that such measures “shall not be continued after the objectives for which they were taken have been achieved”.

In a joint statement issued on Oct 25 by a group of activists representing Majlis Tindakan Ekonomi Melayu (MTEM), Malaysian Lawyers Circle (MLC), and Concerned Lawyers for Justice (CLJ), the group said: “Our forefathers in their infinite wisdom (had) made a number of limited exceptions in our (Federal) Constitution, as part and parcel of the social contract agreed upon in guaranteeing the positions of the native Malay-Muslims, and natives of Sabah and Sarawak, in exchange for the mass granting of citizenship to the non-natives, especially to the Chinese and Indians.”

If ICERD is ratified, Article 153 of the Federal Constitution has to be amended, and such amendment requires the consent of the Malay Rulers Council (Majlis Raja-Raja). If the special rights contained in Article 153 are taken away, what will happen to Majlis Amanah Rakyat (Mara), MRSM (Mara Junior Science colleges), UiTM, the Royal Malay Regiment, the Malay Reserve Enactment (to name a few institutions)?

Another NGO that objected to the ratification, Majlis Perundingan Melayu (Malay Consultative Council), said that it will send a memorandum of protest to the Malay Rulers Council. Its president Datuk Hassan Mad had said the ICERD is contrary to the Federal Constitution. He added that the Malay Rulers were never consulted before this matter was announced by the minister to the general public, and that it was “highly irregular”.

Senior lawyer and Association of Muslim Lawyers Malaysia president Datuk Zainul Rijal Abu Bakar expressed disappointment at the “seemingly hurried nature” to ratify ICERD.

He said the Federal Government should first hold a dialogue with all affected parties and obtain a clear mandate from the people before the convention is ratified.

My fear is that, if we “act in haste”, we may have to “repent at leisure”.

Salleh Buang formerly served the Attorney-General’s Chambers before he left for private practice, the corporate sector and academia

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