SEE, IT STALKS AWAY!

Hamlet, Act 1, Scene 1

Barnardo: See, it stalks away!
Horatio: Stay! Speak, speak! I charge thee, speak!
Exit ghost.
Marcellus: 'Tis gone, and will not answer.

***
The single best-known piece of evidence which ultimately determined the Court's conclusion that "sovereignty over Pedra Branca/Pulau Batu Puteh belongs to Singapore" (Para. 277) is the (in)famous letter of 1953 from the Acting Secretary of the State of Johor. Dated 21 September 1953, the letter makes the following statement:

"I have the honour to refer to your letter ... dated 12th June 1953, addressed to the British Adviser, Johore, on the question of the status of Pedra Branca Rock some 40 miles from Singapore and to inform you that the Johore Government does not claim ownership of Pedra Branca" (Para. 196).

Such was the importance given by the Court to this letter and the attendant correspondence that some 39 paragraphs were devoted to it in the final Judgment. It would appear that no stone was left unturned in interpreting the context, intention and implications of the Acting Secretary's letter and related correspondence. In the end, the Court decided as follows:

"... the Johor reply is clear in its meaning. Johor does not claim onwership over Pedra Branca/Pulau Batu Puteh. That response relates to the island as a whole and not simply to the lighthouse. When the Johor letter is read in the context of the request by Singapore for elements of information bearing on the status of Pedra Branca/Pulau Batu Puteh ... it becomes evident that the letter addresses the issue of sovereignty over the island. The Court accordingly concludes that Johor's reply shows that as of 1953 Johor understood that it did not have sovereignty over Pedra Branca/Pulau Batu Puteh. In light of Johor's reply, the authorities in Singapore had no reason to doubt that the United Kingdom had sovereignty over the island" (Para. 223).

This conclusion was, of course, devastating for the Malaysian case. The headline writers were ready: "Malaysia loses Pedra Branca/Pulau Batu Puteh".

In my view, the Court's interpretation of the 1953 correspondence and its final decision are highly contentious. We need to unpack this episode in a very careful manner. In doing so, we can reveal two things.

First, the presentation and elaboration of the 1953 correspondence before the Court was deeply flawed in methodological terms. In effect, errors on the part of the Malaysian team - errors that were highlighted even by the most sympathetic judges - gifted Singapore certain key points.

Second, the interpretation of the 1953 correspondence made by the Court was erroneous. Put simply, the Court read too much into the content of the Acting Secretary's letter which in no sense "clarified" that sovereign title to Pedra Branca/Pulau Batu Puteh now resided with Singapore. In fact, in the period after the 1953 correspondence it was Singapore that remained silent and took no public action in relation to the island. In my opinion, having already established beyond doubt that the original title to Pedra Branca/Pulau Batu Puteh was with Johor, nothing in the 1953 correspondence should substantively change that view.

Let us look first at the methodological shortcomings. Malaysia and Singapore presented sets of corresspondences which can be grouped into two files (MALAYSIA FILE and SINGAPORE FILE) relating to the 1953 correspondence before the Court as annexes to their respective Memorials. However, given the fact that the files contain gaps and deliberate omissions that confuse the chain of correspondence, it is necessary to reconstitute the whole as a starting-point

Both Malaysia's and Singapore's files originated in two Colonial Secretary's Office (CSO) files (CSO 11293/52 and CSO 11692/52). CSO 11293/52 Encl. 2 has the title "Horsburgh Lighthouse" and is a letter from the Master Attendant Singapore quoting the Chief Surveyor Singapore's view that he "should claim a 3 mile limit round this point [Horsburgh Lighthouse]". (Actually this letter has no place in the CSO 11692/52 file which Singapore created as the SINGAPORE FILE).

In Encl. 2A of this file (CSO 11293/52), the Colonial Secretary - replying to Deputy Commissioner General for Colonial Affairs for Southeast Asia, stationed in Singapore - writes a long letter (marked "confidential"), dated July1953, with reference to "territorial waters". These are defined in relation to both the Anglo-Dutch treaty and the Crawfurd treaty of 1824, as well as an Agreement of 1927 which fixed the mid-channel line in the Straits of Tebrau. s. This information was then drawn up on an attached chart - stamped by the Survey Department, Colony of Singapore and dated 5 July 1954 (sic). This, of course, does raise the question of how a 1954 map can be attached to a letter of 1953.

For all purposes based on CSO file 11293/52, the Commissioner General for Colonial Affiars, Southeast Asia knew about the territorial extent of Colony of Singapore; the Secretary of State at the Colonial Office knew the same; as did the Colonial Secretary, Singapore (CSO) and the Survey Department, Colony of Singapore knew of the limits of Singapore. They all knew that Singapore's territorial waters did not include Pedra Branca/Pulau Batu Puteh.

In this context, we can also consider the 1952 Annual Report of the Singapore Survey Department that drew the territorial limits of Singapore at the request of the Department of Commerce - this map exists but was never considered by the Court. Singapore has this evidence.

Turning to CSO 11692/52 file we have the following enclosures: 1A; unnumbered dated 29 Sept. 1952; Encl. 7; Encl. 8; Encl. 9; Encl. 10; Encl. 14; Encl. 16. It is of relevant to note that in Jayakumar and Koh's book they claim to have obtained all the 1953 letters not from the Singapore National Archives but from the Department of Communications, Singapore records in 1977. Even a cursory glance at this file reveals that there is so much missing evidence in the chain. At no stage did anyone query why all the correspondence and file title were not produced.

