Liberasi would like to express its support of the Malaysian Government’s proposal to ratify the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

We note, however, that several groups and politicians have voiced their concerns about the impact of the ICERD’s ratification on existing race-based policies in Malaysia. Objectors to the proposal include Rembau MP Khairy Jamaluddin, members of Parti Islam Se-Malaysia (PAS) as well as the Parti Pribumi Bersatu Malaysia’s Youth Wing, ARMADA.

ARMADA Exco Member Ashraf Mustaqim, in his statement dated 25th October 2018, warned P. Waytha Moorthy, the Minister of National Unity and Social Wellbeing, not to ‘touch’ any of the ‘sensitive articles’ or provisions within the Federal Constitution for the purposes of the Convention. According to him, Articles 3, 153 and 160 of the Federal Constitution formed the basis of national harmony and as such, the harmony of the country would be threatened if these articles are tread upon.

While we commend Mr Mustaqim for his express rejection of any form of racist philosophy, Liberasi is dismayed and deeply concerned with Mr. Mustaqim’s arguments as well as his reasoning in his recent statement, which we believe signifies his poor understanding of the ICERD, the effects of its ratification and the universal concept of equality, amongst other things. We shall also take this opportunity to address other arguments that have been put forward against the ratification of the ICERD.

The nature of the ICERD and the Federal Constitution

The ICERD was adopted by the United Nations General Assembly in 1965, in light of the institutionalisation of apartheid policies by the South African government (see: Article 3 of the Convention.) An almost unanimous condemnation from member states led to the adoption of this Convention which aims to fight all forms of discrimination anywhere.

The Convention defines the concept of racial discrimination, places obligation on signatories to pursue policies which eliminates racial discrimination, hate crimes and promote racial tolerance, as well as establishing an international complaints mechanism for affected individuals to voices their grievances to the Committee for the Convention after exhausting all domestic mechanisms.

As mentioned by the Minister of National Unity and Social Wellbeing, P. Waytha Moorthy, ratifying the Convention does not mean that the signatory state is obliged to comply with all the provisions within the Convention. Malaysia may make what is known as ‘reservations’ when signing the Convention. In simple terms, Malaysia can make exceptions not to follow certain provisions within the Convention to ensure the protection of the Bumiputeras’ special position under the Federal Constitution.

However, the Malaysian government must be careful not to reduce the ratification to a mere cosmetic measure by making several reservations to the Convention’s key provisions in order to avoid addressing existing race-based policies out of fear. We believe that it is precisely these policies that the government must address head-on under the Convention.

The ICERD does not view all race-based measures as forms of “racial discrimination.” In fact, as stated under Article 1(4), the Convention does allow for “special measures [to be] 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.” Following this,contrary to the assertions made by Mr. Mustaqim and many others, the ratification of ICERD does not automatically warrant the repeal of articles providing for the special position of Malays and natives under the Federal Constitution.

However, Article 1(4) goes on to state that: “… however, provided, that such measures do not, as a consequence, 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.” This then leads us to further examine the nature Article 153 of the Federal Constitution. Prior to the formation of the Federal Constitution in 1957, the Reid Commission had proposed for the provision to be inserted but be made temporary, in which it would be reviewed after 15 years. However, the time limit was rejected and the provision became an integral part of the Federal Constitution.

It must first be clarified that Article 153 has no direct relationship with New Economic Policy (NEP). The former was drafted into the Federal Constitution in 1957 while the latter was introduced in 1971, following the May 13 riots, for the purposes of achieving national unity, harmony and integration by restructuring the socio-economic situation in the country and eradicate poverty regardless of race and religion. Therefore, whatever happens to the NEP does not affect the constitutional provision.

Many today argue that the provision is temporary and is intended to be repealed eventually because the provision had completed its’ objective of addressing the ‘economical backwardness’ of Malays and the natives created by the colonial economy. While the above is true based on the Reid Commission’s report, it is erroneous to assume the purposes of Article 153 when the provision does not expressly state so.

