When Wisdom And Maturity Win

His Majesty the Yang di-Pertuan Agong

The political crisis started a long way back with one man thinking that the seat of the Prime Minister should be handed to him, while the incumbent felt that he should hold on to it for as long as possible. There was no Malay, Chinese, Indian, Jawi, UEC or Adib involved in the whole fiasco.

When His Majesty the Yang di-Pertuan Agong stepped in to solve the crisis, there were as many calls for the Parliament to be dissolved as there were for the incumbent to handover the premiership to his so-called designated successor. I wrote to friends the following:

“The Raja is the landowner. It is the constitutional prerogative of the Raja to choose whom in his judgment should lead the administration of HIS government. Our duty every five years or so is to vote for those whom we think should represent us. That is where our responsibility ends.”

His Majesty the Yang di-Pertuan Agong did exactly that – solving the crisis according to what is accorded to him in the Federal Constitution. With the two warring parties claiming the right to the premiership, political parties went back and forth changing their allegiance to each of the party who in turn claimed that he has the most support.

His Majesty went on to call each MP for a private interview trying to see who supports whom. And many got trapped in that simple but virtually meaningless definition of ‘majority support’ thinking that the candidate with the most support should become the Prime Minister. However, there is nothing in the Federal Constitution that gives such provision.

Article 43 (2) (a) of the Federal Constitution states that the Yang di-Pertuan Agong shall first appoint as Perdana Menteri to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of the House. In other words, exact number of support for any of the candidate is not a requirement for a decision to be made by His Majesty. The interview is only for him to gauge the level of support each candidate has.

The method used is similar to the ones used in Perak by the late Sultan Azlan Shah, and in Kedah several years later, to determine who can command the confidence of the most of the Dewan to become the respective States’ Menteri Besar. In all three crises, the maturity and wisdom of the Ruler is incumbent (Dr Zambry v Dato’ Seri Nizar [2009]5 CLJ 265) para 232. The method to determine the issue of “majority support” is the prerogative of the Ruler and is non-justiciable (op cit).

It is in my opinion that “majority support” was determined by the total number of MPs from any one bloc. There was the Anwar bloc – MPs who wanted Anwar to become the next PM. Then there was the Mahathir bloc – people who wanted the elder statesman to continue. And we had the Muhyiddin bloc – those who solidly supported Muhyiddin’s candidacy. Both the Anwar and Mahathir bloc had to combine to challenge Muhyiddin’s number of support. But whether they like the other bloc’s candidate that they were forced to accept is questionable. Hence, the one with the most unambiguous support would be Muhyiddin.

No one else has the right to choose a Prime Minister. The right claimed by Anwar Ibrahim to become a Prime Minister, and the so-called promise by Mahathir to hand over the premiership to the former, are against the Federal Constitution. Only the Yang di-Pertuan Agong has that right, as prescribed in Article 40 (2) of the Federal Constitution. Conventions are not laws, and are therefore not legal. It is because of this illegal promise that got us into this trouble last week.

Even after the announcement by Istana Negara on the swearing-in ceremony of Malaysia’s 8th Prime Minister was made, there is still talks of numbers and majority made by the other party. But what is the point of scoring 50 goals after the final whistle was blown? And going back to Article 43 (2)(a) where it is the Constitutional prerogative of the King to choose an MP as the PM whom in his judgment commands the confidence of the member of the House, such SDs carry no weight whatsoever. It was just an attempt to create negative perception about the wisdom of the King.

We are certainly blessed to have a wise King who made full use of his rights in the Constitution and his freedom to consult to settle this chaos. Despite taking precedence above all other persons in the Federation, His Majesty did not forget to consult all the other Rulers. After all, he represents all the Rulers. And he stood his Constitutional ground, gentlemanly, when others did not.

Article 11 (3) (a) & (b)

An asnaf family receives a symbolic key to their house from a Lembaga Zakat Selangor representative

The issue of the distribution of Zakat to non-Muslims is still not over.  Today, I saw three news articles of statements on the issue made by the CEO of Zakat Pulau Pinang, the Mufti of Negeri Sembilan, and the Mufti of Pahang.  All of them stressed that Zakat is not to be distributed to non-Muslims.

“It cannot be given to non-Muslim individuals. If it is to be given to non-Muslims, it will be done through NGOs or associations that conduct dakwah (Islamic outreach),” said Datuk Seri Dr Abdul Rahman Osman, the Mufti of Pahang.

