Malaysia and the ICERD: Closer To Home Than You’d Think
International law is ‘peripheral no more’ in Malaysian politics. Since the Pakatan Harapan (PH) government took power in May, a number of hot-topic social debates have become framed by how Malaysia’s conduct stacks up against international legal standards.
Nowhere is this more obvious than with PH’s proposal for Malaysia to ratify (i.e. legally commit to) the International Convention on the Elimination of All Forms of Racial Discrimination 1965 (ICERD). A range of perspectives in support and in opposition have been offered since Prime Minister Mahathir Mohamad pledged before the UN General Assembly in September that Malaysia would ratify all core UN human rights treaties.
Regrettably however, the debate on whether Malaysia should become a party to the ICERD has become confused in some quarters. Certain views aired have been mistaken over what the ICERD is, and what it does. There has also been a collective failure to grapple with its historical origin.
We need to be clear about what ICERD ratification actually means for Malaysia, both as a matter of international law, and as a matter of domestic constitutional law. We also need to be clear that Malaysia actually played a role in the drafting of the treaty as a UN member. Doing so helps us see past assertions that the ICERD is a somehow a ‘Malayan Union 2.0’.
Contrary to what some would have you believe, this is not a radical foreign plot to alter Malaysian constitutional fundamentals. Let’s start with the basics.
What is the ICERD?
The ICERD is a treaty under which 179 countries have committed to the elimination of racial discrimination, as well as of racist doctrines and practices. As with all treaties, it is legally binding on the international level.
The compliance of parties to the treaty is independently monitored by the Committee on the Elimination of Racial Discrimination, and all parties must submit reports showing compliance every two years. In addition, if a country makes a declaration under Article 14 of the ICERD, individuals receive the right to make complaints to the Committee alleging breaches of the treaty.
The ICERD was first adopted by the UN General Assembly in December 1965 in resolution 2106 (XX). It is one of the nine core UN human rights treaties, all of which draw inspiration from the 1948 Universal Declaration of Human Rights.
What is the controversial part of the ICERD?
The part of the ICERD which has proved controversial in Malaysian politics is Article 2(2). Article 2(2) states that while countries party to the treaty are permitted to enact race-based affirmative action with the objective of securing the ‘adequate development’ of a given group’s members, such measures cannot ‘entail… the maintenance of unequal or separate rights for different racial groups’ after this is achieved.
Opponents of ratification argue that this is incompatible with Article 153 of the Federal Constitution, which enshrines the ‘special position of the Malays and natives of any of the States of Sabah and Sarawak’. They see Malaysia becoming party to the treaty as either warranting the immediate repeal of Article 153, or setting an expiry date on the constitutional provision.
In essence, the argument against ratification is that doing so will mean the removal of Article 153 from the Federal Constitution. This is said to be unacceptable given the unique circumstances in which Malaysian society operates, particularly if the change is brought about by an illegitimate foreign treaty.
On closer inspection, it is apparent that this argument makes a few assumptions which do not hold water. The Federal Constitution does not have to be changed if we ratify the ICERD, and it is simply not accurate to characterise the treaty as some form of foreign interference with the Malaysian political system.
The Federal Constitution does not have to be changed if we ratify the ICERD
There are two points which should be kept in mind to understand why the Federal Constitution does not need to change upon Malaysia becoming party to the ICERD.
(1) A treaty cannot change the Federal Consitution without Parliamentary action
On a basic level, although it is true that as a matter of international law, Malaysia would be bound to amend any domestic laws incompatible with the treaty, the same is not the case as a matter of Malaysian constitutional law.
The Malaysian legal system is broadly speaking a dualist one. What this means is that the legal obligations binding Malaysia on the international plane do not carry through to the domestic plane, unless Parliament enacts legislation to domesticate these obligations. In other words, if Parliament does not act, a Malaysian court could not order the government to change the Federal Constitution to comply with the ICERD.
(2) Article 153 is on a proper interpretation compatible with the ICERD
Looking at the issue in more depth, even if the ICERD could directly alter the Federal Constitution to remove inconsistent provisions, it is doubtful that Article 153, properly interpreted, is incompatible with the treaty.
This is something which has been said by both Foreign Minister Saifuddin Abdullah and Bar Council President George Varughese. In the words of the latter:
“ICERD recognises that formal equality — where the law treats people the same — may not be sufficient to eliminate discrimination. ICERD seeks to bring about effective or substantive equality, including through temporary special measures, where required.”
