Press statement by Kua Kia Soong, SUARAM Adviser 19 November 2018

Prime Minister Dr Mahathir Mohamad has said that implementing the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) would entail amending the Federal Constitution, and this is an almost impossible thing to do. He pointed out that a two-thirds parliamentary majority was needed for this to happen.

1.       Does the Malaysian Constitution promote racial discrimination?

It is a very serious presumption that the Malaysian Federal Constitution promotes racial discrimination and therefore will run foul of the ICERD. When the nation became independent of the British colonial power in 1957, did we really have a social contract that contained elements of racial discrimination? If that was the case, then our founding fathers and mothers were certainly suckers.

The fact is, they were certainly not suckers and they signed up for a social contract without any racially discriminatory elements. We should be proud of Part II of the Constitution that guarantees “Fundamental Liberties” for all Malaysians. It includes Article 8:

“Equality. All persons are equal before the law and entitled to the equal protection of the law…there shall be no discrimination against citizens on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment…”

The supposedly “racially discriminatory” Article 153 merely mentions “the special position of the Malays” and that the main purpose for including Article 153 in the Constitution was to rectify the perceived weakness of the Malay community in the economic field, the public service and the problem of Malay poverty at the time of Independence. (Tun Mohamed Suffian bin Hashim, “An Introduction to the Constitution of Malaysia”, KL 1972:245)

The first clause of Article 153 specifically states, “It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.” Even so, the Reid Commission had recommended a sunset clause for this “special position of the Malays” of 15 years.

Nevertheless, between 1957 and 1971 there were no complaints of racial discrimination on the scale we have seen in recent years.

It was only after the racial violence of May 13, 1969 that the country was presented with a fait accompli by the new ruling elite in UMNO during the state of Emergency when in early 1971, they introduced the infamous “Quota System” through a new clause (No. 8A) to Article 153 in the Constitution (Amendment) Act. Malaysians have lived with a dramatically distorted version of this “quota system” for more than forty years with its continuing negative consequences for many citizens which has generated so much controversy for that length of time.

Strictly speaking therefore, if we were to go by UMNO’s oft-repeated “social contract” at Independence in 1957, that “social contract” certainly does not include Clause 8A of Article 153 that was introduced much later in 1971. Even so, if we scrutinize this clause more closely, we will see that it is definitely not a carte blanche for the blatant racial discrimination witnessed in, for example, the (‘Bumis Only’) enrolment policy at institutions such as UiTM.

One wonders if the Yang di-Pertuan Agung has been consulted and has given “such directions to the authority as may be required to ensure the reservation of such proportion of such places for Malays and natives of any of the States of Sabah and Sarawak as the YDPA deems reasonable” at the various MARA institutions and public tertiary institutions all these years!

A ‘new’ Malaysia must ratify ICERD

The Prime Minister must decide if his PH government has the political will to progress into the world community that respects all human rights. Ratifying ICERD is a statement to show we consent to be bound to an international treaty that outlaws racial discrimination and that we do not stand on the same patch as North Korea and Myanmar in relation to international treaties such as ICERD.

Thus instead of implying that the Malaysian Constitution is racially discriminatory, which is not true and is in fact scandalous, the prime Minister should instead endeavour to enact the necessary legislation to give domestic effect to ICERD.

First and foremost, the ICERD treaty prohibits policies that have a racially discriminatory impact on any sections of people in the country. The Prime Minister should consult his newly minted Minister for National Unity Waythamoorthy who has been the best publicist against the racially discriminatory policies in this country in recent years, especially in the UK and the US.

The ICERD treaty insists that victims of discrimination should have a judicial enforcement mechanism available such as an Equality Act and an Equality & Human Rights Commission and the treaty applies to all levels of government – federal, state and local.

‘New’ Malaysia needs affirmative action based on class or need

In Malaysia, since the 1990 deadline signalling the end of the NEP was ignored, it is high time for a new socially just affirmative action policy based on need or class or sector. Thus, if Malays are predominantly in the rural agricultural sector, we should create policies that benefit the poor farmers (some of whom happen to be Malay) and not the rich Malay (& others) land-owning class. Only such a race-free policy can convince the people that the government is socially just, fair and democratic and walks the 1Malaysia talk.

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