APRIL 8 — I refer to the alleged presentation by several academicians to the Council of Rulers dated 2nd April 2019, which has been circulating in the media lately [Alleged Presentation]. I recognise that the government has decided to withdraw from the Rome Statute, and also acknowledge that the Alleged Presentation is a mere executive summary (my opinions below are therefore subject to the disclosure of the full report, if any).
But there are several points raised in the Alleged Presentation which are rather disconcerting and warrant an intellectual legal rebuttal — less it would lead to mischaracterisation of the issues at hand among the public.
First, it was suggested that because the YDPA was entitled to information from the Cabinet (Art 40(1)) and to make his views known to the prime minister (Reid Commission Report), then he is not a constitutional monarch in the purest sense. However, this only proves that the YDPA plays an advisory role in governance. This does not in any way detract from the clear provision in Art 40(1A) that he must always act in accordance to the advice of the prime minister —and consequently, that the prime minister is entirely responsible for such decisions made.
Second, reference was made to a Court of Appeal decision in Armed Forces Council, Malaysia & Anor vs Major Fadzil bin Arshad  1 MLJ 313 which purportedly held that “Surely His Majesty is expected to play an effective and meaningful role as the Supreme Commander”. With respect, this was merely a dissenting opinion of the Court of Appeal and it is perplexing that this was not pointed out in the Alleged Presentation. Any first-year law student would tell you that this quote in no way is the authoritative principle enunciated by the Court of Appeal.
Third, it was alleged that Art 38(4) of our Constitution states that laws passed which directly affects the privileges, position, honours or dignities of the rulers would require the consent of the Council of Rulers. With respect, this mischaracterises Art 38(4), which reads: “No law directly affecting the privileges, position, honours or dignities of the Rulers shall be passed without the consent of the Conference of Rulers”. The phrase “shall be passed” clearly means only laws passed in Parliament — and cannot possibly be read to include ratification of international treaties.
The assertion that Art 159(5) has been violated is even more baseless. Art 159(5) provides that amendments to the Constitution on several limited provisions cannot be done without the consent of the Council of Rulers. But it is clear as daylight that ratification of the Rome Statute does not involve an amendment to the Constitution at all. The limited provisions referred in Art 159(5) also do not include the immunities of the YDPA and the Rulers. It is therefore disturbing to suggest that Art 159(5) has in any way been breached.
These arguments also presuppose that the YDPA and Rulers have absolute immunity to begin with. Since 1993, amendments were made to the Constitution to allow criminal proceedings to be instituted against the YDPA and the Rulers via special courts (see Articles 32, 181, 182 and 183 of our Constitution). Hence, even domestically, the YDPA and Rulers do not have absolute immunity to begin with (albeit governed by certain special procedures) and can be held accountable for crimes. This was a crucial point which was never highlighted in the Alleged Presentation.
Fourth, it was alleged that Art 27 and 28(a) of the Rome Statute affects the position of the YDPA. Again, if we look closer at Art 28(a) of the Rome Statute, the ICC only has jurisdiction to try a military commander who has “effective command and control” or “effective authority and control as the case may be”. A YDPA who must act on the advice of the prime minister is very unlikely to be an “effective” commander of the armed forces – he is, at best, a symbolic figurehead.
Fifth, it was alleged that because the Government ratified the Rome Statute without the consent of the YDPA, this violates Art 46 of the Vienna Convention on the Law of Treaties [VCLT]. Art 46 of the VCLT says that, as a general rule, a state may NOT depart from treaty obligations on grounds that it is in violation of internal law regarding competence to conclude treaties. The only exception is if (a) such violation of internal law was manifest (it is considered manifest only if it would be objectively evident to any state), and (b) it concerned a rule of its internal law of fundamental importance.
Arguably, Malaysia cannot invoke the two exceptions to Art 46. Any violation cannot be considered “manifest”, nor can the internal law be of “fundamental importance” because it is clear that under the Constitution no such consent by the YDPA or Council of Rulers — as with many other constitutional monarchies which have ratified the ICC — was required for ratification of foreign treaties.
