MAHATHIR’S GAMBLE WITH ARREST AND TRIAL

REGICIDES ITS ORIGINS AND ITS CONSEQUENCES 400 YEARS LATER ON SOVEREIGNS & LEADERS

The proceedings against Charles I in 1649 secured the constitutional gains of the civil war – the supremacy of parliament, the independence of judges, individual freedom guaranteed by Magna Carta and the common law. But other than Cromwell (who later became King in all but name) the regicides are not to be found on statues or stamps, and their fate is seldom mourned: in 1660, after a rigged trial at the Old Bailey, their heads were stuck on poles and their body parts fed to the stray dogs of Aldgate. British liberty is usually dated from the “glorious revolution” of 1689, although the House of Commons in 1649 declared it: “The first year of freedom, by God’s blessing restored”.

The King’s trial was, from a modern perspective, the first war crimes trial of a head of state. The arguments in Westminster Hall resonate today in the courtrooms at the Hague and even in the Iraqi Special Tribunal – Saddam Hussein’s opening words to his judge were, in translation, those of Charles I (“By what power am I called hither… I would know by what authority, lawful I mean…”). In the centuries before the rulings against Pinochet and Milosevic, this was a compelling argument. Charles had the purest form of sovereign immunity: he was a sovereign, both by hereditary and (as many believed) by divine right. Judges had always said that the King, as the source of the law, could do no wrong: Rex is Lex is how they had put it, in the ship-money case.

IMPUNITY AND ITS MODERN DAY ORIGINS

As for international law, the ink was hardly dry on its modern foundation, the Treaty of Westphalia (October 1648), which guaranteed immunity to every prince, however Machiavellian. The best thing about the Treaty of Westphalia, however, was that England was not a party to it. On January 6th, the purged House of Commons, without waiting for the equivocating House of Lords, passed an “Act” to establish a High Court of Justice, “to the end that no chief officer or magistrate may hereafter presume traitorously or maliciously to imagine or continue the enslaving or destroying of the English nation, and expect impunity for so doing…

This was the origin of “impunity” in the sense that Kofi Annan and Amnesty International now use the word, to refer to the freedom that tyrants should never have to live happily ever after their tyranny. Parliament’s brief to end impunity was sent to a barrister at Gray’s Inn, John Cooke, who prosecuted Charles Stuart as “the occasioner, author and continuer” of the civil wars, “a tyrant, traitor, murderer and a public and implacable enemy to the commonwealth of England”. “Tyranny” was an apt description of what today would include crimes against humanity and war crimes: Cooke used it to describe the conduct of leaders who destroy law and liberty or who bear command responsibility for the killing of their own people or the plunder of innocent civilians or the torture of prisoners of war.

WHY IT IS NOT IMPOSSIBLE TO TRY MAHATHIR FOR HIS CRIMES NOW

What was truly astonishing about the trial of Charles I was that it took place at all. In January 1649, a third civil war seemed imminent: the King’s navy under Prince Rupert and the Prince of Wales would link with the waxing royalist army under Ormond, whose Irish “confederacy” had just signed a treaty with the perfidious Dutch. “Prides Purge” had been the army’s way of declaring a state of national emergency, and in this atmosphere Charles could, with perfect legality, have been court-martialled as the enemy commander and immediately executed by firing squad. The summary justice of the provost martial had been a feature of “turbulent times” in England since Edward I, and it was visited upon captured leaders on the principle that “a man who is dead renews no war”.

RECENT EXAMPLES OF THE NO IMMUNITY PRINCIPLE

Geoffrey Robertson QC the author of the above may well be called upon to commence an application for a warrant of arrest  of Dr. Mahathir Mohammad and his successor in office Najib Razak, if Mahathir proceeds with his unilateral purges extra constitutionally.

By doing what he threatens to do to Najib he is in fact opening the gates of hell to his own demise in a more impartial tribunal than one he plans to set up with compliant and intimidated judges in Malaysia to secure results and outcomes he desires.

With or without Robertson’s availability the principle under which dictators and sovereign bullies are tried and punished under international law is now recognized universally. The principal and its application was tested on the late Augosto Pinochette arrested in Britain whilst still head of state in Chile. Later it became Slobodan Milosevic and later still Taylor and Johnson of Liberia.

THE END OF SOVEREIGN IMMUNITY FOR ACTS IN OFFICE IS MAHATHIR’S ONLY DEFENCE-HE ATTAKCS AND TRIES NAJIB HE PUTS  NOOSE AROUND HIS OWN NECK.

Mahathir’s offence were committed by incompetent officers of the law from the Memali incident to the hanging of innocents under his draconian imperfect drug laws. Just because judges, lawyers and prosecutors were incompetent during his reign that led to those deaths, it does not absolve him as head of state from the commission of those offences against humanity.

Mahathir’s many offenses under international laws and Human Rights laws will include his lengthy incarceration of Anwar Ibrahim and people with lower profiles who he incarcerated but who like Anwar he now says is innocent.

Those operatives of his administration who exercised their powers under his watch and the man himself cannot be said to be immune from prosecution before an international tribunal. They were his crimes. They were his executioners, his prosecutors and his judges crimes. None of them are immune from prosecution.

We must learn from Cooke’s prosecution of no less than the King himself that the conduct of leaders who destroy law and liberty or who bear command responsibility for the killings, the deprivations, the mental and physical torture and intimidation of their own people; or the plunder of innocent civilians or the torture of prisoners of war will not go unpunished.

To Mahathir and his backers and their threats, there are many who say “Bring it on”.

 

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