criminal – SeaDemon Says

May 1, 2019

ICC: A Strategic Withdrawal by the Government?

The International Criminal Court (photo courtesy of Shutterstock)

We have ratified, but have we withdrawn?

AS we all know, Prime Minister Tun Dr Mahathir Mohamad had announced on April 5, 2019 Malaysia’s intention to withdraw from ratifying the Rome Statute of the International Criminal Court.

However, just a week ago Foreign Minister Saifuddin Abdullah said that it is only a dead end for ICERD, but not for the Rome Statute (Jalan mati buat ICERD tapi bukan Statut Rome, kata Saifuddin – Free Malaysia Today, 23 April 2019).

Parliamentary Opposition Leader Ismail Sabri Yaakob hit out at the Foreign Minister the very next day. In a blog post, Ismail asked if the Foreign Minister still wants the Rome Statute ratified and what is the Pakatan Harapan government’s agenda? (Menteri Luar Masih Mahukan Statut Rom Diratifikasikan. Apa Agenda PH? – dsismailsabri.com, 24 April 2019).

What I find most interesting among all the points that were brought up by the Opposition Leader are the date when the statute comes into force for Malaysia, and the period of withdrawal from ratification.

Paragraph 1 of Article 126 of the Rome Statute states that the Statute shall come into force on the first day of the month after the 60th day following the ratification. For Malaysia, that date falls on June 1, 2019.

Paragraph 1 of Article 127 states that a State Party may, by written notification, withdraw from the Statute. The withdrawal shall take effect ONE YEAR after the date of receipt of the notification.

What the above means is that come June 1, 2019, Malaysia becomes a State Party. Any withdrawal following that date will only take effect ONE YEAR AFTER the receipt of the written notification. Until the withdrawal comes into effect, Malaysia is obliged to honour the Rome Statute.

Enter Article 7 Paragraph 1

At a glance, the ICC does not cause a nation’s sovereignty to diminish. Unlike the International Human Rights Law, the International Criminal Law does not directly impact national constitutional arrangements.

However, according to an expert in International Criminal Law, Rupert Elderkin, when International Criminal Law comes into play, it may perform quasi-constitutional functions, in particular offering the only means under public international law to remove state officials from office when they are believed responsible for the most harmful abuses of power (Elderkin, R. (2015). The impact of international criminal law and the ICC on national constitutional arrangements. Global Constitutionalism, 4(2), pp. 227-253).

The Attorney-General can argue that the Yang DiPertuan Agong will not be affected if Malaysia decides to declare war against another nation. Maybe not so. That is the least of my worries. It is Article 7 (Crimes Against Humanity) that I am more concerned about.

This Article deals with any act when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack that includes persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender, or crimes of apartheid.

Persecution means the intentional and severe deprivation of fundamental rights contrary to international law, while the crime of apartheid is explained as an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups.

I can name several Articles in the Federal Constitution, and the numerous policies aimed at protecting the special rights of the Malays and Bumiputera, as well as the special position of Islam, that are already against Article 7 of the Rome Statute.

The Malay Rulers act as a shield in their respective states for protecting the religion of Islam. If a Sultan refuses to appoint a state assemblyman whom he thinks has the majority support of the Dewan, as the Menteri Besar, on grounds that the latter is not a Muslim, then the Sultan is already acting in direct contravention of Article 7.

In the case of HRH The Sultan of Selangor and the issue of the use of “Allah” in Bibles five years ago, although the State’s religious affairs department acted in accordance with a state enactment that was made under the state’s constitution, that, too, would have contravened Article 7 of the Rome Statute.

It is immaterial whether or not the State’s constitution or enactments contravene the Federal Constitution. It can only be so when a Constitutional Court deems it to be.

Can the Agong and Malay Rulers be prosecuted?

But will the Yang DiPertuan Agong and the Malay Rulers still be protected from prosecution by the ICC? Or, can they be prosecuted by the ICC?

The Malay Rulers know of the policies and Articles that give Islam its status as the religion of the Federation; that give special status to the Malays and Bumiputeras over others; that makes Malay the national language – all of which come under their protection.

One can argue that since the Malay Rulers are constitutional in form, they cannot be held responsible, as argued by the Attorney-General saying that the Agong cannot declare war and is therefore not accountable. However, the Eighth Schedule of the Federal Constitution clearly states their executive powers.

