The ICERD discourse

There has been a lot said about International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and more importantly recently there are some quarters who seek to question the need to protest against the possibility of ratification of the said Convention, especially when Prime Minister Tun Dr Mahathir has recently announced that the ratification will not take place at this point of time, notwithstanding after he made an announcement and a pledge at the General Assembly in the UN that Malaysia would ratify such Conventions.

To many, it is common sense and the right thing to do that Malaysia adopt the treaty, and what the current government is doing is obviously ethical and therefore any inquiry or conversation as to the Prime Minister Dr Mahathir’s speech at the UN is down-right ludicrous.

The same crowd also would go on to say that the Prime Minister Dr Mahathir has since made a u-turn and is not ratifying the convention and therefore any protest on ICERD is also equally ludicrous.

The problem in having rules of absolutes, coupled with negating the right of expression and speech is that we stifle democracy, and Malaysians stifle rules of policy making that takes in to account all stake holders’ rights when deciding what is good for a nation state as a whole. 

Before going in to the crux of the argument as to why the conversation pertaining ICERD is still relevant notwithstanding the Government recent u-turn on the ratification of the Convention Malaysians needed to be pointed out an inherent weakness in the current method of governance and policy making adopted by the current government.

Prime Minister Dr Mahathir delivering Malaysia’s national statement at the 73rd United Nations General Assembly’s general debate, said that the ‘New Malaysia’ will firmly espouse the principles promoted by the United Nations in its international engagements and these include the principles of truth, human rights, the rule of law, justice, fairness, responsibility and accountability, as well as sustainability.

“It is within this context that the new government of Malaysia has pledged to ratify all remaining core UN instruments related to the protection of human rights.”

He said nonetheless that “We will accord space and time for all to deliberate and to decide freely based on democracy.”

Now when making a pledge to the world at large, the issue is was this just political double speak or was this issue a genuine attempt to garner political legitimacy at the international political scene without concern of accountability from Malaysia as a whole, which includes the majority Muslim population.

The point is simple, The Federal Government is empowered by Article 74(1) read with the Federal List in the 9th Schedule, Article 39, and Article 80(1) of the Federal Constitution; to enter in to treaties internationally but the proviso is that it needs Cabinet Approval. The point to ponder at this juncture is whether the ratification of these treaties was discussed at parliament and did it get the Cabinet approval before the speech was made. 

An accountable government would have first sought to get the feedback from all stakeholders and discuss the matter before the speech were made and pledge be given at the international arena. Why should the nation state be made to look like fools when politicians’ practices irresponsible politics at the international stage, and as usual the politics of UMNO being a race-based party and its legacy will be blamed for this detraction. 

What people failed appreciate in its entirety when evaluating the PM‘s motives is that the person who gave the pledged at the UN is a leader of the only race-based party in the current government, which party is the weakest in regards to parliamentary seats, and is actively trying to stigmatise UMNO while coveting MP from UMNO to hop over to strengthen his current Party Position.

While it is convenient to be a hypocrite and to practice thievery and coercion due to political expediency it is definitely silly to drown out any semblance of conversation on these issues because it is only through debate and conversations that we promote accountability in governance and it further creates a thinking voter which is needed in a vibrant democracy. 

The Conversation pertaining to ICERD, be it a street protest or discussion in parliament is needed and crucial notwithstanding the ratification of which has been postponed.

Some of the main arguments and narratives put forth pertaining to the positives in ICERD and the contemporaneous sustenance of Malay rights issue are the following;

1. There is no way Article 153 would be affected simply because we need a special majority of change the Constitution and therefore with Malaysia comprising of majority of Malays this will not happen;

2. Even if Malaysia ratify the treaty it can be limited, and it would not affect the manner in which things are done in Malaysia;

3. Parliament is not selling its sovereignty to decide what it best for the Malays or the rest of Malaysian Society at large by ratifying convention at MP are the law makers and they control what is allowed and what is not to be the common morality which is reflected in policy and laws in Malaysia.

