Batu Putih case: Malaysia relied on Singapore documents

Posted by Penarik Beca Sunday, December 21, 2008

Malaysian Insider (20/11/08): Most of the documents used by Malaysia to make its case on Pulau Batu Putih at the International Court of Justice were produced by Singapore.

This startling allegation was made by the republic's Chief Justice Chan Sek Keong and turns on its head the assertion by Malaysia's Foreign Ministry that its officials scoured the world for evidence to back its claim that it had ownership over the outcrop of rocks off Johor.

Chan made this revelation at the launch of the book Pedra Branca: The Road To The World Court.

He was quoted by the Straits Times as saying: “I am not sure whether the International Court of Justice realised that most of the documents used by Malaysia in her arguments against Singapore were produced by us.

“So, you can imagine our deep disappointment when it was alleged that Singapore had withheld from the court a letter which Malaysia believed would damage our case.”

He added: “The truth is that we had gone round the world looking for it for some 30 years without success.” (See also "Pedra Branca: Behind the scenes")

In the foreword of the book, Minister Mentor Lee Kuan Yew said that in 1992, he directed that Singapore hand over all its documents on the disputed area to Malaysia, “an unprecedented unilateral move”.

This move and other previously undisclosed facts about the Pedra Branca case are contained in the 190-page book on how both countries managed the dispute, which the ICJ resolved in May this year.

Pedra Branca, a football field-sized island at the eastern entrance of the Singapore Straits, was first occupied in 1847 by the British, who built Horsburgh Lighthouse there. Singapore later took over, and Malaysia staked its claim in 1979.

In May, the ICJ ruled that Pedra Branca belonged to Singapore, and that nearby Middle Rocks belonged to Malaysia.

Who owns a third maritime feature, South Ledge, is being worked out by the two countries. The ICJ says it belongs to the country in whose waters it sits.

The long journey to the ICJ resolution was highlighted by Singapore's Deputy Prime Minister S. Jayakumar, who co-wrote the book with Ambassador-at-Large Tommy Koh.

In the book, both men noted how their involvement with the case began in 1978, when they were representing Singapore at the United Nations in Geneva. The Ministry of Foreign Affairs had sent them an urgent telex, asking Jayakumar to go to London to locate certain documents on the island.

Both men went on to helm the team making Singapore's case for Pedra Branca before the ICJ in The Hague in November last year, with CJ Chan, who was Attorney-General from 1992 to 2006.

The book recounts the twists and turns in the dispute and the behind-the-scenes manoeuvres taken to resolve it.

Jayakumar also noted that both sides agreed to third-party dispute settlement, now a key tenet of Singapore's foreign policy in managing disputes.

Koh said they decided to write the book to distil the lessons they had learnt from the case — Singapore's first at the ICJ — and share them with colleagues as well as the public.

Chan, in his speech, noted that Pedra Branca was “not an easy case by any standard”. The written pleadings alone of each side filled more than 2,600 pages.

“This is a case where history was part of the legal arguments, and law was part of the historical arguments,” he said.

“Ultimately, the majority of the court decided that Malaysia had history on its side, and Singapore had international law on its side, and this is expressed in the final disposition of the judgment.” — Straits Times Singapore

Pedra Branca: Behind the scenes

Malaysian Insider (20/11/08): Pedra Branca was in the spotlight last year when the International Court of Justice in The Hague heard Singapore and Malaysia make their case for the island. A new book by Deputy Prime Minister S. Jayakumar and Ambassador-at-Large Tommy Koh, who played key roles in the case, sheds light on previously undisclosed facets of the case.

The first inkling that something was afoot came in 1977, when Singapore's Foreign Affairs Ministry (MFA) learnt that a Malaysian navy lieutenant commander had made inquiries about the status of Pedra Branca.

Then in April the following year, the then Counsellor at the Singapore High Commission in Kuala Lumpur, Kishore Mahbubani, reported back on a conversation he had with a Malaysian Foreign Ministry official.

The Malaysians claimed to have completed a study showing that Horsburgh Lighthouse belonged to them.

The official said they would be writing to Singapore to claim sovereignty over Pedra Branca, where the lighthouse had stood since 1851, although no such communication was received.

In May 1978, Jayakumar, then dean of the National University of Singapore's Law Faculty, was in Geneva assisting the ministry for the third United Nations Conference on the Law of the Sea (Unclos).

