KUALA LUMPUR, April 27 - The Rome Statute is not against Islam and it is unrelated to the lesbian, gay, bisexual and transgender (LGBT) community, a public forum on the international treaty was told today.

G25 representative Datuk Noor Farida Ariffin noted that there has been attempts by a member of the royalty to provoke the Malays into opposing the government’s accession to the Rome Statute of the International Criminal Court, by using the “three Rs” of “race, religion, royalty”.

“They say it’s against the Agong, Islam and it’s against the Malays. But they have not specified in what way acceding to the Rome Statute is against Islam, Malays or the royalty,” the retired diplomat told a forum that was aired live by news outlet Astro Awani.

“But when they use religion, are they saying that Islam condones heinous crimes like genocide, war crimes, crimes against humanity and crimes of aggression?

“This is a total misrepresentation and an insult to Islam which is a religion of peace, compassion and mercy,” she asked when rebutting arguments used by critics of the Rome Statute.

Noor Farida pointed out that the Muslims’ holy book Al-Quran states that the killing of a person is akin to killing the whole of humanity.

“And if you kill a whole ethnic group like what happens in genocide, are you saying it’s something condoned by Islam?” she said.

Noor Farida called for wider public dialogue on the matter of the Rome Statute, also calling for the government to reverse its decision to withdraw from accepting the treaty.

“But we need to encourage further public discussion and allay any fears or concerns of the public, especially Malays, who are being duped by certain quarters,” she said.

Later when speaking to reporters, Noor Farida said the government needs to educate the public before making any kind of decision on the Rome Statute, to prevent a repeat of the demonstrations “provoked” by the current opposition parties in response to an international treaty against racial discrimination ICERD.

“We need to explain to Malays in particular who are feeling so insecure that it does not impact adversely on them, it does not impact adversely on the royalty,” she added.

Prof Shad Saleem Faruqi speaks at the ‘Malaysia and Rome Statute’ forum at Universiti Malaya in Kuala Lumpur April 27, 2019. — Picture by Yusof Mat Isa
Prof Shad Saleem Faruqi speaks at the ‘Malaysia and Rome Statute’ forum at Universiti Malaya in Kuala Lumpur April 27, 2019. — Picture by Yusof Mat Isa

Universiti Malaya’s emeritus professor of law Datuk Shad Saleem Faruqi, who was a panellist at the same forum, rebutted the claim that Malaysia’s laws against same-sex intercourse would put the country’s ruler at risk of prosecution in the International Criminal Court if the Rome Statute is acceded to.

“Our King has been advised that criminal prosecution of minorities like the LGBT minorities are grounds for our King’s arrest and prosecution,” he said when arguing this to be an unfounded concern.

Just days before the Malaysian government gave in to pressure to withdraw its accession to the Rome Statute, a paper by four law lecturers was presented in an informal briefing to the Malay rulers.

The executive summary of the paper that was leaked saw the four academics cautioning that the offence of homosexual sex in Malaysia could be categorised as a persecution based on “sexual orientation or gender” under “crime against humanity” in Article 7 of the Rome Statute.

The four academics had in the paper also claimed that the International Criminal Court could launch investigations on the issue and that the “government, Parliament and the Yang di-Pertuan Agong who approved and enacted this law can be held responsible.’’

But Shad Saleem dismissed the idea, saying: “There’s nothing in the Rome Statute about LGBT. The word LGBT, transgender, sexual minority, sexual preferences are nowhere in the Rome Statute.”

Acknowledging that Malaysia’s Section 377A of the Penal Code criminalises intercourse between homosexuals, Shad Saleem said: “But as far as I know, homosexuality is not a crime against humanity.”

Shad Saleem referred to Article 7 of the Rome Statute, where crimes against humanity was defined to cover acts as part of a widespread or systematic attack on civilians, including “persecution” against any group on grounds of “political, racial, national, ethnic, cultural, religious, gender or “other grounds that are universally recognized as impermissible under international law”.

“By the way, how does it define gender? It says very clearly that the term ‘gender’ is to refer to two sexes, ‘male and female’,” he said, alluding to paragraph 3 of Article 7 in the Rome Statute.

He believed that the Rome Statute was drafted in such a way as they wanted to “walk the middle path” when defining “gender” and also setting the requirement of “universally recognised”.

“So there’s no chance of ICC prosecution of Yang di-Pertuan Agong because Malaysia prosecuted some homosexuals,” he concluded.

Among other things, Shad Saleem had also in the forum said that criminalising genocide or crimes against humanity would not in any way “threaten” Islam or the Malays’ special position as provided for in the Federal Constitution.

Critics of the Rome Statute had among other things claimed that the Yang di-Pertuan Agong (YDPA) may be prosecuted by the International Criminal Court (ICC) if Malaysia engages in war crimes as he is the supreme commander of the country’s armed forces.

But legal experts including Shad Saleem have clarified that the Agong would not face such risks of prosecution due to Malaysia’s constitutional monarchy system where the King is merely the nominal supreme commander.