Many, some Muslims included, do not understand the meaning of Zakat.  It is a mandatory religious obligation decreed by Allah SWT for all Muslims who meet the necessary criteria of wealth.  Its role in society is to preserve social harmony between the wealthy and the poor through a more equitable way for the redistribution of wealth.

I wrote two days ago (Zakat is for the Rulers to decide) that as the Head of the religion of Islam in their respective states, the affairs of Islam come under the purview of the Rulers – their Constitutional prerogative.  And it is because of this prerogative prescribed by the Constitution that had the Sultan of Selangor issue a media statement on the issue.

His Royal Highness is very concerned about the number of Muslims who fall into the categories of poor, hardcore poor and the needy.  A check in all the nine districts of Selangor through a page maintained by the Malaysian Administrative Modernisation and Management Planning Unit (MAMPU), the number stood at 21,621 people in 2009, 50,947 in 2018, and up until the end of September 2019, it was 54,568 people. On average, 3,300 Muslims enter the list of Zakat recipients every year!

Selangor has the highest GDP in Malaysia.  In 2010 it was RM177.7 billion.  In 2018 it was RM322.6 billion.  Although its labour force has increased from 3.2 million in 2015 to 3.5 million in 2018, its percentage of the unemployed has also increased from 2.4 percent (77,900 people) to 2.8 percent (99,600 people).  Rapid urbanisation in a short span of time and migration of workforce from other states into Selangor have contributed to escalating economic and social costs – rentals, housing, transport, land.  This has in turn imposed the burden of employment generation causing an increase in unemployment, the inability to offer higher wages, and incidence of poverty.

When we talk about the poor, hardcore poor and the needy, we no longer talk about people begging on walkways or even the homeless.  We now look at those earning less than RM2,000 a month, with very little or no savings, and cannot survive two to three months without work.  This is the reality that we now face – rapid urbanisation presents an increase in the number of the urban poor.  Those who are particularly vulnerable are those with low education level, low-skilled, handicapped, single parent, the youth, the elderly, orphans who have to leave their orphanage when they turn 18.  These are the people His Royal Highness is very concerned about.

Take the Petaling district for instance.  In 2009, 2,478 Muslims qualified for Zakat aid.  By 2015, 7,248 Muslims in the district were qualified for Zakat aid.  In 2018, it was 7,781.  By the end of September this year, that number is 7,858.

The amount of aid distributed in Selangor was RM279.2 million in 2009.  By the end of 2018 it was RM414.6 million..

The same pattern can also be seen in Pahang where in 2015 its population was at 1.61 million. That increased to 1.66 million in 2018. With about 75 percent of its population being Muslims, Zakat aid distributed in 2015 was RM113.4 million. In 2018 it was RM140.8 million. A 3-year study led by Emeritus Professor Chamhuri Siwar of the Universiti Kebangsaan Malaysia between 2008 and 2011 found that the highest incidence of hardcore poverty in rural Pahang was observed among the Malays (97.33 percent), while for the urban areas of Pahang it was again the Malays (72.22 percent).

Therefore, as the Head of State and Islam, His Royal Highness the Sultan of Selangor was right in pointing out that although Islam emphasises on humanity, Zakat aid collected from Muslims are only to be given to Muslims in need who fall into the eight categories mentioned in my earlier article.  His Royal Highness added that in Selangor there are still many Muslim people who fall into both the rural and urban poor categories and are in dire need of Zakat aid.  This is because almost 60 percent of its population are Muslims and its population increases by about 100,000 annually.

Zakat is a matter of Islam, for Muslims.  Article 11 (3)(a) and (b) of the Federal Constitution states that Every religious group has the right to manage its own religious affairs and establish and maintain institution for religious or charitable purposes.

What Anwar Ibrahim et al. should have advocated was for the establishment of similar tithe collection institutions by respective religions instead of peddling articles of Islamic affairs for his own popularity and political mileage.

Zakat Is For The Rulers To Decide

Can Zakat be distributed to non-Muslims as mooted by Anwar Ibrahim?

A week ago Port Dickson MP Anwar Ibrahim mooted Zakat reforms saying the non-Muslims should also be included as Zakat recipients. He said this at the International Seminar on Islamic Zakat, Wakaf and Philantrophy in Selangor.

His statement incurred the wrath of the Sultan of Selangor who, through a statement issued, said that Zakat (tithe) can only be distributed to eight categories of the needy that include the hardcore poor asnaf, poor asnaf, and mu’allaf who are Muslims.

