KUALA LUMPUR, Nov 7 — Concern for its Malay Rulers who may lose their legal immunity in the international court is the main reason why the government is hesitant to ink the Rome Statute, de facto law minister Nancy Shukri disclosed today as Putrajaya comes under pressure to ratify the treaty.
Although the government recognises the Rome Statute of the International Criminal Court (ICC), Nancy said it fears doing so may cause the world court to interfere with the domestic legal system.
“There are also other overriding concerns for Malaysia... That is the Article 27 of the Rome Statute which stipulates jurisdiction over all person without any distinction based on official capacity,” Nancy told a public forum discussing international treaties organised by the Malaysian Bar at its headquarters here.
“This provision allows of ability of the Rome Statute to any person holding official position... This provision has to be restudied carefully as it relates to the immunity of Yang di-Pertuan Agong, the Malay Rulers.”
Malaysia is among the 41 countries out of 193 United Nations (UN) members which have yet to sign nor accede to the Rome Statute, which allows the ICC to act on four core international crimes, namely genocide, war crimes, crimes against humanity, and crimes of aggression.
Article 27 of the statute says that it applies equally to everyone without any distinction for a Head of State or Government, a member of a Government or parliament, an elected representative or a government official.
It also says that any immunities held by such person shall not bar the ICC from exercising its jurisdiction over him.
“We must always keep in mind that the Yand di-Pertuan Agong and the rulers are symbols of our state sovereignty,” Nancy added.
“This form of rare and remaining institution such as ours should be safeguarded as this also reflects our loyalty to the king.”
However, Putrajaya’s reluctance was questioned by an ICC lawyer today, who claimed that the court has no jurisdiction over heads of state if their offences are already being dealt with domestically.
“First of all, the ICC does not intervene where there are domestic laws. And the immunity under our current law is only provided for rulers of state, no longer for his family or anyone else,” said ICC counsel Datuk Sivananthan Nithyanantham, who also spoke at today’s forum.
In 1993, Malaysia had passed several amendments to the Federal Constitution to remove the immunity of its monarchy, leading to the addition of Part XV in the document titled “Proceeding against the Yang di-Pertuan Agong and the rulers”.
As a result, a Special Court, which consists of the Chief Justice, judges from the High Courts, and two other appointed persons, was formed to deal with offences committed by the Malay Rulers.
“And we have the Special Court. We have the court that deals with offences committed by the ruler,” Sivananthan explained.
“This in ICC terms means that they’re dealing with them. Once it is dealt domestically, the ICC has no jurisdiction. So, really, this is a non-issue,” he added.
Malaysia is a constitutional monarchy in which country’s King, called the Yang Di-Pertuan Agong, is elected from among nine Malay state Rulers for a five-year term.
The 1993 constitutional amendments was made as a result of two separate assault incidents allegedly involving members of the Johor royal family that angered the nation.
In one, which has come to be known as “The Gomez incident”, reportedly involved a hockey coach, Douglas Gomez, purportedly summoned to the Johor palace where he was subsequently berated and beaten by the state sultan.
