DECEMBER 7 — In the recent discussion on ICERD in Malaysia, a major question was raised with regards to the nature of discrimination and the provision of special measures commonly known as positive discrimination or affirmative action. What is the meaning of discrimination? And can there be special measures? Some in the Malaysian context have felt that ratification would mean amending Article 153 of the Federal Constitution so it would not be discriminatory. Others felt that the Article 153 provisions fell in this category of what ICERD permits namely special measures. Furthermore, those opposed to ICERD claim that it is incompatible with the Federal Constitution's provisions for Malay & native special privileges as there were time limits imposed in ICERD. These are serious questions requiring in-depth analysis

In this article, we will examine the ICERD provisions and illustrate it with another country which has constitutional provisions for special measures and which has ratified ICERD. India is a good example for this case study review, as it has specific Constitutional special measures and they have ratified ICERD without any reservations. India is not under pressure by the ICERD committee to amend their constitution as the Indian reservations are not time bound.

We will explore this Indian experience of ICERD ratification without Constitutional amendments. How did India do it and how is its experience so far. The Indian position can assist us in our ratification process. The Malaysian Federal Constitution drew many legal principlesand provisions from the Indian Constitution. There are similarities in the laws protecting fundamental liberties.

ICERD references

In the ICERD document the word discrimination is defined. Article 1 provides a clear explanation. It reads, "the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.

In essence all people must be treated equally and enjoy all rights without any distinctions or hurdles. This theme of equality is also central to the Universal declaration of Human Rights (UDHR) Article 1 "all human being are born free and equal with dignity and rights”. And in Article 7 "all are equal before the law”. This entitlement of rights and freedoms are without distinction of any kind as highlighted in Article 2 of the UDHR "race, colour, sex, language, religious, political or other opinion, national or social origin, property, birth or other status”

ICERD & special measures

ICERD makes special provision for special measures or what could be called affirmative action or positive discrimination. These measures are regarded in ICERD as non-discriminatory but they have some specific guidelines. This is clearly explained in ICERD 1:4 as listed below:

"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 provision is further described in Article 2:2 with reference to development agenda including social, economic, cultural and other fields. The ICERD guideline is that the purpose of the special measures are seen as non-discriminatory is ‘to right a wrong’ so as to equal the opportunities for a neglected group or community.

However when the objectives are achieved these special measures will end and therefore preventing it to become permanent separate and unequal rights. This is because the objective of the special measures was to equalise opportunities.

The United Nations on August 2009 released a longer explanation note called, General Recommendation No 32 entitled "The meaning and scope of special measures in ICERD”. These provide further guidelines and explanations for the implementation of ICERD.

Indian case study on ICERD

India is world’s largest democracy. It has ratified eight major human rights conventions. It signed ICERD on March 2, 1967 and ratified it on Dec 3, 1968. Its only reservation was on Article 22 with reference to International Court of Justice if there was a dispute that the consent of all parties must be obtained. There were no concerns recorded at this point on its quotes and reservations. There are records of discussions between the ICERD committee and the Indian government, if caste fell under racial categories or under decent. Both categorisation not accepted by the Indian government.

India’s constitutional provision for affirmative action / positive discrimination

There is extensive writings on the work of Dr BR Ambedkar, the architect of the Indian Constitution who was himself from one of the downtrodden communities in India. He wrote that "all subjects of the state in India are equal before the law and possess equal rights” This is documented in the Indian Constitution’s preamble "equality of status and of opportunity”. He called for adequate protection against discrimination, need for adequate representation in the Parliament, government service and educational institutions. These provisions are safeguarded in the Indian Constitution as special measure with specific quotes and reservations.

PM Bakshi in his book ‘The Constitution of India’, highlights all the specific reservations with commentaries. Listed below are five specific Constitutional provisions:-

Article 15 on prohibition of discrimination makes a special provision in 15 (4-5) for advancement of any socially and educationally backward classes of citizens or from Scheduled Caste and Scheduled tribes including admission to educational institutions

Article 16 on equality of opportunities in public employment makes similar social measures to similar target groups as noted in Article 16 (4, 4A & 4B).

Article 29 & 30 provides special protection for minorities in the establishment and administration of educational institutions.

In Part XVI of the Indian Constitution entitled ‘Special provisions relating to certain classes’ there are specific reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People in Article 330. There is also reservations for Anglo-Indians in the House of the People.

In addition the Indian Constitution makes provision for the established of a National Commission for Scheduled Castes and another for Scheduled Tribes. These are establish to investigate and monitor to safe guard the special provisions reaches the intended target group.

It is clear that while the Indian Constitution provides for equality but there are numerous special measures, quotes and reservations to ensure justice and fairness for all. None of these are time bound and there challenges in its implementation.

