Brief security forces and elite on Rome Statute, says expert

Shad Saleem Faruqi refutes claims that the Yang di-Pertuan Agong could be subject to prosecution.

KUALA LUMPUR: Constitutional law expert Shad Saleem Faruqi has recommended that enforcement authorities such as the army, police, and others, including some members of the elite, should be briefed on the Rome Statute.

A parliamentary committee could also be appointed to discuss the treaty in greater detail, with public participation, he said at a public forum yesterday to discuss the statute, ratification of which has resulted in a political deadlock between the government and the Conference of Rulers.

Shad Saleem, who is emeritus professor of law at Universiti Malaya, said Malaysia’s participation in the treaty would allow the government to give considered criticism against the unwillingness and inability of the International Criminal Court to prosecute crimes of “world superpowers” in Occupied Palestine, Afghanistan, Iraq, Libya, Yemen and Syria.

“Our voice will carry greater weight,” he said. “We will also be a shining example to the eight out of 10 Asean members who have not yet ratified the treaty.”

Ratification of the Rome Statute, which sets up the International Criminal Court, has been withdrawn by the federal government after objections were raised by members of royalty who claimed that the treaty would allow prosecution of the Yang di-Pertuan Agong, as supreme commander of the armed forces.

Another objection was that the Rulers had not been consulted by the government before it ratified the treaty. However, Shad Saleem said prior consent of the Conference of Rulers was not required when the government signed treaties.

“Consultation is a democratic practice, it’s part of good governance and there is no harm in consulting – but to say that they should be consulted, now that has no constitutional basis,” Shad Saleem said.

Consent of the Rulers was only needed for about 13 or so matters, about the privileges and position of the rulers themselves, the special position of the Malay people and Islam, and the rights to citizenship.

“Ratifying a treaty is not a matter where the government is obliged to obtain the consent of the Conference of Rulers: as such, the rejection of the treaty by the Conference of Rulers has no legal effect,” he said.

He noted, however, that the objections of the Rulers may be taken into consideration by the government of the day.

Shad Saleem noted that criminalising genocide or crimes against humanity, as required by the Rome Statute, would in no way threaten the position of Islam or the position of Malays in the federal constitution.

Malaysia had acceded to the UN convention against discrimination of women in the 1990s, yet it did not subject any sharia officials to international prosecution.

He argued that opponents of the Rome Statute seemed to interpret “literally and in isolation” clauses in the Federal Constitution dealing with the powers of the Yang di-Pertuan Agong.

“What they’re doing is they’re putting the provisions relating to the power of the YDPA in a keyhole and they ignore everything else in the constitution,” he said.

Taking a literal interpretation of the constitution would result in a picture of the Agong being “almost like a dictator with critical powers in the executive, legislative, and judicial fields and in relation to Islam”.

Shad refuted a claim by four professors in a memorandum to the Rulers that the King might be liable to prosecution as supreme commander of the Armed Forces.

He said the Rome Statute made it “quite clear that YDPA in no way is going to be liable even though he is supreme commander” as Article 28 of the treaty stated that a commander was liable “only if he is effectively acting as a military commander, has effective command and control, or effective authority and control, over military forces.”

Shad also refuted claims that criminal prosecution of minorities such as the LGBT minority could be grounds for the Agong to be prosecuted at the ICC. “There’s nothing in the Rome Statute about LGBT. The word LGBT, transgender, sexual minorities, or sexual preferences no way occur in the Rome Statute.”

He added persecution of groups would only be classed as “crimes against humanity” if recognised universally as “impermissible”.

The Rome Statute set up the ICC to allow the prosecution of those responsible for international crimes.

Ratification would entail making changes to Malaysian law to conform with the requirements of the treaty and allow prosecution of those who commit genocide, war crimes, crimes of aggression and crimes against humanity such as enforced disappearance of individuals by a state or agents of the state.

The ratification would have come into effect on June 1.