Brown Will Never Be White

Alec Douglas-Home, Boris Johnson and Muhyiddin Yassin

The UK’s centre-left newspaper The Guardian has made a scathing attack on the Yang di-Pertuan Agong’s decision to appoint Muhyiddin Yassin as Malaysia’s 8th Prime Minister.

The attack was made in an editorial and reeks of rancid prejudice by accusing His Majesty of executing a ‘royal coup’ that had helped topple the PH government.

The editorial however failed to explain that it is the constitutional prerogative of the Yang di-Pertuan Agong to choose a member of the Dewan Rakyat who in his judgment, commands the confidence of the House, as Prime Minister. And in his judgment at that point of time, it was Muhyiddin who had the most support – the most goal scored before the final whistle was blown.

It was impossible to keep the circus going without dragging the whole nation down both economically as well as security. Tensions were high at that point and public order had to be protected. As sovereign, it is the duty of the Yang di-Pertuan Agong to also end the circus to maintain peace and order for the public good. This was the judgment in para 226 Dato’ Dr Zambry v Dato’ Seri Nizar [2009] 5 CLJ 265.

The editorial should also know that Queen Elizabeth II had had two Prime Ministers whose appointments were controversial and did not have the support of the majority of the House of Commons.

The Queen appointed Sir Alec Douglas-Home to succeed Harold Macmillan ,who was ill and resigned in 1963, denying the popular Rab Butler’s chance of becoming the PM. The Queen was accused of colluding with Macmillan to have Douglas-Home appointed without the process of a leadership election.

Buckingham Palace made it clear then that the choice for a new PM should come from the Tories alone, a very highly unusual advice, maintaining a process called ‘You Choose, We Send For’. There was no consultation whatsoever with Labour or other political parties.

As a matter of fact Boris Johnson’s government is still without majority support in Parliament!

Therefore, why is it so wrong for the Yang di-Pertuan Agong to go by the Federal Constitution, interviewed every single MP, consulted the other Rulers, before making the decision to appoint Muhyiddin? He went by the book to make sure he correctly appoints his Prime Minister who will be heading His Majesty’s government!

Is it because we can never be right if we go by the book because we are not white?

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.

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)

The King and Queen of Hearts

Al-Sultan Abdullah and Tunku Azizah

The Pahang Way

When Jasliza Jamil met with an unfortunate accident on her way to work in Putrajaya last month, the last person she would expect to stop and lend a helping hand was Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah, the Yang DiPertuan Agong himself. The King was on his way to attend a pre-Cabinet meeting with Prime Minister Tun Dr Mahathir Mohamad.

That was not the first time that His Majesty had acted in such manner. Even during his tenure as the Tengku Mahkota of Pahang he had stopped at accident scenes countless times, offering his assistance not just there and then, but to the extent of following up with the victims asking how they were recovering and at times even paying for the treatment received!

The above is the Pahang way – where putting the importance of the people first is the order of the day.

Many do not realise the other story behind that chance meeting with Jasliza Jamil.

His Majesty was on his way to Putrajaya for his pre-Cabinet meeting with the Prime Minister. This scheduled weekly meeting is where the Prime Minister briefs the King on the administration of the country and seeks the King’s advice on very important matters. The Prime Minister, after all, administers the country and heads His Majesty’s government.

But these meetings have always been held, by convention, at the Istana Negara. However, nothing is conventional when it comes to the House of Pahang. Recognising the urgency of matters, the King saw fit to go to the Prime Minister instead to expedite the process of running the government.

This is again a norm in Pahang where His Majesty, then as the Prince Regent, would meet the Menteri Besar instead of the other way around to get matters out of the way.

Just before the accident in Putrajaya happened, the social media circle was abuzz with excitement when the King was shown queuing up and ordering at a Kentucky Fried Chicken outlet in Temerloh.

To many, it was a scene that is totally out of the ordinary. But to the people of Pahang, it was perfectly normal to see Al-Sultan Abdullah and family eat at either KFC or McDonald’s just like any other family.

Behind the bubbly character of the beautiful Raja Permaisuri Agong is the loving and dutiful wife, mother and Queen.

