The Speaker of the Dewan Rakyat yesterday issued a statement saying that he will not issue a notice for the August House to convene for a special sitting at the request of Mahathir.
Many said that the Speaker was playing politics, and possibly because his son works for the DAP. However, I am in the opinion that the Speaker was right.
Any person who is to become a Minister must first take an oath of office and allegiance and an oath of secrecy in the presence of the Yang di-Pertuan Agong before taking office, as prescribed by Article 43(6) the Federal Constitution.
When Parliament is dissolved, the PM and cabinet remain in office as a caretaker government until a new government is formed and sworn in.
In this case, Mahathir resigned, and the Cabinet automatically resigns with him. His oaths of office, allegiance and secrecy are null and void. He is no longer a Prime Minister. He was appointed as an Interim PM, but there was no swearing-in ceremony. Constitutionally-speaking, he is NOT a Prime Minister.
Therefore, if he is not a PM, he cannot instruct the Speaker of the House to issue a notice to convene for a special sitting when Parliament is in recess according to Rule 11(3) of the Parliamentary Meeting Rules.
Anwar Ibrahim has been waiting for the past 22 years to become the PM. The closest he ever got there was 23 years ago when he became the acting Prime Minister for a short while. And then he got expelled from UMNO that was being led by Mahathir.
There may have been an understanding or even an agreement between Mahathir’s PPBM and PKR, DAP, and PAN that Anwar should become the PM after an X number of years of Mahathir being at the helm.
While Mahathir has never mentioned a specific date for a handover, Anwar has been selling the idea of him being the next PM to the public, forcing a perception that it is his right to take over the helm from Mahathir.
He even said to members of the press that he is open to the idea of Mahathir joining his cabinet. That is how cocksure he is of becoming the PM.
But, since when is the Prime Minister’s post the right of an individual? Even if a Prime Minister can determine his successor, only the Yang di-Pertuan Agong has the constitutional right to choose a Prime Minister.
Article 43(2)(a) of the Federal Constitution gives that right to the Yang di-Pertuan Agong to choose a Prime Minister from amongst the members of the Lower House whom he thinks has the confidence and support of the majority of the members.
Back during BN days it became a convention that the Yang di-Pertuan Agong chose the one named by the incumbent, but that was then. That was a time when BN commanded the majority in Parliament.
Unlike the BN, this is a government of motley crew. Helmed by a Prime Minister from a party with the least number of seats, support from within can go either way.
And to get a sure majority support, the Opposition has to be roped in; something unthinkable during the BN days. However, given a choice between the devil and the deep blue sea, I doubt that it is in the best interest of the Opposition to back someone seen to have the support of the DAP.
To put Anwar Ibrahim in that post in ways other than those prescribed in the Federal Constitution would be a revolution, and there is nothing democratic about revolutions.
It is the sole right of the Yang di-Pertuan Agong to choose a Prime Minister to lead his government. There is no other form of right agreed by all parties when this nation came into being. Dreamers can therefore continue to dream.
When the bill was passed on 18 August 1954 to pave way for the first Federal Elections, the Alliance set up a 30-man council to organise their election campaign.
A key feature in the campaign manifesto was to safeguard especially the promises to safeguard the rights and interests of the Malay and Chinese communities.
One of the key points agreed was the need for a common language as a national language. There was little doubt that the Malay language was to be upgraded as the national language. At the same time the manifesto guaranteed protection, growth and development for the language of other communities.
Lord Reid, who was tasked with drafting the Federal Constitution, presented that ‘Malay should be the national language and English should be retained as an official language for 10 years’ (Report of the Federation of Malaya Constitutional Commission 1957, para 170, London: HMSO CO No.330).
The final version of this part of the Federal Constitution can be found in Article 152, in Part XII.
When the Director-General of the Ministry of Education recently made an excuse on behalf of a school found to have its students singing the National Anthem ‘Negaraku’ in Mandarin, I attribute that to either his ignorance of the Federal Constitution and the special position of the Malay language, and also of the National Anthem Act, 1968.