Asnaf is defined as a party that does not own any property and whose work cannot meet the demands for basic needs and therefore is eligible to receive Zakat aid collected from Muslims. A mu’allaf is an individual who are non-Muslims who have the hope of converting to Islam or those new to Islam whose faith still needs to be supported or reinforced.

Based on the above-definitions, the Sultan added that Zakat can only be given to a non-Muslim mu’allaf based on the principles of asnaf Mu’allafati Qulubuhum (those whose heart has accepted Islam). This principle is based on the Quran where Allah SWT said, “Zakat expenditures are only for the poor and for the needy and for those employed to collect (Zakat) and for bringing hearts together (for Islam) and for freeing captives (or slaves) and for those in debt and for the cause of Allah and for the (stranded) traveller – an obligation (imposed) by Allah. And Allah is Knowing and Wise.” (Quran 9:60).

Both the Mufti of Perlis and Pulau Pinang have made a statement supporting this. In a television interview the Mufti of Perlis said that Perlis had issued a fatwa to enable non-Muslims to receive tithes under the concept of asnaf Mu’allafati Qulubuhum in 2017.

“This means that Perlis follows the sunnah of Prophet Muhammad p.b.u.h not only to help (the non-Muslim asnaf) but also to hopefully embrace Islam,” said the Mufti. He added that the decision of the fatwa rests on the Ulil Amri (leader – the Raja of Perlis).

The Mufti of Pulau Pinang said that non-Muslims who are poverty stricken can obtain assistance from other governmental resourcees such as the Welfare Department. Distributions should only go to non-Muslims if collections exceed what was needed for Muslim recipients.

He said that according to the Quran, Zakat could be extended to non-Muslims with the purpose of making them to favour Islam, to encourage them to help Muslims against the latter’s enemies, or for them to sympathise with Muslims. This was because the contributions come solely from Muslims who pY the tithe as a religious obligation.

Malaysia, being a country that has Islam as its religion as prescribed in the Federal Constitution holds to the doctrines of Imam Shafie who in his book Al-Umm said the following:

“The Mu’allaf (those whose heart have received Islam) are those who have accepted Islam. Zakat is not given to the musyrik to entice them to Islam. If there are those who say that during the Battle of Hunayn the Prophet had distributed collections to the Musyriks, those are the distribution from fai (spoils of war) or from his own property. Not from Zakat collection.” (Al-Umm, 2/388. Beirut: Dar Ihya al-Turath al-‘Arabi).

As mentioned in the above paragraph, the religion of Malaysia is Islam. The Ruler of the states that have a Ruler as Head of State, is the Head of the religion of Islam. In states where there is no Ruler, the Yang di-Pertuan Agong is the Head of the religion of Islam. Matters of the religion of Islam come under the purview of Their Majesties. It is a pity that a seasoned politician such as Anwar Ibrahim does not know his position when mooting such reform.

In the words of the Sultan of Selangor: do not take advantage of and use the affairs of the religion of Islam to gain popularity or win the hearts of certain parties.

Your Choice: Evolution or Revolution?

Murdered members of the East Sumatera sultanates, March 1946
Members of the Eastern Sumatera Sultanate killed in March 1946

Malays love to idolise the wrong people.  We name roads and university buildings after people like Burhanuddin Al-Helmy, Ishak Haji Muhammad, Ibrahim Yaakob, Ahmad Boestaman who once fought for the unification of Malaya and Indonesia under the Indonesia Raya political concept where the former comes under Indonesian rule from Batavia, rid of its feudal system.

On 3 March 1946, five Sultans from five Malay states in East Sumatera, along with thousands of their family members were brutally murdered by supporters of the Communist Party of Indonesia as well as Sumateran Malays who fell for their anti-royalist propaganda.  The pogrom did not only end the Malay Sultanate governments of East Sumatera, but also the customs and traditions of the Sumateran Malays.

Those whose name had the prefix Tengku, Wan or Raja were immediately executed, while the Malay population had to assume Javanese or Batak names to avoid persecution.  At least two generations of Sumateran Malays had to hide their real identity after the pogrom.  It was in essence an ethnic cleansing, and was done under the battle cry “Daulat Rakyat.”

I often wonder if the same is being done here in Malaysia, the sowing of hatred towards the royal institutions in order to remove the very protection of the Malay and Bumiputera rights as well as the sanctity and status of Islam as the religion of the Federation?

