DESPITE the episode of Pulau Batu Puteh (Pedra Branca) having been long resolved by the International Court of Justice (ICJ) in 2008, there is still speculation about how poorly Malaysia handled the case against Singapore.
Many are still unconvinced whether the government had given its best to win the case or just participated in the hearing out of formality.
More damaging are the recent rumours that the Malaysian legal team was bribed to lose the case. I find this accusation absolutely ridiculous, bearing in mind that we had an international legal panel of five experts on our team, including a Queen's Counsel. Our international panel played a major role in the presentations and arguments before the court.
Let me explain my involvement in the case. Our team had begun preparing our case ever since it was agreed between Singapore and Malaysia that we would submit our dispute to the ICJ.
The claim of sovereignty over Pulau Batu Puteh, which was resolved by the International Court of Justice in The Hague in Singapore’s favour, prompted much speculation over Malaysia’s handling of the episode
In the course of the team's research they discovered in our National Archives a July 16, 1968 document which I had issued to the Royal Malaysian Navy (RMN) which clearly showed the Malaysian Territorial Waters (MTW) and the grey areas which were unresolved between Malaysia/Thailand and Malaysia/Indonesia.
The charts accompanying this "Letter of Promulgation" clearly outlined the three features -- Pulau Batu Puteh, Middle Rocks and South Ledge -- as being Malaysian with MTW around them.
In mid-2006, I attended a meeting at Wisma Putra to explain the letter, as a result of which I was requested to assist our government in the case. I gave an "affidavit" that was to be submitted to the ICJ together with my "Letter of Promulgation". I consequently worked closely with our team, Wisma Putra and the Attorney-General's Chambers and attended numerous meetings in preparation for the case.
NSTP file photo from Sept 19, 1974 shows the Yang Di-Pertuan Agong Sultan Abdul Halim Mu'adzam Shah (cntre) in the uniform of the Admiral of the Fleet, watching a sea exercise with Chief of Naval Staff, Rear Admiral Datuk K. Thanabalasingam on board the K.D. Rahmat.
In the process I was furnished with all of Singapore's submissions, including charts and maps, to the ICJ and I read through every page of all the documents. I also answered in writing questions posed to me by the Attorney-General's Chambers and Foreign Affairs Ministry. I also attended the case at The Hague as a witness for our government.
Having listened to both sides' arguments and counter arguments and having read the courts judgment in 2008, I am of the opinion that we lost our case over Pulau Batu Puteh even before it went to court. Let me explain:
Singapore claimed that Pulau Batu Puteh/Pedra Branca (PBP) was terra nullius (land belonging to no one) in the mid-1800s. Our team successfully argued and convinced the court that these three features were part of the Johor Sultanate's domain and the court in its judgment stated that the Sultanate of Johor had original title to PBP. Thus my conclusion is that we lost by default.
Our biggest obstacle was the letter dated Sept 21, 1953, written by the Acting State Secretary of Johor in reply to a query by the Colonial Secretary of Singapore as to the status of PBP in the context of determining the boundaries of the colony's territorial waters. The Acting State Secretary of Johor replied that the "Johor Government [did] not claim ownership" of the island. Even to a layman this is as plain as can be. It should be noted that this happened before our independence and most of our team were not even born then. This letter was crucial to the case and weighed heavily against us.
The ICJ pointed out our other faults in its judgment. We never once objected to any of Singapore's activities on the island.
Malaysia did not ask Singapore to cease flying their flag on PBP when it told Singapore to take down its flag from Pulau Pisang.
We failed to react to Singapore's investigation of shipwrecks within the island's territorial waters.
Singapore's insistence of granting permission for surveys within the island's territorial waters and requiring visitors to obtain permits for entry to the island was complied with.
We did not object to Singapore's installation of military communications on the island.
We failed to react to Singapore's construction of a helicopter pad on the island purportedly to render emergency food and humanitarian assistance to the lighthouse crew during adverse weather.
We failed to respond to their announced intention of reclamation on the island.
Our National Mapping produced maps showing PBP within brackets (Horsburgh) (SINGAPURA) which could be interpreted that the island is Singapore's for 12 consequent years -- 1962 to 1974; and,
The Ligitan and Sipadan case worked against us as it was the same court which heard that dispute and ruled in Malaysia's favour against Indonesia based on occupation, administration and passing of laws and regulations. Singapore in its presentation to the ICJ referred to that case and pointed out the decision the court had made.
There were many more such lapses on Malaysia's part. I said that we lost PBP by default because we had many opportunities when we could have claimed back the island.
The first was when we attained Independence on Aug 31, 1957; we should have told the British that we were reclaiming the rock. Singapore was then still a colony of Britain. Perhaps our leaders in the euphoria of Independence failed to see the strategic significance of the rock with the lighthouse.
The second opportunity was when Singapore separated from Malaysia in August 1965. We let the status quo remain.
Thirdly, we never conducted any activities on PBP or protested to any of Singapore's activities which were tantamount to acquiescence. Our attitude from before and subsequent to Independence was lackadaisical to say the least.
In conclusion I feel that the Acting State Secretary of Johor's 1953 letter and our indifference to the importance of exercising our sovereignty since Independence were our "Waterloo".
Additionally, all our defaults span a long period of time and did not happen in just the last decade or two. When we decided to go to the ICJ all the cards were already stacked against us.
In the case of Middle Rocks the ICJ concluded that the original title to Middle Rocks should remain with Malaysia as the successor to the Sultanate of Johor.
As for South Ledge, which is a low-tide elevation, the ICJ concluded that the sovereignty of South Ledge belongs to the state in whose territorial waters it is located.
Under the above circumstances I fail to see how the accusations that the Malaysian team did not prepare its case thoroughly or worse that anyone was bribed can make any sense. To me the accusations are absurd or ludicrous.
The above are entirely my personal views and observations and I hope it will put to rest the entire speculation on the case.
Rear Admiral (RTD) Tan Sri K. Thanabalasingam NST Opinion Columnist11/01/2014