To give a lame excuse that the anthem was sung NOT in a formal event was a bad move on his side. To give an even lamer excuse that the anthem was sung in Mandarin in order to help non-Malay students to understand the National Anthem made it even worse. Whoever advised the DG to say such things should offer his or her resignation right away. If there was no one advising, perhaps the DG himself should offer to resign.
There are only two versions of the Negaraku according to the National Anthem Act, 1968. In the attendance of the Yang di-Pertuan Agong, the full version is played. The shorter version is played in attendance of the Raja Permaisuri Agong or other Rulers AFTER the respective state’s song has been played.
You can find the score of the anthem in a schedule made under Section 2 of the said Act, and also the lyrics. The lyrics is in neither Mandarin nor Arabic. It is in Malay, the national language. There are no other versions of the Negaraku.
Therefore, be it an official or unofficial event, the Negaraku has to be sung in Malay, and not in any other language. There is no unofficial version of the Negaraku in the Act.
To help non-Malay students understand and embrace the meaning of the lyrics of the anthem, you can print its meaning in whatever language that you want, but the anthem shall be sung in Malay.
Some detractors used the excuse that the Negaraku was adapted from a French tune called ‘La Rosalie’ which was said to have been composed by Pierre-Jean de Béranger. But there is no evidence to support this as de Béranger was a lyricist whonwas known to have used the tunes of others for his songs. Perak was the first to use the tune for its state anthem ‘Allah Lanjutkan Usia Sultan’ in the 19th century.
But whatever song a national anthem was adapted from, you sing it as it should be sung, according to its lyrics. ‘God Save the Queen’ came from a popular Scottish tune, ‘Remember O Thou Man’ and was used in the national anthem of Iceland, Liechtenstein and Switzerland. The ‘Star Spangled Banner’ was adopted from a popular English song, ‘To Anacreon in Heaven’.
But we never hear the Hindi version of ‘God Save the Queen’ in schools in England, nor have we ever heard of a Mexican version in schools in the US. A national anthem is a national symbol, like the national flag. It is to be sung with respect and honoured as a rallying point – a symbol of unity.
To suggest otherwise or to make excuses to defend stupidity is just blasphemous.
At the recent gathering of former members and supporters of the Communist Party of Malaya (CPM), the ADUN of Sungai Pelek Ronnie Liu Tian Khiew admitted that his father was a communist and that the latter strived to free Malaya from its British colonialists.
At the same gathering, a former terrorist, Tan Yi Yu, said that the purpose of the gathering among others is to correct the perception of the public towards the CPM. He said that the CPM’s struggle was a war against the colonialists and imperialism; a struggle for the independence of Malaya, democracy, freedom and peace.
First of all, CPM was never interested in the independence of Malaya, and definitely not interested in democracy. Save for Melaka and Pulau Pinang, Malaya was not under colonial rule and nor was it a British dominion. Malaya was made of nine independent sovereign states – all nations ruled by its own Ruler. The British administrators in these states were all under the payroll of the respective state’s Ruler and owed their allegiance to the Ruler. They came through agreements made between Britain and the Malay Rulers to help introduce a more efficient method of governance for the Rulers, and provide protection to the Malay states against aggressions.
And saying that the communist terrorists fought for democracy is like saying Satan did everything in his power to save Jesus from crucifixion. That is how absurd it sounds.
Chin Peng never harboured any loyalty to Malaya. Instead, he said that, influenced by communist doctrine, he wanted to join Mao’s forces to fight a guerrilla war in China. “The same sentiments still applied…I was intending to die for my motherland, a land I had never even visited” wrote Chin Peng in 2003. It means that 14 years after the signing of the Hatyai peace agreement, Chin Peng still regarded China as his motherland (Alias Chin Peng – My Side of History, p.133, 2003). Therefore, how could Chin Peng and his merry men and women have been interested in democracy, freedom and peace of Malaya/Malaysia?
On 31 August 1957, Malaya became a sovereign nation, recognised by the United Nations. She was in her ninth year of struggle against communist insurgency. She was administered by a government of His Majesty the Yang di-Pertuan Agong that was chosen by her people. That in itself shows the illegitimacy of the communist insurgency.
