Modifications and Amendments made to the Sedition Act from its Inception in 1948

Date	Sections Amended	Original Provision	Amended Provision
13.11.1958	Section 2 – Definition of “Government” substituted	“Government” means any of the Governments of the United Kingdom, of the Federation, of any State or Settlement in the Federation, or of any Dominion, Colony, Protectorate State or territory in the possession of or under the protection of or held under any mandate or trusteeship by His Britannic Majesty or the Government of any of His Britannic Majesty’s Dominion	“Government” means the Government of the Federation and of any State in the Federation
	Section 2 – Definition of “Ruler” substituted	“Ruler” means His Britannic Majesty or any Ruler of any Malay or other State under the protection of His Britannic Majesty	“Ruler” means the Yang di-Pertuan Agong or the Ruler or Governor of any State in the Federation
	Section 3(1)(c) – words “Malay” and “Settlement” deleted	To bring into hatred or contempt or to excite disaffection against the administration of justice in the Federation or in any Malay State or Settlement; or	To bring into hatred or contempt or to excite disaffection against the administration of justice in the Federation or in any State; or
	Section 3 (1)(d) – words “His Majesty” and words “Malay” and “Settlement” deleted	To raise discontent or disaffection amongst the subjects of His Majesty or of the Ruler of any Malay State or amongst the inhabitants of the Federation or of any Malay State or Settlement; or	To raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any Malay State or amongst the inhabitants of the Federation or of any State; or
	Section 6(1) – words “Enactment of the Federated Malay States or any corresponding provision of law in force in any Malay State or Settlement” substituted	Notwithstanding anything to the contrary contained in the Evidence Enactment of the Federated Malay States or any corresponding provision of law in force in any Malay State or Settlement, no person shall be convicted of an offence under section 4 of this Ordinance on the uncorroborated testimony of one witness	Notwithstanding anything to the contrary contained in the Evidence Ordinance, 1950, no person shall be convicted of an offence under section 4 of this Ordinance on the uncorroborated testimony of one witness
	Marginal note to Section 6(1) substituted	Evidence F.M.S. Cap. 10	No. 11 of 1950
14.04.1970	Title	Federation Of Malaya, No. 14 of 1948	Laws of Malaysia, Act 15, Sedition Act, 1948
	Preamble – substituted the word “Ordinance” with the word “Act”	An Ordinance to provide for the punishment of sedition	An Act to provide for the punishment of sedition
	Section 1 – substituted the word “Ordinance’ with the word “Act”	This Ordinance may be cited as the Sedition Ordinance, 1948	This Act may be cited as the Sedition Act, 1948
	Section 3(1)(b) – substituted the words “by such Government” with the words “by the Government”	To excite the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure in the territory of such Ruler or governed by such Government, the alteration, otherwise than by lawful means, of any matter as by law established; or	To excite the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure in the territory of such Ruler or governed by the Government, the alteration, otherwise than by lawful means, of any matter as by law established; or
	Section 3(1)(c) – substituted the words “the Federation” with the word “Malaysia”	To bring hatred or contempt or to excite disaffection against the administration of justice in the Federation or in any State; or	To bring hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State; or
	Section 3(1)(d) - substituted the words “the Federation” with the word “Malaysia”	To raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any Malay State or amongst the inhabitants of the Federation or of any State; or	To raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any Malay State or amongst the inhabitants of Malaysia or of any State; or
	Section 3(1)(e) - substituted the words “the Federation” with the word “Malaysia”	To promote feelings of ill-will and hostility between different races or classes of the population of the Federation	To promote feelings of ill-will and hostility between different races or classes of the population of Malaysia
	Section 3(2) – Made grammatical changes	Notwithstanding anything in sub-section (1) of this section contained an act, speech, words, publication or other thing shall not be deemed to be seditious by reason  only that it has tendency -	Notwithstanding anything in sub-section (1) an act, speech, words, publication or other things shall not be deemed to be seditious by reason only that it has a tendency -
	Section 3(2)(c) - substituted the words “by such Government” with the words “by the Government”	To persuade the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure by lawful means the alteration of any matter in the territory of such Ruler or governed by such Government as by law established; or	To persuade the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure by lawful means the alteration of any matter in the territory of such Ruler or governed by the Government as by law established; or
	Section 3(2)(d) - substituted the words “the Federation” with the word “Malaysia”	To point out, with a view to their removal, any matters producing or having a tendency to produce feelings of ill-will and enmity between different races or classes of the population of the Federation	To point out, with a view to their removal, any matters producing or having a tendency to produce feelings of ill-will and enmity between different races or classes of the population of Malaysia
