Affirmative action is not racial discrimination

Affirmative action articles in the Malaysian constitution such as Articles 89 and 153 and various institutions and arrangements that have evolved over the decades are also aimed at ensuring justice and equality for the Malays and the natives of Sabah and Sarawak.

Chandra Muzaffar

The current discussion on the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in the media is yet another example of how politicians and social activists adopt positions on issues of public interest without examining the relevant documents in detail. Those who are for and those who are against Malaysia ratifying the ICERD are equally guilty of this.

Article 1 (4) of Part 1 of the ICERD clearly states: “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.” The same point is made in slightly different language in Article 2 (2) of Part 1.

This shows that the ICERD adopted by the UN General Assembly on Dec 21, 1965 and entered into force on Jan 4, 1969 acknowledges that affirmative action is not racial discrimination. For democracies such as the US which accorded some emphasis to affirmative action in the 60s and India which continues to provide for the protection of segments of its vulnerable population in its national constitution, rectifying historical injustices was integral to the quest for equality that the ICERD seeks.

Affirmative action articles in the Malaysian constitution such as Articles 89 and 153 and various institutions and arrangements that have evolved over the decades are also aimed at ensuring justice and equality for the Malays and the natives of Sabah and Sarawak. At the time of Merdeka in 1957, it was estimated that 64% of the Malays lived below the poverty line, a situation which was exacerbated by the abysmally disadvantaged position of the vast majority of indigenous Sabahans and Sarawakians when they became part of Malaysia in 1963. In 1970 when the new Economic Policy (NEP) was introduced, Malays and the natives of Sabah and Sarawak were grossly under-represented in every profession and in commerce and industry.

These socio-economic realities have to be understood in relation to a critical socio-political circumstance which is seldom highlighted by most of the individuals involved in the ICERD debate. As a result of the massive conferment of citizenship upon a million Chinese and Indians just before Merdeka, the Malays who were hitherto equated with the land (Tanah Melayu) became a community among communities. This relegation of status is one of the primary reasons why the community is so concerned about preserving the Malay core in Malaysian politics. It is also why it perceives the civil service, the judiciary, the police and the armed forces, among other such institutions as critical to the community’s power and strength in a multi-ethnic nation. It has shaped the Malay perspective on Islam, the sultans, the land, its history and its identity.

The socio-economic issues pertaining to affirmative action that justify ethnic differentiation in some instances require solutions which the ICERD hints at. Ethnic differentiation as it applies to various spheres should be evaluated in a rational manner. When they are no longer relevant, they should be set aside. In fact, the government has done this in the past. Rigid employment requirements in the 80s yielded to more flexible approaches from the 90s onwards. For almost two decades now, ethnic quotas have not been adhered to in certain faculties in various public universities.

Perhaps the time has come for greater boldness in addressing ethnicity in the socioeconomic sphere. Many of us have for a long while advocated an approach that emphasises needs and excellence in recruiting and rewarding people. Before we ratify the ICERD, we should put such a policy in place. It would then be seen as our own endeavour to recognise principles which are fundamental to the success of any society.

Greater emphasis upon needs and excellence rather than ethnicity per se may well be the solution to the abuse in the implementation of affirmative action policies. It is abuse that has alienated not only the non-Malays but also a significant segment of the Malay and indigenous communities. It was one of the factors that eroded trust in the previous Barisan Nasional government, leading to its ignominious defeat in the recent general election.

The socio-political dimension of ethnic differentiation in our society is a more complex challenge. The influential elements within all communities should work together in a sincere manner to change attitudes which prevent us from moving in the right direction. Non-Malay elites and opinion-makers should demonstrate a deeper understanding of the Malay situation – of the “psychological loss” it sustained when it was relegated to a community among communities.

For such an understanding to emerge, non-Malay leaders should accept a simple historical truth: that contemporary Malaysia evolved from a Malay sultanate system. In similar vein, Malay opinion-makers and elites should understand that the evolution of the Malaysian nation also demands the genuine accommodation and acceptance of their non-Malay fellow citizens. They are equal partners in the building of a nation which will only survive if it is firmly rooted in justice and fairness for all its sons and daughters, transcending ethnicity.

It is educating Malaysians along these lines and initiating changes on our own that are perhaps more important at this juncture than ratifying the ICERD which from the ongoing public discourse threatens to further polarise our society.

Chandra Muzaffar is chairman of the board of trustees of Yayasan Perpaduan Malaysia.