ALL HISTORY IS CONTEMPORARY HISTORY

Having placed so much weight on the 1953 correspondence to suggest that by that date "Johor understood that it did not have sovereignty over Pedra Branca/Pulau Batu Puteh" (Para. 230) the Court had effectively backed itself into a corner. Despite all the evidence to the contrary it had already read the period of the long century (1850-1952) as demonstrating that Johor had taken "no action at all" in asserting its territorial rights over the island. Taken together with the 1953 exchange which - as we have already seen - was only a partial reading of the records, the Court felt bound to look for examples in the conduct of the parties after 1953 that would "rationalise" its interim decision. This was a predictable case of reading the past through contemporary lenses.

Both Singapore and Malaysia placed before the Court various examples of their respective conduct whose purpose was to persuade the Court that each was exercising their sovereign authority over Pedra Branca/Pulau Batu Puteh. These are described in a long section in the final Judgment covering some 42 paragraphs. They include the following:

1. Investigation by Singapore of shipwrecks in the vicinity of Pedra Branca/Pulau Batu Puteh
2. Visits to Pedra Branca/Pulau Batu Puteh
3. Naval patrols and exercises around Pedra Branca/Pulau Batu Puteh
4. The display of ensigns on Pedra Branca/Pulau Batu Puteh
5. The installation by Singapore of military communication equipment by Singapore in 1977
6. Proposed reclamation by Singapore to extend the island
7. Malaysian Petroleum Agreement 1968
8. The delimitation of Malaysia's territorial sea 1969
9. Indonesia-Malaysia Continental Shelf Agreement 1969 and Territorial Sea Agreement 1970
10. Indonesia-Singapore Territorial Sea Agreement 1973
11. Inter-state cooperation in the Straits of Singapore
12. Official publications
13. Official maps

In their blow-by-blow account of the Court proceedings, Jayakumar and Koh offer an entirely self-serving piece of public relations instead of a judicious appraisal of what actually took place. They write of their international counsel's efforts:

Bundy did a brilliant job in presenting the wide range of sovereign acts undertaken by Singapore .... The effectivites include issuing notices to mariners, flying the Singapore marine ensign, enacting legislation, maintaining and constructing lighthouse-related and non-lighthouse-related facilities, controlling visits and access to the island, collecting meteorological data, conducting naval patrols and investigating shipwrecks. This continuous exercise of state authority, completely unopposed by Malaysia, confirmed and maintained Singapore's title over Pedra Branca (p. 107).

The Court's response was rather less effusive. It plainly stated that "The conduct of the United Kingdom and Singapore was, in many respects, conduct as operator of Horsburgh lighthouse" (Para. 274). This is what Malaysia had contended all along. In fact, the Court only identified three sets of conduct by Singapore that could be construed as acts à titre de souverain: their investigation of marine accidents; their control over visits; and, their installation of naval communication equipment. And even here the Court acknowledged that the "bulk" of these acts took place after 1953 - actually they mostly only took place from the 1970s onwards.

But even the three examples of conduct that the Court accepted are, in reality, highly contentious. Each can be considered in turn.

In relation to visits to the island, the Court accepted that many of them were merely related to the operation and maintenance of the lighthouse. But the Court ruled that it was Singapore that granted permission or withheld permission for visits to Pedra Branca/Pulau Batu Puteh by Malaysian officials, especially in relation to a survey of the waters around the island in 1974 and 1978. In my view, it is difficult to concede this granting of permission to conduct survey visits as being acts à titre de souverain.

In the long history of the Straits light system (which existed until 1946) it was quite normal for lighthouse operators to make such grants of permission or withhold permission based on particular circumstances - to enter buildings or undertake surveys. The records of the light system are located in the Singapore records for the Straits Settlements. These records were never requested nor submitted for the Court's consideration for the simple reason that no one anticipated the issue of visits would be interpreted as having to do with sovereignty.

Even more telling is the fact that there were earlier examples of survey visits by Malaysian officials to Pedra Branca/Pulau Batu Puteh to which Singapore made no objection – even though it supposedly “maintained” title over the island. For example, in October 1959 A. Velu Pillai, from the Survey Department Federation of Malaya, Topographical Branch, travelled to Pedra Branca/Pulau Batu Puteh to undertake observations and triangulation work, the results of which would be incorporated into Map Series L7010 for which there were agreements between the United Kingdom, the Federation of Malaya and the State of Singapore.

Velu Pillai's angle-book was included in the Malaysian written pleadings but no reference was made to it in the Court’s final Judgment. Instead it chose to give credence to the issue of permission for a single survey visit to the island in 1974. As judge Dugard notes, this is a very clear case of the Court “being very kind to Singapore” and “less kind” to Malaysia in the choice of facts and the weight given to them.