Although the Latin phrase actus reus non facit reum nisi mens sit rea is the common law test for criminal liability meaning the act is not culpable unless the mind is guilty, it also means that a crime can be committed not only through one’s intention, but also through the knowledge that one’s action or inaction would contribute the same.

In Prosecutor vs Tihomir Blaškić (ICC Appeals Chamber, 29 July 2004), the ICC Appeals Chamber held that “the person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.”

In other words, there is no legal requirement of an ideology, plan or policy to articulate the mens rea applicable to crimes against humanity. In this context, the Malay Rulers can be found culpable to promoting and enforcing policies and plans that oppress targeted race or religion, while holding the supremacy of one race or religion.

In the words of Catherine Gegout, and Associate Professor in International Relations, Faculty of Social Sciences at the University of Nottingham,

“The ICC can prosecute any individual anywhere in the world, but for suspected criminals who are citizens of a state which has not ratified the ICC Statute, a United Nations Security Council (UNSC) resolution is necessary.” (Gegout, C. (2013). The International Criminal Court: limits, potential and conditions for the promotion of justice and peace. Third World Quarterly, Volume 34, 2013, Issue 5, pp. 800-818).

How effective can ICC prosecute will depend on how cooperative a State Party is. If the government, as the executive branch of a State Party, decides to cooperate with the ICC and have a Malay Ruler tried by the ICC, then It could.

So, what is the government’s intention?

If there is something that may affect the status of Islam as the religion of the Federation, the special privileges of the Malays and Bumiputera, the National Language, and the status and functions of the Malay Rulers, it is imperative that the government bring it to the Malay Rulers to be deliberated.

By going quietly and ratifying the Rome Statute without first bringing the matter to the attention of the Malay Rulers is an act that contravenes the Federal Constitution. The Malay Rulers have every right to be consulted, to warn and to encourage. The cabinet members all took an oath to serve in His Majesty’s government, a Malaysian government; not a political party’s government.

So, what was the intention of ratifying the Statute? To take Myanmar to the ICC? China for the mistreatment of the Uighurs

Most importantly – June 1, 2019 is getting nearer each day. Why has the government not sent the formal letter to the Secretary-General of the UN to notify of Malaysia’s intention to withdraw from ratifying the Statute? How difficult can drafting a letter be? Does it need more than 25 days to draft one?

Or is the announcement by the Prime Minister 26 days ago a form of strategic withdrawal that will only see a letter sent days, weeks, months or years after June 1, 2019 that will see Malaysia bounded for another year after?

(This article first appeared on The Mole)

February 16, 2013

Xenophonbia Justified

Within the hour of writing this posting, the Australian Foreign Minister, Bob Carr, will be issuing a statement on the denial of entry of Independent Senator Nicholas Xenophon into Malaysia. According to some friends in Australia, “they have made it into such a big thing over here.”

Perhaps, news agencies in Australia, in particular Sky News Australia, should stop being superficial as their superficial reporting shows their inability to engage in journalistic rigor, comprehend complexity or maintain impartiality. Else their journos could come and join me write for this blog pro bono perhaps in the classifieds section. Well, I have no classifieds section.

Now, please understand the following:

Xenophon is being denied entry for being a “security threat” to Malaysia. Let us not forget that Xenophon, as an Australian diplomat, broke local law for being directly involved in the BERSIH 3.0 demonstration. The Malaysian Peaceful Assembly Act 2012 specifically mentions in Section 4(2)(a) that a person commits an offence if being a non-citizen, he organizes or participates in an assembly and should be liable to a fine not exceeding ten thousand Ringgit. Of course, being Malaysian and hospitable even to foreign lawbreakers, he was allowed to go home without receiving much hassle, let alone a 10 sen fine.

Isn’t Xenophon then a diplomat, and are diplomats not immune from prosecution?

Firstly, Article 41 para 1 of the Geneva Convention on Diplomatic Relations, 1961 clearly states that it is the duty of all persons enjoying the privileges and immunities to respect the laws and regulations of the receiving State and have a duty not to interfere in the internal affairs of that State. Xenophon went against that by getting involved in the BERSIH 3.0 rally.

Xenophon has always maintained that his interest in free and fair elections in Malaysia started with the prosecution and subsequent acquittal of Anwar Ibrahim of the sodomy charge in Sodomy 2.0 (yes, we Malaysians have a release number for everything). It does not mean that he did not do it. As in Sodomy 1.0, Anwar was acquitted due to technical reasons and not because he did not participate in acts of sodomy. Read the last four paragraphs of this report.

