THERE has been much debate on whether provisions in the Federal Constitution are inconsistent with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Some take the view that certain provisions, particularly Article 153, which guarantees the special position of Malays and natives of Sabah and Sarawak, contradict the obligations imposed by the ICERD.

It might be useful to start by saying that I agree on certain things said in the article.

Firstly, a state cannot make reservations to a treaty if they are incompatible with the object and purpose of that treaty; and secondly, there is a need for a “healthy and open debate”, although I am confused on how accusing others of being “manipulative”, “utterly reprehensible” and disingenuous contributes to a “healthy and open debate”.

I think the disagreement fundamentally boils down to two things.

Equality and non-discrimination

Equality and non-discrimination does not necessarily mean treating all groups equally at all times. These concepts are aimed at ensuring that all groups are placed on an equal footing. This would mean providing special treatment to certain groups to address disadvantages faced by those groups. Ultimately, the aim is to remedy the said disadvantages to ensure that such groups are placed on an equal footing with other groups. This is called substantive equality.

This concept is expressly recognised in the ICERD. Article 2(2) allows states to create “special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms” (Article 1(4)). Importantly, such rights include social, cultural and economic rights (Article 2(2)) (see also General Comment 32).

In essence, equality is not just about treating all groups equally. More importantly, it is about ensuring that all groups are on equal footing.

The special position of Malays and natives

The second question is whether Article 153 conforms to the notion of substantive equality. It is my view that it does. This is evident from the intent of the framers of the Federal Constitution and the structure of the same.

What was the purpose in conferring the Malays and natives with such a “special position”?

Some argue that such a position was granted due to the fact that the Malays and the natives “are the original sons of the soil”. For completeness, this was the position taken by the then Alliance coalition in its submission entitled “Political testament of the Alliance” to the Reid Commission.

However, the Reid Commission made it clear that such position is required as “the Malays would be at a serious and unfair disadvantage compared with other communities if they were suddenly withdrawn”. The commission also made clear that such protection should be temporary in nature. The commission said, “with the integration of the various communities into a common nationality which we trust will gradually come about, the need for these preferences will gradually disappear. Our recommendations are made on the footing that the Malays should be assured that the present position will continue for a substantial period, but that in due course the present preferences should be reduced, and should ultimately cease so that there should then be no discrimination between races or communities”.

The four areas of preferences identified by the commission were Malay reserve land, quotas for admission into the public service, quotas for issuing of permits for operation of certain businesses, and scholarships, bursaries and other forms of aid for educational purposes. The commission thought it would be best to leave it to the King and the government of the day to determine when such “preferences” should be reduced and ultimately removed.

This was reiterated in the white paper, which went one step ahead and recommended that “the present preferences should be reviewed after 15 years” by the YDPA (paragraph 55). As correctly put by Mohamed Suffian, the purpose of Article 153 was to correct the perceived weaknesses of the Malay community in the economic field and public service.

The constitutional structure

In fact, Article 153 has in-built mechanisms to prevent discrimination. The YDPA must protect the “legitimate interests of other communities”. Pertinently, Article 153(5) expressly states that “This Article does not derogate from the provisions of Article 136”. Article 136 says that “All persons of whatever race in the same grade in the service of the Federation shall, subject to the terms and conditions of their employment, be treated impartially”.

Ultimately, Article 8(1) (which the Federal Court determined to be omnipresent in the Federal Constitution) guarantees that all “persons are equal before the law and entitled to the equal protection of the law”. Article 8(2) prohibits discrimination on the various grounds, including race, unless “expressly authorised by this constitution”. I do not think Article 153 can be construed as “expressly” authorising such discrimination.

This is the social contract we have entered into.

Conclusion

As such, I am of the view that there is no inconsistency between the Federal Constitution and the ICERD. If at all, it could be argued that Article 153, in its literal sense, contemplates permanency. This could be inconsistent with the requirement under the ICERD that special measures be temporary. However, I do not think this is an issue. It could be argued that there is still a need for Article 153 (if properly implemented) as things stand.

When the time comes that such protections are no longer needed, it would be for the government to make the necessary amendments to the Federal Constitution. As put by the Federal Court, “These provisions cannot be questioned and are necessary to assist the less advanced or fortunate in the light of the conditions prevailing in the country at the time of independence. It may take time, certainly not in our generation, for the provisions to become redundant. But, as long as the provisions are there it is mischievous to seek to attack the government for doing something in accordance with the constitution”.

Some also place a lot of reliance on policies and actions done in furtherance of Article 153 to justify their arguments. Policies made in furtherance of Article 153 do not make them constitutional. The Federal Constitution cannot be interpreted by reference to actions by the executive. The previous government had misconstrued the scope of Article 153 in many of its policies. This was succinctly explained by Kua Kia Soong. The Federal Constitution does not prohibit affirmative action for other races on a needs-based approach. This is what we should be doing.

Ultimately, it all comes down to Malaysia declaring to the world that it does not condone racial discrimination. Equality is a basic tenet of humanity. As the Prophet Muhammad said in his farewell sermon:

“O People! be aware: your God is One… No Arab has any superiority over a non-Arab and no non-Arab any superiority over an Arab, and no white one has any superiority over a black one nor any black one over a white one, except on the basis of piety. The most honourable among you in the Sight of God is the most pious and righteous.” – October 27, 2018.

* Surendra Ananth is an advocate and solicitor at the High Court of Malaya.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.