Turning now to the second issue regarded by the Court as acts à titre de souverain, namely that Singapore had investigated and reported on maritime hazards and shipwrecks within the vicinity of Pedra Branca/Pulau Batu Puteh. Only three examples are cited: a collision between British and Dutch vessels two miles off the island in 1920; the grounding of a British vessel on a nearby reef in 1963; and, the running aground of a Panamanian vessel off the island in 1979. The Court concluded that Singapore’s investigation of the last case “in particular assists Singapore’s contention that it was acting à titre de souverain”. It further stated that the 1920 and 1963 cases supported this claim “to some extent” (Para. 233). In other words, only one case of an investigation into a shipwreck – 1979 – gives reasonably strong support to Singapore’s claim to possessing sovereign authority. It should be noted that this was only two months before the dispute over Pedra Branca/Pulau Batu Puteh would be crystallised and the famous Malaysian map showing the island as part of Malaysian territory was already in preparation.

There are a number of ways of answering Singapore’s contention that the investigations into shipwrecks demonstrated its sovereign authority. First, the Court considered only three cases over a 50-year period. But there were a number of other examples of shipwrecks that were investigated by Marine Court of Inquiry in Singapore. The list is not exhaustive but they include: the grounding of the SS Kajang in 1920 off the coast of the Philippines; the stranding of the Selamat Maju off the coast of Pahang in 1963; the grounding of the MV Isabel Erica on Pulau Nipa across the Straits of Singapore in Indonesian waters in 1964; the collision of a Liberian and British vessel in Johor waters in 1966. The evidence for each case derives from the Straits Settlements Government Gazettes, Annual Report Marine Department for the State of Singapore, from the Straits Times. None of these cases was presented before the Court. The reason, once again, was simple. Though the cases were investigated and reported by the Singapore authorities in not one single instance were issues of sovereignty or disputed territorial waters invoked. This raises the question as to why the Court considered the three cases cited earlier (1920, 1963 and 1979) as bearing on issues of sovereignty while many other cases investigated under the auspices of the Marine Court of Inquiry in Singapore clearly had nothing to do with sovereignty. It is therefore less credible for the Court to maintain that Singapore’s investigation of shipwreck “gives significant support to the Singapore case” (Para. 234).

The third example of Singapore’s claim to sovereignty relates to events in 1976 and 1977 when Singapore made preparations for and installed a relay station on Pedra Branca/Pulau Batu Puteh for the exclusive use of the Singapore Navy. Singapore claimed that this action was “obviously an exercise of their authority disconnected from the operation of the lighthouse” (Para. 247). Malaysia’s objection was precisely on these grounds – that Singapore’s “conduct does not fall within the consent given for the construction and operation of the lighthouse” (Para. 247). This was a weak way of attacking Singapore’s claim because Malaysia was, in any case, not in a position to produce any document providing for this “consent”.

There are other ways of dealing with this issue. First, a better way of countering Singapore’s actions would have been to emphasise their secretive nature – leading to a situation that Malaysia was not in a position to make any appropriate protest since it had no explicit knowledge of the installation. Malaysia did argue this and, as a result, the Court accepted that it could not assess the degree of knowledge each side had about the installation. Second, the Court made reference to correspondence between the Singapore Navy and the Port of Singapore Authority and accepted it at face value. At no point did the Court subject this correspondence to interrogation. If it had done so, the only conclusion it could reach is that this was internal correspondence unknown to any other party – and therefore Singapore’s action were merely a unilateral act of “sovereignty”.

Third, the Court’s sympathetic treatment of Singapore’s actions – which magnified its presence on Pedra Branca/Pulau Batu Puteh – can be contrasted with its treatment of similar evidence presented by Malaysia. In 1968, Commodore K. Thanabalasingam, Chief of Naval Staff, Royal Malaysian Navy wrote a Letter of Promulgation (16 July) and drew attached charlets to detail the outer limits of Malaysian territorial waters, Singapore territorial waters and Indonesian claimed waters in West Malaysia. Both the letter and chartlets were submitted to the Naval Staff Division, Ministry of Defence, Malaysia.

In the Court’s final Judgment this piece of evidence was considered as “an internal confidential document” (Para. 242). As a result, the Court concluded that the “Malaysian chart … [was an act] of one party, which [was] unknown to the other party, the documents were classified and they were not made public until these proceedings were brought. The Court considers that … neither can be given weight” (Para. 243).

But there is more to this than meets the eye. At the time that Thanabalasingam was producing his letter and chartlets the Ministry of Defence/Navy had already opened a file entitled “Territorial Waters” (KP/Laut/1255). In it, there is letter from J.L. Quinn, Commander, Royal New Zealand Navy, dated 1 August 1968, referring to eight sets Thanabalasingam’s chartlets and issuing an instruction that they be “Forwarded for issue to ships on patrol in West Malaysia”. This surely demonstrates that other parties – in this case, the Royal New Zealand Navy operating under various Commonwealth agreements – knew precisely of the details of the chartlets and were prepared to use them in good faith.

