Signing convention on racial discrimination easier said than done

The rakyat must be informed that ratification of ICERD, as it stands, would run contrary to the constitution, and that the Council of Rulers should be consulted before such ratification.

Ahmad Yazid Othman, Lukman Sheriff Alias and Aidil Khalid, Free Malaysia Today

We refer to a number of press reports by various groups trying to push for Malaysia’s ratification of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and condemn the manipulation of this issue with half-truths and misleading statements, so as to disingenuously portray that ICERD’s ratification could be done without offending various constitutional provisions.

Before proceeding, we would like to state clearly our stand that we are opposed to racial discrimination.

However, our forefathers in their infinite wisdom made a number of limited exceptions in our 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 non-natives, especially the Chinese and Indians.

This exception is particularly evident in Article 153 of the Federal Constitution, whereupon the likes of Mara and MRSM, among others, were established, while the legitimate interests of other communities were safeguarded.

As Malaysians, we need to respect this constitutional compromise.

Although these compromises made by our forefathers may be changed, the amendments must be made through proper constitutional channels and means, so as to maintain harmony in our country.

We are appalled by how the facts surrounding ICERD have been manipulated to mislead the general unsuspecting public, as if the ratification could be done by reserving certain provisions and, as such, purportedly would not run afoul of any constitutional provisions. In this regard, we wish to set the record straight:

1. The restrictions imposed by ICERD are very wide and directly contravene our constitutional compromise. The definition of “racial discrimination” under the convention is all-encompassing, and could never be reconciled with Article 153 of our Federal Constitution. While there is indeed exception allowed to the definition of racial discrimination, even then, Article 153 would not fall into the category allowed under ICERD. In fact, the breadth and width which the convention covers would mean that even political parties like PPBM, Umno, MCA, MIC and ethnic-based parties in Sabah and Sarawak would be deemed illegal.

2. Exception or reservation to the convention would go against the very substance of ICERD. If at all, we clearly need to make reservations not only on the definition above, but five or six of the seven core provisions of ICERD. It is pertinent to point out that under the Vienna Convention on the law of treaties, no reservation can be made if it is incompatible with the object and purpose of the treaty. Other states may also object to such major reservations. The reservation we need to make would thus be substantive, touching many core provisions of ICERD, contrary to the misleading claim that it would be a minor reservation. These reservations may further cause us embarrassment if they are objected to by other countries.

In order for Malaysia to ratify ICERD as it is would require us to amend Article 153 of our Federal Constitution. Such an amendment would require the royal consent of the Council of Rulers. It is unscrupulous to use ICERD as a back door to assert pressure and to amend Article 153 and the laws thereunder without proper public consultation with all stakeholders, in particular the Council of Rulers.

There are many institutions at stake here, from Mara and MRSM to UiTM. This extends even to the Royal Malay Regiment army unit, to name just a few institutions which would need to be abolished. Not to mention the fact that the Malay reserve land schemes under Article 89 of the Federal Constitution and various state enactments would need to be repealed.

A healthy and open debate should be pursued rather than a cursory dismissal of such views. The rakyat must be informed that ratification of ICERD, as it stands, would run contrary to the constitution, and that the Council of Rulers should be consulted before such ratification. It is for this reason that we condemn press statements from various groups giving false or misleading impressions on the effect of the ratification. This is manipulative and utterly reprehensible.

When it comes to interracial relations, we should let our 60-over-years track record as an independent nation speak for itself. We need to nurture and shape national unity based on our own terms and constitutional constructs, rather than be confined by external pressures that may not be sensitive to our history, culture and constitutional compromise. We believe that Malaysia has not signed ICERD all these years for various reasons. It is certainly not due to racist or supremacist ideologies, but rather for the sake of developing and uniting a diverse melting pot of culture in Malaysia.

Ahmad Yazid Othman is CEO of Majlis Tindakan Ekonomi Melayu. Lukman Sheriff Alias is founder of the Malaysian Lawyers Circle. Aidil Khalid is an activist with the Concerned Lawyers for Justice.