India’s ICERD ratification reporting

India ratified ICERD on Dec 3, 1968. At the time of ratification India did not register any justification or reservations of its special measures. The special measures in the Indian Constitutions fitted into the ICERD requirements as the provision were for a specific needy groups who were disadvantaged compared to other groups. There was no reference to time line or end period for these measures.

In the India Government’s report it stated the following on affirmative action for socially and economically disadvantaged sectors. In paragraph 26. "The Government of India has also adopted a policy of affirmative action to create aneffective environment for the exercise of human rights by certain vulnerable sectors of societywho, as a result of socio-historical distortions, have been socially or economicallydisadvantaged. In institutional terms, the Constitution has prescribed specific affirmativemeasures, with the twofold objective of safeguarding the fundamental human rights of suchvulnerable sectors of society, including removal of social disabilities and promoting theireducational and economic interests. These measures include reservation of seats in the publicservices, administration, Parliament (Lower House) and State legislatures, and setting up ofadvisory councils and separate departments for the welfare of such socially and economicallyvulnerable groups. These groups have been identified in the relevant schedules of theConstitution and are designated as Scheduled Castes/Tribes. The National Commission forScheduled Castes and National Commission for Scheduled Tribes serve to ensure observance of these measures and to monitor violations of these rights while a range of specificbeneficiary-oriented schemes and plans have been put in place to ensure promotion of educationand employment opportunities. These include the establishment of a National Scheduled Castesand Scheduled Tribes Finance and Development Corporation, which takes up and finances viableschemes for economic development of these groups”.

The Indian Government report in paragraph 27 noted "similarly, affirmative measures are increasingly being taken for disadvantaged groupsbelonging to Other Socially and Educationally Backward Classes (OBCs). These measuresinclude reservation of another 27 per cent in the admissions for OBCs, while a NationalBackward Classes Finance Development Corporation has also been set up for grantingconcessional finance for upgrading technological and entrepreneurial skills and to serve as anapex body to monitor the work of similar corporations at the State level”.

It is significant to draw from comments from the ICERD committee during the period of Indian review of ICERD implementation.

"The Committee welcomes the special measures adopted by the State party to advance the equal enjoyment of rights by members of scheduled castes and schedules tribes, such as reservation of seats in Union and State legislatures and of posts in the public service”. (CERD:2007)

In addition "The Committee welcomes the establishment of institutions responsible for the implementation of anti-discrimination legislation such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (1989) and for the monitoring of acts of  discrimination and violence against members of scheduled castes and scheduled tribes, including the Ministry of Social Justice and Empowerment, the Union and State Parliamentary Committees on Social Justice, the Ministry of Tribal Affairs, and the National Commissions on Scheduled Castes and on Scheduled Tribes”. (CERD:2007)

Lessons

What lessons can we draw from this case study of India’s ratification? The basic principle is that all nations must be committed to fight any form of racism and ensure equality of all human being. The Indian case study also illustrates that due to historical and cultural reasons, some sections of the society might be disadvantaged and in order to equalise opportunities, the State must introduce special measure know as affirmative action or positive discrimination initiatives. In the Indian case there is Constitutional backing for this which is not time bond.

However, in spite of these special measures, the Indian Government ratified ICERD with no reservations. In its country reports to the ICERD committee they list the special measures that have been implemented so far which could be seen as discriminatory to other sections of the Indian society. India is not under pressure to amend its Constitution. The ICERD committee requested more details and disaggregated information on the measures and the recipients.

Malaysian officials could study the Indian case in greater detail examining the Indian Constitution, the Indian ratification and the reports and feedback from the ICERD community. All these are available on the website of the United Nations Human Rights Office of the High Commissioner.  (https://www.ohchr.org/EN/HRBodies/CERD/Pages/CERDIndex.aspx)

Malaysia is facing the global community in making a decision on ratification or not. This matter requires serious reflections on the one hand for national interest but on the other we must stand along with all the nations of the world using a global benchmark to fight racism and discrimination.

My simple assessment of the Indian case study shows that the current reactions towards ICERD by certain parties is largely non substantiated by facts and how the UN and its agencies are operating in creating a better world for all people. My appeal is for us to review these details and make a rational decision.

*Prof Datuk Dr Denison Jayasooria is a Principal Research fellow at the Institute of Ethnic Studies. He is a member of the Malaysian Ministry of Foreign Affairs Consultative Council on Foreign Policy.

**This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.

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REFERENCES

BhalchandraMungekar (Ed) (2017) The Essential Ambedkar. RUPA: New Delhi

CERD Report submitted by states parties under article 9 of the convention. Indian Government (CERD/C/IND/19 (29 March 2006)

CERD. Concluding observations of the Committee on theElimination of Racial Discrimination (CERD/C/IND/CO/19(5 May 2007)

PM Bakshi (2018) (Fifteen Edition), The Constitution of India. Universal Law Publishing:Haryana