Once, there was deep respect for the Rulers. Malaysia Incorporated changed all that.  Money was power and that came from those with political power.  Political interference in the constitutional powers of the Rulers eroded further whatever was left of that respect.

There is a revival of love and respect for the royal institution, now that things are going bad and election promises reneged upon.  But people are still confused by the roles that the Rulers have in this democratic system of ours.  Many people think that the Rulers institutions should be dissolved as they do not have any tangible role to play.  The truth is far from it.  Whatever executive powers that the government has, the fount of that power is the Yang di-Pertuan Agong.

The roles of the Rulers were watered down from the beginning – in our school text books.  It does not augur well for a government to be seen as playing a second fiddle to the Rulers.  Hence, nationalism was injected into our history text books and the Rulers’ role in our “independence” was only as a signee party to the Federation of Malaya Agreement, 1957.  Nothing more.  In the end, the Rulers are now “living extravagantly on taxpayers’ money.”

Therefore, it is of no surprise that the Rulers and members of the Royal institutions have their set of haters spawned by this lack of understanding.  And when Her Majesty the Raja Permaisuri Agong recently retweeted a known UMNO cybertrooper’s post about the incident at the University of Malaya’s convocation ceremony, she was immediately condemned by the haters.

It was unfortunate for Her Majesty to have retweeted that person’s post, but I can understand why.  It was driven by her displeasure of the act by the graduate, choosing such an occasion to display an absence of decorum.  What if it was the Sultan of Perak who was there to present graduates with their scroll?  Her Majesty undid her retweet later.

The Raja Permaisuri Agong is not the first of the first line member of the royal institutions to have suffered attacks both on and off social media.  Almarhum Sultan Azlan Shah of Perak, the Sultan of Johor, and the Sultan of Terengganu were criticised for choosing a Menteri Besar for their respective state by people who do not understand the constitution.  Since when is the choosing of a Menteri Besar the prerogative of a winning party or Prime Minister?  Where in any constitution does it say that?  By convention? By convention is not a rule of law.  That is not binding at all.

The Sultan of Selangor was criticised for protecting the sanctity of Islam, with some calling the state’s Syariah criminal enactment unconstitutional.  It is the duty and absolute right of the Sultan of Selangor to protect the sanctity of Islam in his state; the same goes for the other Rulers as well.  And the state Syariah criminal enactment that was passed by members of the state assembly remains a law of the state until proven unconstitutional by a constitutional court.  Has there been any challenge?

I have mentioned in several of my previous writings that this land has always been Islamic by nature and this was reinforced by two British judges in the landmark case of Ramah binti Ta’at v Laton binti Malim Sutan 6 FMSLR (1927).

For the past few years I have seen many attacks made on the Rulers as well as on Islam and the special rights and privileges of the Malays and the Bumiputeras. Many non-Malay Bumiputeras fail to understand that they stand to lose a lot too if these attacks prevail.

Being the constitutional protectors of both Islam and the special rights and privileges of the Malays and Bumiputeras, the protection for the Rulers, for obvious reasons, must be removed first.  Hence, we have seen the attempts to introduce the National Unity Consultative Commission Bill in 2015, ICERD and the Rome Statute.  Times are dangerous in Malaysia for Islam, the Malays and Bumiputeras.

The reason for the UM graduate’s outburst on stage was his claim that the Vice-Chancellor of the university is a racist for attending the recent Malay Unity Congress and for delivering a speech then.  A quick read of his speech text revealed nothing racist.  But if the graduate still thinks it is, why stop there? Why not demonstrate in front of the Prime Minister’s office or residence for delivering a speech there as well? Why be selective?

And what has the Malay Unity Congress achieved? Absolutely nothing.  Even the Prime Minister seems powerless to tell the graduate to go fly kites with his demands and to stop being such a rude person.  The PM also seems powerless and reluctant to summon and reprimand the CEO of Media Prima for giving airtime to the said graduate.

That is why I used to tell my Muslim friends before the last general elections – politicians and governments come and go, so never rely on them to protect your rights and the special constitutional status of Islam in this country.  And do not ever think that the politicians are bigger in status than the Rulers.  The politicians only want to cling on to power. For that, they will make compromises and are willing to compromise their beliefs.

Imam al-Ghazali in his book, al-Iqtisad fil I’tiqad, challenged the idea that Muslims can perfect their individual actions and morals without a state that governs by Islam.

