A TALE OF TWO SITES

The process of selecting a site for the proposed Horsburgh lighthouse in the Straits of Singapore was quite drawn out. Initially a number of sites were considered. These included Pedra Branca (Batu Puteh), Tree Island, Peak Rock (Romania Outer Island) and Barn Island. By 1844 the decision had come down to a straight choice between two: Pedra Branca or Peak Rock. For a while it seemed that Peak Rock would be the preferred recommendation of the Government of India to the Court of Directors of the East India Company.

But by 1846 opinions had changed. For one, William Hamilton who was Secretary to the Lords of the Admiralty wrote to J.C. Melvill, Secretary to the East India Company, in support of the Pedra Branca/Batu Puteh location (British Library, F/4/2166). Then, following a detailed survey of the vicinity of Pedra Branca/Batu Puteh ordered by the Court of Directors in London, Governor Butterworth wrote to the Government of India, stating that “Pedra Branca is the only true position” for the lighthouse. On 30 October 1846 the President in Council in India approved Pedra Branca/Batu Puteh as the site; on 24 February 1847 the Court of Directors informed the Indian Government of its approval; and on 10 May 1847 the Government of India requested Butterworth to take measures for the construction of a lighthouse on Pedra Branca/Batu Puteh. The decision was subject to revisions in terms of expenditure and the means of levying the funds required to pay back loans advanced by the Government of Inida.

This narrative looks straightforward enough. In the context of British imperial and trade interests in the region in the mid-nineteenth century the decision to construct a lighthouse in the Straits of Singapore was rational. It can be understood as an effective means to further the Company’s commercial interests with regards to the flourishing China trade. And the accepted view was that the beneficiaries of the lighthouse – primarily the merchant community – would in large part pay for the facility. At the same time, and in a typically Victorian gesture, one of the Company’s great and good – James Horsburgh – would be publicly recognised in a fitting manner.

But at the International Court of Justice this straightforward rendering of history became the source of huge dispute between Singapore and Malaysia. The decision over the siting of the Horsburgh lighthouse now became a struggle over questions of sovereignty and control. In particular, Singapore sought to draw a distinction between Peak Rock, on the one hand, and Pedra Branca/Batu Puteh on the other.

In relation to Peak Rock, Singapore argued that the two letters dated 25 November 1844 from the Sultan and Temenggong of Johor referred exclusively to Peak Rock as the site for the lighthouse. In the letters the Temenggong said he had “no possible objection” while the Sultan expressed the view that he was “exceedingly pleased” with the proposal. Singapore claimed that this correspondence was strictly limited to Peak Rock only – and accepted that the Sultan and Temenggong possessed the authority to give permission for the construction of the lighthouse simply because Peak Rock is located within the 3-mile territorial waters of the Sultanate in the Straits of Singapore.

Here it is important to comment of the notorious case of the "missing letters". While we have the two letters of reply from the Sultan and Temenggong of Johor granting permission, nobody has been able to locate the letters of request from Governor Butterworth to the Johor authorities persumably written in 1844. It is really modern-day wishful thinking to imagine that the letters would provide a clear and unequivocal statement that spells out the intention of the British to obtain the permission of the Johor authorities to construct the lighthouse and would not be a formal acquisition of territory. This is simply not how mid-nineteenth century colonial administrators wrote to "native rulers". So all the effort that was expended and the hope that was vested in the "missing letters" were actually misplaced. In the Court's own words, Butterworth's correspondence was couched "in the most general terms". The claims made today by certain quarters that the "missing letters" hold the key the the sovereignty issue is simply a smokescreen for blunders that were committed in other areas of the research effort.

However, once the decision had been taken to construct the lighthouse on Pedra Branca/Batu Puteh, Singapore now claimed that the Sultan and Temenggong’s 1844 letters were simply irrelevant. For Singapore, Pedra Branca/Batu Puteh and the nearby features (as we have already seen) were terra nullius. In which case, the entire story of the choosing of the site and the construction of the lighthouse becomes a “Singapore project”. Johor becomes invisible. Johor had no rights. The story – in Singapore’s version – is not simply the building and management of a lighthouse facility. The story is now one of taking possession.

In Court, Singapore adduced a whole range of activities – both practical and symbolic – which they claimed demonstrated effective possession of Pedra Branca/Batu Puteh. These included: the laying of bricks, the cutting channels in the rock for drainage purposes, the use of materials sourced from Singapore, the use of a "Singapore" gunboat and steamer for transportation purposes, food provisions from Singapore, as well as the role the “Singapore” Governor and “Singapore Government” Surveyor.

In the Court’s Judgment it conceded that such activities “may be seen as having a sovereign character” (emphasis added). The Court noted, for example, appendix 7 of Singapore’s architect, J.T. Thomson’s Account of the Horsburgh Lighthouse (1852) which detailed “extensive aid” given by Singapore in the construction process. The Court also said that the inscriptions of names such as Butterworth as “Governor” and Thomson as “Architect” on the tablet in the Visitors Room might be have “sovereign characterization”. Of course, this would be the case if Butterworth is considered to have been the Governor of Singapore and not the Straits Settlements and Thomson the Architect of Singapore and not the Straits Settlements. Similarly the gunboats and steamer belonged to the Straits Settlements and not Singapore. The representation of these men and boats as “belonging” to Singapore exclusively is erroneous.