	Section 3(3) – substituted the word “Ordinance” with the word “Act”	For the purpose of proving the commission of any offence against this Ordinance the intention of the person charged at the time he did or attempted to do or made any preparation to do or conspired with any person to do any act or uttered any seditious words or printed, published, sold, offered for sale, distributed, reproduced or imported any publication or did any other thing shall be deemed to be irrelevant if in fact such act had, or would, if done, have had, or such words, publication or thing had, a seditious tendency	For the purpose of proving the commission of any offence against this Act the intention of the person charged at the time he did or attempted to do or made any preparation to do or conspired with any person to do any act or uttered any seditious words or printed, published, sold, offered for sale, distributed, reproduced or imported any publication or did any other thing shall be deemed to be irrelevant if in fact such act had, or would, if done, have had, or such words, publication or thing had, a seditious tendency
	Section 5(1) – Deleted the words “of this Ordinance”	No prosecution for an offence under section 4 of this Ordinance shall be begun except within six months after the offence is committed	No prosecution for an offence under section 4 shall be begun except within six months after the offence is committed
	Section 5(2) - Deleted the words “of this Ordinance” and substituted the words “the Federation” with the word “Malaysia”	No person shall be prosecuted for an offence under section 4 of this Ordinance without the written consent of the Public Prosecutor. In such written consent the Public Prosecutor may designate any Court within the Federation to be the Court of trial.	No person shall be prosecuted for an offence under section 4 without the written consent of the Public Prosecutor. In such written consent the Public Prosecutor may designate any Court within the Malaysia to be the Court of trial.
	Section 6(1) – Deleted the figure “1950” and the words “of this Ordinance”	Notwithstanding anything to the contrary contained in the Evidence Ordinance, 1950, no person shall be convicted of an offence under section 4 of this Ordinance on the uncorroborated testimony of one witness	Notwithstanding anything to the contrary contained in the Evidence Ordinance, no person shall be convicted of an offence under section 4 on the uncorroborated testimony of one witness
	Section 6(2) – substituted words “paragraph (c) or paragraph (d) of sub-section (1) of section 4 of this Ordinance” with words and figures “section 4(1)(c)(d)”	No person shall be convicted of any offence referred to in paragraph (c) or paragraph (d) of sub-section (1) of section 4 of this Ordinance if such person proves that the publication in respect of which he is charged was printed, published, sold, offered for sale, distributed, reproduced or imported (as the case may be) without his authority, consent and knowledge, and without any want of due care or caution on his part, or that he did not now and had no reason to believe that the publication had a seditious tendency.	No person shall be convicted of any offence referred to in section 4(1)(c) or (d) if the person proves that the publication in respect of which he is charged was printed, published, sold, offered for sale, distributed, reproduced or imported (as the case may be) without his authority, consent and knowledge, and without any want of due care or caution on his part, or that he did not now and had no reason to believe that the publication had a seditious tendency.
	Section 7 – added the words “or, in Sabah and Sarawak, to an administrative officer or to the officer in charge of the nearest police station”	Any person to whom any seditious publication is sent without his knowledge or privity shall forth-with as soon as the nature of its contents has become known to him deliver such publication to the officer in charge of a police district, and any person who complies with the provisions of this section shall not be liable to be convicted for having in his possession such publication:	Any person to whom any seditious publication is sent without his knowledge or privity shall forth-with as soon as the nature of its contents has become known to him deliver such publication to the officer in charge of a police district or, in Sabah and Sarawak, to an administrative officer or to the officer in charge of the nearest police station, and any person who complies with the provisions of this section shall not be liable to be convicted for having in his possession such publication:
	Section 9(2) – made grammatical changes	Any person who contravenes an order made under this section shall be guilty of an offence, and shall be liable to imprisonment of either description for a term not exceeding three years or to a fine not exceeding five thousand dollars or to both such imprisonment and fine	Any person who contravenes an order made under this section shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding three years or to both.
	Section 9(3) – substituted the word “Ordinance” with the word “Act”	Nothing in this Ordinance shall affect the power of the Court to punish any person contravening an order under this section for contempt of Court: Provided that no person shall be punished twice for the same offence	Nothing in this Act shall affect the power of the Court to punish any person contravening an order under this section for contempt of Court: Provided that no person shall be punished twice for the same offence
