In reply to Elanjelian Venugopal's 'Transparency is the key' (May 18), yes, Article 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICEARD) does sanction affirmative action programmes but they are targeted at classes of qualified individuals (like disadvantaged African-Americans, Hispanics, etc. in the US) who have either historically or have actually been denied those opportunities the purpose of which is to prevent the recurrence of further discrimination in the future.

The Malaysian affirmative programme is more complex in purpose(s) than the above in that besides the above rationale, there is a complication of another one that is raised from time to time by its proponents - and that is the so-called 'social contract' entered into between the leaders of various communities at the time of the nation's independence whereby in exchange for the Malays' granting citizenship rights to non-Malays, the former had special privileges protected by the Constitution.

Arising from the 'social contract', the affirmative policies in the Malaysian experience is quite different from those contemplated by article 1(4) of the ICEARD [as formulated (say) in the US for the African-Americans and the Hispanics] in the following key respects:

In Malaysia, the target group of affirmative action is in the majority and politically dominant and not a minority, and outright quotas (based on population figures in the case of educational assistance) are used to even the scales, something that faces mixed reactions, and often would probably not go over well, in the US.

It is not for me to say whether the US' approach to affirmative action policies is more enlightened or that the Malaysian approach is wrong. Suffice to say, our experience, social and political values, culture and history are different from those of the US. I presume however that it was principally the US that influenced and prescribed the formulation of the kind of affirmative action policies that were supposed to be universally legitimate within the context of the Universal Treaty of Human Rights (UTHR) as supplemented or varied by ICEARD.

By those standards in UTHR and ICEARD, the Malaysian affirmative action policies and its manner of implementation fall short, and in that sense, contrary to them.

For example, the important limiting factor in article 1(4) of ICEARD is that (in order not to contravene Human Rights provisions in UTHR), the affirmative measures for their target group must be measures that 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 Malaysian approach is sharply and fundamentally different from ICEARD's. The affirmative action policies are derived from Special Privileges entrenched in the Article 153 of the Federal Constitution and there is no constitutional provision therein for its periodic review from time to time to evaluate if they may be discontinued after the objectives have been achieved.

As I understand the position, their continuance is at the sole discretion of the King whose constitutional role is to safeguard the special position of the Malays.

Of course, the King acts on the advice of the prime minister who is the leader of the party representing the Malays and which is governing by coalition based on more than two-thirds majority in Parliament.

From these perspectives, the practical view is that only the Malays can change or modify or repeal, either by constitutional amendments or government policies, the constitutional privileges and affirmative policies, if they think that such a change is good and timely for them, for the nation or in the interest of human rights stated in UTHR as amended by ICEARD - but not until then!

This is because the affirmative policies in the 'Malaysian experience' do not - and need not - derive their political or legal legitimacy from the UTHR or ICEARD.

Even though the Malaysian affirmative policies are contrary to the spirit or letter of UTHR or ICEARD - which I still think they are - these policies derive their legitimacy from the Federal Constitution arising from the so-called 'social contract'. Just like in the same manner, the Emergency powers, preventive detention under ISA and the supremacy of executive decision in respect thereto. These are contrary to the spirit and letter of UTHR (eg. articles 9, 10 and 11 against arbitrary arrest and detention without right to public trial) but they are perfectly legal, deriving again their legitimacy from the Constitution.

In these premises, transparency in implementation of the affirmative policies as suggested by the writer is good from perspectives of good and fair governance which I think the government now realises when the deputy premier recently said in a May 20 Star report that educational opportunities, even for the target group, should not be a carte blanche handout but given to those either in need or have merits.

Indeed, there must be clearly articulated goals, time periods for review on how far the goals have been achieved, with the view that if, and when, they are achieved, that segment of the policies will be dismantled.

In other words, specific goals, eligibility for entitlement and mechanism for review with the view to ending them on achieving the stated goals must be benchmarked and disclosed in a transparent manner to the public. Only in this manner can the affirmative policies as implemented here meet the standards set by UTHR and ICEARD.

So far the manner of implementing these affirmative policies in the Malaysian experience do not meet the standards of transparency nor clear benchmarking of various respects stated. Nor need they meet such standards because, as I have earlier said, the affirmative policies derive their legitimacy ultimately from constitutional provision that need not have to make reference to UTHR and ICEARD for legitimacy.

Transparency then may be a point of good governance but the lack of it (as in executive decision on the ISA cases) is neither unconstitutional nor illegitimate.

This is where the Human Rights Commission (Suhakam) has a role to play. Under section 4 (b) and (c) of its founding enactment it is empowered "to recommend to the government with regard to the subscription or accession of treaties and other international instruments in the field of human rights".

I take it to mean making such recommendations concerning certain provisions of our laws and constitution so as to bring them in line with international standards on human rights as set out (say) in UTHR.

The thrust of my earlier letter was to question why Suhakam selectively deemed it fit from the human rights perspectives to take a recommendatory stand on ISA cases but not the implementation of educational quotas by the Ministry of Education.

I think I have sufficiently explained that both preventive detention under ISA and the implementation of educational quotas under the affirmative policies are consistent and legitimate within the law and constitution but not quite by the human rights standards set by the UTHR.

I questioned whether Suhakam had a rational differentiating criterion as to why on grounds of the universality of human rights, it chose selectively to raise only the issue of preventive detention under ISA with the government but not the implementation of educational quotas.

As a broadside, I also questioned why reformasi and opposition supporters railed on grounds of human rights against the government on the ISA but not the implementation of the educational quotas when both are legal and constitutionally legitimised and yet fell short of international human rights standards. I want to understand this inconsistency that affects the credibility of their cause and purpose.

I hope the writer now understands fuller the angle from where I came, in the earlier letter, 'Brain drain and Suhakam's stand' (May ).