This article first appeared in Forum, The Edge Malaysia Weekly on November 26, 2018 - December 2, 2018

A United Nations (UN) resolution passed in 1947, No 181, effectively created Israel in Palestine by resolving that the then state of Palestine shall be divided into two — a Jewish state and an Arab state. Just like that, Israel was created in Palestine — the power of declarations. Twenty years later, in 1967, Israel transgressed the borders determined in 1947 during the Six-Day War and captured Gaza, Sinai, the Golan Heights and the West Bank as well as Jerusalem.

Another UN resolution was passed, No 242, in 1967 that says Israel has the right to exist but that it must return the territories it captured during the war. Of course, Israel did no such thing. It took control of these territories, imposed martial law, evicted the Palestinian inhabitants and built settlements for Jewish migrants. This went on despite numerous other declarations and diplomatic efforts for Israel to surrender the land to Palestine.

The Palestinian example shows both the power as well as the irrelevance and, oftentimes, futility of declarations. Israel came into being via the force of a legal document but it also chose to ignore similar documents to hand over captured territories and stop building settlements on these lands. Consequences are determined by actions — the ability to act rather than the legal right to do so. Israel also got away with doing all these illegal and cruel things and the Palestinians have since been left to suffer.

Declarations and legal provisions can be reduced to symbols without much impact on their intentions. It is true that symbols can be of value to some parties but they can be quite meaningless to those who matter. Just ask the Palestinians.

Former US President Barack Obama, at the tail end of his administration, supported a UN Security Council resolution to unanimously condemn Israel’s continued occupation of Palestinian land and the building of settlements. It was a matter of record for the Obama administration but the apartheid policy and oppression of Palestinians continued. More than 600,000 Jewish settlers now occupy Palestinian land and the Israeli government is continuing with the settlements while suppressing Palestinians in their own land.

I am reminded of this sad state of affairs when I read about the reactions to the issue of Malaysia ratifying the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Yes, it is yet another declaration, one so obvious that it makes you wonder why Malaysia remains among a small minority of countries that have not signed it. It is a declaration of non-racial discrimination. Certainly, Malaysia is not a country that espouses or practises racial discrimination. As a declaration, it can just be symbolic or it can be substantive but certainly, on the symbolic level, it is something we should be part of.

Whether ICERD is ratified or not matters less than whether we are racists individually and uphold racial discrimination institutionally. At a personal level, everyone has his or her own degree of racial preferences and biasness but I am totally opposed to any insinuation that we uphold racism institutionally and constitutionally. I am bothered by the arguments used by the primarily Malay groups that oppose the ratification of ICERD. The arguments range from ICERD being a threat to Islam to it being unconstitutional and a threat to the Malays. I find the Islamist groups’ argument against non-discrimination to be particularly repugnant.

The famous Constitution of Madinah, mediated by the Prophet Muhammad (peace be upon him) defined the citizens of Madinah to include the Jews living there then, mindful that while they were one community with the Muslims, they also had their religion and the Muslim had theirs. Such was the inclusiveness and tolerance displayed by the prophet in 7th-century Arabia. Of course, things progressed far forward from that point on but things have also regressed significantly throughout the Islamic world. Today, the government of the custodians of the two mosques is involved in bombing another Muslim country, killing tens of thousands and creating a famine that will affect millions.

In his last sermon before he passed away, Prophet Muhammad reminded, “All mankind is from Adam and Eve. An Arab has no superiority over a non-Arab nor a non-Arab any superiority over an Arab; also a White has no superiority over a Black nor a Black any superiority over a White except by piety and good action.” So, anyone who advocates racism and bigotry cannot be extolling Islamic values. So much for that argument.

The argument used by some Malay groups that ICERD is against the Constitution is both misplaced and inaccurate. In the first place, ICERD has provisions for positive discrimination by the state — affirmative action — to address imbalances that may be racial in character. Therefore, there is no truth to the argument that affirmative action to address racial imbalances will be prohibited by ICERD.

Of course, these people keep claiming that Article 153 of the Federal Constitution will be violated as if the affirmative action implemented in Malaysia all this time derived its authority from that particular provision in the Constitution. The truth is that all policies and programmes are the result of the parliamentary democracy that is enshrined in the Constitution. The elected government crafts policies and pushes legislation through parliament to create laws from which the executive branch of government implements programmes. This is true for the bumiputera agenda policy and programmes as it is for any other policy.

If the government of the day so wishes — and parliament passes it — it can enact laws to tax us more and give the proceeds to a particular group of people, which is what it does with the budget, or to criminalise certain behaviours and impose penalties for committing them. Any concerns about addressing inequality and mainstreaming marginalised groups are addressed through policy and legislation that are not dependent on that particular provision in the Constitution.

Article 153 of the Constitution should never be the cornerstone of “defending Malay rights”. The constitution already has other provisions that incorporate the Malay identity. Like the many UN resolutions condemning Israeli settlements in occupied Palestine, Article 153 can ring hollow. It is largely symbolic if it does not obtain the intended outcome. Article 153 was put in there as a protection, an acknowledgement that the Malays and bumiputeras in Malaya then were economically backward and needed special treatment in the form of quotas and preferences. It is not a special position, but a protective provision for special treatment. The substantive issue is the relative under-development of significant segments of bumiputeras.

At any rate, the quotas, licences, permits and even government contracts that were given to bumiputeras all this while have not had the desired outcome. While the preference and award of scholarships to qualified bumiputera students to further their education was the right thing to do and has had an impact on the upward mobility of the beneficiaries, the award of contracts, permits and licences has proved to be ineffective and has had a debilitating effect on the bumiputera community. There is nothing to be proud of and therefore nothing to defend here.

The distribution of what is effectively economic rent just created a rent-seeking culture, not an entrepreneurial one, and that is the reason why such a policy has largely failed to broaden bumiputera economic participation in a meaningful manner. It reeks of corruption and has resulted in the weakening of institutions. The exclusive, and oftentimes, antagonistic posture in implementing these policies has also been divisive.

While I find UN declarations such as ICERD to be mostly symbolic, I find the reasons given to oppose it to be quite reprehensible. They are either ignorant or hypocritical — these so-called Islamists who are bigots and politicians who appeal to the base instincts of the electorate. They do not address the real issues.

The real issue is democracy, democratic institutions and the democratic process. The Federal Constitution is not a bigoted one. It guarantees civil liberties and freedoms to enrich a democracy. The agenda of economic inclusiveness and of addressing inequality requires a functioning political process and it is democracy that should be enhanced and defended.

The Malaysian Constitution was drafted to give us the rights and freedoms to do so. I recall the words of Tunku Abdul Rahman, calling on Malayans (then) to “work and strive with hand and brain to create a new nation, inspired by the ideals of justice and liberty — a beacon of light in a disturbed and distracted world”. Such was the ambition at the birth of the nation.

Editor’s note: The Pakatan Harapan government decided against ratifying ICERD on Nov 23.

Dr Nungsari A Radhi is an economist and the views expressed here are not related to any of his organisational affiliations

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