THE SILENT LONG CENTURY, 1850-1952

Having convinced the Court that original title to Pedra Branca/Pulau Batu Puteh lay with the Sultanate of Johor the burning question now arises: how did the Court reach the conclusion in the Judgment that "sovereignty over Pedra Branca/Pulau Batu Puteh passed to the United Kingdom or Singapore" (Para. 273)? In answering this question, and based on its reading of the historical record contained in the written and oral pleadings, the Court blandly concluded that "the Johor authorities and their successors took no action at all on Pedra Branca/Pulau Batu Puteh from June 1850 for the whole of the following century or more" (Para. 275, emphasis added).

Basically the Court is saying that the records of the East India Company (to 1857), the India Office (1857-1867), the Colonial office (1867-1946), and the Malayan civil service (1946 onwards) do not contain a single instance of the Johor authorities and its successor governments exercising sovereignty over the island. This is simply not true. Here we will provide several instances - taken from the historical record - of ways in which the Johor authorities did exercise their sovereignty. Some of these were presented before the Court but were deemed to be unconvincing; some were not even referred to in the Judgment; and some were not even presented in the pleadings.

The first example derives from disputes that arose over fishing licenses issues by the Temnenggong of Johor allowing permit-holders to fish within Johor's waters. The evidence available shows that one group of fishermen that paid for a Johor fishing license and fished within the 10-mile territorial limits of Settlement of Singapore. The Singapore authorities, through the India Office, reprimanded the Temenggong for transgressing into the territorial waters of Singapore as defined by the 2 August 1824 ("Crawfurd") treaty. By contrast, the Temenggong issued a Johor licence for $1 permitting a group of Chinese fishermen, resident in Singapore, to fish under license in Johor territorial waters. This group admitted in front of a Singapore court that it had fished in the vicinity of Pedra Branca/Pulau Batu Puteh. At no juncture did the British authorities - including the India Office, Government of India, Governor of the Straits Settlements and the local newspapers - raise any objection to the rights of these Singapore-based fishermen to fish in Johor's territorial waters near Pedra Branca/Pulau Batu Puteh. If, as Singapore maintained, Pedra Branca/Pulau Batu Puteh was indeed part of Singapore and thus had its own territorial waters then we would expect objections.

Conversely, there is a lot of correspondence in the records - including with the Temenggong - over breaches of the 10-mile territorial limits which had long been agreed. The conclusion is clear. This is a straightforward example of the continued exercise of sovereignty by Johor contained in the historical narrative. Unfortunately, the Court decided that "nothing can be made of the fact" and later that "the facts cannot be clearly established" of these events (Para. 191). This seems to be a rather cavalier misreading of a very clear historical episode. A constant refrain of the Court was that there is insufficient historical evidence on fishing matters to prove questions of sovereignty. In reality, there is enough uncharted material in the in the Indian, British Library and indeed the Singapore archives to pursue this matter as a future research topic.

The second example derives from a very important historical episode concerning struggles between different Malay rulers over questions of boundaries and sovereign authority. Pahang had separated from the old Sultanate of Johor during the nineteenth century. In 1862 Johor and Pahang concluded a treaty which set out to resolve boundary issues between them. However, despite the 1862 agreement, a dispute soon arose over the land and maritime boundary. This even involved the ex-Sultan of Riau-Lingga who had ambitions to revive his dynasty on the Malay peninsula with the support of dissidents who included the aspiring brother of the Bendahara of Pahang, the disgruntled Temenggong of Muar who opposed the Johor ruler, the marginalised family of the late Sultan Hussein of Johor, the Terengganu sultanate, rival factions in the Selangor sultanate and, critically, the presence of the Siamese empire in the peninsula. The British feared that these disputes could lead to a "conflagration" on the Eastern seaboard of the Malay peninsula which would disrupt the lucrative China trade.

It was finally settled in 1868 by an arbitration award given by Sir Harry Ord, British Governor of the Straits Settlements (click to see the chart attached with the award). The Ord Award settled the land boundary along the River Endau which was also to be taken as the starting point and latitude for the maritime boundary out into the South China Sea. The text of the Award is explcit: "... and all the islands to the north of this line shall belong to Pahang and all to the south of this line to Johore as laid down on the chart annexed to the award". The Award was accompanied by an Admiralty Chart 2041 entitled "Eastern Coast of Johor". This chart clearly shows not only Pedra Branca/Pulau Batu Puteh but also Middle Rocks and South Ledge as belonging to Johor. In effect this Chart reconfirmed the text and the map of the Crawfurd treaty (1824) in the context of creating British and Dutch spheres of influence.

Although this evidence - including the Admiralty Chart - was presented in the written and oral pleadings it was not even mentioned in the Court's final Judgment. Surely this evidence is an extremely compelling example of the recognition of Johor's sovereignty by no less a figure than the Colonial Office's representative located in Singapore. The omission of this evidence from the final Judgment is simply baffling.

The third example derives from another treaty arrangement entered into by the Sultanate of Johor and the British as two sovereign entities. During Sultan Abu Bakar's rule, the British Government and the State of Johor concluded what is commonly referred to as the Johor Treaty of 1885. In this Treaty, explicit reference was made to "the Independent State of Johor". This instrument allowed only limited British intervention in the internal affairs of Johor. In essence, the treaty was a cooperative arrangement without eliminating the sovereignty of Johor or changing its territorial extent. For example, Article V of the 1885 Johor Treaty provided that "[T]he Governor of the Straits Settlements, in the spirit of former treaties, will at all times to the utmost of his power take whatever steps may be necessary to protect the Government and territory of Johore from any external hostile attacks ...".