	Section 10(4) – made grammatical changes	Every person on whom a copy of a prohibition order is served by any police officer shall forthwith deliver to that police officer every prohibited publication in his possession, power, or control, and, if he fails to do so, he shall be guilty of an offence and shall be liable to imprisonment of either description for a term not exceeding one year or to a fine not exceeding one thousand dollars or to both such imprisonment and fine.	Every person on whom a copy of a prohibition order is served by any police officer shall forthwith deliver to that police officer every prohibited publication in his possession, power, or control, and, if he fails to do so, he shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding one year or both
	Section 10(5) – made grammatical changes	Every person to whose knowledge it shall come that a prohibited publication is in his possession, power, or control shall forthwith deliver every such publication into the custody of the police, and, if he fails to do so, he shall be guilty of an offence and shall be liable to imprisonment of either description for a term not exceeding one year or to a fine not exceeding one thousand dollars or to both such imprisonment and fine	Every person to whose knowledge it shall come that a prohibited publication is in his possession, power, or control shall forthwith deliver every such publication into the custody of the police, and, if he fails to do so, he shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding one year or to both
	Section 10(8) – substituted words “Government of the Federation” with the words “Federal Government”	Every prohibited publication delivered or seized under this section with respect to which a petition is not filed within the time aforesaid or which is not ordered to be returned to the owner shall be deemed to be forfeited to the Government of the Federation	Every prohibited publication delivered or seized under this section with respect to which a petition is not filed within the time aforesaid or which is not ordered to be returned to the owner shall be deemed to be forfeited to the Federal Government
	Section 11 – substituted the word “Ordinance” with the word “Act”	Any police officer not below the rank of Inspector may arrest without warrant any person found committing or reasonably suspected of committing or of having committed or of attempting to commit or of procuring or abetting any person to commit any offence against this Ordinance, or reasonably suspected of the unlawful possession of any thing liable to forfeiture thereunder	Any police officer not below the rank of Inspector may arrest without warrant any person found committing or reasonably suspected of committing or of having committed or of attempting to commit or of procuring or abetting any person to commit any offence against this Act, or reasonably suspected of the unlawful possession of any thing liable to forfeiture thereunder
	Section 12 – repealed	The Ordinance and Enactments set out in the Schedule to this Ordinance are hereby repealed
	Schedule (Section 12) Repeal - repealed	List of Sedition Enactments and Ordinances in the Federated Malay States, Strait Settlements, Johore, Kedah, Perlis, Kelantan and Terengganu
10.08.1970	Section 3(1) – new paragraph (f) added	A “seditious tendency” is a tendency -	A “seditious tendency” is a tendency – (f) to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153, or 181 of the Federal Constitution
	Section 3(2)(b) – inserted new phrase after “constitution as by law”	To point out errors or defects in any Government or constitution as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or	To point out errors or defects in any Government or constitution as by law (except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in paragraph (f) of sub-section (1) otherwise than in relation to the implementation of any provision relating thereto) established or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or
	Section 3(2) – paragraphs (c) and (d) substituted with paragraph (c)	(c) to persuade the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure by lawful means the alteration of any matter in the territory of such Ruler or governed by such Government as by law established; or (d) to point out, with a view to their removal, any matters producing or having a tendency to produce feelings of ill-will and enmity between different races or classes of the population of the Federation;	(c) except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in paragraph (f) of sub-section (1)- (i) to persuade the subjects of any Rulers or the inhabitants of any  territory governed by any Government to attempt to procure by  lawful means the alteration of any matter in the territory of such  Government as by law established; or (ii) to point out, with a view to their removal, any matters producing  or having a tendency to produce feelings of illwill and enmity  between different races or classes of the population of the  Federation,
	Section 5 – Deleted sub-section (1) and renumbered sub-section (2) as sub-section (1)	(1) No prosecution for an offence under Section 4 of this Ordinance shall be begun except within six months after the offence is committed; (2) No person shall be prosecuted for an offence under section 4 of this Ordinance without the written consent of the Public Prosecutor. In such written consent the Public Prosecutor may designate any Court within the Federation to be the Court of trial	(1) No person shall be prosecuted for an offence under section 4 of this Ordinance without the written consent of the Public Prosecutor. In such written consent the Public Prosecutor may designate any Court within the Federation to be the Court of trial

