THE ANATOMY OF RESEARCH IN THE SINGAPOREAN PLEADINGS

As part of its presentation to the Court Singapore produced an impressive-looking total of 247 documents - specifically letters of correspondence - for the consideration of the judges. The table below provides an analysis of the different sources for these data. Not unnaturally, many of the documents are sourced from the same archives and databases as Malaysia. But the number of Singaporean documents is hugely inflated by the fact that well over half are 'internal' including correspondence with its Ministry of Foreign Affairs and Ministry of Foreign Affairs, Malaysia.

Much more important, however, is the issue of the research methodology to which Singapore's evidence was subjected. In the preface of their book Pedra Branca: The Road to the World Court (NUS Press, 2009) S. Jayakumar and Tommy Koh, two of Singapore's most senior lawyers, express the following view:

... as the written pleadings and oral arguments showed, the issues involved in the arguments on who had sovereignty turned not only on legal principles but also on assessing the significance of various historical events in the region as well as the interpretation of treaties, colonial records, maps etc

This apparently innocuous statement actually betrays an interesting inversion of the approach adopted by my research team. Surely it is the persuasiveness of the historical facts on the ground that should be primary. Only once these facts are established with a high degree of veracity and rigour can the insights of international legal principles be brought to bear. Legal reasoning should be based on the historical facts - the latter are not a mere appendage. As the eminent Judge John Dugard made clear in his dissenting opinion 'the interpretation of the facts of the case gives rise for concern'. In his view the Court was 'very kind to Singapore in its assessment of the facts of this period [1953-80] and less kind to Malaysia' (para 2, page 1).

In the event, Jayakumar and Koh provide ample illustration of Dugard's assessment in the cavalier way that they treated historical evidence and the facts they revealed. A number of examples illustrate this.

At the very outset of the book, Jayakumar provides an account of his own early searches in the India Office archive at the British Library. On the basis of correspondence between the Johor rulers and the British, Singapore came to a startling conclusion that was the foundation for its legal argument that Pulau Batu Puteh was in fact terra nullius. As Jayakumar sees it:

The British did not seek Johor's permission to build Horsburgh Lighthouse on Pedra Branca because ... they did not consider the island belonged to the Malay rulers. (p. 5)

In addition, the book asserted that after reading Malaysia's pleadings they thought that

"...Malaysia's arguments on historic title were not very convincing. Chan Sek Keong, [the Right Honourable Chief Justice, Singapore] who had immersed himself in Malaysian history, was confident that he could rebut or weaken the Malaysian case on historic title for the Court to hold that Malaysia had failed to prove such a claim". (p. 68)

Such claims and assertions by the very finest of legal minds arguing simply on legal principles flies in the face of the historical evidence. In the event, the Court both appreciated and gave due weight to the huge amount of historical evidence that was adduced for the key period of the early nineteenth century. The Court overwhelmingly accepted the historical facts and judged 15 to 1 that Pedra Branca was not terra nullius and that sovereignty was with the Johor Kingdom. They dismissed the imagined history constructed by the Republic of Singapore.

(Click on the table to enlarge)