Article 153(1) of the Federal Constitution merely states that: “It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.”

Article 153(2): “Notwithstanding anything in this Constitution, but subject to the provisions of Article 40 and of this Article, the Yang di-Pertuan Agong shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and to ensure the reservation for Malays and natives of any of the States of Sabah and Sarawak of such proportion as he may deem reasonable of positions in the public service (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licences.”

The origins of Article 153 is unique to the socio-economic and political conditions prevalent at the time the Federal Constitution was framed more than 50 years ago. However, this does not mean that the Federal Constitution should be read within the confines of time when it was framed. As the political, social and economical conditions of a country and the world evolve, so do the needs and living conditions of people.

Simply put, we do not think it is fair for us to define what the purpose of the article may be (as, if it was for economic matters, the review would not have been rejected). We believe that there still remains a great need for public discourse (even more so in light of ICERD) to determine what that ‘special position’ means, what is deemed to be a ‘necessary exercise of power’ by the Yang di-Pertuan Agong and if the constitutional provision is necessary to do so. Until and unless we have answers to these questions will we be able to decide on the retention, amendment or repeal of the relevant constitutional provisions so as to ensure consistency with the ICERD.

Equality is not a western concept

It is a universal one. Even if a concept originates from the western world, its geographical origin does not necessarily degrade the value of the concept. While there may be truth that Malaysia may draw more benefit in finding its own mould, it is important to consider what we mean by “benefit”. If it means the permitted discrimination or persecution of certain ethnic groups for the sake of sovereignty, then there is a clear oversight in the cost and benefit analysis that is being done.

It should also not be overlooked that the provisions in the Federal Constitution such as Articles 153 and 160 had significant ‘western’ involvement in its drafting as well. The definition mentioned in Art 160 is a definition that is constructed by a colonial power, which unfortunately reduced and simplified the rich diversity of many ethnic groups such as the Jawipekans, Boyanese and so on into a single term — “natives”. It arguably does not even accurately do so by basing its definition on a cultural and religious context. Art 153, on the other hand, must also be viewed within the context of its construction and its underlying purpose, as mentioned in the above.

One does not simply get to pick and choose the western concept that benefits them and shun the one that affects their interest without considering the moral repercussions of doing so.

Ratifying ICERD does not disrupt national harmony

Mr Mustaqim and those who share the same line of reasoning as him must not confuse themselves and the public. National harmony and the special position of Malays and natives, which are distinct from one another, must not be conflated. As stated in the above, the existence of Article 153 was never intended for national harmony. It is also illogical and highly erroneous to view the provision as somewhat of a precondition to a harmonious nation.

Mr. Mustaqim’s claims strike a chord in our memory. In fact, these claims resonate those which were propagated under the rule of the Barisan Nasional government where the 1Malaysia narrative awkwardly sat. All races were told to unite despite their differences. Yet at the same time, non-Malays are told to be ‘thankful’ to be given the privilege of citizenship by never having to question the special position of Malays and natives. The Malays, on the other hand, were told to unite in order to defend their race and religion against ‘those who challenge us’ as well as to not question their own rights, religion and expression of culture lest they be deemed traitorous to their own identity.

A person in their right mind would never be able to reconcile these contradictory claims because there were no real basis to them in the first place. Yet, many fell for this strategy employed by the previous government whose concern was to consolidate power and to gain relevancy as a race-based party: pitting one race against another, making up a common threat/enemy which do not exist and pretending to be the only ‘savior’ to a certain race group. One must not question or challenge the narrative for the sake of ‘national unity’ and ‘harmony’. Those who do are not only considered as troublemakers but traitors to his/her race.

Malaysians must be aware of such dishonest political tactics lest we allow the old ways seep into Malaysia Baharu. Ratifying the ICERD does not disrupt national harmony, but fanning the flames of fear — by making baseless claims that racial violence may suddenly erupt on the streets, that the power of royal institutions will be eroded, subsequently making Malaysia a republic all as a result of ratifying the ICERD — does.