Not many know that Her Majesty cooks for the King daily, give away one or two days. Her Majesty was trained in cooking by her late father, Almarhum Al- Mutawakkil Alallah Sultan Iskandar Al-Haj who once told her, “Azizah, if you don’t know how to cook, how can you tell the cook that their cooking is not right?”

Almarhum Sultan Iskandar also urged Her Majesty to learn how to cook the various Pahang recipes before she got married to Al-Sultan Abdullah. Last year, Her Majesty launched two recipe books showcasing Pahang food and desserts.

Her Majesty is often seen during floods cooking for flood victims. I was fortunate enough to witness how she cooked for thousands of flood victims in Pahang every single day at different locations for up to two weeks and more, every single meal time.

Upon arrival at any of the flood evacuation centres Her Majesty would announce to the aid workers in the makeshift cookhouse, “Assalamualaikum Pakcik-Pakcik, Makcik-Makcik, Abang-Abang, Kakak-Kakak, boleh berhenti buat kerja. Biar saya yang masak!”

She would get down to work immediately to feed the hundreds at the centre, then get her children to serve the flood victims. None of those in Her Majesty’s entourage were allowed to eat any of the food cooked.

“Ini rakyat punya,” she would say. She would ask her children to go around the dining area to make sure that everyone had eaten before saying goodbye to everyone and head for the next centre.

When Almarhum Sultan Haji Ahmad Shah Al-Musta’in Billah passed away, it was Her Majesty who took charge of the funeral arrangements as the King was away in England to attend the graduation of their daughter.

Everyone could see the dutiful and loyal wife and daughter-in-law tirelessly pacing the floors of both the Istana Negara and Istana Abu Bakar ensuring that everything was in order, and at the same time guests were taken care of. And many cried seeing both their Majesties hug and console each other upon the arrival of His Majesty the Yang DiPertuan Agong at Istana Abu Bakar.

The loving wife, finally in the arms of her pillar of strength; the loving husband seeking comfort and solace from his pillar of strength.

Getting the Insights

The events above were captured by the Istana Negara public relations team that is embedded inside the King’s entourage.

Although most royal households now have a form or two of social media accounts, they are mostly dry and too formal in their presentation.

The Istana Negara social media accounts give an insight into the daily functions of both the Yang DiPertuan Agong and the Raja Permaisuri Agong. Although formal in nature, it is more relaxed in its approach that brings the rakyat into the events themselves.

The Facebook page ‘Friends of Istana Negara’ supports the official Istana Negara social media accounts by relaying the events while ‘House of Pahang’ which is found on Facebook, Instagram, Twitter and YouTube gives an insight into the lighter side of the Pahang royal household.

One of the events covered in the latter that had Netizens awestruck was during the barbecue dinner hosted by the King and Queen during the recent Conference of Rulers where all the Rulers, queued and took their own food! For the first time people were able to see the other side of the members of the royal families and those who expected to see their Majesties being served at the table received a huge surprise.

Transparency seems to be the order of the day. Both the Yang DiPertuan Agong and the Raja Permaisuri Agong are very open even when talking about personal matters.

We are accustomed to editorials written about the Sultans and previous Yang DiPertuan Agongs in the newspapers. This time, we get to read and hear it from their Majesties themselves.

His Majesty spoke to members of the press about his wishes for the people, and how the press then and now have helped shape his character, while Her Majesty spoke about her feelings at being appointed the nation’s First Lady and shared childhood jokes with the press.

In an age where socioeconomic gains are seen as a result of political works, the Rulers Institution is gradually losing its relevance. Intended misinformation and watering-down of the important roles the Rulers Institution play in ensuring a check-and-balance in Malaysia’s own mould of democracy and as protector of the people have contributed to the youth asking the relevance of the Rulers Institution in this new millennium.

The misbehaviour of those not directly in lines of succession have undoubtedly smeared the image of the royal households and have brought about much disrespect just because the name of those in question still bear the title Tengku or Raja. Of course, they are human, but they also carry the responsibility of preserving the name and image of the institution they belong to.

This is perhaps the reason both their Majesties have embraced social media and see the importance of ‘letting the people see the insides of the Istana’ as only transparency, without any erosion to the dignity of the Institution, is the way for the rakyat to see that the institution of the Yang DiPertuan Agong is the people’s institution, and not merely a rubber stamp for the government that is supposed to work for His Majesty. This is the mould the people have been waiting for.

And Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah ibni Almarhum Sultan Haji Ahmad Shah Al-Musta’in Billah is the benchmark for all future yang DiPertuan Agong to follow. DAULAT TUANKU.

(This article was first published on The Mole )

Why Penalise The Four Academicians For Voicing Their Opinion?

Istana Negara

Almost a year ago, voters voted for change and hailed the dawn of a new era.  They kicked out the Barisan Nasional administration for a coalition that promised them better life quality, better pay, freedom of speech among others.

A month later, the Minister of Education announced that public universities could organise debates and forums “like in other renowned universities around the world” (Menteri: IPTA kini boleh anjur debat, forum – Malaysiakini, 6 June 2018).

This prompted an academician, Dr Khoo Ying Hooi, to pen his feelings saying that the newfound freedom of speech is needed to create a new narrative that academicians do not only teach in universities but have a bigger responsibility, that is to contribute to society (Suara hati ahli akademik yang kini bebas selepas berdekad dirantai – The Malaysian Insight, 9 June 2018).

Just six days to a year of taking over the administration, the same Minister of Education wants the four academicians who presented their views to the Rulers Council to resign from their post (Maszlee: Academics must take responsibility for executive summary on Rome Statute).

He was alluding to the fact that they should not continue to hold their post due to alleged lack of integrity.

The four are Professor Datuk Dr Rahmat Mohamad, Associate Professor Dr Shamrahayu Ab Aziz, Dr Fareed Mohd Hassan and Hisham Hanapi.  The four were summoned by the Yang DiPertuan Agong to present their views of the Rome Statute to the Rulers Council.  The four were opposed to the Statute and cited their reasons.

The Rulers Council also summoned Professor Shad Saleem Faruqi and Attorney-General Tommy Thomas to present their views and reasons for their support of the Statute.

If the government is truly serious about respecting freedom of speech and expression, then it should also respect dissenting views.  Furthermore, the four academicians, like Professor Shad Saleem Faruqi and the A-G, were summoned by the Rulers.  They did not just appear in front of the Rulers at their own time, whims and fancies. It was an order.

It just happens so that the views of the four managed to convince the Rulers Council that the Rome Statute is not good for the nation while Shad Saleem Faruqi and the A-G failed to convince their Majesties otherwise.

Therefore, in the name of integrity, shouldn’t Shad Saleem Faruqi and the A-G resign too?

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)

UMNO Needs To Revisit Its Past

It has been more than a month since UMNO’s disastrous show in its history of general elections. Although as an individual party UMNO has the most number of parliamentary seats won, it effectively controls two states – a far cry from the grand old party it once was.

As a party, it has failed to show its support for its leadership (I shall go into this a bit more later) it failed to garner the support of the young and first time voters; it failed to retain the support of those who have been its staunch supporters. Most importantly, UMNO failed to remember the reason for very existence.

I sense nothing but trepidation in the first few weeks after the general elections when one by one government institutions come under “reforms”, and then the attacks on the Rulers Institution, namely the institution of the Yang DiPertuan Agong. Hardly any word came out from UMNO’s leadership save for those that came from the normal members.

The strong hands that led to the resignation of two of our nation’s top judges also did not result in strong rebukes from UMNO despite it being a direct interference by one instrument of His Majesty’s government into another.

Of course I am of the opinion that the two top judges are also idiots for caving in and resigning as demanded. It was their job to show the independence of the judiciary and to protect the integrity of their institution, yet they failed miserably to show the example of stewardship to their subordinates as those in charge of that institution.

UMNO is a far cry of what it was back in the late 1970s, let alone what it was in 1946. Losing its power to govern also means that UMNO no longer enjoys the facilities that come with being a government. There have been members who left the party for the other side just because funds are no longer readily available as it was prior to May 9.

Branches find it difficult to hold their annual general meetings because the community halls are no longer available to them. Furthermore, they do not receive sufficient funds to hold their meetings at hotel meeting rooms. They have never had it this difficult and have no institutional memory of how it was before 1981 and Malaysia Incorporated. Members simply do not have the same fighting spirit possessed by their forefathers. What has happened to the ‘unity is strength spirit?

