THE International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) has been in the news in recent weeks. While Putrajaya has given its assurance to ratify the convention, many, including some in the government, objected to such a move, mainly on grounds that it would do away with Malay/Bumiputera rights and erode the sanctity of Islam.

But is that truly the case? 

ICERD was conceived amid a growing number of anti-semitic incidents worldwide and opposition to South Africa’s apartheid system.

In December 1960, the United Nations passed a resolution condemning practices of racial, religious and national hatred as violations against the UN Charter and Universal Declaration of Human Rights.

Following this, a resolution was passed calling on governments to educate the public against intolerance and end discriminatory laws.

The ICERD draft was adopted by the UN General Assembly on November 20, 1963.

Among the core provisions in ICERD are Article 1, which defines racial discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.

ICERD does, however, make the distinction on the basis of citizenship (between citizens and non-citizens) and affirmative action policies aimed at addressing imbalances and promoting equality.

In Article 2, ICERD condemns racial discrimination and obliges countries to eliminate racial discrimination in all its forms. It also obliges parties to promote understanding among races.

And for countries that implement positive discrimination policies, ICERD obliges them to only use it where warranted and that these measures must be finite.

In Article 5, ICERD creates a specific obligation for the guarantee of equal rights before the law, regardless of race, colour and origins of nationality. It also lists security of a person, freedom from violence, and civil and political rights as guarantees.

Article 3, meanwhile, condemns apartheid and racial segregation, and includes an obligation to end policies of segregation.

In Article 4, the convention denounces hate speech and hate crimes, and in line with this, obligations include criminalising hate speech, hate crimes and racial activities.  

Sensitivities in Malaysia 

In Malaysia, ICERD has become a hot-button issue since the government affirmed its commitment at UN’s Universal Periodic Review (UPR) to ratify six remaining international human rights treaties.

So far, Malaysia has only ratified three treaties –the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child and Convention on the Rights of Persons with Disabilities.

Apart from ICERD, the human rights treaties that have not being ratified by Malaysia includes the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Key issues raised by parties against the ratification of ICERD include Article 153 of the Federal Constitution.

Those against ICERD, such as Umno, PAS, Amanah and other Malay rights civil society bodies, fear that the move would mean the end of affirmative action policies in favour of Bumiputeras. Other arguments include threats to the Malay monarchy system and lowering the status of Islam.

Civil society groups had attempted to debunk these concerns by saying Bumiputeras had nothing to fear as the ratification would not infringe on their rights.

On October 26, Minister in the Prime Minister’s Department P. Waythamoorthy said Malaysia would ratify the ICERD and five other treaties on human rights as early as the first quarter of next year.

Prime Minister Dr Mahathir Mohamad reportedly said Malaysia would only ratify the convention after consulting all races in the country, admitting that it would not be easy as each race was sensitive to certain issues.

Out of 193 countries, Malaysia is one of 22 that has yet to sign or ratify ICERD. Out of the 169 nations that have signed it, only four countries – Comoros, Cuba, Palau and the United States - have yet to ratify it. – November 15, 2018.