INCORPORATING THE ROME STATUTE INTO NATIONAL LAW: LESSONS FOR MALAYSIA

Abdul Ghafur Hamid@ Khin Maung Sein

doi:10.31436/iiumlj.v31i2.895

Authors

Abdul Ghafur Hamid@ Khin Maung Sein Professor of Law and Coordinator of International Law and Maritime Affairs (ILMA) Research Unit, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia

DOI:

https://doi.org/10.31436/iiumlj.v31i2.895

Keywords:

Rome Statute, Implementing Legislation, Dualist Theory, Single Comprehensive Enactment Modality, Consequential Amendments to National Laws.

Abstract

Although the former Malaysian government, due to political pressure, decided not to proceed with accession to the Rome Statute, this is not the end of the game. To join the Rome Statute had been in principle accepted by preceding governments and has been the ardent hope of the civil society. How to incorporate the Rome Statute into the Malaysian legal system has been deliberated among the Malaysian government (including the Attorney General’s Chambers and the Ministry of Foreign Affairs), Malaysian Parliamentarians, and civil society since a long time ago. As adopting the Rome Statute is in the best interest of humanity as a whole, the idea will definitely revive at any time in the future when the political climate is favourable. The objectives of the present paper, therefore, are to rebut the main objections against the Rome Statute and to identify the best way of incorporating the Rome Statute into the Malaysian law once Malaysia decides to accede to it. This is a doctrinal legal research supplemented by a comparative methodology, focusing on an analysis of key provisions of the Rome Statute and the Malaysian laws that could be affected, and a comparison between the practices of selected dualist and monist countries. The paper finds that Malaysia, as a dualist State, should opt for applying the single comprehensive enactment modality rather than the multiple one. It is in the best interest of Malaysia for clarity and effectiveness purposes. It concludes with recommendations for the proposed draft implementing legislation, together with suggestions for consequential amendments.

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