[OPINION] Malaysia's accession to ICERD: You can't have your cake and eat it too

Article 153 of the Federal Constitution guarantees the protection of special rights of the Malays and other ‘sons of the soil’ or Bumiputra, as the traditional owners of the land.

The nation is now moving towards accession to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) – an international convention that promotes equality to all regardless of race.

Will Malaysia’s accession to the ICERD erode special Malay rights as enshrined in Article 153 of the Federal Constitution?

The Malay Archipelago was home to the glorious kingdoms of the Malay race such as Srivijaya in Sumatra, Majapahit in Java, Johor-Riau on the Malay Peninsula, Brunei in Borneo and Gowa in Makassar.

These historical facts proved specifically that the people of the Malay race were traditional owners of the Nusantara, so much so that a British scholar in the nineteenth century, Alfred Wallace, named this region the ‘Malay Archipelago’.

European colonisation of the Malay Archipelago began when the Malacca Sultanate was sacked by the Portuguese in 1511. Despite this, most territories in the Malay Archipelago were still largely independent and the people of the Malay Archipelago were free to move in areas within the Nusantara.

The British encouraged mass migration of the Chinese from mainland China, a region outside the Malay Archipelago, to work as coolies and indentured miners in tin mines located in Selangor, Negeri Sembilan and Perak. These immigrants came to the Malay states with one main objective – employment. The Indians on the other hand were brought into Malaya from British India and British Ceylon as coolies and indentured labourers. These immigrants possessed different languages, cultural values and religion with that of the native Malays in the Malay states at that time.

The Chinese and the Indian immigrants at that time were no different than those immigrant workers from Indonesia and Bangladesh flocking into Malaysia today as majority of them were not regarded as subjects of the Sultans or British subjects of the Straits Settlements.

After the surrender of the Japanese in 1945, the British introduced Malayan Union to prepare Malaya for self governance in 1946. The establishment of the Malayan Union was heavily protested by the Malays as it accorded flexible citizenship rights to the non-Malay immigrants. Malayan Union was scrapped off and was replaced by the Federation of Malaya, with the rights of the Malays and sovereignty of the Malay rulers, remained in tact.

The non-Malay communities in Malaya at that time, particularly the Chinese and Indians realised that citizenship rights were crucial for the interests of their communities. Therefore, upon independence, these immigrants were accorded citizenship rights as long as they respect the special rights of the Malays, Malay as the national language of the independent Malaya, Islam as the religion of the Federation and the acknowledgement of the sovereignty of the Malay rulers, all of which are embedded in the Federal Constitution.

While the Rohingyas in Myanmar were denied citizenship rights, the Chinese were not accepted in Vietnam and Cambodia, and the Tamils in Sri Lanka were sidelined by the Sinhalese, millions of non-Malay immigrants were granted citizenship rights of the newly formed sovereign State of Malaya in 1957.

This gracious acceptance of the Malays towards the non-Malays was acknowledged by the then President of the Malayan Indian Congress (MIC), Tun VT Sambanthan in 1965 where he was reported to have said in the Malaysian Parliament - ‘Where else can you find a more charitable, a more polite, a more decent race than the Malay race? Where else can you get such politically decent treatment for any immigrant race?’

Malaysia is set to accede to ICERD soon. Once this is done, enabling legislations and statutes are required to be enacted to have it enforced. Article 26 of the Vienna Convention on Law of Treaties 1969 specifally mentions that a treaty has to upheld in good faith.

As a result, Malaysia is considered to have surrendered its sovereignty to a certain extent and is bound to follow the provisions provided in the ICERD in its domestic laws.

Once Malaysia has become a State party to the ICERD, special Malay rights as provided in Article 153 of the Federal Constitution might be directly or indirectly compromised to give way into the enforcement of the provisions of the ICERD. It is true that 2/3 majority of the Parliament is needed to amend the Constitution. Nevertheless, the erosion of the special rights of the Malays could take place in the form of quota suspension or allocation reduction in channeling these special rights without having to abrogate it in totality as these moves are not directly in contravention of Article 153.

Unless Malaysia makes clear declaration of exemption of special rights of the Malays from the implication of accesion to the ICERD, the Malays and the Bumiputras have to accept the fact that the special rights accorded to them are not in line with the spirit of the ICERD.

The proponents of the ICERD claims that Malaysia needs to accede to it to ensure the nation is at par with the rest of world with regards to human rights protection. This is due to the fact that Malaysia is one the remaining countries that have yet to become a State member of the ICERD. The United States of America (US) was the mastermind of the United Nations Convention on the Law of the Sea 1982 (LOSC) and participated actively in formulating laws on global ocean governance.

However, the US is one of the remaining countries that have yet to become a State party to the convention and Washington has no plans to do so in the near future. The US would not become a State party to any international conventions that are not compatible with its national interests. Therefore, if the US could refrain itself from becoming a State party of the LOSC, why should Malaysia be any different with ICERD? Malaysia is a sovereign State and should uphold the sanctity of its Constitution over acceding to an international convention that has no relation what so ever with Malaysia’s history of nation building.

Since independence, Malaysians of all races have generally respected the rights of each other in promoting peace, prosperity and progress of this otherwise diverse and fragile nation. The Malays respected the citizenship status of the non-Malays and in return, the non-Malays acknowledged the special rights of the Malays and other Bumiputras.

After six decades of nation building, Malaysia is now a success story. As indexed by Global Peace Index, it is currently one of the most peaceful nations on Earth. Malaysia is also one of the most economically-competitive countries the world over, as acknowledged by the World Economic Forum (WEF). Its relative prosperity has transformed Kuala Lumpur, the capital city of Malaysia from an overgrown village into one of the most visited cities in the world today.

These facts show that generally, there is nothing wrong with Malaysia. Malaysia is doing well. If something is not broken, why fix it?

There is no need to question the special rights of the Malays. Similarly, if the Malays and other Bumiputras, as traditional owners of the land, are prepared to relinquish their special rights, are the non-Malays prepared to do the same by letting go of their citizenship rights? One simply cannot have a cake and eat it too.

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* Mohd Hazmi Mohd Rusli (Ph. D) is a senior lecturer at the Faculty of Syariah and Law, Universiti Sains Islam Malaysia and visiting professor at School of Law, Far Eastern Federal University, Vladivostok, Russia.