Guna’s Take on the Politics of ICERD and Harapan’s Volte-Face


November 27, 2018

Guna’s Take on the Politics of ICERD and Harapan’s Volte-Face

https://www.malaysiakini.com/columns/453556

QUESTION TIME | If we thought that UMNO-style gangster politics is dead and gone with New Malaysia, we have been very sadly mistaken as the recent issue over the ratification of the International Convention for the Elimination of all forms of Racial Discrimination (ICERD) shows.

Somehow or other, the ratification of this convention has been taken to be a major attack on the special privileges of bumiputeras, including Malays, resulting in a cacophony of protests by UMNO and PAS, which were rather badly handled by the Harapan government.

It is no such thing.  There are enough safeguards and provisions in the IICERD for the special privileges of bumiputeras to continue and there are countries such as the US which ratified the treaty, saying its own constitution provides for those rights, and if there is any problem, then its constitution will stand supreme against ICERD.

Despite what Prime Minister Dr Mahathir Mohamad has said about having to amend the constitution, which would require a two-thirds majority in Parliament, to ratify Icerd, most expert legal opinion is that there is no such necessity. In fact, Mahathir had said in September at the UN General Assembly that Malaysia would ratify six UN conventions, which includes Icerd.

The about-turn that Harapan made over Icerd is substantive for one very important reason: it has basically submitted to the blackmail of UMNO and PAS who had threatened not just demonstrations but violence. Demonstration organisers talked openly about creating another May 13 in videos that went viral, raising needless alarm and concern.

Image result for mahathir's voltre-face

The mute Malaysian Women Libbers

That will only encourage them to come up again and again with gangster-style tactics of violence and bloodbath when every issue of importance is debated. Capitulation to them now over an important issue in Malaysian politics will only make them raise their voices higher and their threats more severe in future.

What was terribly surprising was the silence and muted response by Harapan leaders over an issue which had been twisted and turned by the opposition UMNO and PAS into a highly explosive racial and religious one.

Social redress

There was no attempt to explain that ratifying the ICERD was in no way against bumiputera rights but was aimed at endorsing universal principles against any form of racial discrimination. ICERD specifically excludes special privileges for any community as a means of social redress for as long as that is necessary.

There are some who say that the Federal Constitution sets no limit on special privileges, but even that is not an issue as Icerd can be ratified subject to the primacy of a country’s own constitution as the US did when it ratified Icerd in 1994.

These concerns are addressed and allayed comprehensively in this article by respected constitutional scholar Shad Saleem Faruqi who deals with all the major legal and constitutional issues over ratifying ICERD.

 

Here are the concluding remarks of his article: “ Even if ratified by the executive, Icerd cannot displace Article 3 (Islam) (of the constitution), Article 153 (special position of the Malays and natives) and Article 181 (prerogatives of Malay Rulers). This is due to the legal fact that our concept of ‘law’ is defined narrowly in ArticIe 160(2) and does not include international law.

“The constitutional position on the ICERD is, therefore, this: Even if the ICERD is ratified by the executive, it is not law unless incorporated into a parliamentary Act. Even if so legislated, it is subject to the supreme constitution’s Articles 3, 153 and 181. Unless these Articles are amended by a special two-thirds majority and the consent of the Conference of Rulers and the Governors of Sabah and Sarawak, the existing constitutional provisions remain in operation.

“The ICERD is not a law but only a pole star for action. Its ideals cannot invalidate national laws. The agitation against it is contrived for political purposes and perceptive Malaysians must not allow themselves to be exploited by politicians.”

Unfortunately, that is exactly what Harapan has done by capitulating to UMNO-PAS and others threats of violence over Icerd at a demonstration to be organised on Dec 8. Now that demonstration is going to be a celebration of their “success” – how pitiable.

Here is the Prime Minister’s Office’s statement on the matter: “The Pakatan Harapan government will not ratify CERD. “The government will continue to defend the Federal Constitution, in which lies the social contract agreed to by representatives of all races during the forming of the nation.”

Narrow agenda

Image result for mahathir's voltre-face

A Janus-faced Malay Politician

“It was Mahathir, after all, who said point blank to the Malays that they should stop supporting UMNO because its leader was involved in the largest kleptocracy the world has known via 1MDB where RM42 billion was lost. Surely through proper information and education, most Malays can be made to realise that ratifying ICERD does not affect their rights or the rights of other bumiputeras.