Reply to Tan Sri Muhammad Shafee Abdullah's Statement on DSAI's Appeal

Social media is still abuzz with the Federal Court’s decision in dismissing Datuk Seri Anwar Ibrahim’s (“DSAI”) sodomy appeal. What caught my eye was Tan Sri Muhammad Shafee Abdullah’s (“Shafee”) statement yesterday. In particular, the following paragraph:

“Consider how this matter first arose. As Hansard (dated 22 October 1997, 18 December 1997) recalls, the very first time an MP stood up in parliament holding a statutory declaration that accused Anwar Ibrahim of sexual – homosexual – assault, Anwar Ibrahim was Deputy Prime Minister and his accuser was not a member of the government, but in fact an opposition MP from the DAP. And who was his original accuser? The late Karpal Singh MP, a brilliant lawyer. Any account of the criminal and then political downfall of Anwar Ibrahim should recall who threw the first stone.”

I must stress the usage of the word “accused” and “accuser”. The above statement, if true, would arguably debunk any assertion of a political conspiracy. It would also put into question the late Mr. Karpal Singh’s professionalism as he was part of DSAI’s defence team during the first trial. So let us see what was actually said in the Parliamentary debates.

This was what the late Mr. Karpal Singh said in Parliament on 22 October 1997 (pages 40-42):

“Tuduhan-tuduhan yang dibuat oleh kedua-dua ini adalah serius seperti apa yang saya nyatakan tadi bagi maruah seorang pemimpin dalam negara ini, bad warning, khasnya kerana Yang Amat Berhormat Timbalan Perdana Menteri adalah bakal Perdana Menteri bagi negara ini. Oleh itu tidak ada pilihan lain kecuali ada satu pilihan sahaja iaitu adalah untuk membersihkan namanya. Saya ada bertanya satu soalan baru-baru ini pada 6 Oktober, 1997, soalan No. 29, ringkasnya soalan itu adalah mengenai satu laporan yang ada dibuat oleh pegawai daripada Yang Amat Berhormat Timbalan Perdana Menteri ke atas tuduhan yang ada dibuat ke atasnya dan adakah apa-apa tindakan diambil oleh polis? Jawapan adalah ini: ''Adalah disahkan bahawa satu laporan polis telah dibuat dan siasatan dijalankan. Kertas siasatan telah dikemukakan kepada pihak Peguam Negara untuk tindakan selanjutnya. " Tidak boleh ada kelewatan dalam perkara ini. Saya merayu kepada Peguam Negara, jika tidak berasas tuduhan itu, untuk membersihkan nama Yang Amat Berhormat Timbalan Perdana Menteri kerana itu satu keperluan khasnya dalam keadaan sekarang.”

[…]

“Yang Amat Berhormat Timbalan Perdana Menteri adalah orang Pulau Pinang. Adalah kewajipan saya untuk mempertahankan maruah dia. Apa yang saya nyatakan tadi ialah dia adalah bakal Perdana Menteri. Saya merayu kepada Yang Amat Berhormat Timbalan Perdana Menteri untuk membuat demikian. Boleh buat satu civil case terhadap defamation atas kedua-dua ini. Kedua-dua ini boleh diberi satu peluang untuk mempertahankan diri sendiri di mahkamah. Ini dia tidak boleh mengetepikan legislative, tidak boleh.”

