- UM Law Society
THE NON-RATIFICATION OF ICERD: BETWEEN THE LINES OF THE LAW
The students of the Faculty of Law, University of Malaya, are gravely concerned over the government’s decision to not ratify the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) after garnering criticism and rejection from the opposition parties along with certain sects of the rakyat. In response to this heated debate, we conducted a survey among the students of the Faculty of Law, University of Malaya to gauge the reception to the ratification of the ICERD. It is evident that a large majority (89.1%) of the students in the Faculty, support its ratification.
The heated debate on the ratification of this international convention started on October 24th when news media platforms and tabloids reported the statement made by a Minister in the Prime Minister's Department, P. Waytha Moorthy on the effort of the government in ratifying six international treaties which include the most controversial one now — the ICERD by the first quarter of 2019. The many opinions that are against the ICERD emanate through the statements made by opposing parties stating that the ratification of the ICERD is against Article 153 of the Federal Constitution. Hence, a dissection of this convention and the federal legislation of our country is much needed to address the fear of implications from the ratification of the ICERD.
The ICERD had its genesis in antisemitism, which led to the issuance of a resolution condemning “all manifestations and practices of racial, religious and national hatred” as violations of the United Nations Charter and Universal Declaration of Human Rights. Governments of all States were called to “take all necessary measures to prevent all manifestations of racial, religious and national hatred”.  It was introduced first on the 21st of December, 1965 and came to effect after the 4th of January, 1969. Article 1 of the ICERD gave an extensive definition on racial discrimination. However, it is to be noted in the same article that it gives state authority the right to distinguish to what extent racial discrimination is such as the difference in citizenship status or naturalisation and as well as the provision of special measures.
The biggest concern of the citizens especially the Malays and natives of Sabah and Sarawak are regarding Article 153  that provides the reservation of quotas in respect of services, permits and etc., for Malays and natives of any of the States of Sabah and Sarawak. These rights include the quotas for education, for service with the government, training and scholarships to help this group of people to achieve equilibrium with the other races. However, Article 1(4) of ICERD permits “special measures”, which includes affirmative action or positive discrimination and it is backed by Article 2(2) of the same convention. This clearly shows that ICERD is not a threat to the special reservations provided in the Federal Constitution as it allows affirmative actions and the objection of the people arose by the sentiment of the abolishment of the special reservations that was laid down in the constitution.
In regards with the application of international treaties in Malaysia, the concern of the general public is whether it would be binding on our legislations as well as the implication of its application in the long run. First, from the perspective of the Federal Constitution, it does not contain any provision which clearly states that international law shall be deemed part of the law of the land. By reading Article 74(1) of the Federal Constitution together with the Federal List, the Parliament has the power to make laws inclusive of external affairs as well as the power to implement and operate them domestically. This is further supported by Article 80(1) which states that the executive authority of the Federation extends to all matters with respect to which Parliament may make laws, and in this context, includes international treaties. Therefore, the Constitution prescribes power to the Parliament to enact and enforce laws based on treaties ratified by the Government. Until national laws are enacted by Parliament, the treaty has no direct application nationally, and its provisions cannot be relied upon to be the source of rights and obligations for citizens.
As to the concern of whether the convention is entirely binding, it must be understood that the Executive may ratify a convention with “reservations” or to make “declarations”. In terms of reservations, the government can choose to not implement certain provisions that is deemed unreasonable to be implemented considering the local circumstances. As for making declarations, it is essentially the process of making our own interpretations on the convention itself in order to implement the principles in the convention.
The next discussion is on the case law pertaining to the application of international treaties. There is a general reluctance to have recourse to international treaties even where its terms are incorporated by a statute. In the case of Merdeka University, Abdoolcader J said, “...in any event the pertinent provisions for consideration are those contained in our municipal legislation.”. Similarly, in the 2017 case of Lim Jen Hsian, the Court of Appeal also held that international treaties do not form part of the law in Malaysia unless such treaties have been incorporated into the municipal law.  Therefore, the ratification of an international treaty does not threaten sensitive issues in our Constitution, such as Article 153. The Constitution, the Executive and the Judiciary all pose as a restraining factor to the terms incorporated in a convention to suit it to local circumstances.
Looking at the positives of the ICERD, the fundamental liberties enshrined in our Federal Constitution are also in line with it. As an example, the fundamental liberties in regards to freedom of religion in Article 11 of the Federal Constitution was also mentioned in in Article 5(d)(vii) of the ICERD that states the right to freedom of thought, conscience and religion. Besides, some of our respondents pointed out that the ICERD is in line with Article 8 of our Federal Constitution, which prescribes equality for all citizens. They opine that as a country with people of various races and religions, it is only just that we ratify a convention to uphold our promise of equal rights to all.
All in all, we, the University of Malaya Law Society, firmly deny that the ratification of the ICERD can undermine the supremacy of our Constitution. We believe that the ratification of the ICERD should not be perceived as a threat to the social contract agreed upon by the constituents of our nation, but instead should be celebrated as a positive step to the protection of all citizens of Malaysia from inequality and discrimination. We comprehend that there are genuine fears from the society when it comes to the preservation of their existing privileges, but the ratification of the ICERD should not be a tool abused by certain parties for their political mileage. We urge the government to reconsider the non-ratification of the ICERD, and implore them to appreciate the purity of intentions behind the said convention.
 'Suhakam wants Malaysia to ratify six human rights conventions - Waytha Moorthy' (BERNAMA.com 2018) < http://www.bernama.com/en/news.php?id=1634849> accessed 21 November 2018.
 United Nations General Assembly Resolution 1510 (XV), 12 December 1960.
 Federal Constitution (Amendment) Act 1995
 Id, Article 153(2)
 Article 2(2) ICERD: “States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.”
 Nijar, G., S. (2003). ‘The Application of International Norms in the National Adjudication of Fundamental Rights. Malaysian Bar.’ Retrieved from http://www.malaysianbar.org.com.my/human_rights/the_application_of_international_norms_in_the_adjudication_of_fundamental_rights.html
 Abdul Ghafur Hamid and Khin Maung Sein, ' Judicial Application of International Law in Malaysia, an Analysis' (malaysianbar.org.my 2006) < http://www.malaysianbar.org.my/international_law/judicial_application_of_international_law_in_malaysia_an_analysis.html> accessed 21 November 2018
 Merdeka University Berhad v Government of Malaysia  2 MLJ 43.
 Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors  8 MLJ 122.