Respectfully, this is only part of the picture, and it would be morally irresponsible not to provide the circumstances how ICERD might affect our current political and legal landscape.  

Malaysians need to realise the following crucial facts;

1. The Guardians of the Constitution are not solely Parliament.  In actually fact the Courts play a very crucial role guarding the applicability of rights based on common morality and public policy.

2. It is noted that, the Federal Court and at time even the High Court has been known to interpret provisions in the constitution either widely or narrowly. 

3. Courts generally interpret the law based on precedent i.e. locally and foreign decided cases. The judges also take cognizance public policy prevalent morality in deciding as to whether to interpret a matter narrowly or widely. Often, it is conveniently referred to this as judicial activism based on the ‘Rule of Law’.

4. Therefore, in taking in to account the above issues it is very probably for the certain rights to be given a narrow interpretation upon ratification of ICERD. This can happen even if the Constitution is not amended. 

5. The Judiciary is independent and neither is it political. Therefore, Parliament has no control over the Judiciary, and neither can the PM nor the King bully or interfere with Judicial Activism simply because we have Separation of Powers in this great Nation State. This is part of a functioning modern Democracy. Therefore once we ratify a treaty there are far reaching consequences.

6. An example of where ratifications of international treaty has affected local laws and policy can be seen in Australia. The reason why Australia is used as an example, because just like Malaysia it has a written constitution, it is based on common law, its political system is based on a Federation which head is the Queen. The examples of international treaty having an impact on local law, policy and local morality can be observed in the following cases;

 

a. Toonen v Australia (1994)

Mr Toonen complained to the International Human Rights Committee about Tasmania’s criminal laws which made homosexuality illegal. Toonen claimed that the law contravened Article 17 and 26 of the ICCPR because the laws interfered with his right to privacy and self-discrimination. The HRC agreed with Toonen. The Federal Parliament responded to the HRC finding by passing the Human Rights (Sexual Conduct) Act 1994 to override the Tasmania law which criminalised homosexuality. Eventually in 1997 the State of Tasmania repealed the law criminalising homosexuality due to Toonen case.

 

b. Koowarta v Bjelke-Petersen

The Aboriginal Land Fund Commission entered into a contract to buy a pastoral lease in Queensland. The Queensland Minister for Lands refused to give his consent to the transfer of the lease on the basis that Queensland Government policy was opposed to the acquisition of large parts of the State by Aborigines. Mr Koowarta, an Aborigines, brought an action against the Premier of Queensland, Mr Bjelke-Petersen, for breach of sections 9 and 12 of the Racial Discrimination Act 1975 (Cth). It is noted that RDA was passed due to Australia’s obligation under CERD. The Queensland Government responded by challenging the constitutional basis of the Act.  In Koowarta v Bjelke-Petersen, the High Court upheld the validity of the Racial Discrimination Act 1975, and in short allowed the transfer of land notwithstanding the State Government policy at that time.

 

c. Tasmania Dam Case – Here Australia Federal Government ratified the Convention for the Protection of the World Cultural and Natural Heritage in August 1974. Part of its scheme involved the listing of properties under the World Heritage List. The Tasmanian Government requested that a certain area of Tasmania be listed under the Convention. A subsequent Tasmanian Government authorised the construction of a dam on the Franklin River within this area. The area was accepted by the World Heritage Committee for entry into the World Heritage List in December 1982. In short notwithstanding that land came under the purview of the state due to its external affairs power the Federal Government here managed to dissipate the Tasmania State rights and stopped the Dam from being built, as a result of the internal convention that it had signed, which allowed the lands to be listed as a world heritage site.

What shown here is that notwithstanding any rights and powers in the Federal Constitution, once we ratify certain treaties, there is a very real possibility that these international obligations will affect the relationship between Federal and State Government, and Rights provided to certain segments of society, and in many of such cases parliament would have no choice but to comply. 

Whether we as a nation would want this to occur collectively, would have to be predetermined by a Conversation, and this protest against ICERD is a testament to that.