The Deen and the Sultan are twins,” he wrote. “the Deen is the foundation and the Sultan is the guardian. That which has no foundation is doomed, and that which has no guardian will perish.”

And that is why there seems to be an attempt to undermine and eventually remove the guardian, so that the foundation can be permanently removed.  So, what is it that we want?  A nation where we live by the Federal Constitution as our paramount law so we can continue our evolution, or, believe in ‘Rakyat Hakim Negara’ where it becomes a revolution?

A Little History About Your King and Queen For You Little Band of Haters

MALAYSIANS are not accustomed to seeing a Yang di-Pertuan Agong and a Raja Permaisuri Agong that they can relate to.

Remove the pomp and regalia, you see a CEO who holds work discussions at a mamak joint over teh tarik, and a mother who stops at stalls to buy kuih, just like ordinary parents would do on a daily basis.

To say that Malaysians have gone all gaga over this Royal couple is an understatement. The ability to interact, especially with the Queen, on social media is totally unprecedented.

In some ways, being able to tweet to your Queen like you would speak to your mother is good, but some tend to forget that there are lines drawn in such engagement. They mean well, but tend to forget mannerism.

Of course, the royal institution also has its band of haters – people who think that the royal institution does not have a place in modern democracy.

They call the royal families the untouchables, the unelected, the ones whom we pay for their lifestyle. All these remarks have been made thinking that the Malaysian democracy is a true democracy in every sense, where the Malay Rulers are nothing but overpaid rubber stamps.

They are anything but rubber stamps.

The Yang di-Pertuan Agong is the Supreme Head and executive authority of the Federation.

In other words, he is the fount of authority in Malaysia. As the Ruler of a State, he also represents the other eight Malay Rulers who have elected him to the office of the Yang di-Pertuan Agong.

Prior to 1 February 1948, save for the rulers of Terengganu and Johor which governed in council with the Sultan as head, the rulers were all absolute monarchs.

The British were here in agreement with the respective state Ruler to assist the latter in making the administration of their respective state more efficient.

The Rulers delegated their administrative authority, except in the affairs of the religion of Islam and Malay customs, to the British Residents who were in the Rulers’ payroll.

These residents were answerable not to the Queen of England, but to the sovereign ruler of whichever Malay state they were transferred to.

Come February 1 1948, these Malay states were all federated – with central control, but with some internal autonomy.

The Malay states still retained their sovereignty.

A popular belief is that we were colonised and were therefore not sovereign states, but the court case brought by one Jenny Mighell against the Sultan of Johor in 1894 brought forth an 1885 Treaty with the Crown of England and a letter each from the Colonial Office and Queen Victoria herself to confirm Johor’s status as a sovereign nation.

When the Sultan of Johor sent Dato’ Mohd Seth bin Mohd Said as his representative to the Merdeka discussions in London, the latter was given an instruction to disagree with Malaya being given independence.

Detractors of the royal institution regarded this as the Johor family wanting to remain as a colony of England instead of being independent as a single nation under the Federation of Malaya.

The truth is, Johor was independent at the time as other states were, had its own civil service, courts and postal service. Used to efficient governance headed by British advisers, the Sultan of Johor did not want a Malaya governed by Malayans who, in the view of the Sultan, do not possess any idea of how a nation should be governed.

The 1948 Federation of Malaya had a Federation of Malaya Legislative Council with the High Commissioner as its Chief of Executive; three ex-officio members namely the Chief Secretary, the Finance Secretary and the Attorney-General; 11 State and Settlement members consisting of the President of the Council of each of the Malay states and an elected member of the council from Melaka and Pulau Pinang; and 45 official (including the Chief Ministers) and unofficial members.

This council was made via the Federation of Malaya Agreement of 1948 by Sir Edward Gent on behalf of the Malay Rulers, and only for the Malay Rulers and their Successors.

This again, is proof that the Malay Rulers were sovereign and not subjects of any colonial power.

Fast forward to 1957, the final agreement was reached for the Malay Rulers to transfer the delegation of some of their executive powers from the British administrators to the representatives chosen by the people in the 1955 elections.

The Malay Rulers had preferred a hybrid government that would have consisted of elected representatives as well as representatives appointed by them made up of professionals who could help run the country in the case where elected representatives do not meet the expected mark.

In hindsight, that would have saved us all a lot of trouble now.

The office of a Yang di-Pertuan Agong, representing the other eight Malay Rulers, was created by the Federal Constitution.

