At first, there was all the emotional and “Malaysian” sentiment.
Specifically, as my mind tries to comprehend what I read from, or heard about or feel towards the Judgment, my fingers just grasp the keyboard keys and hence, there it is…
The Judgment as I see it…in words.
But I guess I’m all done with that. I’ve said everything that needed to be said, done everything that needed to be done and wrote everything that need to be written down.
So, let’s get to the serious business. Let’s talk strictly about the law. Strictly about the evidence.
Let’s have an exchange of academic and legal views. The views as we acquired them from our law schools or were thought by our academic or law professors. So I’m opening up this blog for everyone that is genuinely interested and welcoming all comments that are legally and intellectually stimulating.
I wish to start with the following excerpt from an interview I read from the Star dated 1 June 2008 between the Malaysian Foreign Minister Datuk Seri Dr Rais Yatim and Paul Gabriel.
Q:
Specifically, as my mind tries to comprehend what I read from, or heard about or feel towards the Judgment, my fingers just grasp the keyboard keys and hence, there it is…
The Judgment as I see it…in words.
But I guess I’m all done with that. I’ve said everything that needed to be said, done everything that needed to be done and wrote everything that need to be written down.
So, let’s get to the serious business. Let’s talk strictly about the law. Strictly about the evidence.
Let’s have an exchange of academic and legal views. The views as we acquired them from our law schools or were thought by our academic or law professors. So I’m opening up this blog for everyone that is genuinely interested and welcoming all comments that are legally and intellectually stimulating.
I wish to start with the following excerpt from an interview I read from the Star dated 1 June 2008 between the Malaysian Foreign Minister Datuk Seri Dr Rais Yatim and Paul Gabriel.
Q:
There are those who say that Malaysia lost out to Singapore in terms of legal expertise, asthey also had the Chief Justice in their team. How do you respond?
A:
A:
It is a subjective assessment, of course. The fact that Batu Puteh is not with Malaysia now, I think that is the nagging problem. The fact that we have Middle Rocks, not many people appreciate. We had a good legal team. Luminaries in international law were with us. Elihu Lauterpacht, James Crawford, these are big names. Singapore did not have big names, but they got the failure of history to be noted ie why the maps of Malaysia were put forward to be the principle document to be exhibited. Which means we ourselves recognised that Batu Puteh was not under the jurisdiction of Malaysia. This is as much as saying the island did not belong to us, so it is not on our maps.
With all due respect Mr. Foreign Minister, although you vaguely said that we had a good legal team, I think you are still either avoiding the question or not answering the question at all.
I believe the correct answer was that Malaysia did not loose out to Singapore in terms of legal expertise or legal team.
Briefly, here is why….
1. Singapore’s legal argument was that it had occupied Pulau Batu Puteh because Pulau Batu Puteh was a territory that belongs to no one at the time it constructed the Horsburgh Lighthouse. In legal terms, Singapore invokes the theory of the taking of possession of a terra nullius territory.
Malaysia’s legal argument was that Pulau Batu Puteh was part of Johor since time immemorial which means that Johor had original title to Pulau Batu Puteh since then. No political or legal development that took place during that time affects Johor’s original title to Pulau Batu Puteh.
The Court accepted Malaysia’s argument, not Singapore’s.
2. In proving the arguments about the status of Pulau Batu Puteh (i.e. original Johor’s territory or terra nullius) both parties engaged into an intense debate concerning the legal interpretation of one treaty signed in March 1824 between Britain and United Kingdom. Both parties agreed that this Treaty had the effect of diving the old Johor into two parts; one belonging to the Dutch sphere of influence (the Riau-Lingga Sultanate) and the other falling under the British sphere of influence (the Sultanate of Johor) However, Malaysia and Singapore differ in terms of the implication of such division of spheres of influence.
Singapore argues that the division created by the Treaty did not affect the Straits of Singapore’s area. Hence, Singapore argues that Pulau Batu Puteh, which is located in the Straits of Singapore remained a terra nullius or alternatively, had become terra nullius as a result of the division of the old Johor, thus leaving room for the British to take lawful possession of Pulau Batu Puteh.
Malaysia, on the other hand, argues that the division of sphere of influence under the Treaty did not leave any area open, specifically the Straits of Singapore, for any taking of possession of territory to take place. In fact, the language of the Treaty which refers to the “south of the Straits of Singapore” mean that all the islands within the Straits of Singapore itself fell under the British sphere of influence. This area covers Pulau Batu Puteh, which thus remained as part of the Sultanate of Johor rather than Riau-Lingga Sultanate.
The Court accepted Malaysia’s argument, not Singapore’s.
3. Then, in an attempt to strengthen its argument that it had lawfully taken possession of Pulau Batu Puteh, Singapore presented a full legal chronicles on the construction of the Horsburgh Lighthouse focusing primarily on the fact that - such construction and the entire process associated therewith were undertaken with the sanction and authorization of Britain but without any involvement whatsoever from Johor.
