Ratifying ICERD a commitment to civil discourse — Yu Ren Chung
Ratifying ICERD is a commitment to talk. And that makes it worthwhile.
(MMO) – The Malaysian government confirmed last month that it plans to ratify ICERD — International Convention on the Elimination of Racial Discrimination. While the Pakatan Harapan government is seen to be progressing on institutional and anti-corruption reforms, ratifying ICERD will be a test of the government’s resolve to address race and inclusivity.
Some interest groups and political parties have vocally opposed ratifying ICERD. They argue ratifying ICERD would erode the constitutional special position of Malays and Bumiputeras. To address these fears, proponents of ratifying ICERD have responded in at least two ways.
One response is that ICERD opponents have misinterpreted the Federal Constitution. Perhaps an implied point is that many racial policies defended by ICERD opponents are not in fact guaranteed by the constitution. Many persons more learned than myself have elaborated on this point.
A second response is that ICERD opponents are overplaying the impact of ratifying ICERD. Even if ICERD is ratified, it would have no legal impact, the Federal Constitution would supersede ICERD, and ICERD can be ratified with reservations. The government has also ensured opponents that ICERD will not affect key Malay and Bumiputera institutions.
This response — that ratifying ICERD will have no legal impact — needs further elaboration. It leaves observers ambivalent (“why bother?”) and ICERD opponents suspicious (“is there a hidden agenda?”).
In this essay, I attempt to explain why ratifying ICERD — or any other United Nations (UN) human rights convention — is worthwhile (without any hidden agenda), even if ratification won’t give the convention legal force.
Ratifying ICERD is worthwhile because it introduces a framework for civil discourse on racial discrimination, that is systematic, participatory, and substantive. Such civil discourse is (or ought to be) the bedrock of democratic policy-making.
Good faith
From an international law perspective, treaties are technically binding but are generally not enforceable in countries — relying instead on a government’s good faith to be implemented. (Refer to the Vienna Convention on the Law of Treaties.)
When it comes to enforceability, what really matters is national law. Malaysia is a “dualist” state (as opposed to “monist”). This means that any international convention Malaysia ratifies will not have the force of law, unless Parliament passes national legislation to the effect.
This position is confirmed by the 2014 Court of Appeal ruling in AirAsia Berhad v Rafizah Shima binti Mohamed Aris, which held that although Malaysia has ratified Cedaw (the Convention on the Elimination of All Forms of Discrimination Against Women) “Cedaw did not have the force of law in Malaysia because the same was not enacted into any local legislation” and “for a treaty to be operative and enforceable in Malaysia, it requires legislation by Parliament.”
Unless national legislation is passed, ICERD it will not legally affect any law, policy, institution, or programme. And any national legislation cannot override the Federal Constitution. So why ratify ICERD?
Framework for civil discourse
The real value of ratifying ICERD — or any other UN human rights convention — is the introduction of a “review process.” When Malaysia ratifies a UN human rights convention, it agrees to be reviewed periodically by an expert committee. The committee monitors Malaysia’s progress implementing the convention.
The expert body associated with ICERD is the Committee on the Elimination of Racial Discrimination. Upon ratifying ICERD, the Committee will periodically review Malaysia on Malaysia’s implementation of ICERD.
The outcome of such a review — comments by the Committee to Malaysia — would not be legally binding. But the review process would facilitate civil discourse that is systematic, participatory, and substantive.
