THE DEVIL IS IN THE DETAIL

The first major decision of the ICJ was to examine the evidence on the question of the original title to sovereignty over Pulau Batu Puteh. Malaysia's position was predicated on the claim that the island and rock features belonged to the historic Sultanate of Johor and its successor states including modern Malaysia. By contrast, Singapore asserted that the island and rock features in the Straits of Singapore were terra nullius. In court Singapore demanded a very high level of evidence to support Malaysia's claim to original title. Among these demands were proof that the Sultanate of Johor had title over a barren , unihabited 'rock'; effective sovereign control of the rock and its surrounding waters including acts that would assert its authority and jurisdiction. In this regard, Singapore made use of the highly contentious thesis that the Sultanate of Johor was in a process of terminal decline in the late eighteenth and early nineteenth centuries, had little or no sense of terriority and was infested with piracy. Therefore, Singapore would have the Court believe that nobody had authority over Pulau Batu Puteh and its surrounding waters until the British built the Horsburgh Lighthouse in 1851.

In contrast to Singapore's 'imagined history', we brought to bear the weight of historical evidence found in a huge number of archives. For the early period there is no doubt that the most important collection is the records of the East India Company which effectively ruled the Straits Settlements of Penang, Malacca and Singapore up to 1858. These can be found in a number of archives: the British Library, the National Archives of India in New Delhi, the State Archives of West Bengal in Kolkata, and the various microfilm copies held by the University of Malaya Library. For the decade from 1858 to 1867 the major source is the India Office records held by the British Library. Thereafter, from 1867 to 1946 the key source of data is the Colonial Office series, as well as those of related British government departments such as the Admirality, Dominion Office, War Office and Foreign Office all held at the National Archives of the United Kingdom at Kew. Aside from official records very useful data can be gleaned from contemporary press reports (Singapore Chronicle, Singapore Free Press, Canton Press, Straits Times) held on microfilm at the University of Malaya Library. Finally, there are miscellaneous records available from the House of Commons Parliamentary Papers, as well as contemporary academic periodicals such as the Journal of Indian Archipelago and Journal of the Malaysian Branch of the Royal Asiatic Society.

The table below offers a summary of the major archival collections that were used in developing Malaysia's submission to prove that original title of Pulau Batu Puteh did indeed belong to the Sultanate of Johor.

(Click on table to enlarge)

THE ANATOMY OF RESEARCH IN THE MALAYSIAN PLEADINGS

As part of the presentation of the Malaysian memorials in the Pulau Batu Puteh case a total of 194 documents were submitted in the form of annexes for the consideration of the judges. The table below provides an analysis of the contributions of different research teams to the identification, acquisition, collation and analysis of these primary data. There is a stark difference between the work of my two teams - at the University of Malaya and the Attorney General's Chambers - and that of Wisma Putra (Ministry of Foreign Affairs) and others. In a broad sense, my teams were deeply immersed in sifting through the huge range of sources available in many different archives and libraries around the world. By contrast, the 1945-80 period was handled largely by Wisma Putra and its team and dealt almost exclusively with a narrow range of affadavits. The lack of substance in the quality and quantity of research for this contemporary period left Malaysia's case extremely vulnerable.

(Click on the table to enlarge)

AN IMAGINED HISTORY: DECONSTRUCTING THE BATU PUTEH JUDGMENT

Dato' Dr Shaharil Talib will be presenting a talk entitled An Imagined History: Reconstructing the Batu Puteh Judgment for the Malaysian Branch of the Royal Asiatic Society.

The details of the talk are as follows:

Date: Saturday 20 June 2009
Time: 6.30 pm
Venue: Badan Warisan Malaysia premises, 2 Jalan Stonor, 50450 Kuala Lumpur

For bookings please contact:
E: mbras@tm.net.my
T: 03 2283 5345
More details can be found at the MBRAS website.


Abstract

The decision of the International Court of Justice (ICJ) – by twelve votes to four – on 23 May 2008 to award the small rock island of Pulau Batu Puteh/Pedra Branca to Singapore brought to an end a protracted international dispute. The heart of the Court’s judgment was that although the island had originally been under the sovereignty of the Johor Sultanate, the United Kingdom and Singapore had carried out various acts of sovereignty in respect of the island. The failure of Malaya/Malaysia to respond to these acts, especially in the period after 1953, and other actions which demonstrated their acknowledgment of Singapore's sovereignty over the island, meant that Singapore had gained sovereignty over Pedra Branca. In January 2009, in the best academic tradition Singapore quickly published an authorised version of this episode under the title Pedra Branca: The Road To The World Court, written by two of the leading legal minds behind Singapore’s case, Professors S. Jayakumar and Tommy Koh.

This lecture follows the same academic tradition by subjecting both the Court’s judgment and Jayakumar and Koh’s account to critical review. It does so by deconstructing the judgment. The judgment was predicated on an interpretation of the empirical evidence presented before the Court by the two parties. As Judge Ad Hoc Dugard noted, the Court was “compelled to choose between competing facts and to attach more weight to some facts than to others. This is the nature of fact finding in the judicial process”.

Picking up on the disquiet expressed by Dugard and others, this lecture suggests that any set of evidence or facts must be evaluated in relation to the context in which they was produced; the completeness of the data; and the thoroughness as an historical record. In light of this, it is argued that the evidence adduced by Singapore was deeply flawed by its selectivity and failure to disclose. This led in turn to interpretative distortion. Indeed, Dugard goes so far as to say that the Court was “unduly influenced by its interpretation” of certain evidence while other facts were virtually ignored. This was most clear in the period when Singapore was no longer the Settlement of Singapore as part of the Colony of the Straits Settlements (1867-1946) but rather the Colony of Singapore (1946-1959), the State of Singapore (1959-1963) and the Republic of Singapore (1965-onwards). As a result, we argue that the Court’s judgment was based on an imaginary record of evidence, one that was extremely partial in both senses of the term: the evidence was interpreted selectively; and the facts on the ground were weighed in a biased way.

In the final analysis, history was distorted and compromised. It is incumbent on historians to put that record straight. As the great historian Fernand Braudel reminds us, “everything must be recaptured and relocated in the general framework of history, so that … we may respect the unit of history”. The definitive story of Pulau Batu Puteh is still to be written in this spirit.

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All are welcome.

The ICJ RECORD OF JUDGMENT ON PULAU BATU PUTEH

This research blog attempts to deconstruct the ICJ Judgment and readers are advised to read the official records on the Judgment before turning to the other sections of this site. Care has been taken to first deconstruct the Judgment and secondly to reconstitute the evidence (both historical and contemporary)to reflect facts closer to the actual reality that exists in fact behind the smoke and mirrors.

The ICJ Record of Judgment on Pulau Batu Puteh
(Click to see the documents)