By 1960, 1,200 battle-weary communist terrorists made their way into Southern Thailand. The 8th Regiment in Kedah, the 5th and 12th Regiments from Perak, and the 10th Regiment in Pahang withdrew to areas in Betong and Golok, in the provinces of Yala and Narathiwat respectively.
In 1961, the CPM Central Committee carried out a review of its past policies and chartered a course for the resumption of armed struggle, and spread its doctrine amongst the Thai Chinese which later dominated the 8th and 12th Regiments. They set up Marxist-Leninist Training Schools to indoctrinate the youth, and by 1963, more than 2,000 indoctrinated youths had returned to Malaya and Singapore.
In Singapore, they infiltrated the Nanyang University Students Union (NUSU). 10 days after the formation of the Federation of Malaysia, the police entered the university to arrest communist leaders. It was also during this time that communist cadres from Johor, Selangor and Perak crossed to Indonesia to be trained and armed by the Partai Komunis Indonesia (PKI).
Armed struggle was not the only way that the CPM had tried in order to achieve victory. Participation in the democratic process, using political parties as a front to infiltrate into parliament was another method. In a communist document dated 20 March 1965 retrieved from an Executive Committee Member of the Partai Rakyat branch in Perak, states that: “The main thing is the peoples’ actual struggle, but parliamentary struggle is not to be abandoned because it may be used to our advantage.”
The almost exact words appeared in another document published by the Malayan Peoples Socialist Front (MPSF), the forerunner of the Parti Rakyat Malaysia (PRM), in Perak entitled “The Party’s Future Line of Struggle and Its Strategies” dated 4 April 1965 it states: “Strategically, we should adopt more violent forms of struggle and at the same time make full use of the parliamentary form of struggle.”
In June 1968, the CPM issued a policy statement that states: “In the final analysis, the practice of armed struggle during the past twenty years has confirmed that Mao Tse-tung’s Thought, Marxism-Leninism of the present era, is the guide to the Malayan revolution, and that the integration of the universal truth of Mao Tse-tung’s Thought with the concrete practice of the Malayan revolution is the only guarantee for achieving victory in the armed struggle of the Malayan people.”
The above statement was released to coincide with the twentieth anniversary of the CPM’s armed rebellion launched in June 1948 (the First Emergency). on 17 June 1968, communist terrorists ambushed a police convoy near Kroh, Perak, killing 17 policemen. The bodies were mutilated and private parts severed and stuffed into their mouth. That signalled the commencement of the Second Emergency in a 11-year old self-governing nation that the CPM claimed to be British lackeys! Is that a display of its struggle for democracy, freedom and peace, Ronnie Liu?
Communist agents also infiltrated the Labour Party of Malaya (LPM) and the Parti Rakyat Malaya (PRM) making them components of a Communist United Front in the peninsular. They also infiltrated trade unions such as the Selangor Building Workers Trade Union, the United Malayan Estate Workers Union, the Electrical Industry Workers Union of Malaya and the Pineapple Industry Workers Union – all of which had to be de-registered to curb the red menace. They also infiltrated Chinese secondary schools to form the underground student movement as replacements for lost cadres.
They also exploited Islam and used misinterpretations of Islamic tenets as propaganda tools to exploit the Malays. We sometimes see this today in social media platforms posted by influencers and politicians saying that Islam has never been given a chance to develop under the government, and that communism safeguards Islam. Replace government and communism with acronyms of political parties and you will see what I mean.
Nanyang University in Singapore was not the only university that was infiltrated by communist agents. They also infiltrated the University of Malaya Chinese Language Society (UMCLS). It started in mid-1970 with a group of students calling themselves the Young Socialists planning to position themselves for the upcoming election, and in June 1971 succeeded in gaining control of the UMCLS Executive Committee as planned. The UMCLS quickly formed ancilliary bodies to spread the communist doctrine. Bodies such as the Dramatic Study Sub-Committee and the Cultural Exchange Preparatory Committee were designed to launch propaganda offensive.
