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We have ratified, but have we withdrawn?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)

The Bittersweet Alliance – Part 1

The philosopher Jorge Agustín Nicolás Ruiz de Santayana y Borrás or George Santayana once said that those who do not remember the past are condemned to repeat it.  The recurrence of history is part of life’s cycle, but always in different forms.  Those who do not remember how certain historical lows were handled are bound to make even bigger mistakes.

 

Recently, there was a furor following the statement made by UMNO’s Ismail Sabri , the Agriculture and Agro-Based Industries Minister, asking consumers to boycott greedy Chinese businesses.  While it is normal to hear the communal-party-disguised-as-a-non-communal-party DAP lashing out at Ismail Sabri, the call by MCA’s Youth Chief, Chong Sin Woon, for the sacking of Ismail Sabri did not go down well with UMNO and 92 Divisions of the latter rallied behind Ismail asking for Sin Woon to be sacked instead.

 

While I refuse to indulge in a debate over what was said by Ismail Sabri, there is a need for consumers to boycott profiteering businesses who whine about high cost of fuel and pressured the government to allow them to increase the price of their services, but refused to lower prices when the price of fuel has gone down by half.  What I am more interested in is the bittersweet alliance between UMNO and MCA, and how history is repeating itself.

 

While the movement for the independence of Malaya had started decades before, there was no cohesion between races. In 1946 when the Malayan Union was formed, the republican-in-nature Partai Kebangsaan Melayu Malaya (PKMM) and the non-Malay Malayan Democratic Union (MDU) were quick to support the formation.  The PKMM, a spin-off from the Batavia-leaning KMM of Ibrahim Yaacob, was all for a Malaya not ruled by the Malay Rulers, while the MDU liked the idea of automatic citizenship (read more in Seademon’s The Road To Merdeka: Persekutuan Tanah China ) for the immigrants. On 1st March 1946, more than 40 Malay organisations met up and 41 decided to form the United Malays National Organisation (UMNO) to champion the Malay rights.  The Malays were then a minority in his own land, poor, sidelined from economic development, health care and formal education.  With the help and encouragement of the then-British High Commissioner, Sir Henry Gurney, the Malayan Chinese Association (MCA) was formed on the 27th February, 1949. Gurney aimed at winning the allegiance of the Chinese community away from the Communist Party of Malaya (CPM) (Colonial Office Record 537/773(1) Memorandum by Henry Gurney, 28th January, 1949).

 

There was apprehension and distrust between the Malays and Chinese.  The alienation of the Malays by Chinese mining tycoons and rubber estate owners, followed by the preference of the Japanese of the Malays over the immigrant Chinese, and this in turn followed by retribution against the Malays by Chinese sympathizers of the CPM after the Japanese surrender have had contributed enormously to this animosity between the two.

 

It was since 1950 that Henry Gurney had wanted to introduce some form of democracy to Malaya through elections to satisfy the public’s hunger for democracy versus the communist’s way of winning self-government.  Alas, he was only a High Commissioner and still had to go through the true rulers of the Federation of Malaya – The Malay Rulers.  So, during the 10th Malay Rulers Meeting on the 22nd and 23rd February, 1950, Gurney presented his recommendation, only to be met with reluctance of the Malay Rulers.  In the minutes of meeting, the Sultan of Kedah stated his reservation:

 

The most important prerequisite for democracy is education. Without enlightened public opinion a democratic system of Government will be liable to unsteadiness or even confusion and chaos. One danger is that it may be transformed into a single party government through a few skilled electioneers working among the apathetic population and this will work towards dictatorship.” (Colonial Office Records 537/6025(1))

 

The Malays, as mentioned above, were left behind educationally and may not know what is best for them.  For the same reason the PKMM and MDU were in full support of the Malayan Union four years prior to this event.  And whatever the outcome, the Malays would have ended up the biggest losers if no one champions their rights. Noted William L Holland in “Nationalism in Malaya” (WL Holland, 1953):

 

“There was already Malay discontent in the pre-war period over the poor economic position vis-a-vis the Chinese and Indians. Malay peasants and fishermen, noted S.H Silcock and Ungku Aziz, were dependent on Chinese middlemen while Malays worked as messengers in offices where Chinese and Indians were clerks.”

 

The phrases made bold above by me, still holds true today and became the basis of Ismail Sabri’s main grouse against profiteering businessmen.

 

Gurney had to bring about some form of democratic self-rule that would benefit all races.  Separately he discussed on numerous occasions with both MCA and Dato’ Onn and impressed upon them that self-rule would only happen if there is a closer relations between the communities (The Making of the Malayan Constitution, Joseph M Fernando, 2002, Page 15).  Gurney was all for the promotion of Sino-Malay talks to tackle long-term problems.  Gurney minuted the following:

 

“The outstanding issues at that stage were citizenship and the economic backwardness of the Malays.  The Chinese leaders sought a more liberalised citizenship than those contained in the 1948 Federation of Malaya Agreement.  Onn meanwhile , had approached the Colonial Office to secure financial assistance for the Malays.” (Colonial Office Records 537/773(1))

 

Onn Jaafar, however, was more open towards a better relationship between the Malays and other races if UMNO was to achieve the long-term ambition of self-governing the nation.  In the UMNO annual general meeting in Arau, Perlis, on the 28th May 1949, he said in his speech:

 

It is absolutely important for the Malays to obtain closer ties with the other people in this country.  It is time for us to take the view wider than the kampung view.  I ask of you, which will you choose, peace or chaos, friendship or enmity?” (Straits Times, 29th May, 1949)

 

It was at this meeting that UMNO had agreed to accept non-Malays as associate members.  Two years later, in June 1951, Onn went a step further by proposing that UMNO should open its doors to the non-Malays, and that UMNO be renamed the “United Malayan National Organisation.”  While the top echelon of the party was supportive of this idea, the grassroot felt it was too radical.  The bitterness resulting from the years of resentment and occasional interracial violence were too new for them to accept the non-Malays into their political fold.  As a result, Onn left UMNO to form a new party called the Independence of Malaya Party (IMP) despite Gurney’s insistence that the former should remain in UMNO.  Onn gambled that UMNO would fall apart and would rally behind him.  Instead, UMNO rallied behind its new leader, Tunku Abdul Rahman, who sought to retain and strengthen UMNO’s communal organisational structure.  The Tunku also threatened to expel from UMNO any member that joins or had joined the IMP (Straits Times, 18th September, 1951).

 

The MCA meanwhile remained a loose association of both “neutral” Chinese and the hardcore sympathizers of the CPM.  Gurney had felt that the MCA had not gained much support from the Chinese community and the CPM sympathizers especially to help bring about a speedy end of the First Emergency.  The Perak MCA Chairman, Leong Yew Koh, wrote to Cheng Lock on 1st June, 1950:

 

“Although the Perak MCA membership is 40,000 strong, the branch is a mere basin of loose sand.” (Tan Cheng Lock Papers, ISEAS Singapore, Folio IX)

 

Cheng Lock was quick to suggest that the MCA should become more political in order to better represent the Chinese:

 

“The MCA should not exist only for the limited, though vital, purpose of the meeting the emergency.  It is a living institution which should consolidate itself on a strong and broad democratic foundation, in order that it may be ready to play a part in Malaya of the future as well as the present.” (Colonial Office Records 1022/176)

 

Thus, the stage is set for two political giants to go against each other for political power, after which we will see whether it was the Tunku or not who played the pivotal role in making the alliance between UMNO and MCA come true.

 

Stay tuned.