Malaysia, flowing from the fact that Johor is the original sovereign over Pulau Batu Puteh, claims that Singapore’s presence on the island for the sole purpose of constructing and maintaining a lighthouse there was with the permission of Johor.
Despite the lengthy and extensive explanation on the “imagined history” by Singapore and Malaysia’s argument on the consent from Johor for the construction of the Horsburgh Ligthouse, the Court concluded that is unable to draw any conclusions from the argument of parties for the purposes of the case. The Court remains convinced that sovereignty is still with Johor at that time.
4. Then come the most celebrated and eminent Johor 1953 letter. Singapore’s specific argument is that this Johor 1953 letter is confirmatory of its title acquired through the taking of possession of Pulau Batu Puteh sometime in 1847. Singapore’s specific argument also is that neither this letter nor its conducts thereafter constitute the basis of its title to Pulau Batu Puteh by way of some sort of adverse possession of the same (also known as prescription under international law).
Malaysia was not worried about the Johor 1953 letter. Malaysia argues that the letter talks about ownership and not sovereignty. Specifically, Malaysia argues that it could not have meant sovereignty because the author of the letter did not have the legal capacity nor authority to deal with question of territorial sovereignty, what more to give away a territory to another country. In any event, Malaysia claims that Singapore also did not, at any point in time after that, assert a claim to Pulau Batu Puteh. There was not the slightest change in Singapore's conduct which shows its sovereign status over the rock such as extension or declaration of Singapore territorial waters therein. Plus, Malaysia concedes with Singapore that the 1953 letter is not a basis of acquiring title through prescription.
I am unsure which party’s argument was accepted by the Court. I think this is the case of Court’s divine intervention where contrary to parties’ argument, the Court concluded that the 1953 letter had the effect of “passing” Johor’s sovereignty to Singapore.
5. With regard to Middle Rocks and South Ledge, Singapore’s position is that sovereignty in respect of Middle Rocks and South Ledge goes together with sovereignty over Pulau Batu Puteh. Thus, Singapore’s submission is that whoever owns Pulau Batu Puteh owns Middle Rocks and South Ledge because all three features form a single group of maritime features.
Malaysia on the other hand argues that these maritime features must be treated separately and independently of Pulau Batu Puteh as they do not constitute one identifiable group of islands in historical or geomorphological terms.
Well, we’ve read the Judgment. The Court clearly allocates the sovereignty over the disputed features in the way that is consistent with Malaysia’s argument. So I can conclude that the Court accepted Malaysia’s argument, not Singapore’s.
So, I think we won more legal arguments that Singapore, didn’t we Mr. Foreign Minister. It is just that we did not get Pulau Batu Puteh. But we certainly presented and won more legal arguments than Singapore. Singapore clearly lost all the legal historical arguments. But through Court’s divine intervention and its mere listing of everything-under-the-sun regarding its activities, that had assisted Singapore to get Pulau Batu Puteh.
Also Mr. Foreign Minister, I also wish to comment on your statement that “Singapore did not have big names, but they got the failure of history to be noted...”. My history Professor told me and which I fully agree –
“We did not lose on history. Neither did history fail us."
With all due respect Mr. Foreign Minister, although you vaguely said that we had a good legal team, I think you are still either avoiding the question or not answering the question at all.
I believe the correct answer was that Malaysia did not loose out to Singapore in terms of legal expertise or legal team.
Briefly, here is why….
1. Singapore’s legal argument was that it had occupied Pulau Batu Puteh because Pulau Batu Puteh was a territory that belongs to no one at the time it constructed the Horsburgh Lighthouse. In legal terms, Singapore invokes the theory of the taking of possession of a terra nullius territory.
Malaysia’s legal argument was that Pulau Batu Puteh was part of Johor since time immemorial which means that Johor had original title to Pulau Batu Puteh since then. No political or legal development that took place during that time affects Johor’s original title to Pulau Batu Puteh.
The Court accepted Malaysia’s argument, not Singapore’s.
2. In proving the arguments about the status of Pulau Batu Puteh (i.e. original Johor’s territory or terra nullius) both parties engaged into an intense debate concerning the legal interpretation of one treaty signed in March 1824 between Britain and United Kingdom. Both parties agreed that this Treaty had the effect of diving the old Johor into two parts; one belonging to the Dutch sphere of influence (the Riau-Lingga Sultanate) and the other falling under the British sphere of influence (the Sultanate of Johor) However, Malaysia and Singapore differ in terms of the implication of such division of spheres of influence.
Singapore argues that the division created by the Treaty did not affect the Straits of Singapore’s area. Hence, Singapore argues that Pulau Batu Puteh, which is located in the Straits of Singapore remained a terra nullius or alternatively, had become terra nullius as a result of the division of the old Johor, thus leaving room for the British to take lawful possession of Pulau Batu Puteh.