The CPM link to the UMCLS was confirmed on 14 October 1973 when security forces shot dead a communist terrorist near Tanah Hitam, Chemor in Perak and found a work report by a lsenior student underground movement leader to his superiors on the activities conducted by the UMCLS.
UMCLS manipulation of the University of Malaya Students Union (UMSU) led to the illegal students riot on 21 September 1974. The UMCLS also issued pamphlets claiming that the fall in rubber prices and rising cost of living had resulted in deaths due to starvation of villagers in the Baling area of Kedah. This was supported by a transmission by the Suara Revolusi Malaya radio station in Beijing condemning the Malaysian government for causing the deaths of the people of Baling.
On 9 December 1974, police raided a house in SEA Park, Petaling Jaya that was occupied by members of the UMCLS and seized printing blocks, imitation rifles, boots, propaganda music cassettes and banners.
And in the name of freedom and peace, the first civilian murdered in the Second Emergency occured when communist terrorists dragged a woman from her house in Sintok, Kedah and shot her in front of the villagers. She was a former communist who had surrendered to the authorities. She was a Chinese.
I can go on and on about the murders of two most senior ranking police officers, the bombs that kept going off in Kuala Lumpur, the murders of policemen on duty in the streets of Kuala Lumpur, the bombing of the National Monument and many others that occured until 2 December 1989. But all I want to prove here is that the CPM was never interested in democracy, freedom and peace, and those murdered in Malaysia were Malaysians and none of them were British colonialists or Imperialists.
All the justification that Ronnie Liu and Tan Yi Yu had put forth in trying to portray the CPM as heroes of the nation are just hogwash, pure rubbish and deserve the display of both my middle fingers. If it weren’t for the selfless sacrifices of the men and women of the security forces – Indian, Chinese, Malay, Iban, Orang Asli and others, these ruthless murderers would have made it into Putrajaya, or Jalan Dato Onn in those days.
Stop trying to hoodwink the public. There is no way that Satan can ever be good.
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.
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.
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?
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.
I do not think that we have seen the end of the volleys fired at each other between the Tunku Mahkota of Johor (TMJ) and the Government. Although I disagree with the TMJ whenever he writes about anti-federalism, I agree with his stand to protect the Federal Constitution. He may not have the protection from the law as he is not the Head of State, but his courage and determination to go at loggerheads with the Government on this matter deserves support.
According to Barisan Nasional Member of Parliament Annuar Musa, the recent Rulers Council meeting saw the Attorney-General Tommy Thomas and Foreign Minister Saifuddin Abdullah summoned by His Majesties to explain on the clandestine ratification of the Rome Statute.
His Majesties also summoned Emeritus Professor Shad Saleem Faruqi, a Professor of Law in the University of Law, who is a proponent of the Rome Statute. Also summoned were four academicians opposed to the statute: Law and Constitution lecturers Professor Datuk Dr Rahmat Mohamad, Associate Professor Dr Shamrahayu Ab Aziz, Dr Fareed Mohd Hassan and Hisham Hanapi.
Only after listening to all above did the Rulers Council leave it to the Yang DiPertuan Agong, who represents the Rulers Council, to take the matter with the Prime Minister. The Rulers Council could have there and then issued a statement to show their displeasure at the manner their Government had acted in matters that could have an impact on the rights and position of Islam as the religion of the Federation, the Malay Rulers, the privileges of the the Malays and Bumiputeras, and the National Language.
This is not the first time that Saifuddin has gotten himself in hot soup. When he was a Minister in Najib Razak’s administration, he came up with a National Unity Bill when that was not the term given to him as Chairman of the National Unity Consultative Council. As a result, Najib Razak and the Attorney-General then were summoned to the same meeting four years ago and received a telling or two.
Mahathir was very obviously furious as seen in the video of a press conference made after announcing Malaysia’s pulling out of the Rome Statute, and unnecessarily alarmed the people with words like coup-d’etat to justify the Government’s about turn.
What he, and his supporters seem to have forgotten is that he is the Prime Minister of His Majesty’s government. It was the agreement signed between their Majesties with the ruling coalition in 1957 to transfer the administrative powers vested in the British advisors by their Majesties from the former, to the government that was elected by the people.
