KUALA LUMPUR: Prominent lawyer Muhammad Shafee Abdullah, a former member of the Human Rights Commission (Suhakam) said today that the Rome Statute would apply to a Ruler who turned rogue only if the attorney-general refused to prosecute the ruler under domestic laws.
“We are not talking of the sovereignty of a Ruler but that of the nation,” said Shafee, speaking from the floor at a public forum on the Rome Statute controversy.
The forum, organised by the Human Rights Committee of the Bar Council, held at the Kuala Lumpur-Selangor Chinese Assembly Hall here, was held to discuss the way forward after the federal government announced it was withdrawing accession to the Rome Statute.
The statute provides for prosecution of those responsible for international crimes such as genocide, war crimes, crimes against humanity and crimes of aggression.
The government’s decision to withdraw came after pressure from the Malay rulers. Shafee said the Rulers and the government have taken extreme positions in this Rome Statute issue and they need to sit down and discuss the issue.
He said Malaysia could become a member of the International Criminal Court by acceding to the Rome Statute because “we do not have people like (former Attorney-General Abdul Gani Patail) to throw a spanner in the works”.
Shafee said he was “not dead against the statute” but was merely being “extremely cautious”.
“You must engage the Rulers first and tell them that only those who behave in a rogue fashion will be affected under the statute,” he said, adding that the public too needed to be educated.
He cited a hypothetical case where a Ruler decides to give a speech in a mosque before a group of people and which later results in a massive riot. If the attorney-general refused to act, the case might be referred to the International Criminal Court for prosecution.
Shafee was a member of Suhakam for six years from 2003. He said that during his tenure Suhakam had invited the ICC chairman for a discussion and conducted a discourse on the pros and cons of being a member of the statute.
“We invited several MPs for discussion and also urged the foreign ministry to consider our proposals but we knew that the then AG (Gani) was dead against it,” he said.
He said that under Article 145(3) of the Federal Constitution, the AG, who is also the public prosecutor, has discretionary prosecutorial powers.
“Even our courts have recognised that the AG has unfettered discretion,” said Shafee.
In 1994, the constitution was amended to allow a Ruler to be prosecuted in his personal capacity, provided the AG gave his consent, before a Special Court.
The Rome Statute set up the ICC to allow the prosecution of those responsible for major international crime, first under local jurisdiction or at the International Criminal Court if domestic prosecution is refused.