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Like many Malaysians, I am utterly dismayed, even disgusted, with the way Malaysia’s accession to the Rome Statute, the treaty which established the International Criminal Court (ICC), has been deliberately and maliciously distorted to embarrass the administration of Prime Minister Dr Mahathir.

As well, it is shocking to hear the prime minister – a man who has committed his whole life to serving our nation –  being called a traitor, among other things. It’s okay to disagree with him but to call him a traitor is to cross the line of civility and common decency.

Emotion, not reason

Opponents of the treaty have highlighted concerns that the Rome Statute would impinge upon the immunities and powers of the Agong and thus undermine the constitutional position of the rulers. In view of this, they argue that the consent of the rulers should have been obtained before the government acceded to the treaty.

Such concerns are, however, without merit. As Professor Shad Saleem Faruqi, a highly respected legal scholar and constitutional expert noted, fears about the Agong’s position “are absolutely unfounded and bereft of logic, and appear to be based on advice that is motivated by politics, not law, emotion, not reason. The advice misleads Their Majesties and paints Their Royal Highnesses in a bad light.”

The ICC was established to bring to justice those directly involved in genocide, mass murder and crimes against humanity. The Agong  is a constitutional monarch who, like Queen Elizabeth, reigns but not rules; he cannot, therefore, be held legally responsible for whatever crimes the government or its agents may commit. To  suggest that the Agong might even be implicated someday in high crimes and needs to be shielded from the Rome Statute is itself insulting.

Taking a stand against genocide

What acceding to the Rome Statute does is declare to the world that Malaysia stands firmly against genocide and crimes against humanity, and is willing to work with other like-minded nations to bring to justice those who perpetrate it.

This is consistent with our long and proud tradition, dating from the early years of independence, of opposing genocide, war crimes and injustice in the world. We stood against South Africa’s apartheid regime. We spoke out against  genocide and war crimes in Bosnia. In the same spirit, we now champion the cause of the Rohingya facing genocide at the hands of Myanmar’s generals. And, more recently we have come out strongly against the slaughter of civilians in Yemen.

The Rome Statute, far from diminishing our sovereignty or undermining our constitution, gives us the moral authority to speak out against genocide and war crimes. It strengthens us rather than diminishes us. The real surprise is not that we signed it but that it took us so long to do so.

Weaponizing the Rome Statute 

But none of this obviously matters to those intent on demonizing the Rome Statute for their own purposes. Instead of heeding the advice of the Attorney-General, the Foreign Minister and respected legal experts like Professor Shad, the jaundiced and biased views of relatively obscure academics were given prominence. As former foreign minister Tengku Ahmad Rithauddeen put it, mischief has triumphed over truth.

At the end of the day, it was not confusion, ignorance or misunderstanding that derailed our accession to the treaty but an orchestrated campaign of misinformation and disinformation. The Rome Statute was deliberately weaponized by powerful groups as part of a dangerous scheme to challenge and destabilize the government.

Clearly, powerful people – people who are now being called to account for their theft of public funds and abuse of power, people who profited from the culture of corruption, cronyism and institutional decay that prevailed under the previous regime, people who exploited Najib’s vulnerability to get their own way –  feel threatened by the new government and its reform agenda and are determined to undermine it in any way they can.

They have gone out of their way to stoke racial and religious tension to destabilize the government and are now attempting to turn the Malay rulers against it.

Constitutional democracy at stake

It is not coincidental that we are suddenly seeing demands that more and more issues be referred to the Agong or the rulers for their consent when the constitution itself does not mandate it. For decades UMNO did as it pleased, often ignoring the views of the Agong and the rulers (remember the  2015 National Security Council bill?) with impunity; now UMNO and others want to use the rulers to stymie the government’s agenda.

What is at stake here is not just an international treaty but the very future of our constitutional democracy. If vested interests are allowed to undermine the duly elected government of the day and strip it of its constitutional prerogatives, we may well end up with a puppet regime under the control of unaccountable and unelected elites interested only in advancing their own power at the expense of the rakyat.

The sanctity of the federal constitution is indeed being challenged but not by Dr Mahathir. It is those who now seek to exercise power unconstitutionally who are undermining it. It is not Dr Mahathir who is betraying the trust of the people but those who are seeking to turn the rulers against the elected government.

Mistake to back down

Given what is at stake, the Prime Minister should never have backed down on the Rome Statute. He should have taken his critics to task. He should have taken his case to the people. The facts were on his side. Right was on his side. Backing down under  such circumstances only feeds and empowers the ambitions of unprincipled and unscrupulous men. Perhaps if he had stood firm on ICERD, he might not have had to deal with the looming constitutional crisis he now faces.

Tengku Rithauddeen, G25, Patriots, Aliran and student activists are now calling upon the government to reconsider its decision to withdraw from the Rome Statute; our national honour demands it. Besides, it will send a clear signal to all and sundry that it is the democratically elected government of the day that speaks and acts for the people.

[Dennis Ignatius |Kuala Lumpur |10th April 2019]

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