THE PULAU BATU PUTEH CASE
A STRATEGIC DISASTER FOR MALAYSIA
by Matthias Chang
Singapore Got The Mansion
Malaysia Got Some Rocks Which Cannot
Be Used To Put Up Even A Kampong Hut
YET RAIS YATIM SAYS,
“We won half and Singapore won half. So I
Say it’s a win-win situation …”
A PICTURE PAINTS A THOUSAND WORDS
AND THE PICTURE OF PULAU BATU PUTEH, MIDDLE ROCKS AND THE SOUTH LEDGE AT THE FRONT PAGE OF STAR NEWSPAPER 24.5.2008 SAYS IT ALL
Summary of Criticism
1) The Legal Team
I am a lawyer and had studied International Law for my Bar Exams in 1975 under the distinguished Professor Ian Brownlie C.B.E. Q.C. member of the English Bar, Chairman of the UN International Law Commission, Emeritus Chichele Professor of Public International Law, University of Oxford, member of the Institut de droit international, Distinguished Fellow, All Souls College, Oxford.
Ian Brownlie is the “leader” of the foreign team advising the Singapore government. A brilliant choice!
(a) Foreign Component
The foreign component of the legal team of Malaysia and Singapore are internationally renowned experts in international law and I have no doubts that they discharged their responsibilities admirably. But tactically, the Singapore “foreign component” had a critical advantage in that Ian Brownlie is the Chairman of the UN International Law Commission, and Mr. Alain Pellet is a member and former Chairman of the UN International Law Commission. And Ian Brownlie is not just a brilliant Lawyer (Q.C.), he is also a lawyer who has a profound grasp of geo-political issues.
To dispel any misperceptions and misunderstanding, I am not suggesting that they can influence the ICJ judges, but having served in such a critical position, Ian Brownlie and Alain Pellet have the inside track on the current thinking and or the approach of the ICJ in such disputes. After all, the UN International Law Commission sets the direction and the development of international law. I am therefore not surprised that Singapore went the extra mile to secure their services – a brilliant strategic appointment.
This dispute is not a mere dispute of ownership and sovereignty over some patches of rocks etc. but a strategic battle for control of territorial waters and sea lanes.
(b) Local Component
Both countries for obvious reasons had Ministers to provide the political imput and the critical linkage to their respective Prime Ministers. But, it cannot be said of Abdullah Badawi, our Prime Minister that at all material times, he was “hands-on” in this strategic battle with Singapore – especially when he had conceded so many issues to Singapore (the bridge, airspace, the Iskandar project etc.).
Singapore had a battle-ready Commander-in-Chief, whereas Malaysia’s leader was sleeping and out of touch.
Once again, I must praise Singapore for their brilliant tactical move in having the Chief Justice Mr. Chan Sek Keong as part of the legal team. It reflects the seriousness and total commitment of Singapore to win this case at all costs!
Why was having the Chief Justice as part of the legal team another brilliant strategic appointment?
A good advocate does not necessarily make a good judge. But a judge knows the inside workings of the judiciary and how consensus is established amongst judges in arriving at a decision. Therefore, in submitting on behalf of Singapore, the Chief Justice would know how to play to the strength and weaknesses of judges and would be able to offer critical advice to the rest of the team. The Judges of the International Court of Justice must have been impressed by the presence of the Chief Justice. I stand to be corrected, but this could be the first case in which a Chief Justice appeared before the Court. Even if I am wrong on this score, it can be said without fear of contradiction that it would be very rare for a Chief Justice to advance a case for his country.
My US$ Trillion dollar question is – Where was our Chief Justice when it was apparent that Singapore would be using all their “heavy” weapons?
Sad to say, our Judges, including the Chief Justice were all too busy fighting among themselves for the coveted top three jobs in the judiciary to be bothered about this mundane affair. It has no significance to them. I am not surprised that they took the attitude, “this has nothing to do with the judiciary, we judges hear cases, we do not partake in advocacy – even if the country’s strategic interests are at stake.”
We may dislike Singapore and disparage their system of administration, but there is one thing we must admit and learn – when they go to battle, any battle, anyone from the highest to the lowest can be and must be recruited if it serves to ensure victory. Should we be surprised that we keep on losing to Singapore?
The independence of the Malaysian Judiciary is meaningless, if at such critical juncture it is not able to play any role at all. Leadership is sorely lacking!
The Malaysian Bar Council is likewise irrelevant. It is so arrogant and conceited that it cannot see beyond its ugly nose. Like the judiciary, it is a den of vipers and its primary aim (as reflected by the conduct of past and present Chairman) is to promote it’s preferred slate of judicial candidates for higher office.
(c) The Research Component
If the research component is the same as the one that was assembled to do battle with Singapore on the Water Dispute, then I am not at all surprised that we lost this crucial battle to Singapore.
In both cases, Tan Sri Abdul Kadir Mohamad was the point man.
