Rome Statute won’t affect Agong’s position, minister assures

PUTRAJAYA: Foreign Minister Saifuddin Abdullah says the Cabinet agreed to sign the Rome Statute of the International Criminal Court (ICC) after being satisfied that the Yang di-Pertuan Agong’s position and immunity would not be affected.

He said the concern of some that the Agong would be exposed to criminal prosecution in the ICC was a misconception and made without basic understanding of the law or constitution.

“His Majesty the King will not be affected personally after Malaysia becomes a party to the ICC,” he said in a statement.

Saifuddin said he had met with Yang di-Pertuan Agong Sultan Abdullah Sultan Ahmad Shah at the Istana Negara on Tuesday to update the king on the developments following Malaysia’s decision to accede to the Rome Statute on March 4.

Saifuddin said the Agong had then instructed him to explain the matter to the public.

The minister said the Rome Statute is an international agreement that created the ICC which serves to complement existing laws in a state party to prosecute individuals who commit international crimes as contained in Article 5 of the statute. These are genocide, crimes against humanity, war crimes and crimes of aggression.

As of March 4, a total of 124 countries had become state parties to the Rome Statute, he said.

“Malaysia’s participation in the statute reflects the country’s seriousness and enhances its image on the international front in combating serious international crimes and bringing those who commit international crimes as set out in Article 5 of the statute to the court,” he said.

Malaysia’s participation is also in line with the New Malaysia policy which upholds the principles of truth, human rights, rule of law, justice, good governance, integrity and accountability, he said.

According to Saifuddin, as a state party, among others, Malaysia may refer to the ICC prosecutor under Article 13 (A) of the statute of international crimes committed by any party if necessary.

It also has a voice in the annual conference of the parties and is eligible to nominate its citizens as ICC judges, prosecutors and registrars as well as other office bearers in the ICC prosecutor’s and registrar’s office, he said.

Saifuddin added that Article 41 provides that the Yang di-Pertuan Agong is the supreme commander of the federal armed forces but does not give absolute power to the king to declare war.

He said the matter should be read in conjunction with Article 40, which states that the Agong will carry out his duties on the advice of the prime minister or Cabinet.

“Hence, the king cannot be held responsible for the four core international crimes covered by the statute.

“The legal responsibility for any declaration of war and its execution rests with the prime minister and members of the Cabinet.”

Saifuddin said he had informed the Agong that the constitution does not need to be amended to accede to the statute and will only require substantive legal and procedural amendments.

On the perception that Malaysia’s participation in the ICC requires the approval of the Rulers’ Council, Saifuddin said according to the Federal Constitution, the consent of the Council of Rulers is needed to amend the constitution which involves nine matters in accordance with Article 159 (5) and Article 38 (4).

Malaysia’s participation in the Rome Statute is not included in the nine, he said.

“However, the Cabinet will still inform the Agong of the decision in respect of the principles of constitutional monarchy.”

Referring to Clause (1) of Article 80 of the Federal Constitution as read in Article 39 with Clause (1) and (2) of Article 74 of the Federal Constitution, Saifuddin said matters concerning the signing and implementation of international instruments involving foreign affairs are still under the executive powers of the federal government. - FMT