Furthermore, branches were set up without actually soliciting the support of the local residents. You can find that many of the branches are filled with people who are not from where the branch is actually located. How can these people understand the local issues? Branch leadership pays the annual membership fees for fear of being deregistered. How many UMNO members actually go to their respective branch to pay their annual dues?
Which is why at every UMNO General Assembly the Secretary-General would read out the number of UMNO members to-date, not realising that those are false numbers. It would have been almost impossible for UMNO to only get 2.55 million votes, including from non-UMNO members when there are 4 million members!

When the President was attacked from outside and within the party three years ago, hardly anyone stood up to defend him save for a few like Rahman Dahlan, Salleh Said and Ahmad Maslan. There was no ‘defending of the institution of the President’. It was every man for himself. I am of the opinion that members are to defend the leadership of the party when attacked, and change the leadership from within if needed.

How many division actually hold sessions with all members to explain about party policies, how to handle current critical issues after each general assembly? How many members who represented the division members actually attend the general assembly to listen to the speeches and proposals put forth by each state, instead of wanting to get as close as possible to personalities trying to push proposals or hand business cards to them?

There was very little done by UMNO divisions and branches to win the hearts and minds of the community they were supposed to represent. I only see programmes done for their own members.

On the federal level, you see more of UMNO members and members of the BN component parties attending ministerial events than from members of the local community. I chanced upon an event attended by a former federal minister who was lending support to a BN parliamentary candidate in one of my rounds to gauge the election temperature. Of the hundreds who attended, perhaps only a handful – less than 100 were from the local community. The rest were those who were following the former Minister, members of the RELA, police, local council and government officers from an agency the former Minister presided. You cannot gauge how much do the locals actually like the candidate because they were swamped by these extras.

UMNO is also famous for having one-off self-gratification programmes – blood donation, voters registration, skateboarding, free car wash. Unlike with the DAP, there were no follow-ups, no explanation done on why voters should be voting for BN, what a BN victory would mean for the voters.

UMNO’s information machinery at the branch and division levels was also absent. I have never seen any UMNO ‘ceramah’ at any kampung except during by-elections and general elections. Now that UMNO is the opposition, where is this machinery? It has been one month but everyone seems to be busy eyeing for party positions. Pakatan was already at it the moment the results of the previous general elections came out, and they never stopped.

UMNO needs a total overhaul and improvement in terms of mind-set, approach and its constitution. It needs to look at how PAS conducts itself as an opposition party, and its consistency.
In its party elections delegates would have to forget nostalgia. Some have not moved on from the ‘Najib Days’. Wake up. Najib is gone. He has stepped down. He may have been the best Prime Minister and party president but his branding failed. There is no point reviving that.

Instead, UMNO needs to look forward and have an approach that is outside the box. Vote for different people to do different things. The party president should not also be the person who is the Prime Minister-designate. The Prime Minister-designate should also not be the parliamentary Leader of the Opposition. UMNO would be better run if these three people are different people altogether. And top party offices cannot be held for more than two terms.

UMNO also needs to open up to members of other races – not necessarily as members, but members of an appendage: Friends of UMNO, who cannot vote in party meetings, but can run on UMNO ticket during elections. After all, UMNO used to have non-Malay members. PAS has been successful with this approach. There are so many BN-friendly non-Malays out there who do not want to be associated with the other BN component parties (there are only four BN parties left) but support the BN concept.

Talking about membership, UMNO should also allow for direct memberships, approved only at the headquarters level. This would allow for young professionals to join the party without being blocked by branch or division heads. And do away with the quota system if it is still there. As long as a member gets one nomination from a branch (or division for a national-level post), he or she should be eligible to run for any post in the division.

If UMNO is serious about making a comeback, it needs to forget the form it morphed into after 1981. It needs to evolve, incorporating the non-Malays for support, have its leadership subscribe to more accountability. Most importantly it needs to embrace the spirit of 1946 and have members who would not mind sacrificing for the party without ever expecting anything back. It needs to have hundreds of its own Rafizis without the negative aspects, and an information machinery that is aggressively going out there to win the hearts and minds of the masses. UMNO has to become a constructive opposition, with real professionals running and representing the party.

Until then, it can just dream on and wait for another 61 years.

(This article was first published by The Mole)