To A Great Historian

Recently, I received an overwhelming support from my history’s Professor on the idea of coming up with this blog and opening it up for an educational and exchange of information forum. I thought the way he expressed it is so smartly written that I just could not resist from placing it on the blog in the hope that it will attract more intellectual discussions from the public. In addition to that, he had also shared with me (and now with all of you), few interesting verses which relate to the beloved lost island.

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"On 23 May 2008, the International Court of Justice finally made its decision on the dispute concerning Pulau Batu Puteh/Pedra Branca, Middle Rocks and South Ledge between Malaysia and Singapore. It is clear that the judgment was hasty and raises more questions than it answers: questions of history and identity, of politics and policy, of law and (in)justice. In short, the judgment compels a frank and honest debate about how and why the verdict was reached. You are invited to join this debate in the hope of casting a critical light on what really happened and what we can learn for the future."

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Look, stranger, at this island now

The leaping light for your delight discovers,

Stand stable here

And silent be,

That through the channels of the ear

May wander like a river

The swaying sound of the sea.

W.H. Auden

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No man is an island, entire of itself; every man is a piece of the continent, a part of the main.

John Donne

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Honour is like an island, rugged and without shores; we can never re-enter it once we are on the outside.

Nicolas Boileau (1636-1711)

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For islands, being islands,

Are more fragile, more sensitive to disorder,

More vulnerable to outrages of every kind.

But man must come to his senses.

Inconsequential as he is, man can also be wise!

René Carmen

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p/s: Thank you Prof (as I use to call him) for the undivided interest and support for the case. You are one truly great professor and historian I’ve ever met.

Haris Ibrahim's Article

On 29 May 2008, Datuk Deva Mohd Ridzam, former ambassador to the European Union, Belgium and Luxemburg and Cambodia concluded the following when he wrote about the Pulau Batu Puteh's case -

"In the light of the foregoing, to criticise the government for taking the matter to the ICJ without a strong case is also unfair, to say the least.

There are, of course, risks to be run in bringing the matter before the ICJ. But the question is, was there any other practical alternative? Refusing to let our case be heard at the World Court would have suggested Malaysia lacked confidence in its claim’."

On 30 May 2008, Mr. Haris Ibrahim, in response to Datuk Deva wrote the following -

"Here, I’ve got to say we don’t know enough to say, ‘Yes, Gani & team did right by us’."

Well, I think I know enough to say exactly the contrary. It’s funny how people who dont know always have more to say than those who do. I think the Malaysian legal team had put up all their best in the case and based on the Judgment, Malaysia won more legal arguments than Singapore. It is unfortunate however that while we won on the legal arguments, we still did not get Pulau Batu Puteh.

One clue though, since you are diligent enough to reproduce the list of the Malaysian delegation, didn’t it occur to you that the Malaysian team is headed by the Ministry of Foreign Affairs rather than the country’s top legal fraternity.

Therefore, I do not think that the grouses, suspicions or questions on the handling of the case should be directed to the Attorney General’s Chambers but rather to the Ministry of the Foreign Affairs. Obviously they are in control of the whole affairs.

I'm indeed very suprised myself that the Ministry of Foreign Affairs hardly makes any comments on the case. They remain equally silent whenever comments are directed to the legal team. Strange.

Mr. Haris' article can be viewed at:

http://harismibrahim.wordpress.com/2008/05/30/pedra-branca-was-pre-litigation-legal-advise-obtained-and-how-much-did-we-pay-to-be-told-we-lost/

The Dissenting Judgment

Thanks Harman for your comment on my entry A Victim of a Political Decision. Your comment is the first on the blog. Bravo.

In your comment, you requested for the Dissenting Judgment. Well, here it is, the Dissenting Judgment and the Separate Opinion, which I thought were much more powerful and legally sound compared to the majority Judgment for your reading and information.

http://www.icj-cij.org/docket/files/130/14502.pdf (the Dissenting Judgment from Judge John Duggard) and

http://www.icj-cij.org/docket/files/130/14496.pdf (the Separate Opinion from Judge Parra-Aranguren).

There are 1 more dissenting Judgment which at the moment is only available in the French version only.

When It’s All Said and Done

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:

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:

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."

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.

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.

The Judgment that Changes Everything I Knew About the Law

The international law and the established principle as I knew it and was told over and over again during my law study was that –

“Where the act does not correspond to the law, where the territory which is the subject of the dispute is effectively administered by a State other than the one possessing the legal title, preference should be given to the holder of the title. In the event that the effectivités does not co-exist with any legal title, it must invariably be taken into consideration.”

The Court too uphold the above principle numerous time in its earlier cases of Frontier Dispute (Burkina Faso/Republic of Mali, Judgment, I.C.J. Reports 1986, pp. 586-587, para. 63); Territorial Dispute (Libyan Arab Jamahiriya/Chad, Judgment, I.C.J. Reports 1994, p. 38, paras. 75-76); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening, Judgment, I.C.J. Reports 2002, para. 68).

