Pulau Batu Puteh - a tale of miscalculated strategy

In the first of a two-part exclusive report, FMT looks at the history of the Pulau Batu Puteh dispute which Malaysia lost to Singapore. The two Singapore lawyers who were involved in the case give their views in a book they wrote.
By Stephanie Sta Maria
KUALA LUMPUR: Before Limbang and Tanjung Pagar, there was Pulau Batu Puteh (PBP).
The once innocuous island became a blemish on Malaysia's history in 2008 when the International Court of Justice (ICJ) awarded its sovereignty to Singapore and granted Malaysia sovereign right over another maritime feature, known as Middle Rocks.
The then Foreign Minister Rais Yatim called the verdict a “win-win” decision, which was hotly contested by many Malaysians who felt that they had received the shorter end of the stick.
Malaysia, nevertheless, swallowed the bitter loss and would have successfully banished it to the back of its mind if not for S Jayakumar and Tommy Koh.
Jayakumar is currently Singapore's Senior Minister in the Cabinet, while Koh is an international lawyer and Ambassador-at-Large for the Government of Singapore. Both were personally involved in the PBP case. And both collaborated on a book on the case.
'Pedra Branca: The Road to the World Court' (henceforth referred to as Pedra Branca) provides a compelling narrative of Singapore's preparations and presentation of its case before the ICJ. But it also provides a startling account of Malaysia's conduct during the court proceedings.
According to the authors, Malaysia displayed a “certain sense of desperation” that saw it resorting to questionable tactics.
These tactics involved deliberately mis-translating a text, suppressing parts of quotations used to support its arguments, as well as producing a distorted photograph of PBP that showed it nearer than it actually is to the coast of Johor.
It was precisely these stratagems that confirmed prominent lawyer Karpal Singh's suspicion that Malaysia only had itself to blame for losing the coveted island.
Back when the verdict was announced, Karpal had wondered whether the Malaysian government had received misguided legal advice. After reading Pedra Branca, he concluded that Malaysia's loss rested on two elements: a superior opponent and a badly miscalculated strategy.
A cut above
“Singapore had a clear edge over us in terms of both team and case,” Karpal said. “Its team comprised Singapore's Chief Justice, an outstanding Law of the Sea expert (Koh) and a former law minister (Jayakumar). It was a very impressive line-up!”
The Malaysian delegation included Malaysian agent Abdul Kadir Mohamad, Malaysia's Ambassador to the Netherlands Noor Farida Ariffin, Foreign Minister Syed Hamid Albar and Attorney-General Abdul Gani Patail. The entire Malaysian team totalled 60 members, almost double the size of Singapore's team.
Karpal acknowledged Syed Hamid's presence but in the same breath added, “Not that he made much of a difference because I don't think he is renowned for anything. He was just there.”
“Singapore's preparations were also staggeringly extensive,” he said, referring to the book's report card of the team's groundwork. “Their meticulousness enabled them to craft arguments that were extremely attractive and which prevailed upon the ICJ. Malaysia, on the other hand, seemed to not have enough evidence to support its arguments. In fact, we're lucky that we even won Middle Rocks!”
Karpal also drew attention to the negotiations of the terms of a Special Agreement between both sides in order to refer the case to the ICJ. One of the terms that Malaysia proposed was that the ICJ also grant the “losing party” rights or interests.
Although the Singapore team interpreted this as Malaysia wanting a face-saving way for both sides, Karpal regarded it as a safety net.
“That particular term was a clear implication that we knew that we had a weak case,” he pointed out. “If we were confident that we had a strong one, then we wouldn't have tried to get a bargain out of the verdict.”
“From the little that I knew while following the case in the media, I could already see that we were sinking badly. The verdict just confirmed it.”
A terrible embarrassment
Karpal reserved his most scathing remarks, however, for Malaysia's dirty laundry which Pedra Branca explicitly washed in public.
The authors had described the tactics as that which “would not be tolerated in any domestic court of law” and expressed puzzlement and disappointment that Malaysia “resorted to such tactics before the highest court in the world'. Karpal fully acquiesced.
“The biggest insult to any professional is to be accused of misleading another party,” he asserted. “The authors used very strong words and this is terrible for us because whoever reads this book will have a very bad impression of Malaysia. I, myself, was shocked.”
Karpal slammed in particular the now infamous photograph and voiced his incredulity at the Malaysian team even attempting such a tactic.
The photograph showed the Johor mainland in the background of PBP and was claimed to be downloaded from a blog that was found to have only been created a month before the hearing. The photograph itself was only posted four days before the hearing. [see photo]
The Singapore delegation instructed its colleagues back home to snap photographs of the island at the same geographical coordinates. With these photographs, Singapore effectively proved that Malaysia's photograph was taken with a telephoto lens which drastically increased the height of the hill in the background to create the image distortion.
“How could they even think of pulling such a blatantly obvious stunt?” Karpal demanded. “And at the ICJ no less. It is deeply shameful. What is worse is that it appears that our team went out of its way to turn the ICJ judges against them.”
“Even in the domestic court, such tactics will have the judge prejudiced against you. Once judges discover that you have been misleading them, you are marked and the verdict will almost always not be in your favour.”
He also mused on the role of the five international members of Malaysia's delegation and the extent of their dependence on the local team supplying the case material.
“As foreigners they would no doubt rely on their Malaysian counterparts to conduct most of the research,” he said. “But surely they would have recognised the tactics for what they really were. How did they just play along and risk their own reputation?”
A sliver of hope
But all is not completely lost, according to Karpal, if only Malaysia can locate the missing 1844 letter written by the governor of the Straits Settlements requesting permission from the Sultan and the Temenggong of Johor to build the Horsburgh lighthouse on PBP.
During the hearing, Malaysia insinuated that Singapore had the letter in its possession and was concealing from Malaysia. Singapore denied the allegation.
“That letter must surely be somewhere,” Karpal said. “If Singapore really concealed it, then it would have probably destroyed it by now. But to accuse Singapore of that without solid evidence is plain wrong.”
Karpal added that if the letter was found, then Malaysia had a slim chance of requesting a review of the case by the ICJ. But he heavily emphasised that this possibility hinged on two factors.
“First, the fresh evidence must be fundamental to the case. Then Malaysia must prove that this evidence was not available at the time of the hearing and that every reasonable effort was made to obtain it. If Malaysia can fulfil these requirements, then it may have a chance of a case review.”
For now, Karpal's only counsel is for a member of the Malaysian delegation to write a book that would counter the “allegations” against it in Pedra Branca. Even so, he had misgivings whether that could be accomplished given the stellar reputation of both authors.
“Koh was my lecturer at the National University of Singapore while Jayakumar was my senior,” he said. “Both are known academicians of very high standing and credibility.”
“There is no doubt that whatever they have written in Pedra Branca is accurate. Embellishments are highly unlikely. The onus is now on the Malaysian team to present an equally objective and acceptable version of their account, which will hopefully explain the reasons behind their conduct.”