Academics stoked fear of Agong losing immunity under Rome Statute, leaked paper shows

Yang di-Pertuan Agong Sultan Abdullah Ahmad Shah is pictured at Istana Negara, Kuala Lumpur January 31, 2019. — Bernama pic
Yang di-Pertuan Agong Sultan Abdullah Ahmad Shah is pictured at Istana Negara, Kuala Lumpur January 31, 2019. — Bernama pic

KUALA LUMPUR, April 7 — A group of student activists today leaked the alleged executive summary of a briefing by four academics to the Conference of Rulers, that ultimately led to Putrajaya withdrawing its ratification of the Rome Statute.

In the document, the four academics warned the Malay rulers that the Yang di-Pertuan Agong (YDPA) may be prosecuted by the International Criminal Court (ICC) as the supreme commander of the country’s armed forces.

“The YDPA’s role as the supreme commander is not simply symbolic or ceremonial,” said the paper’s summary.

It claimed that the YDPA’s position fulfils the Statute’s Article 28(a) as a military commander with “effective command and control.”

“Since the YDPA is the head of state, the YDPA falls under the jurisdiction of the ICC although the Rome Statute has not been inserted into the country’s legislation,” it said.

The assertion was made despite Wisma Putra’s clarification to the YDPA that he cannot be held responsible for the four core international crimes covered by the statute — genocide, crimes against humanity, war crimes, and the crime of aggression — as the legal responsibility lies with the prime minister and the Cabinet.

The paper was purportedly prepared by Universiti Teknologi Mara’s deputy vice-chancellor and dean of Faculty of Law Prof Datuk Rahmat Mohamad, International Islamic University of Malaysia’s law lecturer Assoc Prof Shamrahayu Ab Aziz, and Universiti Sains Islam Malaysia’s law lecturers Fareed Mohd Hassan and Hisham Hanapi.

Malay Mail is currently seeking comments from the four academics.

The nine student activists who leaked the paper claimed that it was presented to the Conference of Rulers on April 2.

Yesterday, Foreign Minister Datuk Saifuddin Abdullah confirmed that the rulers held an informal meeting on that date to discuss the issue, and Rahmat was among the four people called besides himself.

Saifuddin had also slammed several unnamed academics and lawyers for using their reputation as legal experts to deliberately mislead the public over the Rome Statute.

To prove their arguments that the ICC could act against the monarchy, the academics drew parallels with the last German emperor Wilhelm II and Emperor Hirohito of Japan. Both were instrumental as war leaders in World War I and World War II, respectively.

The academics also pointed out that neighbours Brunei, Thailand, and the Philippines had all withdrawn from the Statute, in addition to Burundi. Brunei is an absolute monarchy, while Malaysia is a constitutional monarchy.

They also warned of two “possible scenarios” between now and June 1 when the Statute would have been in force, claiming that the Agong and rulers will be under ICC’s jurisdiction regardless of whether Putrajaya amends the Constitution or does nothing.

On Friday, Prime Minister Tun Dr Mahathir Mohamad said the government was forced to bow out due to political pressure from opponents who spread unnecessary fear and confusion in public.

He also said critics of the Rome Statute wanted to trigger a row between the country’s monarchy and the new government, accusing them of engaging in a political move “to get the rulers to back them up.”