The Federal Constitution’s Article 153 is about affirmative action (which is allowed by the ICERD), not establishing racial hierarchy (which is not allowed by the ICERD). PH needs to clarify this.
The ICERD is not foreign interference with the Malaysian political system
Again, two points should be considered.
(1) Countries only become bound by treaties if they consent to be bound
Treaties are agreements between countries. Malaysia is only under an obligation to respect the terms of the terms of the ICERD if we choose to sign and ratify it. It is hence misleading to say the least to compare becoming a party to the ICERD with the colonial arrangement of the Malayan Union, which the British imposed on Malaya in 1946.
Also, it is worth remembering that Promise 26 in the manifesto the PH government was democratically elected on expressly pledges the ratification of human rights treaties; the government’s ICERD proposal shouldn’t come as an unfair surprise to the electorate.
(2) Malaysia had a part to play in the drafting of the ICERD
We do ourselves a disservice if we ignore the history and origins of the ICERD when debating whether Malaysia should become a party to it. Something which has so far been lost in the discussion is that Malaysia actually played a role in the drafting of the ICERD as a member of the UN General Assembly. Malaysia considered and voted eight times on proposed amendments to, or on text of the treaty itself, before it was adopted in 1965. In all but one occasion where Malaysia abstained, Malaysia was in the majority of voting countries.
Some examples include how:
- Malaysia voted in favour of a draft resolution proposed by Hungary and Greece, which decided that the ICERD should not include any reference to specific forms of racial discrimination
- Malaysia voted in favour of a paragraph proposed by Brazil, Colombia and Senegal which committed parties to the treaty to encourage appropriate multiracial organisations and movements to eliminate racial barriers
- Malaysia voted against an amendment proposed by Tanzania which would have seen the expenses of the members of the ICERD’s monitoring body borne by the regular budget of the UN, rather than by additional contributions of parties to the treaty
Malaysia did not vote when the UN General Assembly eventually finalised and adopted the ICERD. But we cannot ignore the fact that, while perhaps not providing a decisive vote as a matter of numbers, Malaysia was actively engaged in the drafting process of the treaty — we helped set the terms on which it operates today. The ICERD is not something completely alien to the country which has appeared from nowhere.
Let’s ratify human rights treaties, but let’s do it properly
Having gone through the law and some of the drafting history of the ICERD, the question of whether Malaysia should ratify the treaty can be put in very simple terms. Ratifying ICERD does not spell the end to Article 153 of the Federal Constitution or its death by a foreign force. But it does mean making a choice to turn our back on ideologies which emphasise the dominance of one race over another. In Malaysia Baru, the right thing to do is obvious.
PH must continue to make the case for ratification. It must also resist the temptation to take legal shortcuts on the issue by ratifying the ICERD with reservations.
Under international law, countries which wish to become party to treaties may make reservations to declare that they will not be bound by certain parts of the treaties they ratify. These will be valid as long as they do not conflict with the ‘object and purpose’ of the treaty. Minister in the Prime Minister’s Department Mujahid Yusof Rawa has already suggested that the government may be pursuing ratification of the ICERD with reservations, presumably to Article 2(2).
It is difficult to imagine however that such a reservation would not conflict with the ICERD’s ‘object and purpose’. Malaysia should be mindful that most countries have only sought to make reservations to Article 22 of the treaty, which gives the International Court of Justice (ICJ) jurisdiction to hear disputes between countries over the treaty’s application.
The difference between the two is that Article 2(2) is a substantive part of the ICERD, while Article 22 concerns a procedural matter. This distinction was a key part of the reasoning of the ICJ when it decided that reservations to the Genocide Convention 1948’s equivalent to Article 22 ICERD could be compatible with that treaty’s object and purpose.
Furthermore, making reservations to human rights treaties is not the mark of a country acting responsibly on the international stage. Malaysia should not be a part of a process which has undermined the effectiveness of agreements like the Convention on the Elimination of all Forms of Discrimination Against Women, among others.
Finally, making a reservation to the ICERD amounts to PH kicking the can down the road. The government must face the difficult questions about the compatibility of the divisive ideologies with which we are all familiar, and international human rights standards.
It is time for Malaysia to act as an example to other members of the international community. The ICERD and all other core UN human rights treaties should be ratified, without reservations. They would provide a vital independent protection for Malaysians’ fundamental freedoms, and would equally promote social change. Doing so would not be in tension with our founding principles. Far from it: we would be living up to the very best of what it means to be Malaysian.