[…]

“Jika kedua-dua ini ada diperalatkan oleh pihak yang ketiga, lebih serius untuk mendapat tahu siapa pihak yang ketiga ini. Adakah orang ini orang politik, menteri barangkali, puak-puak dalam UMNO yang hendak menjatuhkan Yang Amat Berhormat Timbalan Perdana Menteri? Jika ada orang atas yang terlibat lebih serius untuk menangkap orang-orang ini, tak payah orang yang ada diperalatkan. Tuduhan ini dibuat dalam bulan Ogos, sekarang kita adalah dalam bulan Oktober. Sehingga hari ini Peguam Negara tidak mengumumkan apa tindakan yang akan diambil atas kedua-dua orang ini termasuk dua orang pegawai polis. Siapa pegawai polis ini, bolehkah saya dapat tahu?”

This was what the late Mr. Karpal Singh said in Parliament on 18 December 1997 (pages 49-51):

“Khasnya, Tuan Speaker, ini adalah satu perkara yang saya ada bangkitkan dalam Dewan yang mulia ini pada 22 Oktober tahun ini. Ini adalah mengenai dua surat yang ada ditulis, dua aduan yang dibuat kepada Yang Amat Berhormat Perdana Menteri. Satu adalah ini, Tuan Speaker,jika saya boleh baca, 'Pengakuan Bersumpah oleh seorang, Azizan bin Abu Bakar '. Pada 22 Oktober, saya tidak memberi butir-butir surat sumpah ini dan saya ada merayu kepada Timbalan Perdana Menteri untuk mengambil tindakan. Apa yang beliau ada menjawab ialah bahawa perkara ini ada dalam tangan Peguam Negara. Oleh itu, beliau tidak terjejas dengan apa yang ada dibuat oleh Peguam Negara dan menunggu keputusan Peguam Negara. Tuan Speaker, hari ini adalah hari yang akhir persidangan Dewan ini. Sampai sekarang tidak ada mendapat apa-apa daripada Peguam Negara mengenai perkara ini. Tohmahan yang ada dibuat ke atas Timbalan Perdana Menteri adalah serius, saya baca bukan semua bahagian, tetapi apa yang penting di sini…”

It is blatantly clear that the late Mr. Karpal Singh was concerned for the image of the country and for DSAI as the then Deputy Prime Minister and as an individual. All he wanted was an answer from the Attorney-General to clear up DSAI’s name. The late Mr. Karpal Singh was fighting for something he fought for all his life, justice. To say that he accused DSAI of homosexuality is outright slander. Shafee is a very senior member of the Malaysian Bar. I believe some explanation is needed for his statement.

The transcripts of the Parliamentary debates are available to the public at http://www.parlimen.gov.my/hansard-dewan-rakyat.html?uweb=dr&arkib=yes.

MH 17 Tragedy: An International Law Perspective

Introduction

July 17, 2014 was the day when the world was shocked with the news that a Malaysian airliner crashed in Eastern Ukraine on its way from Amsterdam to Kuala Lumpur.  At this point of time, it can be safely assumed that the plane was shot down. The United States officials assert that a SA-11 missile was fired by pro-Russian rebels from Eastern Ukraine.  Russia on the other hand, blamed the Ukrainian government. This article will show which States would have jurisdiction to punish the offenders and also which States can be held responsible in multiple international dispute resolution forums.

Criminal Jurisdiction in International Law

A State must base its criminal jurisdiction on one or more of the following principles before its courts can punish the offenders:

1.    Territorial Principle - The territorial principle is the most basic and common principle of jurisdiction.  This principle basically states that all offences committed within the territory of a State can be brought before its domestic courts, even if it involves foreign citizens.

2.    Active Nationality Principle - The active nationality principle, which is also a well-established principle, allows a State to exercise jurisdiction over crimes committed by its nationals abroad.

3.    Passive Personality Principle - The passive personality principle allows a State to claim jurisdiction to try a foreign citizen for offences committed abroad which have affected or will affect nationals of that State

4.    Protective Principle - The protective principle allows a State to exercise jurisdiction over persons whose acts are directed against the vital interest of the State even though committed abroad. Instances or categories of what may be considered ‘vital interests’ are not closed, but the principle is commonly invoked in regards to currency, immigration and economic offences.