Encl. 1A is a departmental letter of enquiry from the Director of Marine, Federation of Malaya to the Master Attendant Singapore regarding the subject of maintenance of lighthouses close to the coast of the Federation. In a telling phrase, the Director of Marine notes that "The matter will, of course, have to be raised formally between the two Governments", i.e. between the Federation of Malaya and the Colony of Singapore. This clearly establishes that the British authorities saw lighthouses as a Federal matter.

The second item in the CSO 11692/52 file is letter which Singapore obtained from the National Archives Malaysia. Dated 29 September 1952, the letter is the Master Attendant Singapore's answer to the Director of Marine's query. Two points are important here. First, he notes that it is the Land Office that has been asked to "investigate the facts" of lighthouses in the Straits Settlements. Second, the Master Attendant declares that Pedra Branca being close to Johor coast "belonged to the Unfederated State of Johore".

This is fairly compelling evidence of the official view of the British authorities in late 1952. What would one expect now from the CSO 11692/52 file? It would be the follow-up correspondence with regards to the matter of lighthouses, the results of the investigation of facts by the Land Office and, presumably, arrangements for a meeting between the two governments. Instead there is a blank - a break in the chain of evidence - which now jumps to Encl. 9. This is letter from J.D. Higham, for Colonial Secretary Singapore to the British Adviser Johor dated 12 June 1953. This letter comes with two attachments - Encl. 7 and 8. Encl. 7 is a very brief typewritten extract of a despatch from the "Governor of Singapore" - actually it was Butterworth as Governor of the Straits Settlements - to the Governor-General in Bengal, dated 28 November 1844. It states that Butterworth believed that the Sultan and Temenggong of Johor had "gratuitously" ceded "this rock" ["Pedra Branca"] to the East India Company. Encl. 8 is Article II of Crawfurd's treaty of 1824 already addressed in first CSO file. Higham's intention in this letter is clear. In making enquiries about the boundaries of Colony of Singapore's territorial waters he was on the trail for "documentation showing a lease or grant of the rock or whether it has been ceded by the Government of the State of Johore or in any other way disposed of". Higham also copied the letter to the Chief Secretary, Federation of Malaya. At no juncture does he make a direct claim that Pedra Branca/Pulau Batu Puteh "belongs" to the Colony of Singapore.

Encl. 10 is the critical letter in the CSO 11692/52 file. In it the Secretary to the British Adviser Johore, J.D. Turner, informed Higham that his letter had been passed to State Secretary Johore for an answer as the appropriate recipient "in so far as Johore is concerned". Turner goes on to say that the State Secretary will consult with "the Commissioner for Lands and Mines and Chief Surveyor and any existing archives" before responding. It is interesting to note that this letter contains no file reference number for the British Adviser Johor's Office; the letter should have been located in the Johor archives together with attendant correspondence. This information was not provided. So we have no idea of the British Adviser's intention when receiving Higham's letter. Neither do we have any idea of the directive that came from the British Adviser to the State Secretary when the letter was handed over. Once again, it is impossible to infer intention when the records are incomplete.

The reply to Turner's letter is contained in Encl. 14 (obviously there are missing documents in the series, viz. Encls. 11-13). This letter is from the State Secretary Johor's Office (file number SSJ 1120/53/6). It is actually the (in)famous letter from M Seth Bin Saaid, the Acting State Secretary Johore, dated 21 September 1953 in which he says that the "Johore Government does not claim ownership of Pedra Branca". In the SSJ 1120/53 file M Seth Saaid's letter is Encl. 6. The other five Enclosures are not included so we have no idea what the context is. But we do know from archival indexes that the SSJ 1120/53 file was entitled "Certain Land Matters". This indicates that the intention of the file and the answers it contains should be interpreted in this framework, i.e. the issue of "ownership" is actually a land title question.

Furthermore, one week earlier on 14 September 1953 the State Secretary, Johore (Incorporation) Enactment No. 2 was passed into law which limited the powers of the State Secretary to property and land matters and specifically did not extend his authority to sovereign matters involving His Highness the Sultan. In addition, the Colonial Secretary Incorporation Ordinance - which had been passed earlier in the Colony of Singapore- spelled out the general practice that the Colonial Secretary was not empowered to negotiate on matters of territory and sovereignty which involved the Crown.

The final document in the CSO 11692/52 file is Encl. 16 (there is no Encl.15) which is a very brief memorandum on behalf of the Colonial Secretary Singapore to the Acting Master Attendant Singapore, dated 13 October 1953 and entitled "Horsburgh Lighthouse" stating "On the strength this [M Seth Saaid's letter], the Attorney General agrees that we can claim it [Pedra Branca] as Singapore territory". At this point the file goes dead. There are no documents providing legal opinions from the Attorney General's office; there is no view on the matter from key parties such as the Governor of the Colony of the Straits Settlements, the Commissioner General for Colonial Affairs Southeast Asia, the Foreign Office, the Colonial Office, the High Commissioner of the Federation of Malaya, the British Adviser Johor, and not least the Sultan of Johor.

Despite this litany of missing documents and problematic interpretation of the letters and other documents that were presented, the Court ultimately decided that the 1953 correspondence was crucial in determining that sovereignty over Pedra Branca/Pulau Batu Puteh now lay with Singapore. And yet, the Court's Judgment acknowledged that "No further correspondence followed and the Singapore authorities took public action" to assert its so-called sovereignty (Para. 196). This point was picked up by each of the four judges who voted against the Court's majority decision. In each of their dissenting opinions judges Dugard, Simma, Abraham and Parra-Aranguren cite this lack of further correspondence and lack of public action as compelling reasons why sovereignty remained with Malaysia as the undisputed successor of the Sultanate of Johor.