The team that advised the then Prime Minister (which is almost the same team as the present one) took the view that Malaysia had a weak case. The Prime Minister was so disappointed in their collective attitude that he instructed me to embark on an independent research and to ensure that no stones were left unturned.
Working close to 18 hours a day for a week, I was able to compiled 14 volumes of critical documents (approximately 1,500 pages) and assembled a team of senior practicing lawyers. The critical document (and our nuclear weapon) was the letter written by none other than Mr. Lee Kuan Yew that no documents, notes, letters, memos etc. exchanged between Malaysia and Singapore will be binding as they were written on a “without prejudice” basis, and that unless and until a formal agreement has been signed by the respective Prime Ministers, nothing is deemed agreed!
When this crucial letter was brought to the attention of the said legal team (which they were not aware) they sheepishly conceded that Singapore had no case against Malaysia!
I do not know whether the team has learnt a lesson from that experience and that for this case, a more thorough effort was mounted. I certainly hope so. But I have my doubts, as Tan Sri Kadir Mohamad is still the point man. In fact, he was appointed by Abdullah Badawi as the “Adviser” and on my retirement as Political Secretary to the then Prime Minister, he moved in and occupied my then office.
2) The Legal Arguments
For the purposes of this article which is written for the benefit of the public, I do not intend to provide an exhaustive analysis of the judgment of the International Court of Justice. But, I would like to highlight some salient points which will expose the perverse conclusions of the said court that “sovereignty over Pulau Batu Puteh passed to Singapore” as a result of events in the last eighty (80) years.
From the submissions of the respective parties and the judgment of the Court, it is clear that Malaysia and Singapore adopted the common strategy of having all or nothing in determining whether it has sovereignty over:
a) Pedra Branca /Pulau Batu Puteh
b) Middle Rocks
c) South Ledge
as they are “geographically linked”.
Pulau Batu Puteh is a granite island measuring 137 m long, with an average width of 60 m and covering an area of about 8,560 sq m at low tide. It is situated at the eastern entrance of the Straits of Singapore, at the point where the latter open up into the South China Sea. Pulau Batu Puteh is located at 1º 19’ 48” N and 104º 24’ 27” E. It lies approximately 24 nautical miles to the east of Singapore, 7.7 nautical miles to the south of the Malaysian state of Johor and 7.6 nautical miles to the north of the Indonesian island of Bintan.
On the island stands Horsburgh Lighthouse which was erected in the middle of the 19th century.
Middle Rocks and South Ledge are the two maritime features closest to Pulau Batu Puteh. Middle Rock is located 0.6 nautical miles to the south and consists of two clusters of small rocks about 250 m apart that are permanently above water and stand 0.6 to 1.2 m high. South Ledge, at 2.2 nautical miles to the south-south-west of Palau Batu Puteh is a rock formation only visible at low tide.
I trust that you will now agree that Singapore was given “the mansion, while Malaysia was given some rocks which stand only 0.6 to 1.w2 m high”! In short, Malaysia was given crumbs to save face! But our current Foreign Minister says that it is a win-win situation.
How stupid and ridiculous can one get?
2) Applying Imperialist’s Logic
a) Ownership by Sultanate of Johor
After reviewing the history of the Johor Sultanate and the Dutch and British rivalry for control of South East Asia and the insidious role of the East India Company as an instrument for colonial conquest and occupation, the Court concluded:
“The territorial domain of the sultanate of Johor covered in principle all the islands and islets within the Straits of Singapore, including the island of Pulau Batu Puteh. It finds that this possession of the islands by the Sultanate was never challenged by any other power in the region and can in all circumstances be seen as satisfying the condition of ‘continuous and peaceful display of territorial sovereignty. The Court thus concludes that the Sultanate of Johor had original title to Pulau batu Puteh.”
The Court then reviewed the Imperialist Anglo-Dutch Treaty of 1824 wherein the two colonial powers divided South-East Asia into two separate spheres of influence. The argument by Singapore that by this time the islands in the Straits of Singapore (including Pulau Batu Puteh) were terrae nullius and therefore subject to appropriation through “lawful occupation” was rejected by the Court. The Court concluded that notwithstanding the aforesaid Treaty:
“that as of the time when the British started their preparations for the construction of the lighthouse on Pulau Batu Puteh in 1844, this island was under the sovereignty of the Sultan of Johor.”
b) The 21st September 1953 Letter
On 12th June 1953, the Colonial Secretary of Singapore wrote to the British Adviser to the Sultan of Johor on the status of the island. We know that at the material time, British Advisers had tremendous influence. Why was there such an enquiry when it was very clear that the Sultan had ownership and sovereignty over the island at all material times? The British using this subterfuge must have been preparing the ground for a letter to be issued disclaiming sovereignty over the island. In a letter dated 21st September 1953, the Acting State Secretary replied that “the Johore Government did not claim ownership of Pedra Branca.”