5.    Universality Principle - The universality principle focuses purely on the nature of the offence irrespective of the place of commission of the crime, any link of active or passive nationality, or any other grounds of jurisdiction recognised under international law. Crimes which would invoke the universality principle would include piracy,  slavery,  and possibly, genocide,  torture,  crimes against humanity  and breaches of the laws of war, especially of the Hague Convention of 1907 and grave breaches of the Geneva Convention of 1949.

Conflict in Eastern Ukraine

On 7 April 2014, an armed group occupied the regional administration building in Donetsk and declared the establishment of the “Donetsk People’s Republic”. In mid-April, Ukraine began counter-insurgency operations resulting in sporadic clashes in Eastern Ukraine.  On 23 July 2014, the International Committee of the Red Cross released a statement where it declared the conflict in Eastern Ukraine to be a non-international armed conflict.

Both Ukraine and Russia are parties to the 1949 Geneva Conventions. Common Article 3 to the four 1949 Geneva Conventions prohibits all parties in a non-international armed conflict, including insurgent groups, from deliberately attacking civilians or non-combatants.

Nature of the Incident

Based on the available information at the time of this writing, there are no concrete assertions as to any motive on Ukraine, Russia or the insurgents for intentionally shooting down a civilian aircraft. Therefore it is unlikely that the incident can be classified as a crime against humanity or a war crime under the Rome Statute. This is because such crimes require the offenders to be aware that the intended targets were civilians.

Murder under domestic law would be the most appropriate crime to use for prosecution. Although the civilians in MH 17 might not have been the intended targets, the perpetrators intended to shoot down a plane and kill whoever was in it. Under the doctrine of transferred malice, the intention to murder combatants would be transferred to the actual victims, who were the civilians.

States with Domestic Criminal Jurisdiction

With reference to the jurisdictional principles as explained above, the following States would have criminal jurisdiction over the perpetrators:

1.    Ukraine - Ukraine can assert jurisdiction based on the territoriality and possibly the active nationality principle. It is too premature at this point to discuss on possible statehood of the “Donetsk People’s Republic”. Therefore in the eyes of international law, Donetsk is still the territory of Ukraine.

2.    Netherlands - Netherlands can assert jurisdiction based on the passive personality principle. Most of the victims on the aircraft were of Dutch nationality

3.    Russia - IF the perpetrators were found to be Russian nationals, then Russia could claim jurisdiction under the active nationality principles

4.    Other States - Basically the States in which the victims are nationals of would have jurisdiction under the passive personality principle

State Responsibility in International Dispute Resolution Forums

1.    International Criminal Court (“ICC”) - Although Ukraine and Russia are not members of the ICC, Ukraine could choose to refer the case to the ICC pursuant to Article 12(3) of the Rome Statute of the International Criminal Court (“Rome Statute”) as a non-party State. Article 12(3) allows a non-party State to make a declaration to the effect of accepting the ICC’s jurisdiction over crimes committed on its territory or by its nationals, even retroactively.  This means that the ICC would have jurisdiction over all relevant crimes committed in Ukraine regardless of the perpetrators nationality.  It would not come as a surprise if Ukraine makes an Article 12(3) declaration, as it had made such a declaration back in April 2014 to accept the ICC’s jurisdiction for events that occurred in Ukraine between 21 November 2013 and 22 February 2014.  The issue would be one of prosecution rather than jurisdiction. As stated above, it would be difficult to establish the mental element of the crime under the Rome Statue.

2.    International Court of Justice (“ICJ”) - The ICJ’s jurisdiction for contentious cases depends on the consent of the parties.  Both Ukraine and Russia have not made declarations to the effect of submitting to the compulsory jurisdiction of the Court. 

Ukraine could be liable for a breach of its treaty obligations under Article 10 of the Montreal Convention 1971 for failing to “take all practicable measures” to prevent such an incident. MH 17’s presence in Ukraine’s airspace was legal under Article 1 of the 1944 Transit Agreement, which both Ukraine and Malaysia are parties to.  Ukraine had the means to close the airspace, as the exercise of the privilege under Article 1 of the 1944 Transit Agreement is subject to Ukraine’s approval in “areas of active hostilities” under the same article. Additionally, Ukraine could have restricted aircrafts from using certain parts of its airspace for “reasons of military necessity or public safety” under Article 9 of the 1944 Chicago Convention.

