April 30, 2019.
Recollections & Reflections – A commentary by Aziz Hassan
YOU can even go as far as to describe the situation as murky, this issue about the Rome Statute of the ICC and Malaysia’s decision to withdraw its ratification just a month after acceding to it.
Those disagreeable to this U-turn by the government have since found various reasons and people to aim their criticisms at and it can be said that some have been rather unfair and have got it wrong.
The fact that the previous government under the Barisan Nasional had made a move to ratify it but eventually didn’t also became a point of criticism, with Attorney-General Tommy Thomas describing it as hypocrisy although no one in a leadership position with the then BN has publicly attacked the Pakatan Harapan government for withdrawing an earlier ratification and insisted that the statute should be ratified. Where the hypocrisy is only Thomas knows.
Former prime minister Datuk Seri Najib Razak did confirm though that the ratification didn’t proceed because the official legal advice was against it, a point confirmed by remarks from former diplomat Datuk Noor Farida Mohd. Ariffin who referred to the objection by former AG Tan Sri Gani Patail in 2011. If the AG advised against it surely the government could not be faulted for listening to him.
Much of the blame for the present situation has been heaped almost entirely onto four law academics who advised the Malay rulers on the demerits of ratification, with a few labelling them as stupid and saying that they had lied to the rulers.
The four did not respond to an invitation to attend a panel discussion on this issue held at the University of Malaya recently and judging from what had happened to an Umno bloke who raised a point against an activist there, the academics made the right choice. Word was that after their presentation to the rulers, they were advised to keep mum.
Rulers listened to a basket of opinions
The fact is that the rulers first listened to opinions from Thomas, law professor Datuk Shad Saleem Faruqi and Foreign Minister Datuk Saifuddin Abdullah and then an executive summary from the academics. Let’s not forget that among the rulers or their representatives listening to all the opinions were two with doctoral qualifications.
Nothing was heard officially from the rulers but under normal circumstances, any official position by them on any matter will be made known to the country through a statement from the Keeper of the Rulers’ Seal. In this instance we didn’t hear any but what we knew next was a statement from Prime Minister Tun Dr. Mahathir Mohamad revealing the government’s decision to withdraw the ratification, during which he also took a swipe at a member of the royalty while also saying that he had been portrayed negatively.
Someone familiar with what had happened has suggested that the government may have made the announcement without first reading an official statement from the rulers.
The lesson to be always remembered from this episode is what can happen when people are dealing with legislation or a statute.
Any law is all about interpretations
Different opinions on a law First and foremost never forget that the law is all about interpretations, which is why we often hear at least two contradictory opinions on any law. The prosecution sees it one away and the defence another. Similar a situation involving a plaintiff and a defendant and it is for this reason that the system provides for an arbitrator, in most jurisdictions called a judge.
It is he or she who is on the bench that makes the conclusive decision after listening to both sides that cannot agree.
For the Rome Statute ratification, we hear how the foreign ministry then was for it but found a wall in the form of AG Gani. In the current context, there’s the foreign minister, AG and a law professor on the side that agrees and four law academics with a dissenting opinion. Regardless of the position adopted by the rulers after having listened to both, the ultimate responsibility and accountability regarding the ratification or otherwise rests solely with the government. That should be the way since it is an elected government, while the rulers form the constitutional monarchy.
As put forward by an earlier commentary after Mahathir had announced the government decision earlier in the month, it was difficult to agree with his suggestions that it was all due to some bad-mouthing by a prince and also an effort to tarnish the PM’s name and reputation.
This point must be repeated for emphasis: A Mahathir government is one that is never known to kowtow to pressure from anyone, certainly not when he himself has spoken repeatedly about the power of an elected government and the rule of law. He has at the same time brushed off the slightest suggestion that the monarchy is an institution that can meddle with governmental affairs. It should not and must not be allowed to.
Therefore it must also be said that those who have been aiming their guns at anyone and everyone else over the flip-flop of a decision regarding the Rome Statute need to sit back and re-evaluate the situation so as to be clear who should in fact be blamed for the fiasco.
It’s the present government and it stops there.