By contrast, the Court notes that “the only time the Johor authorities were present throughout that process was the two-day visit of the Temenggong and his followers in early June 1850” (para 162). This is, of course, not the whole story. A detailed reading of Thomson’s own Account shows that steamships and gunboats frequently used Johor territories – notably Point Romania and Sidili – to service the construction of the lighthouse in, for example, the provisioning of potable water, firewood, selecting spars, digging wells and obtaining quartz (pp. 409-12, 423, 443-4, 448). The map attached to Thomson’s book shows three wells dug at Point Romania used in the provisioning of potable water for use on Pedra Branca/Batu Puteh.

The final element of the tale of the two sites relates to the passing of the Indian Act VI (1852) which can be said to bring to a close this particular episode. Continuing its line of argument about the terra nullius status of Pedra Branca/Batu Puteh, Singapore’s counter-memorial (Singapore Counter-Memorial, Annex 16) takes extracts from a key file of the Company’s Court of Directors records at the British Library (F/4/2509 Coll. No. 142867) (click here to see the original file). In a fine example of creative writing, Singapore retitles this file “Extracts from Travaux Preparatoires (preparatory works) of Indian Act VI of 1852” in relation to the Horsburgh lighthouse. Singapore only made use of enclosures 5, 7, 8, 9, 10, and 11. The actual title of the file is “Act No. VI of 1852, The defraying the cost of the Light House on Pedra Branca”. This is simply an example of partial disclosure which creates difficulties for any court to give judgments based on the true facts.

More importantly, the letters not enclosed by Singapore are very significant in order to help the Court to fully understand the actual facts on the ground. These include correspondence between the Court of Directors and the Government of India that refers back to earlier correspondence from 1845 which debated the merits of the Peak Rock and Pedra Branca. In other words, the file as a whole offers the best source for a comprehensive overview of some eight years of correspondence between the Court of Directors, the Government, the Government of Bengal, the Sultan and Temenggong of Johor and the Governor of the Straits Settlements over the choice of the site for lighthouse and its construction.

By way of illustration we can consider one or two key letters – missing from Singapore’s edited file – which help us reaffirm the sovereignty of Johor over Pedra Branca/Batu Puteh. A letter of 28 June 1852 from the Government of India to the Court of Directors refers back to the Court of Directors’ instructions (dated 15 October 1845, No. 6) concerning the construction of the lighthouse. In the original version of this letter of instruction the Court consideration as application “on the subject of a proposal to erect a Light House on the Peak Rock”. However, in the reference made to the letter of instruction of 15 October 1845 by the Government of India now refers to “the erection of the Horsburgh Light House on the Island rock called Pedra Branca”.

What this clearly points to is that in the mind of the Court of Directors, the Government of India, Government of Bengal, and the authorities of the Straits Settlements the two sites – Pedra Branca and Peak Rock – were to be considered interchangeably. This is extremely significant in relation to the letters of permission issued by the Sultan and Temenggong of Johor on 25 November 1844 which we referred to earlier. The inference is clear. The Sultan and Temenggong were giving permission unequivocally to Pedra Branca and Peak Rock as both were located in their territories. The interchangeability of the two sites was later acknowledged by the British Parliament in a paper entitled “Statement of Measures for Erection, Management and Superintendence of Lighthouses in British Colonies and Possessions” (1850). The failure of Singapore to see and acknowledge this historical fact then allowed the Court to see an anomaly that did not actually exist.

What was the upshot of this partial reading of history for the case? In its Judgment, the Court says that it “does not draw any conclusions about sovereignty based on the construction and commissioning of the lighthouse” (Para. 162). This appears to be a non-committal and rather inconclusive statement. But even though the Court conclusively accepted Malaysia’s argument that Pedra Branca/Batu Puteh came under the sovereignty of Johor, it did not criticise or dismiss Singapore’s erroneous claims made on the basis of a lack of adequate documentation that linked the permission letter of 25 October 1844 to the final selection and construction of the lighthouse on the island. By not doing so, the Court opens up the possibility that the actions described in the construction and commissioning of the lighthouse may be seen as having a sovereign character. In our view, the Court’s unwillingness to dismiss Singapore’s interpretation of this history is a harbinger of how the case would turn. This much is clear from the Judgment.

The story of the lighthouse’s construction may not bear directly on the issue of sovereignty. But the Court certainly “sees those events as bearing on the issue of the evolving views of the authorities in Johor and in Singapore about sovereignty over Pedra Branca/Pulau Batu Puteh” (Para. 162). In effect, the die is cast; a different destiny has taken charge. From this point onwards the reading of the historical evidence by the Court will become silenced or increasingly weighted towards Singapore.