There could be a way to circumvent the issue on States accepting the ICJ’s jurisdiction. States may consent to the jurisdiction of the ICJ by ratifying conventions or treaties containing jurisdictional clauses granting the ICJ with jurisdiction in advance over disputes involving the interpretation and application of the convention.  Article 14 of the Montreal Convention 1971 is a jurisdictional clause of such nature, with a pre-condition of arbitration. Ukraine could argue that its obligation to prosecute or extradite the offenders under the Montreal Convention 1971 needs interpretation in light of a scenario where the offenders are in a territory not under their control. Ukraine could also pose a question on whether Russia has a duty to prosecute or extradite the offenders under the Montreal Convention 1971 if it can be proved that Russia has effective control over the rebels and in turn, the territory they are on.

3.    European Court of Human Rights (“ECHR”) - Representatives of the German victims of Malaysian Airlines are planning to bring an action against Ukraine in the ECHR for manslaughter by negligence. .Details of the action have yet to be made known. The argument above could be used to show Ukraine’s negligence.

Conclusion

From a legal standpoint, it is manifest that there are many ways in which justice can be served. The problem is getting to the point where the prosecution process takes over. There seems to be many obstacles from an investigation standpoint. Unfortunately, international law is premised on the consent of States. The political will of the international community has a direct bearing on the likelihood of justice being served in the MH 17 tragedy.

Palestine and Statehood

Introduction

The issue of whether Palestine is a State in the eyes of international law has once again emerged in light of its membership in the International Criminal Court (“ICC”). The fact is, Palestine’s statehood cannot be questioned in the eyes of the law. This article will look at: first, the law on statehood; secondly, the history of Palestine as a State; and thirdly, Palestine under the criteria for statehood.

The Law on Statehood

In order for an entity to be a State, it must fulfil five criteria: firstly, a permanent population; secondly, a defined territory; thirdly, a government; fourthly, independence; and fifthly, recognition.

1.      Permanent population: There is no requirement on the number of citizens, neither is there a nationality requirement.

2.      Defined territory: There is no rule prescribing a minimum area of territory a State must possess. There is also no rule requiring contiguity of the territory of a State. Disputes as to the boundaries or borders of the territory of a State does not affect its statehood. Even claims on less than the entire territory of a State does affect its statehood.

3.      Government: This criterion is linked to the previous criterion of territory, as a State must have a government in general control of its territory. This control includes some degree of maintenance of law and order and the establishment of basic instructions as a bare minimum. Such control need not be effective as can be seen in the former Belgian Congo. There were various secession movements, division of the central government, dire need of international aid due to bankruptcy and the introduction of UN forces to prevent civil war. Despite all these factors, Congo was admitted into the UN as a State in 1960 without dissent.

4.      Independence: Any territorial entity formally separate and possessing a certain degree of actual power fulfils this criterion. Even protected States such as San Marino, Bhutan and Morocco were recognised as States despite having its internal and external affairs administered by other States. Foreign control overbearing the decision-making of the entity concerned on a wide range of matters of high policy and doing so systematically and on a permanent basis would disrupt statehood.

5.      Recognition: The majority view is that recognition by other States of an entity’s statehood is not required. However, the fact is recognition is important as it will eventually determine if an entity can enter international organizations as a State. What is the point of being a State factually if an entity can’t obtain the legal rights and benefits that flow from being a State?

What about the continuity of statehood when one or more of the criteria above is put in doubt after an entity becomes a State? Dame Higgins, former President of the International Court of Justice, could not have put better, ‘once in the club (of states), the rules by which admission was tested- and that always with a degree of flexibility- become less important’. Somalia continued to be a State despite not having a government from 1992 until 2000, or arguably even longer. The Order of Malta, which was once recognised as a State when situated in Rhodes and Malta, never lost its statehood despite migrating around Italy for 7 years without a territory. Unfortunately, recognition plays a vital role when it comes to continuity of statehood. For example, the former Union of Soviet Socialist Republic was allowed to continue as Russia, however, the Socialist Federal Republic of Yugoslavia was not allowed continue as the Federated Republic of Yugoslavia. The reason being that recognition by the international community was given to the former but not to the latter.