If I were to paraphrase and fit the Court’s own principle into the present case, it simply means that –

“Where Singapore’s act does not correspond to the law, where Pulau Batu Puteh is effectively administered by a State (i.e. Singapore) other than the one possessing the legal title (i.e. Malaysia), preference should be given to the holder of the title (i.e. Malaysia). In the event that Singapore’s effectivités does not co-exist with Malaysia’s legal title, it must invariably be taken into consideration.”

So, Singapore’s effectivités (i.e. acts of control and administration) clearly do not correspond to the law because the law and the Court say title is with Malaysia. Therefore, although Singapore effectively administered Pulau Batu Puteh instead of Malaysia, preference should still be given to Malaysia as the holder of the title. Only if Malaysia does not have legal title will Singapore’s effectivités must invariably be taken into account.

In the Sipadan/Ligitan’s case, you Judges correctly applied the principle. You concluded that neither Malaysia nor Indonesia has original title to the islands. So you turn to take into account the effectivités of both sides as an independent and separate issue and came to the conclusion that Malaysia has stronger effectivités than Indonesia. Hence, Malaysia got the two islands.

But now, now you acted differently. You also decided differently.

Yet, you don’t explain clearly why.

And that left me disturbed and perplexed.

I don’t think I can forgive you for that.

It’s a respect gone for you. At least from me.

A Victim of A Political Decision

The extract of the Dissenting Judgment below is certainly an eye-catching -

“The Court’s Judgment provides an equitable solution to the dispute before it. Pedra Branca/Pulau Batu Puteh is awarded to Singapore; Middle Rocks is awarded to Malaysia; and South Ledge, a low-tide elevation, will be allocated to the State in the territorial waters of which it is located. Although the dispute was not, at least in theory, about territorial sea and continental shelf, both Parties will share these areas and their resources. If this Court was sitting as a court of equity, or if it had been authorized by the Parties to decide the case ex aequo et bono in terms of Article 38, paragraph 2, of the Statute of the Court, I might have been able to agree with the Court’s Judgment. The Court is not, however, sitting as a court of equity. The Special Agreement entered into between Malaysia and the Republic of Singapore on 6 February 2003 makes it clear, in Article 5, that the dispute is to be resolved in accordance with international law. As I find it impossible to agree with the Court’s reasoning on the law, and its interpretation of the facts upon which this legal reasoning is based in respect of the question of sovereignty over Pedra Branca/Pulau Batu Puteh, I must dissent on this issue.”

The above extract features as the first paragraph of in the Judgment of the Dissenting Judge.

Ya ya ya….it is only a dissenting Judgment, but the impact of the quoted paragraph certainly cannot be ignored and taken lightly.

More specifically, I couldn’t help but to question myself whether the majority Judgment is tainted with the suspicion that it is intended to be politically correct. That the deliberation for the Judgment is motivated and driven by the need to be fair to both sides. Even if the law says otherwise. Even if it is at the expense of one party.

If that is true, I think it is grotesque. It should not have any bearing on equity consideration whatsoever. Or the need to be nice to one of the party because it is small?

I can accept equity consideration if the dispute between Malaysia and Singapore is about three features located in Antartica or in the country of Narnia. But the dispute is not about that.

The dispute is about determining the status of the three features which in ancient days belong to someone.
Those three features have their original owner.
Malaysia says they are hers since time immemorial.
Singapore also says that they are hers because it took possession of the features that belong to no one at the time it occupies and builds the Horsburgh Lighthouse there.
So it’s either Malaysia or Singapore.

You Judges were convinced that they belong to Malaysia. That Johor had historical and original title to Pulau Batu Puteh, Middle Rocks and South Ledge.
But then why must you construe Malaysia had “passed” that title to Pulau Batu Puteh to Singapore by that 1953 letter.
It doesn’t make sense does it, it is also contrary to the law you yourselves established.
Johor would never do that. Not when it comes to the question of territory. The question of maruah.
Because for us, “territory is a territory even if it is the size of a coconut shell”.
The very first lesson I was thought when I was learning about the Malay world long long time ago, betul tak Prof?

Even more horrifyingly awful, you also refuse to declare that South Ledge remains with Malaysia as the original title holder. Instead, you shield under the modern principle of the law of the sea and ask the two countries to decide among themselves.

The majority Judgment is an ugly legal truth. It's not the road to justice, but the road to nowehere. Now, you have further complicate the matter for us.

But I thank you the dissenting Judge for indirectly sharing with us an insight of why the Judgment could have end up as such.

Because they either need to be politically correct or unfairly fair.

Pulau Batu Puteh/Pedra Branca and the Idiosyncrasies of the ICJ Judgment

I find it hard to believe that there are Malaysians who asked whether Malaysia actually won the case or not? Some were even heartless that they cold-bloodedly concluded that we lost.

So who actually won the case, Malaysia or Singapore?

Of course Malaysia.