The following year, the Sultan made a visit to London and raised some issues concerning Johor's sovereignty in light of the agreements reached in the 1885 treaty. In an official letter of 20 March 1886 addressed to the British Colonial Office, the Sultan explained:

The Islands in question range themselves around the Coast of Johore: all those on the Western side, and a large number on the Eastern side, being in the immediate vicinity of Johore; but of the latter a large proportion also extends farther out, stretching to even as far as the neighbourhood of Borneo.

Thus the Sultan made the significant distinction between islands in the immediate vicinity of the mainland of Johor and those in the open sea. It is evident that Pulau Batu Puteh was included in the phrase "a large number on the Eastern side, being in the immediate vicinity of Johore". There is no suggestion that any particular island was exempt from the general position so described.

On the same day, the Sultan's Secretary, Abdul Rahman, submitted a Memorandum to the Colonial Office under the title "Charts of the Islands belonging to Johore" (20 March 1886). He drew a distinction between General Charts and Charts of Groups of Islands. As regards the former, he tabled among other charts Admiralty Chart 2041 as used in the Ord Award of 1868. After subsequent discussions between the Colonial Office and the Foreign Office, the Sultan was informed that Britain could not intervene as regards the Sultan's claims to the islands in the South China Sea as Britain had earlier acknowledged Dutch presence in this area.

Taking stock, then, of Johor's territories in the mid-1880s we can see that the British authorities proceeded on the basis that Johor extended to all islands in its vicinity with three exceptions: (a) those that were part of the Riau-Lingga Sultanate in the Straits of Singapore under the Dutch sphere of influence as agreed in the Anglo-Dutch Treaty (17 March 1824); (b) those that were part of the Settlement of Singapore in the Straits of Singapore as defined by the Crawfurd Treaty of 2 August 1824; or (c) those belonging to Pahang pursuant to the Ord Award of 1 September 1868, as depicted on Admiralty Chart 2041. "Horsburgh Light R.", "South Rocks" and other features at the entrance of the Straits of Singapore are indicated on this Chart. These islands were to the north of the Dutch sphere of influence under the 1824 Anglo-Dutch Treaty. They were clearly outside of the islands, straits and seas ceded by the Crawfurd Treaty of 1824. They were clearly south of the newly-drawn Pahang-Johor boundary. Pedra Branca/Pulau Batu Puteh are clearly located within the sovereign territorial waters of Johor.

The final example produced here of Johor's continuing assertion of its sovereignty comes from a series of maps commissioned from the British War Office in the early 1920s. In this case, Sultan Ibrahim of Johor officially engaged the War Office to draw contoured map sheets covering Johor territories. This commission was unprecedented. The usual practice for individual Malay sultanates was to engage the Surveyor General of the Federated Malay States and the Colony of the Straits Settlement to undertake the surveying, mapping and publishing. However, in this instance, the map creation exercise was led by the War Office and involved the army, the air force and the admiralty in doing the work. The Sultan paid in part - over a number of years - the costs of producing the maps. This is an undertaking between two sovereign entities.

In its Memorial, Malaysia produced a version of the WO map sheet (4I/10) covering Pedra Branca/Pulau Batu Puteh in its map atlas. The provenance of this 1926 map sheet was attributed to the Surveyor General of the Federated Malay States and the Colony of the Straits Settlements. The source of the map sheet is given as the Library of Congress, USA, through Wisma Putra on 25 April 1983. In reality this is simply a copy of the War Office map series commissioned directly by the Sultan. By producing the map in the Court in this fashion, the back story of how and why it was produced becomes invisible. Instead of a commission from a sovereign ruler to one of the highest authorities of the British state what the Court is presented is just another routine mapping exercise carried at the behest of the FMS Surveyor General. All of the official details of correspondence, agreements, commitments and payments are to be found in the records of the National Archives (Johor Branch), the archives of the Colony of the Straits Settlement , and at the UK National Archives (War Office: Directorate of Military Survey).

Taken together, these four examples - the question of fishing rights, the arbitration award and attached chart of 1868, the Johor Treaty of 1885 and the charts attached to the letters and memorandum from the Sultan of Johor and his State Secretary, and the production of a special map series by the British War Office - are not further evidence of so-called "evolving views of the authorities in Johor and in Singapore about sovereignty over Pedra Branca/Pulau Batu Puteh" which the Court claims in its Judgment. Rather they represent a clear and consistent reassertion and reaffirmation of Johor's original claim to sovereign title. In each instance the Johor authorities - both the Sultan and temenggong - appear completely at ease in asserting their sovereign rights over the territorial waters around Pedra Branca/Pulau Batu Puteh. But more than this, a whole range of political authorities who were dealing with Johor also had the same view of Johor's sovereignty. These included: the Governor of the Colony of the Straits Settlements; all the departments subordinated to his office such as the Surveyor General; the Colonial Office; the Foreign Office; and the War Office. In other words, in these four instances and in others Johor's claims were accepted by the British authorities at the highest level.

Despite this compelling evidence, the record of the Court's Judgment remains deafeningly silent. In our view, the fault lies with the doubts that Singapore had already sown that the 25 November 1844 letters of permission from the Sultan and Temenggong of Johor did not cover Pedra Branca/Pulau Batu Puteh. As we have already noted, the Court says it did not draw any conclusions about questions of sovereignty. However, the Court opens up sufficient cause for doubt and seems to suggest that the history of the next hundred years will provide the definitive answer. Thus in the Court's view Johor and its successors took "no action at all" in relation to Pedra Branca/Pulau Batu Puteh. It would be but a small step for the Court to draw its own negative inferences from the infamous letter of 1953.