History of Palestine as a State

Palestine was recognised as a State back in 1919 where it was put under the mandate of Britain as a Class A mandate territory. This was in light of Article 22(4) of the Covenant of the League of Nations which reads:

“Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory.”

Class A mandate territories were clearly being recognised as “nations”. The term “nation” is used to denote a “State” as the “League of Nations” was an association of States. Britain extended to Palestine a number of multilateral and bilateral treaties as its Mandate and the Palestine administration executed treaties in the name of Palestine. The administration of Palestine had the authority to enact its own nationality law under Article 7 of the Palestine Mandate. The Permanent Court of International Justice regarded Palestine as a State in the Mavrommatis Palestine Concessions case between Greece and Britain.

The downfall began when the League of Nations dissolved itself in 1946. Britain was obliged to bring Palestine to independence in line with Article 22(4) as stated above, but never did. Eventually the UN General Assembly adopted Resolution 181 in 1947. The central clause of Resolution 181 states:

“Independent Arab and Jewish States … shall come into existence in Palestine two months after the evacuation of the armed forces of the mandatory Power has been completed but in any case not later than 1 October 1948”

The events that followed will not be discussed here as it would require a minimum of 10 pages. In essence, a People’s Council working with a Jewish Agency in Palestine declared statehood for a Jewish State to be called Israel in 1948 and was eventually admitted into the UN in 1949. What happened after that was an insidious illegal annexation.

Palestine under the Criteria for Statehood

Now we shall analyse if Palestine has fulfilled the criteria mentioned above.

1.      Permanent population: This criteria is certainly undisputed as Palestine has a permanent population inhabiting its territory.

2.      Defined territory: Under the mandate, Palestine’s territory was clearly defined, bounded by Lebanon on the north, Syria and Transjordan on the east, Egypt on the south and the Mediterranean Sea on the west. Although the territory was cut into by Israel after 1948, it does not affect statehood. Illegal annexation does not affect statehood as evidenced by State practice in Estonia, Latvia, Lithuania, Ethiopia, Austria, Czechoslovakia, Poland and Albania.

3.      Government: This is where the main dispute is, to be specific, on the issue of administrative control over the territory. The Palestinian National Authority (“PNA”) had control over the administrative aspect of Gaza and the West Bank. Palestinian laws continued to be in force. Legislative and executive decrees were published in an Official Gazette starting in 1994. The Palestinian Legislative Council, whose members were elected in 1996 approved laws and confirmed the appointment of cabinet members. Palestine had the three traditional branches of an executive, a legislature and a judiciary by virtue of its Basic Law of 1997. Although the Hamas assumed control in Gaza from 2007 which led to two different administrations, this does not affect statehood. The example of Somalia as mentioned above cements this.

4.      Independence: Certain writers argue that Israel’s control over Gaza prior to its withdrawal negated Palestine’s statehood. However as stated above, such control was insufficient to disrupt statehood as PNA still exercised vital functions as the government. Regardless, it is firmly established that belligerent occupation does not affect statehood as can be seen from State practice in Kuwait and Denmark.

5.      Recognition: There are too many examples to show that Palestine has been recognised as a State. Palestine is a member of numerous international organisations and treaties. Most importantly, 138 countries voted in favour of Palestine as Non-Member Observer State of the UN. This clearly shows that most States regard Palestine as a State.

Even if any of the above criteria is doubted, Palestine can still be regarded a State. There are other examples besides Somalia and the Order of Malta where statehood continues despite the absence of a criterion of statehood.

Conclusion

It is absolutely lucid that Palestine is a State under international law. The fact that Palestine is not a member of UN is clear evidence of the true nature of international law. In the international arena, law is what the superpowers say it is. Powerful States continue to fight for absolute power at the expense of millions of innocent people. Have we ever actually evolved as human beings?