This was true then, true when the British were still here, and still true now that although the Rulers had divested much of their independence, they remain sovereign; and independence is not equal to sovereignty.
As a principle of international law, sovereignty denotes, in its purest form, the concept of a ‘supreme authority’ be it an individual or a collective unit and implied power to exercise independence both internationally and domestically.
And Professor Datuk Dr Ramlah Adam rightfully pointed out that the powers of the Malay royalty are now included in the Federal Constitution. They (the Rulers Council) should have been consulted first, as accorded by the Constitution, before the government took unilateral decisions to introduce and ratify ICERD and the Rome Statute.
Other than having the rights to be consulted, to encourage and to warn in daily administrative matters, the Malay Rulers also have the duty to protect the sanctity of Islam as the religion of the Federation and the states they reign over, the special privileges of the Malays and Bumiputeras, the special position of the Malay language as the National language.
These are the rights enshrined in the Federal Constitution, and any attempt to introduce anything that has any effect on the above, will need the agreement of the Rulers Council. Any deviation from that is against the Federal Constitution and the spirit in which it was made and agreed to by our forefathers with all the parties involved.
And I saw an online comment by a non-Malay netizen asking what have the Malay Rulers done that have benefitted the people? After the post-World War 2 racial clashes that saw the birth of the First Emergency, the British based on a priori saw the need to resettle the Chinese in camps while between 20,000 and 50,000 be sent back to China.
The plan moved at a snail’s pace due to the objections by many, and with the total withdrawal of the Kuomintang to Formosa, the repatriation of the Chinese came to a halt in September 1949 when the Communist Party of China closed off all ports and beaches. Only 6,000 Chinese from Malaya were sent back (Anthony Short, 1975 pp 178-201). The rest were settled in new villages to curb them from supplying the Communist Party of Malaya with food and other essentials.
Most of them had never had any form of allegiance to Malaya, its Rulers and government. Therefore, in granting citizenship to them they were required to give allegiance to the Rulers and the Federation.
That is the price you have to pay to become the citizens of this nation.
The same goes to all the Members of Parliament and members of the government cabinet: you have all taken an oath of allegiance to the Yang DiPertuan Agong, who represents the other eight Malay Rulers. State executive councillors and elected representatives have also taken the oath of allegiance to their respective Ruler. You are all administering the governments of the Federation and its states on behalf of the Malay Rulers, therefore it is totally unbecoming for you to act as though they are equals.
As in the words of Tengku Amer Nasser Ibrahim, the adopted son of the 16th Yang DiPertuan Agong, posted to his Instagram story:
“Tadbir” must be accompanied by “Adab”, only then will the outcome be just.
So, stop toying around with the Malay Rulers, the sanctity of Islam, the privileges of the Malays and Bumiputeras, and the special position of the Malay language as the National language.
AHMAD Zahid Hamidi, who was until three days ago adamant on staying on to helm Umno, has finally stepped aside to allow his deputy, Datuk Seri Mohamad Hasan, to lead the grand old party.
Ahmad Zahid was not seen to take charge after taking over the president’s seat from his predecessor, Datuk Seri Najib Razak.
His win in the party elections that secured his position is said to be due to three factors: that he is the continuation of Najib Razak‘s leadership (to which we have not seen any resemblance); that he had a strong social media team to bombard members with campaign materials at the eleventh hour before the votes were cast; and, allegations of vote-buying which had recently surfaced.
The sad bit is that Umno grassroots have been left without direction. Unlike Pakatan in previous elections, Umno per se did not organiseceramahs to win back the hearts and minds of voters after the loss. Instead, Zahid’s leadership hung on to a saying by Sun Tzu that the greatest strength is found in silence.
This silence further drove grassroot members and supporters in the Malay hinterland alike towards the arms of Pakatan Harapan (PPBM in particular) and Pas because they are the only Malay parties that are actually doing and saying something.
It is understandable with the comical nature of most of the government’s Cabinet members, staying silent watching the Pakatan-led government crumble due to its own doings is probably the best thing to do.
