Constitution,General

5 points about ICERD that Malaysians are

disagreeing over
 2018-11-20 Arjun

This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner
whatsoever.

[Versi Bahasa Malaysia di sini]

Lately, the latest topic on everyone’s lips (and keyboards) is ICERD – the International Convention on the Elimination
of All Forms of Racial Discrimination. Brie y put, ICERD is a convention (or treaty) by the United Nations that aims to
promote racial equality throughout the international community, which is oddly doing the opposite as both
politicians and regular Malaysians argue over whether or not Malaysia should sign it. 

While reading the comments in a local news article would give you an idea of the arguments in support and in
opposition to ICERD, perhaps the best summary of the concerns are in regards to the status of Article 153 of the
Federal Constitution and the status of Islam as Malaysia’s state religion. A petition against ICERD on Change.org
lists down possible consequences if Malaysia became a signatory: 

Note: We’re not saying any of this is true / will happen. Full petition here. 

Coupled with news report about PM Mahathir stating that implemantation in Malaysia would be impossible, plans for
an Anti-ICERD rally in KL on December 8th, and other news links that would confuse anyone who’s late to the party;
we’re going to scale things back a little and start from the basics – What ICERD is, and what it’s meant to do (on
paper).
[READ MORE: How to organize a legal rally in Malaysia]

UPDATE: On November 23rd 2018, the government announced that they will not be ratifying ICERD.

1. Laws are introduced or changed 

As mentioned earlier, ICERD is an international treaty; it provides a framework of conditions for countries to follow if
they choose to sign it. This means that the provisions (the “laws” within ICERD) can only apply to Malaysia after the
government signs it and rati es it – ‘ratify’ meaning to make it o cially valid or recognized. 

After a country signs, they must then review their existing laws and policies to meet the requirements set by
ICERD which, as evidenced in the name itself, is to eliminate racial discrimination.

Article 2(1)(c) of the International Convention on the Elimination of All Forms of Racial Discrimination 

Each State Party shall take effective measures to review governmental, national and local policies, and to
amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial
discrimination wherever it exists;

The main responsibilities of a signatory country (referred to as State Party in the document) can be found in Article 2
of ICERD, summarized as: 

Not supporting or defending discrimination by any person or party

Change or remove existing laws that create or support racial discrimination
Introduce laws or take actions to end racial discrimination
Encourage or introduce measures that bring races together
Take special measures to develop and/or protect some racial groups with the purpose of guaranteeing them
equality

As an example, after Australia rati ed ICERD in 1975, the Australian Parliament passed the Racial Discrimination Act
in order to satisfy these new obligations. 

2. Every citizen will have equal rights to education

(and other things)
Part of ending discrimination is to ensure that everyone is guaranteed equal rights. This essentially means that
certain “basic” rights need to be available to every citizen on an equal basis. 

Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (in part): 

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties
undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of
everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in
the enjoyment of the following rights...

Article 5 then outlines a whole bunch of these rights, including

5(d)(vii) – The right to freedom of thought, conscience and religion

5(d)(v) – The right to own property alone as well as in association with others
5(e)(v) – The right to education and training
This is perhaps the main focus of contention regarding Malaysia s signing of ICERD.
 

3. Hate speech will be criminalized

Hate speech is generally de ned as speech that attacks someone for being different, whether by race, religion,
ethnicity, or other factors. For ICERD, hate speech is mostly con ned to the context of race. 

So, in addition to encouraging nations to do away with racially discriminatory laws, ICERD also requires signatory
countries to adapt or adopt laws that would make it a crime to create, share, or support hate speech. 

Article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination 

Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred,
incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race
or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist
activities, including the nancing thereof;

This also extends to making groups or gatherings that promote racial hatred illegal… and participation a criminal
offence, of course.

However, certain countries had a tough time balancing freedom of speech and the prohibition of hate speech. For
example, when Norwegian courts acquitted a known Neo-Nazi for a racially charged speech against the Jewish
community on the grounds of freedom of speech – it was later decided that this action violated the provisions of
ICERD.

But wait, who decided this? Well, that brings us to the next point…

4. An independent organization keeps signatory

countries in check
Okay, this is going to be a little confusing. The implementation of ICERD is governed by the Committee on the
Elimination of Racial Discrimination, or…. CERD.

