JOHOR ruler Sultan Ibrahim Sultan Iskandar is right to be upset as to why the former government of Pakatan Harapan (PH) under Tun Dr Mahathir Mohamad withdrew the appeal against the decision by the International Court of Justice (ICJ) to bestow sovereignty of the island of Pulau Batu Putih in May 2008 to Singapore.
The ICJ recognised that Singapore, and not Malaysia, had sovereignty over the island of Pulau Batu Putih which is a is rocky island of the coast of Johor with close proximity to Singapore.
Before the advent of the British, the island was under the sovereignty of the Johor Sultanate until the establishment of the Straits Settlements in 1824 with the inclusion of Singapore, Malacca and Penang.
It was not that Johor gave up the sovereignty on the island, but the effective jurisdiction of the island took place in Singapore, a British colony.
It was not that the Johor was not aware of the developments on the island. In fact, when a lighthouse was built without seeking the permission of the Johor Sultan, a protest was lodged with the British.
But despite this, the effective control of the island was exercised from Singapore in the colonial and post colonial periods.
The Pulau Batu Putih matter rose to prominence after a map drawn in 1979 indicated that the island as a territory of Malaysia.
After some discussions, both the countries decided to ask the ICJ for compulsory adjudication.
In 2018, the ICJ decided in favour of Singapore.
Johor or Malaysia might have had sovereignty over the island before the advent of the British.
Symbolic sovereignty was one thing, but the effective control and management of the island was in the hands of the British and later with independent Singapore.
I think ICJ took cognisance of the sovereignty of Johor over the island, but then decided to recognise Singapore on the grounds of effective occupation, control and administration.
Malaysia’s claim of sovereignty could not be backed up on the grounds of the effective administration over the island.
I am not sure whether the Johor government or the Sultanate was consulted when the matter was referred to compulsory arbitration by both the counties.
Since the Sultan of Johor did not raise the matter, I assume that there was a consultation.
There were strong links between Johor and Pulau Batu Putih that was then known as Pedra Branca, a name given to the island by the Portuguese.
However, it was the British control of Singapore that eventually sealed the fate of Malaysia’s having sovereignty over the island.
Pulau Batu Putih might not have any economic value, but its strategic maritime position cannot be underestimated.
The PH government of Mahathir might be entirely blamed for withdrawal the appeal in the ICJ.
It was a strategic error that needs to be explained.
While the decision to withdraw came from Mahathir, the shoddy preparation of the appeal was the responsibility of the Government under Datuk Seri Najib Tun Razak.
The decision was taken in 2008 but it took the Government nearly 10 years to prepare the appeal that was entrusted to the former Attorney General Tan Sri Mohd Apandi Ali.
Despite the big talk now, Apandi could not prepare a watertight case to argue Malaysia’s position.
Apparently no new evidence was obtained to justify the appeal.
In a way, the new Government that took power after the general election in May 2018 hurriedly withdrew the appeal without much consultation, something that is not acceptable to the Sultan of Johor.
Even when the matter went for arbitration to the ICJ, I was informed that Malaysia could not present an effective argument to counter Singapore’s well prepared and well-articulated argument.
I don’t think that manner and style of presentation were the key points of this issue but the more important question is which country had an effective control and jurisdiction over the island.
Even if the appeal was not well prepared and that Malaysia had no new evidence or it was too costly, Mahathir should not have withdrawn the appeal.
The decision should have been left to the ICJ.
I am not sure whether the appeal could have been filed in the first place since the timing of the appeal had exceeded the 10-year limit.
If there was no new evidence to be adduced, the matter might not have merited the attention of the ICJ.
Apandi, who was recently appointed to the task force to review and recommend on what the Government should do about the matter, is the wrong choice.
He was the one responsible for not preparing an effective appeal with the new information.
This was the reason why Mahathir later declined to go for judicial review of the matter and hence the application was withdrawn.
How Apandi is going to advice the Government under Datuk Seri Ismail Sabri Yaakob remains to be seen.
The Johor Sultanate might want to look into the shoddy preparation of the appeal under Najib’s government which is an initiative unsuccessfully undertaken by none other than Apandi.
I am not sure that the task force on Pulau Batu Putih can make any head way in the ultimate resolution.
Malaysia might not have the benefit of new evidence and neither is time on its side.
It is a pity that Malaysia lost the sovereignty over Pulau Batu Putih, an integral territory of the Johore Sultanate, long before the coming of the British and the creation of independent Malaya.
It was a loss for Johor as well as for Malaysia. I can understand the displeasure of the Sultan of Johor. – Oct 16, 2021
Ramasamy Palanisamy is the state assemblyperson for Perai. He is also Deputy Chief Minister II of Penang.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