But instead, the silence of Harapan leaders and their lack of defense of the reason why ICERD was to be ratified as part of the intentions voiced in their manifesto led to this issue systematically being used to whip up sentiment, spiralling up to the defence of Malay rights which it is not”.–Gunasegaram

That pathetic statement follows upon Mahathir’s volte-face over signing ICERD, saying the untruth that a constitutional amendment is needed to ratify the convention, and taking the easy way out instead of explaining to the Malays, who appear to be the only bumiputra group opposed to the ratification, what the real situation is.

It was Mahathir, after all, who said point blank to the Malays that they should stop supporting UMNO because its leader was involved in the largest kleptocracy the world has known via 1MDB where RM42 billion was lost. Surely through proper information and education, most Malays can be made to realise that ratifying ICERD does not affect their rights or the rights of other bumiputeras.

But instead, the silence of Harapan leaders and their lack of defense of the reason why ICERD was to be ratified as part of the intentions voiced in their manifesto led to this issue systematically being used to whip up sentiment, spiralling up to the defence of Malay rights which it is not.

And handing a victory on a platter to the gangster politics of UMNO, PAS and others who play up racial, religious and royalty sentiments and threaten violence, not in furtherance of Malay rights, but their own selfish, narrow agenda of capturing Malay votes and support.

It is more than a sorry state of affairs for it might lead to pressure on the entire Harapan reform agenda if a simple ratification of the ICERD can be turned into such a serious non-issue.


P GUNASEGARAM wonders how many more manifesto promises Harapan will break. E-mail: t.p.guna@gmail.com

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

15 thoughts on “Guna’s Take on the Politics of ICERD and Harapan’s Volte-Face

  1. There are long term issues , mid term issues, short term issues and immediate issues. They all have priority but must be prioritized. We have a second chance but must give PH a the first chance.

    • First chance to work on saving Malaysia, and Harapan is not working on it. Save the nation on a lie that the nation is meant to build on a second caste. There never meant to be a second caste. There was never meant to be a conscious lie to hide the work of Reid Commission. This generation of second caste would have to stand up for themselves to ask who they have elected to do their job. Else, second caste deserves to be second caste and Melayu gets to be a damned race that live behind a lie.

  2. This issue has thrown up too much band-wagon politics… at the present state of affairs in our country, it must be NO to ratification…

    • At what stage or which stage will Malaysia be ready? Never. If half a century of privileges and narcotic drugs are still not enough, getting further hooked on these drugs will make it harder, not easier to get rid of these crutches. So, this is the best opportunity to get rid of something so odious and addictive. The poor Malays, and poor Chinese and poor Indians, can still be helped – and they will be compliant with ICERD as there will be no discrimination. If not now, when?

  3. Gangster meet Gangster at Seafield Indian temple – and look at the result.. What has happened to firefighter Adib was wrong and criminal but if PH really got what it takes, they see an opportunity to lead and deal with this entire issue in a national debate.

    Does Anwar have what it takes?

  4. Well, it amounts to having no GUTS to face the threat with all the powers in hand. It is cowardice for PH to withdraw after UMNO and PAS threats of riots and bloodbath like May 13.

    Did PH really go down to the grassroots to explain the terms to make them really understand what is Icerd? UMNO and PAS made use of the PH weakness to win to become heros of Icerd by drumming the non-relevance of the Icerd. Malays worship Hadi and Zahi as their heros.

  5. Whereas Malaysia under BN severely limited freedom of expression, under PH however, the opposition in parliament are granted this freedom.

    Unfortunately for the PH government, the opposition “misuse” this freedom.

    The rule of law reigns supreme nonetheless; the PH government could act decisively when push comes to shove.

    Even though the PH government had chosen not to ratify ICERD, it is still – in my opinion – a government that respects and upholds universal principles of justice and equity. It most certainly would demonstrate that respect for, and upholds, these principles in the vast multitude of ways that are available.

    As for UMNO, its leaders has big problems – the present high profile court cases involving its leaders, and the many other (as yet to be filed) legal actions and/or court charges that are to be brought against others in its leadership echelon in the future, could render inconsequential any political gains which it now extract from the ICERD issue . So, UMNO must deflect people’s attention from these court cases – hence, making ICERD an issue serves that purpose. Under a climate where freedom of expression is available, UMNO finds many avenues available to spread its message around to the people, most especially to its traditional support base – the Malay community.

    PAS unfortunately, schemingly tags along, and all the way dancing to UMNO’s tunes. Hanging hard on the coat-tails of UMNO, it dreams of power as an ally in an UMNO-PAS-BN federal government.

    The rakyat is judging.

