LETTER | Several points raised on the Rome Statute are rather disconcerting.
by several academicians to the Conference of Rulers dated April 2, which has been circulating in the media lately.
However, this only proves that the king plays an advisory role in governance. This does not in any way detract from the clear provision in Art 40 that he must always act in accordance to the advice of the prime minister – and consequently, that the prime minister is entirely responsible for such decisions made.
With respect, this mischaracterises Art 38, which reads: “No law directly affecting the privileges, position, honours or dignities of the rulers shall be passed without the consent of the Conference of Rulers.” The phrase “shall be passed” clearly means only laws passed in Parliament – and cannot possibly be read to include ratification of international treaties.
Hence, even domestically, the Yang di-Pertuan Agong and rulers do not have absolute immunity to begin with and can be held accountable for crimes. This was a crucial point which was never highlighted in the alleged presentation. Arguably, Malaysia cannot invoke the two exceptions to Art 46. Any violation cannot be considered “manifest”, nor can the internal law be of “fundamental importance” because it is clear that under the constitution no such consent by the Yang di-Pertuan Agong or Conference of Rulers – as with many other constitutional monarchies which have ratified the ICC – was required for ratification of foreign treaties.
Eighth, it was impressed that there have been attempts to prosecute royalties in the past. The example given was King Wilhelm II of Germany who was named in the Leipzig War Crimes Trials but had fled to the Netherlands, as well as Emperor Hirohito of Japan who was allegedly under the jurisdiction of the International Military Tribunal for the Far East after World War 2, but was spared by the US.
This goes to highlight the fact that, as Shad Saleem Faruqi puts it, “ratification or no ratification, in the present state of international law, perpetrators may have no place to hide.”
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