The key analytical point we can draw from this analysis of the Court’s Judgment is straightforward. The Court did not treat correspondence which it considered to be “internal” in an even-handed way. In the case of the 1968 letter and chartlets, the Court dismissed their value as evidence of Malaysia’s claim to sovereignty of Pedra Branca/Pulau Batu Puteh on the grounds that they were not known to other parties even though, as we have shown, Commonwealth naval forces did know of their existence and even used them accordingly. The Court dismissed this evidence even though the Ministry of Defence/Navy was clear that these documents were explicitly about Malaysia’s “territorial waters” and hence its sovereignty.

By contrast, when considering the correspondence between the Singapore Navy and the Port of Singapore Authority in relation to the installation of a relay station – correspondence that was definitely “internal” and unknown to other parties – the Court chose to use this example as a clear act of Singapore’s sovereign authority.

Before we draw out some conclusions from this analysis of the post-1953 conduct of Malaysia and Singapore in relation to Pedra Branca/Pulau Batu Puteh it is worth highlighting one other relevant point. This has to do with the contentious issue of what was known (or not known) to the other side. As we have seen, this became an issue with regards to the installation of the naval relay station and the Ministry of Defence/Navy’s chartlets.

This is compelling evidence that Malaysia’s territorial waters around Pedra Branca/Pulau Batu Puteh were known to Singapore authorities. For example, the Essential (Prohibited Areas for Fishing Vessels) Regulations, 1966 contained definitions of Malaysia’s territorial waters and Singapore’s territorial waters in the Straits of Singapore in its First and Second Schedules (see charts here and here). This draft Bill was discussed openly and bilaterally between Malaysia and Singapore, together with representatives the British Royal Navy. Even though the draft Bill was not finally tabled before Parliament Singapore was fully cognisant of its provisions. The precise indicators contained in the schedules show Pedra Branca/Pulau Batu Puteh as being located in Malaysia’s territorial waters.

Having dealt with the three sets of actions considered by the Court to be Singapore’s acts of sovereignty in the period after 1953, we are now in a position to assess what they really meant. One striking fact that emerges is that all these examples are from the 1970s – the visits (1974 and 1978), the most telling of the shipwreck inquiries (1979), and the installation of a relay station for military purposes (1976-77).

Far from being a “continuous exercise of state authority” by Singapore, and far from being the huge list of so-called effectivites mentioned by Bundy, Jayakumar and Koh, and far from being “a powerful legal case” (in Lee Kuan Yew’s words), in fact the evidence points to a few, belated instances of so-called Singaporean sovereignty from the 1970s. The evidence demonstrates only a very limited range of so-called effectivites. And the evidence demonstrates not a powerful legal case but a very partial reading of the historical narrative by most the Court’s judges.

In their book, Jayakumar and Koh quote their counsel, Rodman Bundy, so-called “punch line” on the question of effectivites and sovereignty: Bundy said this:

Indeed, if Malaysia’s thesis of the case is accepted, it would produce an unprecedented result – it would be the first time that sovereignty over a disputed territory would be found to lie with a party which never carried out a single sovereign act on the actual territory in dispute at any time (p. 121).

We have tried to show - based on historical evidence - that Bundy’s claim is ahistorical and misplaced. Johor and Malaysia did indeed carry out acts that demonstrated its sovereign authority over Pedra Branca/Pulau Batu Puteh. In its wisdom, the Court decided to weigh Singapore’s conduct as more persuasive that that of Malaysia. That is a judgment and the Court’s privilege. It has nothing to do with Bundy’s (and Jayakumar and Koh’s) rhetoric that Malaysia “never carried out a single sovereign act”.

As some of the dissenting judges noted in their separate opinions, the Court actually fell into a trap of its own making. It was guilty of reading the “facts” of contemporary history – mainly actions that took place in the 1970s – back into the past. As a consequence, this process of interpretation magnified and inflated Singapore’s claims and, logically, diminished the value of Johor/Malaysia’s claims which of course the Court had already accepted for the period up to 1850.

The whole of Singapore’s argument is ahistorical and an example of the way that “all history is considered to be contemporary history” in Croce’s famous dictum. What this means, as Gramsci pointed out, is that the history of the past “vibrates” in the mind of the historian – and presumably of judges – and corresponds to his present interest.

In other words, the modern, manufactured version of history of Singapore succeeded in casting its long shadow over the history of the Malay archipelago at least as far back as the mid-nineteenth century. In doing so, the island of Pedra Branca/Pulau Batu Puteh which had once been part of the Sultanate of Johor became part of modern Singapore.