    • So. in other words, I would guess, everyone in the government most probably understand that there is actually no racial or religious or legal or constitutional issue with respect to ratifying ICERD, and I believe that Anwar and every senior leaders in PH most probably also understands this. I would suspect the same with regards to the senior leaders of UMNO. Senior leaders of PAS, most probably also understands this. So, if they all know that there is no racial and religious issue involved, why has it come to the current situation?

      I think that what happens is that UMNO-PAS (especially UMNO) has got a leg up on the matter, and Malay leaders in PH was caught unprepared.

      UMNO’s leaders face big problems – the court issues. In order to deflect attention from this problem – and to negate any negative consequences to UMNO arising from it – UMNO successfully resorted to turning a non-issue (i.e. ICERD) into a racial, religious, legal and constitutional one. It was successful such that its war cry attracted the support of the large majority of unsuspecting Malays and in that event, the Malay leaders of PH – who was caught unexpected and unsuspected – had to make an adequate response. It became too late to resort to intelligent discourse as a way to negate this big UMNO gain. As a result, if only to diffuse the tension successfully created by UMNO-PAS, PH had to backtrack and decided not to ratify ICERD.

      This is my take on the matter.

    • This whole sage should also raise our awareness and concerns regarding the nuisances of unfettered, unchecked and uncontrolled freedom of expression – where is the limit to such freedom, how does one check that it is not abused, exploited and ill-used for selfish gain? For all we know, UMNO leaders will definitely be bolder and more cunning in the future when utilizing this freedom – giving little regard to the question as to whether their action is in the best interest of the public at large in the process.

    • In my previous comment, I said that “….there is actually no racial or religious or legal or constitutional issue with respect to ratifying ICERD….”

      After having read the following pieces written by ex Chief Justice Tun Abdul Hamid Mohamad with the following titles i.e. ‘Kesan Pengesahan ICERD’ and ‘The Caliphate Had ICERD Too : A Response’ I have second thoughts. He eloquently described that there will be far reaching constitutional consequences, especially in the piece ‘Kesan Pengesahan ICERD’.

      Therefore, I stand to be corrected and is now of the view that the objections to the ratification of ICERD may indeed have constitutional & legal grounds to it. And since the constitutional provisions most likely to be affected – and which may have to be amended, if ICERD is ratified – relates to special Malay rights and privileges, which also happens to have, if not direct, an indirect, connection with the position of the Malay Rulers and Islam, then I am now also of the view that the objection to ICERD may probably have racial and religious grounds to it as well.

    • There is another piece by the same ex-CJ entitled “Pengesahan ‘Konvensyen Antarabangsa Mengenai Penghapusan Semua Bentuk Diskriminasi Kaum’ Merugikan Melayu” which relates in quite a detailed account the implications of ICERD ratification unto the position and interest of the Malay community. Reading this has made me aware that it does erode – if not altogether eliminate – special rights of the Malays under the constitution.

    • @MFM if you understand in eradication of slavery, white raced Americans didn’t loose, then you will understand how long Malaysia will remain a land of layu as she refused to see her immaturity. When there is imbalance, contortion will continue to exist. Yesterday, it was 1PM, Jho Low.. tomorrow they will just go by different names. We layu, as long as Melayu would not stand straight. Just as a China that does not treat Uyghur right would not prosper, a Malaysia that wrongs a quarter of her people would never be taken lightly by the power beyond. Melayu is very lucky to be first bailed out by Beijing, then by Tokyo. What comes next is that it would be eaten by all if she doesn’t start uniting all of her own people. I see no reason for Malaysia to exist in a growingly tensed world. After Tun Dr, there would be none. If not now, never. Melayu would probably live better under the ruling by others than of their own kinds.

  6. Can’t help to laugh at our country situation. Because of ICERD opposition didn’t even talk about economy, quality or safety of Tafhiz school, etc. i guess ICERD is more important than issues that affect regular Malays. Kesian

  7. When you run a red light and the rider on the green light lane excercises his right of way only to be knocked down, right of way has no meaning.

  8. ‘ There is another piece by the same ex-CJ…..Reading this has made me aware that it does erode – if not altogether eliminate – special rights of the Malays under the constitution.’

    I believe this ex-CJ said ‘ Muslims do not lie ‘. He contributed nothing to the improvement and integrity of the country legal system.

    With a little bit of goodwill and trust, you can resolve this non-issue. However, some Malay/Muslims, with nothing to do, want to cari pasal.

    This guy and many others are full of shit……even the jamban is cemburu!

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