The astonishingly cocky Singapore should be embarrassed that it actually gets Pulau Batu Puteh or Pedra Branca not through its legal argument, belief or conviction but through the World Court’s compassion which is obviously very kind to Singapore and is less generous to Malaysia.

Singapore arrogantly claims that it is the owner of Pulau Batu Puteh because it built the Horsburgh Lighthouse in 1840s on a piece of rock that belongs to no one at the time of its construction and has maintained it ever since. Because of that self-acclaimed conviction, it unilaterally and selfishly prevents innocent Malaysian fishermen from fishing there, for Malaysian to come near the rock, for Malaysian navy to patrol in and around the area…all this self-imposed prohibition….for more than 30 years?….How dare Singapore.

Because what did the World Court say? The World Court confirms that it was Johor’s all along. Johor had original and ancient title to the rock.

Wow, what has Singapore been saying all this while?

That Singapore was the first one to discover that rock? That Pulau Batu Puteh was terra nullius? The World Court clearly thinks otherwise.

Who do you think won there, Malaysia or Singapore?

Then Singapore brags further by saying that the Johor 1953 letter confirms its long established title to Pulau Batu Puteh.

Singapore does not say that it owns Pulau Batu Puteh because the Johor 1953 letter said so.

Or that Johor, the rightful owner, had given Pulau Batu Puteh to it in 1953.

It did nothing to that effect at all.

Singapore specifically says that - “the Johor 1953 letter confirms its already existing title”.

But how can that be when Singapore does not have any title before 1953.

It is Johor’s. What is there to confirm?

This is where the World Court comes to the rescue.

Although Singapore did not make such an argument, the World Court makes its decision as if Singapore did. Why must you Mr World Court?

Singapore is obviously very ego not to opt for such an argument but why must you rectify its own error at the expense of Malaysia?

Is that justice?

Then the World Court says that Middle Rocks belong to Malaysia because it is Malaysia’s since time immemorial. Fair enough.

But then why does South Ledge not part of Malaysia too?

If Pulau Batu Puteh and Middle Rocks are historically under Malaysia, shouldn’t South Ledge be under Malaysia too?

Why must you ask the two countries to decide between them?

Were you not asked to decide on the question of sovereignty over South Ledge, Mr World Court?Or were you too nervous to decide on South Ledge because such decision would make one country looks like a winner over the other because it will get two features.

So let’s be politically correct is it?

Let’s give Malaysia one, Singapore the other one, and pandai-pandai lah korang pasal South Ledge tu.

So Malaysia, look what your kindness and neighbourly spirit to Singapore has done to you?

It backfires. Be careful next time.

To the World Court, I think your Judgment defies not only legal sense but also common sense.

So I refuse to refer to you as the International Court of Justice here, because I don’t think justice is done. Not only that it is not done, it is not even seen to be done.

Let me just regard you as the World Court. Because that is what you are. A Court comprising people from around the world, nothing more.

But to the 4 Judges that dissented, I salute you for your having a little sense.

Let Singapore thinks she won. I certainly don’t think so.

If you ask me who won, dearest Malaysians ? I say Malaysia.

Malaysia manages to convince all 15 Judges that it had original title to Pulau Batu Puteh.

Malaysia also manages to convince all 15 Judges that it had original title to Middle Rocks.

It’s sad however that 12 Judges decided to deviate to give Singapore at least something.
Otherwise Malaysia will get both Pulau Batu Puteh and Middle Rocks and Singapore will get nothing.
It remains a mystery as to the real reason they could not decide on South Ledge.

So kudos to the Malaysian legal team.

Especially to the Malaysian own legal team - the Attorney General’s Chambers.

It was not an easy battle. Not as easy as Sipadan Ligitan.
In Sipadan Ligitan, Malaysia failed to prove original or historical title.
In Pulau Batu Puteh case, you convince them with all your archival documents. All the judges.
In Sipadan Ligitan there is no Johor 1953 letter equivalent.

In Pulau Batu Puteh case, that letter, though not part of Singapore's case, was repeated like million times during the oral hearings, so I read the oral proceedings.

But you fought till the last day of the oral hearings.

You fought so hard that Singapore got panicked and resorted to technicalites to defeat you. So it claims that you made a new argument at the very last of day of the oral hearings. An argument Singapore claims was never made before.

And unsurprisingly, the World Court agrees.

But that’s how serious you were. You gave it all. In fact I'm sure you wanted to say more.

Unlike Singapore, it is in serious denial that even at the very end, it never occur to it to opt for an argument that they could have own Pulau Batu Puteh through an adverse possession.

At least as an alternative argument. Singapore didn’t.

But the World Court seems to have done it for Singapore.

And because of Malaysia’s strong legal argument, the judgment actually looks seriously flawed. So how dare some people accused Malaysia as having a weak legal team.

Go read the Judgment first, then you talk.

As for me, I can certainly sleep in peace.

I think Malaysia has done exceptionally wonderful job.

It’s just that luck is not on our side.