The International Convention on the Elimination of All Forms Racial Discrimination (ICERD) has been making headlines since the Malaysian government announced its’ intention of ratifying the convention last month. The government had reaffirmed its commitment to doing so at the Universal Periodic Review held about a week ago.
We are aware that a lot of individuals and groups, including ministers, have spoken out about ratifying the convention. But how many arguments out there actually hold water?
— Malaysiakini (BM) (@mkini_bm) November 9, 2018
PPBM Youth will reject ICERD if constitutional rights affected, says Syed Saddiq https://t.co/ekVE7ak8gQ
— Malay Mail (@malaymail) November 6, 2018
— malaysiakini.com (@malaysiakini) October 28, 2018
To answer this question, one must first understand the nature of ICERD and the effect of ratifying it.
We try to clear things up and break down the issue for you so that you are able to make an informed judgment about the matter.
So relax, grab a cup of coffee and read on!
#1 What is the ICERD?
ICERD was adopted by the UN General Assembly in 1965. This was in light of the formalization of apartheid policy and practices in South Africa which drew an almost unanimous condemnation from countries all over the world.
Its main aim is to eliminate all forms racial discrimination and to prevent and combat racist practices for the purposes of promoting understanding between races, as well as to build an international community free from all forms of racial discrimination.
#2 What does it mean to ratify ICERD?
General answer: When a country signs the ICERD, it condemns racial discrimination and pledges to do everything necessary to eliminate racial discrimination in its’ country.
There are two ways for a country to be party to an international convention: ratification and accession.
There is a difference between the two.
Ratification defines the international act whereby a state indicates its consent to be bound to a treaty if the parties intended to show their consent by such an act.
Accession is different although it carries the same legal effect as ratification.
“Accession” is the act whereby a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states.
Since Malaysia was never a part of the creation of ICERD, we have no choice of negotiation but to accept the terms of the Convention.
Therefore, when we say we wish to ratify the Convention, we actually wish to accede to it.
Wei, so strict one ah? Means Malaysia must accept everything the ICERD says?
Simply putting it, not actually.
Malaysia does not need to be bound by ALL the terms in the Convention. Countries can make what is called ‘reservations’ upon acceding to an international convention.
A reservation is a declaration made by a state by which it purports to exclude or alter the legal effect of certain provisions of the treaty in their application to that state.
In simpler terms, a reservation is an act of placing exceptions to the terms stated within an international convention. As a result, Malaysia will not be legally bound by the ‘reserved’ articles in the convention.
#3 What is Malaysia required to do under ICERD?
It’s kinda like a contract.
A country party to the Convention (or as they call it, State Party) is required to comply with all of its’ terms. EXCEPT for reserved provisions.
Firstly, Malaysia must take steps to wipe out all forms of racial discrimination.
It includes adopting laws and policies to eliminate racial discrimination and promote racial tolerance, criminalizing hate crimes as well as creating legal avenues for individuals affected by racial discrimination to seek redress.
Secondly, Malaysia will be answerable to the Committee on the Elimination of All Forms of Racial Discrimination (CERD) for it’s progress under ICERD.
State Parties report to the Committee every two years (new State Parties will have to submit a report in its’ first year). The Committee will then report to the UN General Assembly. The Committee as well as other State Parties can recommend or suggest to Malaysia on how it may better comply with ICERD.
U.N. panel confronts China over reports that it holds a million Uighurs in internment camps https://t.co/mYPn8wSze4
— New York Times World (@nytimesworld) August 11, 2018
In addition, any State Party who thinks that another State Party isn’t doing a good job with ICERD may bring the matter to the attention of the Committee.
The State Party concerned must in return provide an explanation for their failure to comply or a statement on steps taken to address the problem within 3 months. If the matter is still not resolved, the Chairman of Committee may form an ad hoc commission to investigate the matter further and make recommendations.
#4 If the ICERD is so good, why do people have problems with it?
Although we’ve seen plenty of misconceptions floating around the Internet, there are also legitimate concerns about ICERD.
We try to address some of the popular arguments.
“Signing the ICERD would erode the position of Islam as the official religion.”
ICERD TIDAK ADA KENA MENGENA DENGAN AGAMA. Sekian. pic.twitter.com/kpRUsRFc3i
— Syahredzan Johan (@syahredzan) November 9, 2018
“Signing the ICERD would result in the removal of royal institutions, thereby turning Malaysia into a republic.”
Read the ICERD here.
“Other countries will interfere into Malaysian affairs in the name of human rights, ensure compliance with ICERD.”
In theory, a country gives away a part of it’s sovereignty when it becomes party to an international convention.
Under the Convention, State Parties are accountable to the Committee and other countries which are also party to it. Apart from that, State Parties are still free to implement the Convention in a way that is compatible with its’ own legal system.
There is also a good reason why ICERD provisions are relatively general in nature (i.e. the provision requiring State Parties to promote racial tolerance.) The Convention takes into account the fact that each country is different from one another and as such will achieve the aims of the Convention differently.
#4A Will ICERD remove Article 153?
“Signing the ICERD would result in the removal of Article 153 of the Federal Constitution which provides for the special position of Malays and natives of Sabah and Sarawak.”
This is a legitimate concern but it is incorrect to suggest that signing ICERD results in an automatic repeal of Article 153.
Malaysia adopts what is known as a ‘dualist’ approach when it comes to international conventions: international law and national law are separate. In Malaysia, the Federal Constitution is the supreme law of the land, not international law. International law does not have legal effect in Malaysia until the Parliament passes a law to implement it in Malaysia. Before any of that happens, the law must of course be debated in Parliament.
According to some lawyers, the ICERD is compatible with the Federal Constitution so no repeal of Article 153 is necessary. Articles 1(4) and 2(2) of the ICERD allow ‘special measures’ ensuring ‘equal enjoyment of rights and freedoms’ to be implemented.
— malaysiakini.com (@malaysiakini) October 28, 2018
Discount bumiputera untuk beli rumah tidak dinyatakan bawah Perkara 153. Ia adalah Dasar Ekonomi Baru. Kelangsungan dasar ini boleh dijustify bwh positive discrimination, sila lihat Article 2 ICERD. Tiada konflik. https://t.co/sjT2bz6D64
— Syahredzan Johan (@syahredzan) October 29, 2018
On a separate note, it is still apt for us to consider the merits of retaining existing affirmative action policies (i.e racial quotas in public universities).
With or without the ICERD, a new Malaysia should be one of equality, free from all forms of discrimination.
However, some forms of discrimination are justified to ensure equality. Such was the reason why Article 153 exists.
The drafters of our Federal Constitution introduced Article 153 as a temporary measure to address the economic imbalance between races which resulted from the colonial economy. The initial proposal was to review the provision 15 years after it came into force. However, the proposal was rejected and the provision remains a part of the constitution til today.
Malaysians have every right to voice out and be concerned about implementing ICERD. After all, it affects not only the country’s legal system but the social fabric that holds all of us together. That being said, we must be careful not to fall prey to fear-mongering tactics and misinformation. Get your facts right and then judge for yourself.