Vernacular schools are not the same as race-based measures

Mr Mustaqim has also called for P. Waytha Moorthy to return to reality and focus on creating our own mould if the minister is not willing to ensure all vernacular schools are closed and other affirmative policies for certain races besides the ‘bumiputra’ is abolished. While he seeks to support his statement by arguing that the abolishment of vernacular schools would bring about more improvement, we believe that his argument and reasoning is flawed.

He is firstly making an assumption that P. Waytha Moorthy is not in support of abolishing vernacular schools. This may not be true. Even if it was true, the abolishment of vernacular schools has no relevance to the argument on whether the ICERD should be ratified or not.

Vernacular schools do not racially discriminate and are open to all ethnic groups. While it may be a contributing factor in straining racial relations in Malaysia, the issue at hand is not whether ethnic groups get along but is instead about whether there is discrimination against a particular ethnic group and if the ratification of the ICERD affects any form of positive discrimination that is actively implemented in Malaysia, potentially being in conflict with provisions of the Federal Constitution.

These are entirely separate issues that should not be conflated with one another. Alternatively, the ratification of ICERD does not prevent the abolishment of vernacular schools. They are choices which are not mutually exclusive.

It seems to us that Mr Mustaqim may be attempting to imply that there is a double standard on P. Waytha Moorthy’s part but as pointed out above this is completely unfounded. There can be no double standard when they are both completely separate issues.

Ratifying ICERD: Eliminating discrimination for all

In saying this, we must acknowledge that some form of anti-Malay discrimination exists in Malaysia. Notably, in job applications, one study shows a Chinese candidate with a similar resume was 4 times more likely to be called in for an interview than a Malay candidate. Even in Malay controlled companies, a Chinese candidate was 1.6 times more likely to be interviewed compared to a Malay. In a wider context, racial discrimination in renting properties severely diminish the chances of a certain race having access to decent, affordable shelter. Not only are Malays affected by this, Indians and even certain foreign nationals, especially from African countries are discriminated against as well.

Is the most viable response to these discriminatory acts a race-based approach that favours Bumiputeras? This type of questioning is needed in Malaysia to keep policies relevant and silencing them through scaremongering or employing buzzwords which denote possible erosion of culture by questioning alone will only serve to stagnate progress. While we believe a needs- or class-based approach coupled with strong anti-discrimination laws which also include provisions to ensure diversity in the workplace would be better than the current model, we believe an open discussion is needed as we remain committed to democratic discourse and are open to learning the thought process of the latter’s proponents.

However, insofar as ratifying the ICERD, we believe there is no contradiction. In fact, it would give us the propulsion necessary to truly try to understand and properly address manifestations of racial discrimination in Malaysia that affects all races including Malays.

Conclusion

Before we conclude, we would like to highlight that even though the concerns raised against the ICERD are more economic in nature and concern the special identity of Malaysia with its provisions for Malays, there are instances when these arguments are used to denigrate other races. Protests against the appointments of Tommy Thomas, Tan Sri Richard Malanujam and Lim Guan Eng alongside racial rhetoric used in during the previous election season until now are some recent developments which worry us as they might instill deep racial divisions between Malays and non-Malays.

These instances, together with those mentioned previously and more which are born from racial discrimination, negatively affecting all Malaysians including Malays, should be properly addressed and the underlying tensions should be resolved thoroughly. As a first step towards that direction, Liberasi believes that ratifying the ICERD as a promise to the world that we will uphold our rejection of racial discrimination in all forms, whether explicit or implicit, and undertake serious steps to eradicate it is not only proper but absolutely imperative. In a New Malaysia, there is should be no place for racial discrimination.

In support of ratifying the ICERD,

Arveent Srirangan Kathirtchelvan, Michelle Liu & Goh Cia Yee of Liberasi.

Featured Image from the Islamic Research and Information Center

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