Malaysia, on the other hand, argues that the division of sphere of influence under the Treaty did not leave any area open, specifically the Straits of Singapore, for any taking of possession of territory to take place. In fact, the language of the Treaty which refers to the “south of the Straits of Singapore” mean that all the islands within the Straits of Singapore itself fell under the British sphere of influence. This area covers Pulau Batu Puteh, which thus remained as part of the Sultanate of Johor rather than Riau-Lingga Sultanate.
The Court accepted Malaysia’s argument, not Singapore’s.
3. Then, in an attempt to strengthen its argument that it had lawfully taken possession of Pulau Batu Puteh, Singapore presented a full legal chronicles on the construction of the Horsburgh Lighthouse focusing primarily on the fact that - such construction and the entire process associated therewith were undertaken with the sanction and authorization of Britain but without any involvement whatsoever from Johor.
Malaysia, flowing from the fact that Johor is the original sovereign over Pulau Batu Puteh, claims that Singapore’s presence on the island for the sole purpose of constructing and maintaining a lighthouse there was with the permission of Johor.
Despite the lengthy and extensive explanation on the “imagined history” by Singapore and Malaysia’s argument on the consent from Johor for the construction of the Horsburgh Ligthouse, the Court concluded that is unable to draw any conclusions from the argument of parties for the purposes of the case. The Court remains convinced that sovereignty is still with Johor at that time.
4. Then come the most celebrated and eminent Johor 1953 letter. Singapore’s specific argument is that this Johor 1953 letter is confirmatory of its title acquired through the taking of possession of Pulau Batu Puteh sometime in 1847. Singapore’s specific argument also is that neither this letter nor its conducts thereafter constitute the basis of its title to Pulau Batu Puteh by way of some sort of adverse possession of the same (also known as prescription under international law).
Malaysia was not worried about the Johor 1953 letter. Malaysia argues that the letter talks about ownership and not sovereignty. Specifically, Malaysia argues that it could not have meant sovereignty because the author of the letter did not have the legal capacity nor authority to deal with question of territorial sovereignty, what more to give away a territory to another country. In any event, Malaysia claims that Singapore also did not, at any point in time after that, assert a claim to Pulau Batu Puteh. There was not the slightest change in Singapore's conduct which shows its sovereign status over the rock such as extension or declaration of Singapore territorial waters therein. Plus, Malaysia concedes with Singapore that the 1953 letter is not a basis of acquiring title through prescription.
I am unsure which party’s argument was accepted by the Court. I think this is the case of Court’s divine intervention where contrary to parties’ argument, the Court concluded that the 1953 letter had the effect of “passing” Johor’s sovereignty to Singapore.
5. With regard to Middle Rocks and South Ledge, Singapore’s position is that sovereignty in respect of Middle Rocks and South Ledge goes together with sovereignty over Pulau Batu Puteh. Thus, Singapore’s submission is that whoever owns Pulau Batu Puteh owns Middle Rocks and South Ledge because all three features form a single group of maritime features.
Malaysia on the other hand argues that these maritime features must be treated separately and independently of Pulau Batu Puteh as they do not constitute one identifiable group of islands in historical or geomorphological terms.
Well, we’ve read the Judgment. The Court clearly allocates the sovereignty over the disputed features in the way that is consistent with Malaysia’s argument. So I can conclude that the Court accepted Malaysia’s argument, not Singapore’s.
So, I think we won more legal arguments that Singapore, didn’t we Mr. Foreign Minister. It is just that we did not get Pulau Batu Puteh. But we certainly presented and won more legal arguments than Singapore. Singapore clearly lost all the legal historical arguments. But through Court’s divine intervention and its mere listing of everything-under-the-sun regarding its activities, that had assisted Singapore to get Pulau Batu Puteh.
Also Mr. Foreign Minister, I also wish to comment on your statement that “Singapore did not have big names, but they got the failure of history to be noted...”. My history Professor told me and which I fully agree –
“We did not lose on history. Neither did history fail us."
I think he is absolutely right and I could not agree to more. I think it was the Malaysia's civil servants that lost. Lost to the better Singapore's civil servants.
So, Mr. Paul Gabriel, Singapore does not in actual sense of the word, had a good legal team. It had a good Singaporean team each with their priority right. This is the legal case, hence, it should be handled primarily by the legal fraternity. Not only that Singapore had the Chief Justice in its team, they also had Mr. Tommy Koh, Professor of Law at the National University of Singapore as Agent and Mr. S. Jayakumar who is not only the Deputy Prime Minister but also the Minister for Law and Professor of Law at the National University of Singapore. And its legal composition way outweigh the technical composition.
Have you seen the list of the Malaysian Delegation? Please have a look.
Have you seen the list of the Malaysian Delegation? Please have a look.
And what is this I heard that to the Malaysian team, it was the seating arrangement in the Court that matters. That should be adhered and paid attention too. Who sits where and which row. Malu lah kalau betul.
Mindset change please.
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