By Datuk Dr Denison Jayasooria
Racism continues to be a real problem in contemporary societies. This is a global crisis not specific to a country but across major countries of the world. But when confronted most people would say they are not a racist. But we have witnessed and are witnessing inter-ethnic and intra community violence in many parts of the world.In Malaysia too we are faced with this question. While violence like that experienced during the May 13, 1969 riots is not a feature today but hate speeches and intolerant actions are prevalent. The funny part of this is that different people are pointing fingers on who is a racist? The question before us who then is a racist?
When does defending ones ethnicity, religion, culture, language shift from claiming ones fundamental rights to becoming intolerant actions. When does it cross the line of defending ones rights to denying another their fundamental rights?This is well defined in the Universal Declaration of Human Rights (UDHR). One must affirm that this document was drafted by the world leaders and adopted as part of the UN Charter. While some individuals and groups decry this, they must realise that Malaysia when it joined the UN and also was part of the UN Human Rights Council has made an international commitment to uphold these universal principles.
The UDHR in article 1 & 2 declare that “all human being are born free and equal in dignity and rights”. This is also the focus of article 1 in the Cairo Declaration of Human Rights adopted by OIC member countries from an Islamic perspective. It states that “all human being are equal in terms of basic human dignity and basic obligations and responsibilities”. In a similar way the Asean Human Rights Declaration states that “ all persons are born free and equal in dignity and rights”.Therefore all these human rights documents have one thing in common namely the theme of “being human”. It is clear, whether we article our concerns from a universal, religious or regional perspective the theme of human rights is affirming that human being are free, equal and with dignity. Of course rights also include responsibilities but the focus is on rights and the obligation of the State/governments to uphold this for all people.
It is important to note that when we apply this human rights framework to ethnic or race relations we need to ask how does what we say or do affirm or undermine the rights of others. Do we view ourselves and our community or ethnic group as superior, dominant, powerful and others as inferior and insignificant?The human rights approach affirms the rights of all individuals and groups on the basis of equality and that there should be no discrimination on the basis of the colour of one’s skin or religion or gender or age or where we come from.
This is fundamental not just from human rights but the corner stone of all the major religions of the world. A theme well developed by the theistic religions of Judaism, Christianity and Islam.However we need to ask but are socio economic situations equal for all to compete if some for historical reasons could be disadvantaged? Could there be some provisions so as to ensure equal opportunities and equal outcomes can be protected.
Article 153 & Affirmative ActionOne positive aspect of the Malaysian experience is the formulation of the Federal Constitution and the balance between equality before the law as protected in Article 8 and the special measures as provided for in Article 153
In social policy terms this is referred to as affirmative action or positive discrimination. This is a provision provided for by the founding fathers of Malaysia which comprised leaders from all the major ethnic communities in Malaysia through the Alliance political grouping and later affirmed through the Barisan National.What many do not realise or often under emphasised is that the Federal Constitution provides clear provisions and limitations to the provisions. There are a number which will enhance our discussion on equality and positive discrimination in the context of historical disadvantage especially among the Malays and natives of Sabah and Sarawak including the Orang Asli indigenous communities.
One can identify four clear guidelines:-First, Article 153 must be read in the context of Article 8 as this provision in article 153 is a special measure and not a matter of ethnic or racial superiority or dominance such as recent terms like Ketuanan or even dominance of the majority.
Second, Article 153 states the special measures for the Malays and natives of Sabah and Sarawak on the one hand but also affirms the legitimate interest of other communities. Therefore the spirit of the Federal Constitution is not an approach of denial of one and preference for another. The aspect of legitimate interest is not emphasised by groups advocating rights using 153. Furthermore it is the constitutional duty of the Yand Di Pertuan Agong to protect the rights of all the communities.Third, article 153 indicates all the measures must be “reasonable”. It cannot be unreasonable quotas or conditions which might restrict or prevent the progress of other communities.
Four, that the special measures are restricted to three area namely civil service recruitment and not in promotions as article 153 (5) makes reference to article 136 on impartial treatment of federal employees; educational places and scholarships and business licenses. The Federal Constitution does not give a free hand but addresses clearly the position of disadvantage.From a human rights point of view the question is not the provisions as per article 153 but the implementations. There must be open transparent discussion on who is really benefiting from the 153 provisions. The historical consensus is to address the historical disadvantage. This is an important aspect as we do not want a sizable section of the poor coming from the majority community and from among the indigenous communities.
Open rational discussions including access to transparent data & analysis especially from disaggregated data is necessary. This will restore confidents in the implementation of these provisions and reduce the thoughts of being marginalised or discriminated or have limited access to the servicesICERD Provisions
The International Convention on the Elimination of all forms of Racial Discrimination(ICERD) was adopted by the United Nations in on Dec 21, 1965. Of the 192 UN member states 176 have ratified this convention. Only 8.3% or 16 countries have not and Malaysia is one of the countries that have not ratified this Convention.Ratification of ICERD will be one of the best things Malaysia can do in order to highlight the positive way it has used affirmative action to address the poverty of a majority of the Malay community though a whole range of socio-economic development programs.
ICERD makes provisions for positive discrimination but the measures are not meant to be permanent. There must be transparency in the implementation and it is not based on racial or ethnic superiority but to address historical disadvantage. This objective or goal is similar to what the Malaysian founding fathers envisioned.
Therefore we must ask this very important question on the UN day for the elimination of racial discrimination why Malaysia remains among the very few countries of the world which has not ratified the ICED. This is the ‘One Malaysia’ and ‘Malaysian Boleh land’ and why if we are Truly Asia we remain alongside Anglo, North Korea and MyanmarRatification will not mean an end of article 153 provisions as these are needed to address socio economic inequalities and the provisions can be applied on the basis of human need especially for the bottom 40% and in the some cases on the basis of race so as to ensure not just equality of opportunities but also equality of outcomes so as to ensure that all communities have a share of the Malaysian heritage and equitable share of the wealth.
We must not just ratify ICERD but also establish a Commission for Equal Opportunities so as to ensure that all Malaysians will have a fair chance and opportunity in both the public and private sectors.-----------------
Article by Datuk Dr Denison Jayasooria in conjunction with UN International Day for the Elimination of Racial Discrimination (March 21, 2014). Dr Denison is the Principal Research Fellow at the Institute of Ethnic Studies (KITA), UKM. He is also Secretary General of Proham (Society for the Promotion of Human Rights)