PETALING JAYA: A constitutional law expert says there is no need for Putrajaya to obtain Parliament’s consent before ratifying a treaty allowing the prosecution of individuals who commit international crimes as this is within the government’s jurisdiction.
Abdul Aziz Bari added that this has been the practice for years now.
“What was done by the federal government was fine,” he told FMT.
“If the MPs are not happy and think this is against the constitution, then bring it to court for a ruling.”
He also dismissed claims that signing the Rome Statute of the International Criminal Court (ICC) is against the Federal Constitution. He said concerns that it will affect the monarch, Malay rights and Islam are “quite far-fetched”.
“I don’t see how this can compromise the position and rights of the rulers as decisions for the monarchs are made by the government of the day. They take the blame, not the rulers.”
He said this includes decisions to go to war, giving the example of Japan during the world wars.
When Japan was defeated in World War II, he said, it was the Japanese government that was blamed for the tragedies it caused, not Emperor Hirohito who was the reigning monarch at the time.
“The emperor was never tried as a war criminal,” he said, adding that then-prime minister Tojo Hideki had been tried for war crimes instead.
Tojo, who was tried by the International Military Tribunal for the Far East, was eventually executed by hanging.
The Rome Statute is an international agreement that created the ICC, which serves to complement existing laws in a state to prosecute individuals who commit international crimes, as contained in Article 5 of the statute, such as genocide, crimes against humanity, war crimes and crimes of aggression.
Foreign Minister Saifuddin Abdullah said the Cabinet had signed the treaty after being satisfied that the King, who is the supreme commander of the federal armed forces, would not be affected.
He also said the constitution would not be violated, as claimed by some opposition MPs, government lawmakers as well as Johor ruler Sultan Ibrahim Sultan Iskandar.
He said there is “no possibility” of the King being charged as, according to the constitution, the King acts on the advice of the prime minister and Cabinet.
Shad Saleem Faruqi, a constitutional law expert and emeritus professor at Universiti Malaya, agreed that there is no need to raise the matter for discussion in the Dewan Rakyat.
“In this case, which is a matter of foreign relations, treaty signing and compliance with international law, there is no requirement for consultation with the Conference of Rulers or anyone else.
“The elected government is in charge and is entitled to take initiatives,” he told FMT.
He added that the matter had been on the table since Malaysia signed the preliminary papers in 1998.
“It would be good if those who are vocal today were also actively concerned over this matter in earlier parliamentary sittings,” he said.
“Parliament has an undoubted right to debate and discuss any matters of public interest. It’s good to know that MPs are finally taking an interest.”