He received a telex from then MFA deputy secretary Tan Boon Seng asking him to head to London right away to search for colonial documents on Pedra Branca that could not be located in Singapore.

After consulting Koh, then Singapore's permanent representative to the United Nations, Jayakumar spent a few days looking up documents at the India Office in London and the Public Record Office in Kew.

He returned with a microfilm of documents. But he could not unearth an 1844 letter that Straits Settlements Governor W.J. Butterworth wrote to the Johor Rulers, apparently about the island. He did, however, find copies of Johor's replies referring to Peak Rock, another island.

While at both offices, Jayakumar was asked if he was the person who had come two days earlier for similar documents.

He concluded that the Malaysians must be searching for the same material.

Not long after, in December 1979, Malaysia published a map that, for the first time, included Pedra Branca as Malaysian territory. The move drew a formal protest from the Singapore Government.

Attempts to settle

Prime ministers on both sides raised the matter when they met for bilateral talks or at international events.

In a foreword to the book, Minister Mentor Lee Kuan Yew, who was prime minister at the time, said that while Singapore was surprised by Malaysia's claim in 1979, “I saw no need for this claim to trouble our bilateral relationship”.

“I went out of my way to persuade Malaysian PM Hussein Onn, under whose watch this claim was made, to settle the issue in an open and straightforward manner,” Lee wrote. “I found Hussein fair-minded when we discussed the Pedra Branca issue during his visit to Singapore in May 1980. He said both sides should search for documents to prove ownership of Pedra Branca.”

After Tun Dr Mahathir Mohamad took over in 1981 and visited Singapore in December that year, he and Lee agreed that both sides should exchange documents to establish the legitimacy of their respective claims.

Then in the late 1980s, in what was an unprecedented unilateral move, Lee instructed then Attorney-General Tan Boon Teik to go to Kuala Lumpur and show Singapore's documentary evidence to his Malaysian counterpart.

“I was prepared to take that step to get the Malaysians to know that we had a powerful legal case,” he wrote.

“But I also understood that it was difficult for any leader to give up sovereignty claims unilaterally.” This was why he proposed to Dr Mahathir in 1989 that if the matter was not settled after a document exchange, the dispute should be referred to the International Court of Justice.

The need to find a political solution to the dispute became more urgent as throughout the 1980s, Malaysian Marine Police boats began to make regular incursions into waters around Pedra Branca.

The Singapore navy was under strict instructions to avoid escalating matters, and both sides acted with restraint.

Dr Mahathir was aware of the need not to let the situation get out of control, the authors note in the book. In 1989, he made an unannounced boat trip to the vicinity of Pedra Branca to personally size up the situation.

Recounting his visit at a function in Kuala Lumpur last year, Dr Mahathir said his boat was immediately intercepted by two Singapore naval vessels. As he did not want to cause an international incident, he asked his own boat to leave.

In 1994, Malaysia agreed to refer the matter to the ICJ.

Jayakumar and Koh noted that after studying Singapore's documents, Malaysian officials indicated privately that Singapore had a strong case, and that their claim was weak.

Why did they persist in their claim? The authors say the issue had become politicised, and it would probably have been untenable for a Malaysian leader to be seen making a territorial concession.

Difficulties

Before the ICJ could decide the case, both sides had to sign a Special Agreement consenting to the court hearing the case and specifying the precise question on which the court was to decide.

This took three rounds of talks over four years, and eventually both sides agreed that the court would be asked to determine whether sovereignty over each of three close maritime features — Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge — belonged to Malaysia or to Singapore.

From early on, Singapore set up an inter-ministry committee on the case, bringing together officials from the Attorney-General's Chambers (AGC), MFA, the Defence and Law ministries and other relevant agencies.

A significant document they found was a 1953 letter from Johor's acting state secretary expressly disclaiming title over Pedra Branca — which the then Communications Ministry located in its archives in 1977.

Key members of the Singapore team, including the international counsel who would argue the case at the ICJ, visited Pedra Branca for a first-hand feel.

The book also reveals that Jayakumar made his own boat trip to the island as early as 1988 with then Communications and Information Minister Yeo Ning Hong — and faced a storm so huge that the ropes securing their lifeboat snapped and the crockery on board was smashed.

