The May 9 general election results ushered in a new wave of democratic and institutional reforms towards greater accountability and human rights compliance in Malaysia. However, in recent days we have experienced a lot of public backlash to the Pakatan Harapan (PH) government’s proposal to strengthen human rights compliance in Malaysia, especially through ratification of major human rights conventions. Some of the reactions moved beyond democratic practices to hate speech, provocation and even threats of violence like running amok.

We should not be surprised that this is happening, given the major shift in government to one which is multi-ethnic and multi-religious, and to the new opposition in Parliament which is predominately of one major ethnic and religious community. Seeing everything through the lens of race and religion is now unavoidable.

The current public discussion/dispute/contestation is with regards to the ICERD, or the International Convention on the Elimination of All Forms of Racial Discrimination. Let me make two observations, two points of facts and one recommendation on this matter.

Observations in the contestation

Firstly, the PH government seems totally unprepared for the backlash on this issue from a section of Malaysian society. What is surprising is that at the level of both Cabinet members and backbenchers, no one seems to have details on the ICERD, the Federal Constitution or the implications of ratifying the treaty. Think tanks at the political party end as well as government agencies must be better prepared and have a media handling strategy on all matters for reform.

Secondly, we note that a majority of the opposition MPs, including former ministers, and many of the NGOs against ratification of the ICERD have been more emotive than factual, including by propagating half-truths instead of a full interpretation of the Federal Constitution with reference to Article 153. They have been successful in igniting the fears of the Malay community on this matter.

Checking the facts on ICERD

Thirdly, facts pertaining to the ICERD. This was the first of the conventions endorsed by the UN in 1965, even before the convention on civil and political rights. It was done in the fight against the apartheid system of South Africa and the rising racial discrimination across the world. So far, 179 countries have made a global stand against racism. This is very significant. There are only 14 countries which have not ratified the ICERD. At the Asean level, there are only three countries which have not ratified ICERD: Myanmar, Brunei and Malaysia. A majority of the 14 are small island nations and not any major world power other than North Korea.

It is important to note that of the 57 Organisation of Islamic Cooperation (OIC) countries, 55 have ratified the ICERD, including Palestine. Only two OIC members have not, namely Brunei and Malaysia. How can the ICERD be against Islam and Muslims if all the major Islamic countries of the world have ratified it? This includes Saudi Arabia, Turkey, Egypt, Iran, Iraq, Pakistan and Indonesia. Their reservations and ICERD reports are posted on the UN website. None of them is perfect, but they are seeking to comply with global standards against racial discrimination.

As Malaysians, we must ask whether we want to be part of the global community taking a stand against racism as we have against apartheid and the Palestinian and Rohingya issues, or be a country categorised together with Myanmar and North Korea. The New Malaysia must make a stand and be measured using global benchmarks if we want to be a developed nation.

Checking the facts on the Federal Constitution

Fourthly, the Federal Constitution clearly states in Article 8 the principle of equality of all citizens before the law. We are all equal citizens of Malaysia. However, Article 153 makes a provision for the special position of Bumiputeras. There are specific guidelines for this as well as to ensure the legitimate interests of other communities.

Judging from public discussion, the issue before us is: are these special measures to be regarded as permanent social rights or as affirmative action? The ICERD makes specific mention of special measures. There is also a second document from the UN titled “General Recommendation No 32” on the meaning and scope of special measures in ICERD (2009) which clarifies the matter. In the ICERD, affirmative action is not regarded as discrimination because special measures are needed to address historical socio-economic injustices and inequalities. But these have to be clearly declared and justified, including with timelines.

One country which has affirmative action with quotas for the disadvantaged, provided for and protected in the constitution, is India. The ICERD committee reviews on India have not rated it negatively but instead commended it for its policies and transparency of data on affirmative action for specific groups.

In the Malaysian context, a quick read of Mohamed Suffian’s book, “An Introduction to the Constitution of Malaysia (1976)” is helpful. He views 153 provisions as affirmative action for a major section of Malaysians who are disadvantaged. He was then the Lord President of the Federal Court.

He writes: “One of the most important decisions made by the non-Malay leaders was to recognise the weakness of the Malay community in the economic fields and the need in the interest of national unity to remove the weakness, for Malay poverty is a national problem. To give effect to that decision, Article 153 has been written into the constitution.”

He also writes and affirms that in undertaking this, “the legitimate interest of other communities will be safe guarded; so that whenever something is given to Malays and natives of Borneo, nothing is taken away from others”.

This understanding of the Federal Constitution provisions of Article 153 is consistent with ICERD. Critics are right on the question of the permanence of these special measures. A country will have to justify why any special measure needs to be continued. Malaysia’s socio-economic policies of inclusive development and commitment to sustainable development goals of “leaving no one behind” as promised in the mid-term review of the 11th Malaysia Plan would be sufficient.

One recommendation

Politically, there seems to be a stalemate as even PH leaders have joined public objections on this matter. However, there is strong public support for ratification from human rights CSOs as well as academics. It would be best for the government to establish a special committee or a parliamentary select committee with representatives from the government, political parties, academia, civil society and the private sector to restudy the issues and provide space for all views to be heard. They might have to receive feedback from different countries as well as the UN for expert opinions. But the government must promise to release the report. There must be a public assurance that all views will be heard and taken seriously.

My position on the Federal Constitution is clear: there is no need to amend Article 153 in order to ratify ICERD. There are enough safeguards within the Federal Constitution to ensure justice and fairness for all. It is a good balancing document but we need to rightly understand it and implement measures accordingly. On the ICERD, it would be good to get all parties to better understand this anti-discrimination convention and note the implications for Malaysia.

It will be sad to see Malaysia stand alongside Myanmar and North Korea on this matter of the ICERD if we don’t ratify it soon. We have done well as a nation in terms of harmony, cohesion and unity but we must become a society that is willing to put our model to the test by using international human rights standards. May God bless our efforts to become a more united Malaysia for all Malaysians so we can stand tall among the nations of the world.

Denison Jayasooria is principal research fellow at the Institute of Ethnic Studies, UKM.

The views expressed are those of the author and do not necessarily reflect those of FMT.