In this constitution it also states that the Yang di-Pertuan Agong has the right to choose from the Lower House, an elected representative whom to the opinion of His Majesty, holds the confidence in the House, to become the Prime Minister.

This Prime Minister shall then advise His Majesty on whom to pick as members of His Majesty’s Cabinet.

Likewise, the Sultan or Raja of the respective states has the right to choose an elected representative from the Dewan whom to the opinion of His Majesty, holds the confidence of the Dewan, to become the Menteri Besar. This Menteri Besar shall then advise His Majesty on whom to pick as His Majesty’s Executive Councillors.

If the Yang di-Pertuan Agong, or the Sultan or Raja, feel that none hold the confidence of the House or Dewan, Their Majesties can not appoint anyone until a candidate that enjoys the confidence of the elected representatives is found; but this has to be done within 120 days after the dissolution of the Parliament and states assembly.

It is not for anyone to force Their Majesties to choose.

Having said that, there was no business whatsoever for Umno members to hold a demonstration in front of the Terengganu palace, for Pakatan supporters to roll on the roads leading to the Perak palace, or for the Prime Minister to say that the Sultan of Johor has no say in choosing a Menteri Besar.

The Prime Minister is the CEO of the country, answering to the Yang di-Pertuan Agong who is the Executive Chairman.

And what do the Malay Rulers receive for them to agree to being in this Federation and to allow the people to choose amongst them representatives who will be administering the Malay Rulers’ government?  The emoluments stated in the Istana Negara (Royal Allowances) Act, 1982 and the various states’ enactment for royal provisions.

The constitution of the Malay states was made by the Malay Rulers and with the State Legislative Council. The Federal Constitution was made by the Federal Legislative Council. The Federal Constitution made the Yang di-Pertuan Agong, the Prime Minister, the Cabinet, the Acts, us Malaysians.

Take the Federal Constitution away and dissolve Malaysia, you will not have a Yang di-Pertuan Agong, no Prime Minister, nothing. However, the Malay states will still exist with the Sultans as the supreme executive authority of those states.

And they are above the respective states constitution because they made the state constitution.

That is why they are the unelected, the untouchables as some say.

And no, you do not feed them. 

You are merely paying them in exchange for your right to vote in the people in your judgment would be the better ones to administer the government by the people, for Their Majesties.

(This article was first published by The Mole)

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)

We Are Not Absolute Monarchy, But Neither Are We A Dictatorship

The Prime Minister has defended his view that the palace has no role in the appointment of the menteri besar, in remarks which are likely to increase tension between him and the Johor royal family.

“When we formed the Federation of Malaya, we introduced the constitution, where we stated that Malaya will follow the constitutional monarchy system.

“The ruler has no absolute power. If it still says so in the Johor constitution, then it is void. (We Are Not Absolute Monarchy, Neither Is Johor says Dr M – Free Malaysia Today, 10 April 2019).

Perhaps Mahathir is already incoherent. Article 71 of the Federal Constitution guarantees the Constitution of the States.

If there is any conflict between the state’s constitution with that of the Federal Constitution, then the matter has to be decided by a Constitutional Court.

Example: Selangor’s Shariah Offences Enactment gives power to the state religious affairs authority to confiscate Bibles printed in the Malay language or using one of the 25 prohibited terms such as Allah. This is in conflict with with Article 11 of the Federal Constitution, but is applicable in Selangor until such time a Constitutional Court declares it null and void.

While Malaysia is a Constitutional Monarchy, Article 181(1) of the Federal Constitution states:

Subject to the provisions of this Constitution,” the “sovereignty, prerogatives, powers and jurisdiction of the Rulers…as hitherto had and enjoyed shall remain unaffected.”

The same was noted by Mark R Gillen of the Faculty of Law, University of Victoria (Gillen 1994:7). In the words of the late Sultan of Perak, Sultan Azlan Shah, former Lord President, it is:

…a mistake to think that the role of a King, like that of a President, is confined to what is laid down by the Constitution, His role far exceeds those constitutional provisions” (Azlan Shah 1986:89)

In other words, the Rulers may be Constitutional Monarchs, but they are not limited to what have been spelt out in the Federal Constitution.

Now, back to who has the right to appoint the Menteri Besar of Johor since the Constitution of Johor is not void? Please refer to the photo below which is a screenshot of the Constitution of Johor regarding the appointment of the Menteri Besar:

You can fool the uneducated voters, but you can’t fool the likes of me.