Communication from Malaysia concerning answers given by the United Nationsto the questions put by Judges Guillaume and Koroma

DIFFERENCE RELATING TO IMMUNITY FROM LEGAL PROCESS
OF A SPECIAL RAPPORTEUR Of THE COMMISSION ON HUMAN
RIGHTS: COMMENTS BY THEGQVERNMENT QE MALAYSIA ON

THE ANSWERS ON BEHALE OF THE SECRETABY-GENERAL OF
THE UNIIEb NATIONS TO THE QUESTIONS ASKED B'( JUQGEii
GUILLAUME AND KAROMA

1. Wi1h respectto the answer to the Question askby Judge

Guillaume;

1. The Government of Malaysia obsèrves that in the summary

record of Mr. Zacklin's statement on 5st 1998 (E/1998/SR.49,

p.3) there appears the following: "Mr. Zacklin ...... stressed the

importance of retaining the reference to the circumstances of the

case in operative paragraph 1, since the phrasing was not binding on

the ether party, which bad in an·ycase approyed the text" (emphasis

supplied).

words underlined in the above-cited extract may bea~indicating

that the Government of Malaysia had approved the amended text of

the question as presentedo the ECOSOC in E/1998/L.49. Such a

readingwould not correspond with the facts.The Government of

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07/01'99DON 08:01 [TX/RX NR 882@004 Malaysia at no time approved the text of the question that appeared

.in E/1998/l.49 or as eventually adopted by ECOSOC and submitted

ta the Court. Malaysia never did more than "take note" of the

question as originally formulated by the Secretary-General and

·submitted ta the ECOSOC in document E/1998/94 (see summary

record of the statement made by Data' Hasmi, Observer for

Malaysia, on 31 July 1998 (E/1998/SR.48, p. 2). At that same

meeting Mr. Hasmi was reported as saying: "..... the Government of
•

Malaysia was not going tc participate in preparing a joint submission

to the current session of the Council ...."(ibid, p. 3).

3. The Government of Malaysia thus finds in the Summary

Records of the relevant ECOSOC meetings full confirmation of the

statement made to the Court on its behalfthat only the draft question

originally submitted by the Secretary-General ta ECOSOC in

document E/1998/94 was appropriate for submission to the Court as

being limited.to the difference which had actually arisen between the

Secretary-General and Malaysia. Correspondingly, Malaysia never

consented to the amended form of question which was ultimately

These documents are dated 16 and 15 Oecember 1998
communicated toit by tRegistrauf ltle Court on 23 December 1998.

2

07/01 '99DON 08:01 [TXIRX NR 8820l [4]005 submitted by ECOSOC ta the Court and which, so the Secretary­

General has argued, extended the question beyond that of the

degree of authority to be accorded to the Secretary-General's

certificats to that of whether the Special Rapporteur had been acting

·inthe course of the performance of his mission.

4. The Government of Malaysia affirms its submission that

ECOSOC did not have the power to expand the question put to the
•

Court from a "legal question", as foreseen in Article 65 of the Court's

Statute ta.a question which, as identified by the Secretary-:-General,

was ..a question of fact which depends upon the circumstances of

each particular case". ·(See paragraph 6 of the answer ta the

question by Judge Koroma).

Il. With respect tothe answer to the guestjon.by Judge Koroma

- ·5: ····The--Government· of Malaysia respectfully submits that the

honourable Judge's question is not relevant ta the only question that

it is within the power of the Court to answer, namely, the question of

the degree of authority tc be attached to the Secretary-General's

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07/01 '99 DON 08: 01 [TX/RX NR 8820] I4006 • 1

certificate. The Government of Malaysia will, therefore, refrain from

commenting on the substance of the Secretary-General's response.

·6. Nonetheless, without departing from this position, the

Government of Malaysia draws attention to certain statements made

in paragraphs 6 and 7 of the Answer. ·

7. 1n the last sentence of paragraph 6 there appear the words:

"....the. Secretary-General note_c;tfhat ....Similarly, in the first

.
sentence of paragraph 7 there appear the words: "... the Secretary-

General then determined that ....";in the second sentence the words:·

" ..... the Secretary-General noted that ...''; and in the third sentence

. the words ".... the ·secretary-General aIso considered ........ and

concluded ........

8. ln each of these expression the past tense of the verb has

·-------been-ü aseit,ese actions. ·-=ot-ed''~-uaetef "cinsiaer,d"

and "concluded" - had actually taken place. . However. the

Government of Malaysia is unable to find in the documents before

the Court any record of these processes having taken place. At

most, the processes here described are ones that either went on in

4

07/01 '99DON 08:01 [TX/RXNR 8820]@007 .._.-..............
.·..·

an unstated manner in the mind of the Secretary-General at sorne

unspecified date or they are processes which are retrospectively

being attributed to the Secretary-General in arder tc bolsterthe

argument advanced on his behalf that the acts of the Special

Rapporteur occurred in the course of the performance of his mission.

Either way, the absence of any such explanations from the certificate

actually issued at the relevant times by the Secretary-General taints

• them with a degree of arbitrariness and deprives them of such

persuasive affect as perhaps they might otherwise have had.

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07/01 . 99 DON 08:01 [TX/RX NR 8820 J ~ 008