INTERNATIONAL LAW IN MALAYSIA: A CASE OF IGNORANCE OR AMNESIA?

Shaun

To begin, let us agree that Malaysia is a Sovereign State and has a fully functional Legislature, Executive and Judiciary. But would this imply that the Government of a Sovereign State such as Malaysia owns the authority to do anything it desires to its citizens? More accurately, is the sovereignty that the Government possess limitless? While it is tempting for the ruling party and its supporters to answer this in the affirmative, this remains a distant fact from the truth.

The sovereignty of a State has its limits. I am not referring to economic limits where a State no longer has sufficient funds and therefore cannot carry out certain acts such as to continue petrol subsidies. Instead, I am referring to the State being limited in its sovereignty by International Law.

For starters, Malaysia is a member state of the United Nations and therefore a recognised member of the international community. As part of the global community, Malaysia is bound by the rules of the game that applies equally to all States. In this instance, the rule of the game is International Law.

Generally, International Law limits Malaysia’s Sovereignty in two ways.

First, Malaysia is bound by the Treaties/Conventions/International Agreements that it has agreed with other States and Organisations. International Law compels Malaysia to perform its obligations in good faith. To date, Malaysia has agreed to hundreds if not thousands of such Treaties/Conventions/International Agreements encompassing areas such as trade, transnational crimes, transportation and even human rights.

Second, Malaysia is equally bound by practices within certain Treaties/Conventions/International Agreements even though it has not agreed to that particular Treaty/Convention/International Agreement. This concept is known as Customary International Law. Some may see this concept as illogical and question on the equity of a State being bound for something it has not agreed to. However, the fact is, Malaysia had agreed to the rules of the game when it elected to be an independent country and a member of the United Nations in 1957. Customary International Law forms part of these rules of the game.

For a practice to be recognised as Customary International Law, the practice must result from a general and consistent practice of States that States follow from a sense of legal obligation. Examples of this include the fact that Malaysia cannot practice acts which amount to torture even though it has not acceded to the United Nations Convention Against Torture. Similarly, Malaysia cannot forcibly return Refugees to their country of origin even though Malaysia has not acceded to the Refugee Convention. Note that these are only two out of numerous other Customs which must be considered by the Government when formulating both domestic and foreign policies.

It is therefore imperative to those who often reason that the Government has absolute sovereignty and can do whatever it pleases to reconsider their stand and be fully appraised of the fact that the Government’s actions are subjected to Treaties/Conventions/International Agreements that they have agreed to and also to a certain degree those that the Government has not. The time is ripe for the Rakyat to assess the Government through the lense of International Law and not just within our own domestic norms and laws. This is especially so since Malaysia has gained increasing international prestige through its successful election to the United Nations Security Council as a non-permanent member and recently assumed chairmanship of ASEAN.