Sixth, it was alleged that the interpretation of the “unable” or “unwilling” principle under Art 17 of the Rome Statute (which states that the ICC can only assume jurisdiction if states are “unable” or “unwilling” to act) “hanyalah berdasarkan keputusan pendakwa ICC semata-mata”. This is untrue. Art 17 of the Rome Statute clearly provides that the ICC Court itself — and not the prosecutor unilaterally – has the final say on whether the “unable” or “unwilling” principle is satisfied. Malaysia will have its day in court to argue the same if it does not agree with the prosecutor. And the ICC Court will arrive at a decision, as it did in Prosecutor vs Katanga (Judgment on the Appeal against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case) (ICC, Appeals Chamber, Case No ICC-01/04-01/07-1497, 25 September 2009).
Seventh, it was alleged that “Malaysia yang tidak terjejas apa-apa dengan jenayah ini dan tidak terkat dengan krisis Rohingya di Myanmar tidak boleh memaksa ICC untuk mengambil tindakan ke atas Myanmar walaupun selepas menjadi ahil statut Rom”. This is inaccurate. As long as an element of a crime has been committed in a state party, then any state party can refer the matter to the ICC (see Art 14 of the Rome Statute). This was decided in the recent ICC decision i.e. “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute” (Case No ICC-RoC46(3)-01/18-37, 9 April 2018). For example, if the Myanmar military has committed genocide on Rohingyas in Bangladesh (a state party) territory, even Malaysia (a state party) can initiate a referral to the ICC independent of Bangladesh.
Eighth, it was impressed that there have been attempts to prosecute royalties in the past. The example given was King Wilhelm II of Germany who was named in the Leipzig War Crimes Trials but had fled to the Netherlands, as well as Emperor Hirohito of Japan who was allegedly under the jurisdiction of the International Military Tribunal for the Far East after World War II, but was spared by the US.
With respect, these are false equivalences. The German King (Kaizer) was an absolute monarch. So was the Emperor of Japan, who under the Japanese constitution then, had divine power over his country from the Shinto belief that the Emperor was the offspring of the sun goddess Amaterasu (only in 1946 was the Emperor’s title changed from “imperial sovereign” to “constitutional monarch”). They were both absolutely in control of the military. There is a stark difference between such absolute monarchs and the modern YDPA and Rulers who are constitutional monarchs.
Further, the Alleged Presentation seem to have missed the fact that both King Wilhelm II and Emperor Hirohito were attempted to be tried even when the ICC had not existed. In today’s terms, the UN may create ad hoc tribunals as it did in Rwanda and the former Yugoslavia — regardless of whether they had ratified ICC. This goes to highlight the fact that, as Prof Shad Saleem Faruqi puts it, “ratification or no ratification, in the present state of international law, perpetrators may have no place to hide”.
Ninth, it was alleged that the YDPA would be exposed to the ICC because of Malaysia’s participation in UN peacekeeping missions across the globe. This is baffling. UN peacekeeping missions are meant to prevent genocide or war crimes from happening. To suggest that the UN itself would remotely commit the same ill crimes it intended to pacify is bewildering. To my knowledge, there has never been any attempt to prosecute UN peacekeeping forces under the ICC.
Tenth, it was alleged that our laws criminalising homosexuality would expose us to a “war crime” under Art 7(2) of the Rome Statute which criminalises “persecution against any identifiable group or collectivity on...gender as defined in paragraph 3”. This is untrue. We must look at what paragraph 7(3) of the Rome Statute say: “For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.” Hence, “gender” under Art 7(2) clearly does not include sexual orientation — and therefore does not include persecution of homosexuals.
Eleventh, it was suggested that there are cases of selective prosecution towards Kenya and the Ivory Coast. There is a wealth of literature to counter such arguments, as well as credible international reports that war crimes have occurred there, and I do not wish to reproduce them here for brevity’s sake.
Finally, it was alleged that there is likelihood of veto by the P5 nations on the ICC investigations: Russia in the MH17 investigations, China in Rohingya genocide and US in the Israel-Palestine dispute. It was also stated that many Asean countries are not part of the ICC. I am not going to be ignorant of the realities of international law. But Malaysia cannot stand idly by while such gross violations of humanity are occurring. If we are not part of the Rome Statute, where is our credibility and standing to shout about war crimes & genocide? We must adhere to a higher standard and not lower ourselves in imitating the worst traits of superpowers.
The public and the royalty deserve legal objectivity and accuracy on this controversial issue. If we allow crucial foreign policy decisions to be swayed by one side without considering countervailing arguments, it will not be good for the nation as a whole.
* Lim Wei Jiet is an Advocate & Solicitor of the High Court of Malaya. He is also the author of Halsbury’s Laws of Malaysia on the Federal Constitution (2019 Reissue).
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.