Analysing Malaysia’s Refusal to Ratify the ICERD
Kamilia Khairul Anuar 7th January 2019

The Malaysian Minister of Diplomatic and Foreign Affairs, Saifuddin Abdullah, reaffirmed the new government’s commitment to improve Malaysia’s human rights track record, which included the ratification of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Recently, the ICERD has been thrust into heated public debate due to its perceived incompatibility with Malaysia’s constitutionally-enshrined affirmative action policies. Though Article 8 of the Federal Constitution provides for equality of all persons and (to a limited extent) a prohibition on discrimination, there is an exemption to this prohibition in the form of Article 153 of the Constitution which safeguards the “special position” of the Malays and the natives of the states of Sabah and Sarawak (collectively known as “Bumiputeras” or “sons of the soil”).

Malaysia’s affirmative action takes the form of reservations for Bumiputeras in various areas such as quotas for public sector employment and public education institutions. This is known as the New Economic Policy, introduced in the aftermath of the economic inequality-driven racial riots in 1969. At least in part due to the narrative perpetrated by the past government, the justification and language surrounding discussions about Article 153 has morphed from being a necessity to reduce racial economic inequalities, to being a hallmark of Malay supremacy. It does not help matters that no cut-off date or intended outcome had ever been specified for the policies, nor, unlike some other countries, have their effectiveness ever been challenged in court. All of this has allowed the perception that it is an entitlement rather than a temporary measure to alleviate racial economic inequality, to take root unchecked.

The warping of Article 153 resulted in a backlash from certain segments of the Malay community against the ratification of the ICERD, fearing that committing to the UN treaty would spell the eventual death of affirmative action measures. As a result, politicians from the newly-elected Coalition of Hope government, cautious not to alarm what is a substantial portion of the Malaysian electorate, eventually abandoned their plan to ratify the ICERD. Despite that, an estimated over 50,000 people gathered on 8th December to “celebrate” the government’s eventual decision not to ratify the Convention.

Malaysia’s failed bid to ratify the ICERD gives one pause for thought. It is arguable that UN treaties are ultimately symbolic – not being a party to the ICERD does not stop the Malaysian government from taking steps to eliminate racial discrimination. Not being party to the ICERD does, however, mean that Malaysia will not be held accountable by the relevant UN Committee for failures to eliminate racial discrimination, a significant missed opportunity given that there is otherwise limited domestic political pressure to do so. Moreover, it is deeply troubling that Malaysians who are against the ICERD have openly stated their belief in Malay supremacy. It is even more worrying that key government figures have endorsed the position that the ICERD fundamentally conflicts with the Constitution, thus legitimising the view that the Constitution enshrines Malay supremacy. Malaysia could have ratified the ICERD with reservations in light of Article 153 – affirmative action in principle does not contravene the object and purpose of the ICERD. Policies motivated by racial supremacy however, certainly would. It is difficult to come to any other conclusion than that the Malaysian government has tacitly supported the idea of Malay supremacy.

At this juncture, it is important to also consider that the idea of Malay supremacy developed, and thrived, off deep-seated fears in the Malay community about becoming disempowered in their native country. Malaysia’s ICERD saga highlights the pressing need to ensure that a commitment to human rights manifests, and is seen to manifest, in real and tangible benefits for those who need them in order to secure and maintain public support.

Nevertheless, it is still crucial for Malaysia to have a dedicated anti-discrimination legislation. Blatant discrimination is not uncommon in Malaysia (notably in the context of hiring and property rental). Such practices must be challenged, and the equality provision in Article 8 of the Federal Constitution remains woefully inadequate for such purposes. The Beatrice Fernandez case demonstrates the narrowness of its scope of application, being limited only to the public sector – Parliament must legislate to extend the prohibition of discrimination to individuals and the private sector. In its anxiety to satisfy the Malay electorate, the Coalition of Hope must not neglect the protection of the rights of all Malaysians.

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