'History lost us Batu Puteh'

By Stephanie Sta Maria - Free Malaysia Today

FMT EXCLUSIVE KUALA LUMPUR: Over two years have passed since Malaysia lost its duel with Singapore over sovereign right to Pulau Batu Puteh (PBP). While Singapore walked away with the coveted island, we had to be content with a maritime feature of lesser significance known as Middle Rocks.

The May 2008 verdict by the International Court of Justice (ICJ) split Malaysian opinion. One half believed that we were robbed of our national territory, while the other decreed that we had courted defeat.

The common ground between both sides was dismay. That emotion would have no doubt resurfaced with the recent publication of 'Pedra Branca: The Road to the World Court' (henceforth referred to as Pedra Branca).

The book's authors are none other than S Jayakumar and Tommy Koh, both of whom were personally involved in the case. The former is currently Singapore's Senior Minister in the Cabinet, while the latter is an international lawyer and Ambassador-at-Large for the Government of Singapore.

Their book not only offered an insight into behind-the-scenes proceedings of the case but also a disturbing account of Malaysia's conduct during the hearing.

The authors disclosed that Malaysia had employed tactics that “would not have been tolerated in any domestic court of law”. They listed these tactics as mis-translating a text, suppressing parts of quotations to support its arguments and using a misleading photograph of the island.

In an earlier interview with FMT, prominent lawyer Karpal Singh expressed his shock at these revelations and called them a “terrible embarrassment” for Malaysia.

While he voiced his faith in the accuracy and credibility of the two authors (one of whom was his lecturer and the other his senior in university), he also urged the Malaysian side to rebut or explain their comments.

That rebuttal has come in the form of a 30-page article penned by Malaysia's agent to the ICJ, Abdul Kadir Mohamad. Entitled 'The Case of Batu Puteh, Middle Rocks and South Ledge at the International Court of Justice', the article was published last year by Malaysia's Institute of Diplomacy and Foreign Relations.

Kadir was also the former secretary-general of the Foreign Ministry and is currently the adviser on foreign affairs to the Prime Minister.

Singapore's arrogance sparked the dispute

Kadir began his narration by attributing the root of the dispute to “Singapore's arrogance in the conduct of its relations with Malaysia and the insensitivity towards the feelings of Malaysians”.

According to him, Malaysia had deliberately published the controversial 1979 map which showed PBP as part of Malaysian territory to reaffirm Malaysia's sovereignty over the island. It was that map which sparked the three decades of dispute.

The ICJ verdict saw ordinary Malaysians hurling brickbats at the Malaysian legal team for facing the ICJ without having a “sure-win” legal case. But Kadir stuck to his guns in responding to their criticism and reiterated that the government had made that decision (to go to the ICJ) after much deliberation, with full awareness of the risks involved.

In an e-mailed interview with FMT, Kadir explained: “Malaysia had two good reasons for taking the ICJ option. Firstly, we wanted to seek a peaceful solution via a third party in order to maintain peace and stability in the region.

“Secondly, we believed we had a sound case and at least a 50% probability of regaining control over Batu Puteh, Middle Rocks and South Ledge via the international legal process. We were confident of proving that Johor still owned the original title to all three maritime features.”

Kadir added that Singapore's “inflexible attitude” had erased the possibility of using any other peaceful means. By “inflexible attitude”, he referred to Singapore stationing gunboats around PBP and barring Johor fishermen from entering the area.

This account is in stark contrast to that of Pedra Branca by the authors who described how the Royal Malaysian Marine Police boats began making regular intrusions into PBP waters. They said that the vessels carried personnel armed with pistols and M-16 rifles.

When asked to clarify this account, Kadir tersely replied, “There was no question of any Malaysian intrusion into PBP waters because it was Malaysia’s position that those waters historically belonged to Malaysia.”

Nothing wrong with our tactics

Kadir was equally curt in responding to Singapore's disapproval of the tactics used during the hearing and dismissed any notion of foul play.

“As a sovereign country, Malaysia had the right to use any strategy or argument it considered useful to support its case so long as the actions did not contravene the rules and procedures of the court,” he stated. “And in this particular instance, Malaysia’s actions did not contravene any rule or procedure of the court.”

He also downplayed the misleading photograph of PBP which showed Bukit Pelali in Johor as looking over the island. Singapore successfully proved that the photograph was taken with a telephoto lens, which increased the height of the hill in the background by a factor of seven.

Jayakumar and Koh called this a “public relations disaster” for Malaysia and related that a member of the Malaysian delegation covered her face in embarrassment after this faux pas was unveiled.

Kadir, on the other hand, remained unperturbed. In explaining the photograph to FMT, he opted to quote from a statement made by Malaysia's counsel, Professor Marcelo G Kohen, instead of offering his own.

“Singapore’s Attorney General preferred to use his time to engage in photographic prestidigitation, accusing Malaysia of manipulation,” he quoted. “Everything is a matter of perspective. A photograph taken from a small craft and another taken from the bridge of a large petrol tanker, taken of the same place and pointing in the same direction, but consequently from different heights, do not provide the same view. I do not think it is worth dwelling on the question.”

Singapore's grand design foiled

Kadir, however, dealt Singapore a slap on the wrist for claiming that Malaysia had accused it of concealing a missing letter, which was a crucial supporting document in Malaysia's argument.

The 1844 letter was written by the governor of the Straits Settlements requesting permission from the Sultan and Temenggong of Johor to build the Horsburgh lighthouse on PBP.

“We did not make such an accusation,” Kadir clarified. “What I said was that Malaysia wasn't able to trace that particular letter of request and in 1994, we requested Singapore to furnish a copy of the governor’s letter if Singapore had such a copy in its possession.”

“Singapore did not respond to Malaysia’s request. If this letter exists today, it is likely that it is in Singapore’s archives in the file entitled 'Letters to Native Rulers'. Unfortunately, Malaysia does not have access to these archives.”

Kadir further stressed that the Malaysian team had done well in articulating Malaysia’s case in the best possible way. Given a second chance, he maintained that he would not have done anything differently.

“Malaysia didn't lose PBP because we had weaker arguments or insufficient evidence to support our case,” he said. “We lost because the court held the view that certain non-erasable facts of history -- particularly those events which took place between 1953 and 1980 -- had destroyed Malaysia’s sovereign position on the island, Johor’s original title notwithstanding.”

He also expressed a certain satisfaction in his article over the verdict which he said foiled Singapore's “grand design” of securing ownership of PBP, Middle Rocks and South Ledge to form a maritime domain in that area. He wrote:

“Malaysians may never want to look upon the decisions of the court as any form of consolation prize for Malaysia. But the United Nations Convention on the Law of the Sea would confirm that the court's decision to award sovereignty over Middle Rocks to Malaysia has given us an equal standing with Singapore in that part of the Singapore Straits near PBP.”