Surely, if the Sultan was indeed disclaiming ownership and sovereignty to the island, any reference would be that of Pulau Batu Puteh as the island was known as such to the Sultanate. The fact that the letter used the Portuguese name of Pedra Branca is evidence that the British contrived to issue this letter. The letter did not say that it was the Sultan that was disclaiming sovereignty. It was the Johor government, which was under British control. Thus we had a situation whereby a British administration in Singapore was writing to another British administration in Johor as to the status of an island belonging to the Sultan and by a stroke of a pen, hijacked the island for their own strategic use.
The Court, applying Imperialist logic dismisses Malaysia’s contention that “the Acting State Secretary was definitely not authorized and did not have the legal capacity to write the 1953 letter, or to renounce, disclaim, or confirm title of any part of the territories of Johor.”
The Court applying bizarre logic then concluded:
“In the light of Johor’s reply, the authorities in Singapore had no reason to doubt that the United Kingdom had sovereignty over the island.”
This is perverse Imperialist logic! Why should the Sultan for no rhyme or reason and out of the blues disclaim or renounce sovereignty over the island? This the Court never explained.
It is abundantly clear that the ICJ used this letter as the main basis (giving its historical context) for their majority decision that sovereignty passed to Singapore. The other secondary reasons (issue of maps) relied on by the Court which of itself are never ever sufficient and or conclusive to support a claim for sovereignty as they can refuted by other countervailing documents.
I am fortified in my view as one of the judges, though agreeing with the majority opinion that Singapore has sovereignty over the island observed that the Court failed to appreciate impact and consequences that at the material time when the letter of 1953 was issued, the Sultan of Johor was under the “colonial control” of the British Colonial administration. I quote:
“While relations between sovereign colonial Powers fell within the ambit of international law, it is difficult to argue that dealings between the United kingdom and the Sultanate of Johor were based on relations between sovereign, equal subjects of international law. Thus, the sovereignty acknowledged to indigenous authorities was inoperative vis-à-vis colonial Powers, the authorities’ sole obligation being to submit to the will of the powers. Under these circumstances, the Sultan of Johor could not broach the slightest opposition to a decision by the British.”
Judge Parra-Aranguren was more devastating in his dissenting opinion and considered that “the findings made by the Court in the judgment demonstrate that judicial reason can always be found to support any conclusion.”
This is indeed a grievous indictment as to the integrity of the judgment and the judges that formed the majority opinion. I believe that this may be the first time that a fellow judge has questioned in such a dramatic way the integrity of the judgment of his fellow judges.
I wonder whether the Malaysian Bar and its Chairman, Ambiga has the courage of its convictions to expose this perverse judgment. In his dissenting judgment, Justice Parra-Aranguren supported my contention that the Court applied imperialist logic with regard to the effect and implications of the 21st September 1953 letter.
Additionally, the said judge exposed the fact that the conclusions offered by the majority opinion contradicts and are in conflict with their own findings of fact. For example, the bulk of activities of alleged “Singapore control” over the island was post 1953 and that both parties had agreed and the Court found that 1980 was the critical date for the purposes of the dispute as to sovereignty over the island.
Therefore, Singapore was only “actively involved” in the island for about 20 odd years. Yet, in an earlier decision in 2002, the Court handed down a judgment that a period of 20 years of activity is “far too short” a period to establish sovereignty [case: Land and Maritime Boundary between Cameroon and Nigeria, ICJ Reports 2002, page 352]
Such activities cannot in law undermine historical title, which title was acknowledged as having being with the Sultan of Johor. There is the added confusion in the said judgment [para 222] in that the Court expressly acknowledges that “ownership is in principle distinct from sovereignty.”
This is where I believe the Malaysian team screwed up big time. The judge observed that at all material times, the Sultanate of Johor used the term “ownership” and not “sovereignty”.
The judge also observed that there have been a few instances where in international litigation, “ownership” over territory has sometimes been used as “equivalent to sovereignty”. Be that as it may, the fact remains, that “ownership” and “sovereignty” are two distinct and separate concepts!
This article written for the public cannot encompass the entire legal arguments in support of my contention that the judgment of the ICJ is perverse.
There are urgent lessons to be learnt from this case. But I am not hopeful that Malaysia will more vigilant in protecting itself from predator states like Singapore from hijacking our lands.
This case seems to rest on the same principles in which Israel was founded. The myth and propaganda [specifically by Golda Meir] for the creation of Israel in Palestine was that Palestine was a land without any people, and that the Jews were people without a land.
Therefore, it was right and proper to take the land away from the Palestinians.
Singapore do not have enough land for its people. It has attempted to reclaim land even on the island of Pulau Batu Puteh, besides the use of the strategic lighthouse. Singapore claims that Johor has no sovereignty over the island. Therefore, the island belongs to Singapore.
24th May 2008
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