Two men on a fishing boat they passed by earlier that day died in that storm.

Dilemmas

Once Malaysia agreed to a third party settlement before the ICJ in 1994, Jayakumar asked Sivakant Tiwari — then head of the civil division at the AGC — to list international lawyers who could help argue Singapore's case.

The team also decided to put forward Koh as Singapore's judge ad hoc on the ICJ as he had wide international diplomatic experience.

A state can appoint such a judge when it appears before the ICJ and does not have its national on the bench.

But one of Singapore's counsel, Prof Alain Pellet, had reservations about Koh being Singapore's judge ad hoc as this could attract objections because he was involved in preparing Singapore's case.

Koh could have withdrawn from the team, but after weighing all the considerations, the Government decided to rule out Koh as judge ad hoc as it was not worth running the risk of having Malaysia object to his appointment.

Singapore then decided on Judge P.S. Rao from India, who had been closely involved during negotiations on Unclos.

But another dilemma emerged when then Attorney-General Chan Sek Keong was appointed chief justice in 2006.

While he had been closely involved in steering Singapore's preparations, some in the team were concerned that his inclusion in the team could raise eyebrows. This was because it was unusual for the chief justice of any country to plead before the ICJ.

“Would it blur the distinctions between the executive and the judiciary? Would foreign critics who attack the independence of our judiciary use this as an additional argument?” the authors write.

After discussions, the team felt it was important that Singapore had the best talent to win the case. And so it was in Singapore's interest to have Chan continue his work on the case.

The matter was discussed with Prime Minister Lee Hsien Loong and Cabinet colleagues, who had no doubts that Chan would be an asset, and that there was nothing improper about him leading Singapore's team to The Hague.

It helped that Chan, Koh and Jayakumar had known one another for a long time and were law school contemporaries. Then Attorney-General Chao Hick Tin was also a close friend.

Each of Singapore's three prime ministers also took a deep interest in the management of the dispute and preparations for the case. “They showed full confidence in the team and did not attempt to micro-manage,” the authors said of Lee Kuan Yew, Goh Chok Tong and Lee Hsien Loong.

Scouring the archives

As preparations for the case picked up pace, the team consulted local and foreign experts on international law and Malay history. Tiwari chaired a committee to coordinate the effort systematically with MFA, the Ministry of Defence, the Maritime and Port Authority and National Archives.

From 2003 to 2006, the Archives deployed five full-time staff and 10 part-timers to locate archival records relating to Pedra Branca, piracy, the Malay concept of sovereignty and the status of the Sultan of Johor, among others.

They spent over 20,000 research hours, identified more than 2,000 records, transcribed 650 historical manuscripts and acquired copies of records from Britain, India, Indonesia, the Netherlands, Australia and New Zealand.

During the oral hearing at The Hague last year, Archives staff were on standby here to assist the Singapore team.

Without their help, the AGC and international counsel would not have the materials with which to write their pleadings, the authors note.

Among the gems they uncovered was a letter written by the Dutch colonial authority in Indonesia acknowledging Pedra Branca as “British territory”, which Singapore used as evidence to back its case.

Koh, Jayakumar, Chan and Chao were to argue Singapore's case along with four international counsel — Queen's Counsel Ian Brownlie from England, Rodman Bundy from the United States, Frenchman Alain Pellet and Italian Loretta Malintoppi. The team and counsel met several times to prepare written pleadings, counter-arguments and replies. Jayakumar even approached Senior Counsel Davinder Singh for an independent and neutral view on the pleadings of both sides.

The team was encouraged by his response — that Singapore had the better argument.

At the hearings

Countries traditionally appear before the court in alphabetical order. But Malaysia's counsel Elihu Lauterpacht disagreed — presumably because he wanted Malaysia to have the last word. He suggested tossing a coin. But Singapore rejected this as being flippant, and both sides agreed to let the court decide. In September 2006, the registrar said the court drew lots: Singapore would go first.

While disappointed, Singapore took the development in its stride, going ahead on the basis that “in starting first, we would be able to make a strong and lasting impression on the judges while their minds were still fresh”.

To prepare for the oral hearing, Jayakumar, Koh, Chan and Chao had a filmed rehearsal of their speeches at the MFA in October last year. A second rehearsal was held two weeks later, and a third at the Supreme Court, where Chan and Jayakumar made their case before Appeal Judges V.K. Rajah and Andrew Phang.