Yup. CERD oversees ICERD. #icerdwhatyoudidthere

Basically, CERD is made up of a group of independent experts that monitor the implementation of policies by
signatory countries and reviews complaints by individuals or groups against their countries.

Article 8 of the International Convention on the Elimination of All Forms of Racial Discrimination (in part): 

There shall be established a Committee on the Elimination of Racial Discrimination (hereinafter referred to as
the Committee) consisting of eighteen experts of high moral standing and acknowledged impartiality elected
by States Parties from among their nationals...

In essence, signatory countries are required to submit a report to CERD one year after signing, then every two years
or when requested. If you clicked on the link to Australia’s Racial Discrimination Act in Point 1, it’s actually a report
about how Australian o cials “ nally agreed to cooperate” and meet CERD over an overdue report and certain
shortcomings in their implementation of ICERD; which includes some backtracking on the Racial Discrimination Act
and other shortcomings in regards to racial equality. Here’s the link again. 

If a certain racial group or individual feels their rights have been infringed and not properly addressed by their
nation’s government (or authorities), they can also make an appeal to CERD – but this can only happen if they’ve
exhausted all local avenues. To bring back the Norwegian hate speech case from Point 3, the affected Jewish
communities only brought the case to CERD after the case had gone all the way to the Norwegian Supreme Court,
which didn’t decide the case in their favor. 

So what are the consequences if CERD nds a violation?

In general, CERD will issue a report outlining their reasons and provide recommendations to x the problem.
However, in certain cases such as unresolved disputes between two countries, the International Court of Justice
may get involved (Article 22) and consider CERD’s ndings in deciding the case. In the interest of space, you can
read an example here. 

For the most part though, signing ICERD puts a country at a higher level of standards and scrutiny, which may affect
certain international objectives such as membership to UN agencies or councils. As an example, Amnesty
International suggested that Australia’s agreement to meet CERD was related to the country’s inclusion into the
United Nations Human Rights Council. 

5. Countries don’t have to follow ICERD 100%

While it’s logical to assume that signing ICERD means that a country will have to follow each provision to the letter,
it’s not actually the case. The treaty provides some leeway for signatory countries to state reservations that
prevent them from adopting it on a full scale, as long as these reservations don’t violate the objectives in the rst
place. 

The reservations are listed in the United Nations Treaty Collection, and some examples are:

The United States of America – Allows “hate speech” as part of a Constitutional right to freedom of speech
The United Arab Emirates – “The accession of the United Arab Emirates to this Convention shall in no way
amount to recognition of nor the establishment of any treaty relations with Israel.”
Thailand – Not obligated to interpret or apply ICERD provisions beyond the con nes of Thai Constitution and
law

In the local context, The Malaysian Bar pointed out that Article 1(4) allows “special measures” for certain groups to
be given additional protection for the purpose of putting them on an equal playing eld. However, this should be
discontinued once that objective has been achieved: 

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic
groups or individuals requiring such protection as may be necessary in order to ensure such groups or
individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed
racial discrimination, provided, however, that such measures do not, as a consequence, lead to the
maintenance of separate rights for different racial groups and that they shall not be continued after the
objectives for which they were taken have been achieved.

This is again mentioned in Article 2(2) (in part) : 

States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other elds,
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...

However, whether or not this will play a role in addressing the concern of parties who are opposing ICERD remains to
be seen, since...

It’s still unclear whether Malaysia will adopt ICERD

The suspense is terrible.

Incidentally, this isn’t the rst time ICERD has come to the government’s consideration, as the previous BN-led
government had looked into it twice – in 2011 and 2015. 

With debates coming in from all sides, it’s not certain whether Malaysia will leave the list of 14 countries that have
not signed the treaty.

UPDATE: Despite the announcement that the government won’t be ratifying ICERD, the Anti-ICERD Rally will still be
talking place

If you’re curious whether the Anti-ICERD rally is legal or not or if you’re considering to attend the rally, and you wanna
know if it’s legal to attend, read our article on rallies here.

Co-written by Arjun & UiHua

Recommended For you by

Are backdoor Why is the Agong AskLegal.my Akta berita palsu

government's… interviewing 22… dah…

Can a person's Can you get your Abortions have What happens to
opinion be used… money back if… always been… your case if a la…

You May Be Interested by

Who is Azmin 6 gambar pelik 4 SENARIO yang Some countries

Ali? The story o… sepanjang… mungkin berlak… survived for…