Perhaps, Sky News Australia should ask itself if there is no thriving democracy in Malaysia, how is it that demonstrations are allowed, and if elections aren’t free and fair, how was it possible that Anwar’s loose coalition won five of Malaysia’s states including two of Malaysia’s cash cow states (Penang and Selangor)?

Judging from Foreign Minister Bob Carr’s statement on the issue as well as reports by other Australian news agencies, Australia values its good relation with Malaysia, but it is the minority and people who get little backing from the Australian government such as Nick Xenophon, and Foxtel-owned Sky News Australia that continue to believe in the lies dished out by Anwar Ibrahim. I hope they make time to interview all the founding members of Anwar’s Parti Keadilan Rakyat where even Anwar’s membership is a suspect. All his comrades who joined him in 1998 have left save for his wife, daughter and his trusted lieutenant whose wife is reported to have had an affair with Anwar when the latter was still a Federal Minister. And Xenophon’s constant meddling in the affairs of another State not only contravenes the Geneva Convention on Diplomatic Relations, 1961, but also displays his standard of being a diplomat against that of seasoned diplomats who would shy away from giving comments about their host State knowing the line that has been drawn by Article 41 of that Convention.

As such, Malaysia has the right to declare Nick Xenophon a persona non grata under Article 9 of the same Convention, and list him as an undesired person. Australia as the sending State has no choice but to recall the person. We, including Australian journalists, must remember that Article 9 of the Convention allows Malaysia to even declare Xenophon a non grata without explanation, and even before he arrives in Malaysian territory.

You have your laws, we have ours. if you want others to respect your laws, learn to respect the laws of others. You did not respect ours, Xenophon, now off you go.

February 4, 2013February 4, 2013

The Kuantan Criminal

Back in the early 20th Century, we had a menace by the name of Loi Tack (also spelt as Loi Teck). Come the 21st Century, we have Wong Tack. The times may differ but both were and are advocates of criminal force.

Rocky Bru picked up an article of Wong Tack’s criminal threat in a recent Guang Ming Daily’s Sunday Night Edition. Wong Tack was reported to have uttered the following in the event that the Lynas Rare Earth Plant is not closed after the next general election:

“I will personally burn down the rare earth plant!”

If this is not criminal intimidation as stipulated in Section 503 of the Malaysian Penal Code, then I do not know what is.

Such a huge sentence for someone so small. I doubt Wong Tack would utter such threat if he knows he does not have the backing. He has personally stated that his Himpunan Hijau group would support Anwar Ibrahim in the upcoming general election because “…Anwar Ibrahim has promised the rakyat that when they come into power, the rare earth plant and Bukit Koman cyanide gold mine project will be closed.”

Wong Tack reminded that Himpunan Hijau had gotten as far as the Lynas plant’s gates on 31st December 2012, therefore the next step would be “to gate-crash and burn the plant.” Although Himpunan Hijau does not plan for anymore demonstration, Wong Tack stressed tat the group would be helping the Pakatan Rakyat to topple the Barisan Nasional government.

It does not take an engineer to know that when you destroy a plant, you are more likely also to damage or destroy the controls that are already in place to protect the surrounding community as well as environment. To this, Wong Tack said:

“…the action of burning down the plant will not harm anyone because the objective is to stop the rare earth plant from causing harm on people’s health and life.”

When a UN body had reported that Lynas meets all prerequisites to commence safe operations, you get this whiner going around telling people that it is not safe. I hope he knows that half of the daily radiation dosage he receives is from his own home. In fact, after the Three-Mile Island nuclear accident, radioactive iodine was detected at 20 picocuries per liter.

And what is that in layman terms? 355 mL of the slightly radioactive milk above would give you only 1/75 BED….or BANANA EQUIVALENT DOSE. Yes, bananas are more radioactive.

So, for Wong Tack to create unnecessary public alarm and for him to make criminal intimidation shows the desperate nature of politics in Kuantan. Perhaps, someone who backs him up is asking him to do all this. Or even perhaps Wong Tack sees this as a personal economic raison d’être. By any way and means, his logic of burning down the plant yet not harm the surrounding community and environment is childish, but very malicious.

I hope, by his logic, he burns his house down with his children inside to kill the mosquitoes that bug him in his sleep.

Otherwise, please someone, just lock this imbecile up.

Sieg Heil!