The mood of the team before it departed for The Hague was “calm, confident and upbeat”.

“Although confident, we reminded ourselves not to be smug or underestimate the strength of the Malaysian legal team, which included several international legal luminaries. We knew they were going to give us a good fight.”

Both Jayakumar and Koh wrote that the Singapore and Malaysian media reported on the hearing in a balanced manner.

They said that “when Malaysia was presenting its case, The Straits Times did such a good job reporting on Malaysia's arguments that we were told that some Singaporeans were betting 60:40 that Malaysia would win the case!”

“We did not know whether the punters had changed the odds after reading Singapore's presentations in the second round, but we were confident that we had answered all of Malaysia's points and left them with nothing substantial to say in their final speeches, except to spring a new argument on us,” they said.

Key factor for success

The authors note that while the legal arguments, well-written pleadings, persuasive oral arguments of team members and very good international counsel were all important to the successful outcome, the most important factor was that all agencies here worked closely together over three decades.

“The Pedra Branca story is an excellent illustration of the 'whole of government approach'.”

Although Singapore was awarded sovereignty over only Pedra Branca, MM Lee said in his foreword in the book that Singapore accepted the judgment without any qualification: “Whichever way the judgment went, it is better for bilateral relations that a conclusive judgment has been made. This allows us to put aside this issue and move on to other areas of cooperation.”

Summing up, he said that Singapore must remain committed to upholding the rule of law in the relations between states.

If negotiations cannot resolve disputes, it is better to go to a third party than to allow the dispute to fester and sour ties. This was his approach, which his successors have also subscribed to. — Straits Times Singapore

Pedra Branca book sheds light

Singapore Straits Times (19/12/08): Back in 1992, Singapore was so confident of its legal case on Pedra Branca that it handed over all its documents to Malaysia.

In his foreword to a new book on the 30-year dispute, Minister Mentor Lee Kuan Yew disclosed he had instructed that the materials be shown to Malaysia, 'an unprecedented unilateral move'.

On Friday, Chief Justice Chan Sek Keong took up the point in his keynote address at the launch of the book Pedra Branca: The Road to the World Court.

He said: 'I am not sure whether the International Court of Justice (ICJ) realised that most of the documents used by Malaysia in her arguments against Singapore were produced by us.'

'So, you can imagine our deep disappointment when it was alleged that Singapore had withheld from the court a letter which Malaysia believed would damage our case.

'The truth is that we had gone round the world looking for it for some 30 years without success,' he added.

This move and other previously-undisclosed facts about the Pedra Branca case are contained in the 190-page book on how both countries managed the dispute, which the ICJ resolved in May this year.

Pedra Branca, a football field-sized island at the eastern entrance of the Singapore Strait, was first occupied in 1847 by the British, who built Horsburgh Lighthouse there.

Singapore later took over, and Malaysia staked its claim in 1979.

In May, the ICJ ruled that Pedra Branca belonged to Singapore, and that nearby Middle Rocks belonged to Malaysia.

Who owns a third maritime feature, South Ledge, is being worked out by the two countries. The ICJ says it belongs to the country in whose waters it sits.

The long journey to the ICJ resolution was highlighted by Deputy Prime Minister S.Jayakumar, who co-wrote the book with Ambassador-at-Large Tommy Koh.

Speaking at its launch at the Ministry of Foreign Affairs, he said: 'For both of us, working on the case for some 30 years was really a labour of love'.

0 comments

Post a Comment

Parlimen

Photobucket

Participating for Allah s.w.t.
Untuk pembinaan, ubah suai rumah dan lain-lain kerja untuk memulih atau menaik taraf rumah anda termasuk kerja-kerja plumbing dan pendawaian elektrik, sila hubungi Abang Omar 019-3344500

Medic & Beauty Spa

Untuk bekalan santan dan buah-buahan sekitar Kuala Lumpur dengan harga wajar, sila hubungi Abang Zali 019-2314248 (Pasar Chow Kit)

Klik gambar di atas. Sedap, bib!! Memang sedap sungguh!! Dan, boleh buat duit sakan!

Dapatkan segera!!! Maklumat lanjut di sini!

Cantik? Klik di sini

Sila klik imej di atas

Islam

Blog utama

Arkib