AS a member of the United Nations, Malaysia should support the moral imperatives of peace, justice and non-aggression and applaud the ratification of the Rome Statute of the International Criminal Court (ICC). The Statute is about prosecuting offenders who commit the heinous crimes of genocide, crimes against humanity, war crimes and the crime of aggression.
Instead, there are voices of opposition to the ratification of the Rome Treaty on the frivolous ground that it would destroy the immunity of the Rulers, the special position of the Malays and the position of Islam.
These fears are absolutely unfounded and bereft of logic, and appear to be based on advice that is motivated by politics, not law, emotion, not reason. The advice misleads Their Majesties and paints Their Royal Highnesses in a bad light.
It is as if Their Majesties are siding with defeated politicians who find fault with everything the government attempts. It is as if our Rulers condone genocide and other inhumane acts.
Malaysia and its military and civilian leaders have never taken part in the perfidies of genocide, crimes against humanity, war crimes and the crime of aggression. Therefore, the leaders and other Malaysians have nothing to fear.
But if in the future some genocidal politicians, members of the police, army or militia commit such wrongs, then indeed the ICC will have jurisdiction over them. In fact, even if the Rome Statute were not ratified or if Malaysia were to withdraw from the ICC, international crimes can still be prosecuted in two ways.
First, the ICC may have jurisdiction if it is authorised by the UN Security Council. Second, the UN may create ad hoc tribunals similar to the ones for Rwanda and the former Yugoslavia. So, ratification or no ratification, in the present state of international law, perpetrators may have no place to hide.
The treaty has no impact on State Rulers as Their Majesties do not have any role in the army, the police or the execution of foreign policy. Neither are Islam or the Malay position threatened in any way other than in some people’s fertile imagination.
As to the Rulers’ immunity, the answer to that is that since the 1993 amendment to Articles 182 and 183 of the Federal Constitution, the Rulers have no more immunity from civil or criminal prosecution within Malaysia.
Foreign immunity still exists (as under the case of Mighell v Sultan of Johor, 1894) but not for the four crimes mentioned in the Rome Statute.
The position of the Yang di-Pertuan Agong is more complex. His Majesty is the Supreme Head of the Federation (Article 32) and the Supreme Commander of the Armed Forces (Article 41). Could he, like President Omar al-Bashir of Sudan, be prosecuted and convicted for the crimes committed by his subordinates?
It is submitted that His Majesty is not liable for any international crimes.
The Yang di-Pertuan Agong acts on advice. There is a clear distinction between our Yang di-Pertuan Agong and dictators and absolute rulers like Bashir of Sudan. Bashir has been at the helm of the country for 30 years.
Our King is a constitutional monarch who is required by Articles 40(1) and 40(1A) to act on advice, save in some situations that are not relevant here.
There is a distinction between a person in whom authority is vested and the person by whom it is exercised. Our King is head of state but not head of government. He is the formal but not the functional head of state.
There is much authority for this proposition in cases like Stephen Kalong Ningkan v Government (1968) and Teh Cheng Poh v PP (1979). He is not operationally responsible for any military decisions or movements.
The ICC (and earlier international tribunals) go after the real culprits who order or commit mass atrocities and not ceremonial or constitutional heads of state. In Kampuchea, for example, Pol Pot’s Khmer Rouge henchmen Khieu Samphan and Nuon Chea were prosecuted but not Prince Norodom Sihanouk. After World War II, the Tokyo Trials prosecuted 28 Japanese leaders but not Emperor Hirohito.
It is noteworthy that 14 sovereign states with constitutional monarchies have ratified the Rome Statute without the false fears we are experiencing. Among them are Cambodia, Japan, Jordan and the United Kingdom.
Lawyer Lim Wei Jiet has pointed out that Malaysia has signed before an international treaty that does not grant immunity to rulers or public officials; the Genocide Convention 1948 was ratified by us in 1994.
Under the Rome Statute, the ICC can investigate and prosecute only four core international crimes and no other offences under our penal laws. ICC prosecution can commence only if the member states are “unable” or “unwilling” to do so themselves. The ICC is the court of last resort.
The signing of this treaty in early March was part of a long process that began in July 1998 with the signing of the Final Act of the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. The advantages of signing are many:
• The ICC statute is in line with the Kuala Lumpur Initiative to Criminalise War, which was launched at the Perdana Global Peace Forum in December 2005.
• Our membership of the ICC may dissuade international criminals from hiding in our land. If they enter our shores, we will have legal justification to extradite them to the ICC.
• As a member of the ICC treaty, we can level considered criticisms against the unwillingness or inability of the ICC to prosecute heinous crimes committed by superpowers in occupied Palestine, Afghanistan, Iraq, Libya, Yemen and Syria.
• We can push for the atrocities in Myanmar and the downing of MH17 to be investigated by the UN Security Council.
• Our membership of the ICC will be a shining example to eight of the 10 Asean members who have not yet ratified the treaty.
In sum, our fidelity to human rights demands that we join the 124 nations who currently subscribe to a system of international justice against mass murderers.
Shad Saleem Faruqi is holder of the Tunku Abdul Rahman Foundation Chair at Universiti Malaya’s law faculty. The views expressed here are entirely the writer’s own.