Critics of Rome Statute ‘catapulting’ Agong to absolute monarch, law expert says

The Yang di-Pertuan Agong, Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah, inspects the guard of honour before the opening of the second session of the 14th Parliament in Kuala Lumpur March 11, 2019. — Picture by Firdaus Latif
The Yang di-Pertuan Agong, Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah, inspects the guard of honour before the opening of the second session of the 14th Parliament in Kuala Lumpur March 11, 2019. — Picture by Firdaus Latif

KUALA LUMPUR, April 8 — Datuk Shad Saleem Faruqi has accused critics of the Rome Statute of elevating the Yang di-Pertuan Agong (YDPA) to the position of an absolute monarch, following the alleged leaked paper by academics to the Conference of Rulers.

The constitutional law expert also disagreed with the claim that the YDPA has effective command of the armed forces as its supreme commander, and therefore may be prosecuted by the International Criminal Court (ICC).

“With all due respect, they have misunderstood the Constitution and have elevated or catapulted the Yang di-Pertuan Agong to the position of an absolute monarch, and who is effectively in command of the armed forces and therefore the Yang di-Pertuan Agong is liable.

“Basically that is the major error or the major presumption, and I agree whoever effectively in command should be liable under the ICC. However, I don’t agree with the argument that the Yang di-Pertuan Agong is effectively in command of the armed forces,’’ he told Malay Mail.

Malaysia is a constitutional monarchy, where the authority of the sovereign is stipulated by the Constitution and not supreme, unlike absolute monarchy.

The University of Malaya emeritus professor also pointed out that Article 40(1) of the Federal Consitution clearly states that the YDPA may only act on advice from the Cabinet.

“YDPA acts on advice and the Constitution is very clear that powers vested in YDPA are actually exercised by others. So it is the others who will be liable, not the YDPA. I think that is where the confusion has arisen.

“What they have not taken note is that the YDPA performs his functions nominally; in fact, they are performed by the government of the day,’’ Shad said.

Shad also explained that the Statute focuses on individuals who “orders, solicits or induces the commission of such a crime’” as described under Article 25 of the treaty.

Yesterday, a group of student activists 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.

The academics argued that the YDPA’s role as the supreme commander of armed forces is not simply symbolic or ceremonial, and fulfills the Statute’s Article 28(a) as a military commander with “effective command and control.”

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.

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 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.

Shad again denied the false narrative that ratifying the Rome Statute would infringe on the rights of the Malays, the special status of Islam, and the power of the YDPA.

“It is simply a work of fiction. The ICC is only used as a last resort, so a country that ratifies the treaty is still able to prosecute those who have committed such crimes under their laws,’’ he said.

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.”