Umno and Barisan Nasional component party members do not have to do anything much except wait for the moment to give voters the “I told you so” comment.
But global economic conditions will change, and cabinet members will wise up. You can already see this in the likes of Health Minister Dr Dzulkefly Ahmad and Defence Minister Mohamad Sabu.
Both are seen to be going on the ground to learn the ropes of their trade. Dr Dzul is streamlining the health policies to continue to make medical treatment affordable for both the people and the government, while Mohamad has formed the Armed Forces Veterans Council, a very much awaited move that has eluded the veterans who would like their voice on how they should be treated, heard.
Other than that, the Prime Minister has his Council of Eminent Persons (CEP) to act as a buffer as well as a damage-control council any time a Minister blurts out not-thoroughly-thought-of remarks.
Umno was left with 54 seats after the previous general election – the single party with the largest number of parliamentary seats. Fear of being taken legal action against, as well as the seemingly lack of direction from Zahid, saw Umno MPs jump to the other side.
For seven long months Umno under Zahid neglected the Malay strongholds – the kampungs and especially Felda.
Some 59 percent of Felda voters voted for the BN (UMNO), 24 percent for PAS, and 17 for PH (mainly PPBM). In the kampungs, BN (UMNO) retained 47 percent, 19 percent for PAS while PH garnered 34 percent.
Khor Yu Leng broke this down further in her article (The Edge Malaysia, 17 December 2018) to the states of Johor, Pahang and Negeri Sembilan where the Felda districts are mostly located.
She found that in the Johor Felda districts, 70 percent of voters chose Umno while in the kampungs, both Umno and PH had 45 percent each. Pas trailed with only five percent.
Pas had support in the Pahang FELDA districts and kampungs where it received 35 and 25 percent of the votes respectively, while PH only received 10 and 25 percent. BN received 55 and 50 percent respectively.
However, both BN and Pas saw a huge decline in support from the Felda youth segments in both Negeri Sembiland and Johor.
With commodity prices declining rapidly and cost of living increasing rapidly, I fail to see the logic of staying silent waiting for the moon to fall into Umno’s lap.
I seriously do not understand why Umno hasn’t gone into the Malay hinterlands to take advantage of this.
I have always opined, again it is my opinion, that someone difficult to target such as Tengku Razaleigh should have been the Opposition Leader, while Mohamad Hasan look after the administration and management of Umno.
Ku Li is the president Umno almost had, while Mohamad Hasan’s approach is seen to be welcomed by the voters. Even Ahmad Maslan is consistent in his role as an opposition MP.
It is extremely important for Umno to see what the voters want, not just what it wants. Without the voters’ approval, there is no way for Umno to make any form of come back.
This talk of bringing Najib Razak back as the Opposition Leader should be stopped. His brand is a damaged brand and it is unlikely that the voters other than those in Pekan would like to see him back so soon at the helm of the country.
An Umno member might disagree, but if you ask any urban voter disenfranchised by Pakatan’s flip-flop policies, Najib is out of the question – at least for now.
Umno also needs to stop fielding heritage candidates like Ku Nan, Nazri Aziz to name a few. Start looking at the younger generation. We have a great deal of young voters who need fresh political air to breathe in. If Umno refuses to evolve, it will die.
Talking about young voters, something caught my eye that could be a breath of fresh air — that tea-chat session between Rafizi Ramli, Nurul Izzah and Khairy Jamaluddin. They could be the precursor to a third force.
In spite of their political leanings, the three are idealists, as are other younger politicians like MCA’s Chong Sin Woon, DAP’s Ong Kian Ming and PKR’s Wong Chen.
Imagine if they are to form their own party, both BN and PH would have a tough time holding on to their current seats in the next general election.
This is why Umno needs a total overhaul, do away with the little Napoleons and get idealistic younger candidates fielded.
But before then, send these potential candidates out to the Malay hinterlands and let them engage the voters there.
But that has to be done now. If Umno chooses to remain silent and wait for the heavens to fall into its lap, be forewarned that the heavens may float up, but they contain masses that may sink Umno into a great abyss from where it will never float to the surface again.