Sunday, June 01, 2008

Malaysia not giving up hope on Batu Puteh yet


KUALA LUMPUR: Malaysia has renewed the search for evidence to stake its claim on Batu Puteh, whose sovereignty was deemed to be under Singapore by the International Court of Justice (ICJ).

Foreign Minister Datuk Seri Dr Rais Yatim said although the ruling by the ICJ at The Hague on May 23 was final and not subject to appeal, there was a specific provision in the court’s rules that allowed for a judicial review of a case within 10 years if new evidence was adduced.

As such, he said he had directed Wisma Putra to try again to trace the ancient letter written by British Governor William T. Butterworth to the Temenggong and Sultan of Johor seeking permission to build the Horsburgh Lighthouse on Batu Puteh.

During the hearing, Malaysia had contended that it was on the basis of the consent of the Temenggong and Johor Sultan via a reply dated Nov 25, 1844 (this letter was produced to the ICJ) that Great Britain built and then operated the lighthouse on the island.

“If we can gain sight of that letter, the gate can be opened again. There is a maximum 10-year period but preferably it should be done within six years.

”The letter could be in London, the British being too good at archiving. We have searched with them but it has not been conclusively proven that they don’t have it.

“Probably it is in Singapore. That would be a double jeopardy,” Dr Rais said in an interview.

It is learnt that the initial search for the letter covered 40 institutions in 11 countries – Britain, India, Australia, New Zealand, the United States, the Netherlands, Portugal, Hong Kong, Indonesia, Singapore and Malaysia.

In 1994, Malaysia requested Singapore to furnish a copy of the governor’s letter if it was in its possession but the republic did not respond.

Ambassador-at-large Tan Sri Abdul Kadir Mohamad, who was Malaysia’s agent at the ICJ hearing, had told the court that if the letter still existed, it was likely to be in Singapore’s archives in the file named “Letters to Native Rulers” which Malaysia did not have access to.

Dr Rais explained that Malaysia could introduce a separate motion to the ICJ if the letter was found.

The ICJ awarded sovereignty of Batu Puteh to Singapore in a 12-4 decision, mainly on the basis that Malaysia had not done anything to invoke its rights on the island, which Singapore calls Pedra Branca, for over 100 years.

The ruling on Middle Rocks was 15-1 in Malaysia’s favour. On the other disputed territory of South Ledge, the ICJ ruled that it belonged to the country in whose territorial waters the outcrop was located.

The ICJ’s “split” decision brought to a close the 28-year-old territorial dispute between both countries. Singapore first laid claim to Batu Puteh through a diplomatic note protesting the inclusion of the island as part of Malaysia in a 1979 map.

Dr Rais, who heads the technical committee for Malaysia set up to determine the South Ledge issue, said Wisma Putra secretary-general Tan Sri Rastam Mohamed Isa had led a team of officials to the republic on Wednesday to get things going.

The minister said he agreed with views by law experts that the crucial thing for both countries to do now was to demarcate the waters in the area to avoid problems and confusion.

He said he would propose to Singapore that the waters off Batu Puteh, Middle Rocks and South Ledge be opened to fishermen from both countries and also Indonesia.

Glimmer of hope burns brightly

Despite the May 23 International Court of Justice (ICJ) ruling on Batu Puteh, Malaysians are still asking questions about its loss to Singapore. However, Foreign Minister Datuk Seri Dr Rais Yatim tells Paul Gabriel there’s hope yet.

His point of view: Rais says not many people appreciate the fact Malaysia won Middle Rocks.

You described the ICJ judgment as a “win-win” situation for Malaysia and Singapore. But many criticised the way you deemed it as we lost the crux in contention – Batu Puteh.

I still maintain my stand that we have half the victory, and half the failure. All are rocks anyway, there is no mempelam (mango) there, nothing, not even a blade of grass. But people like to rub it in. But let's face it. Malaysia did not lose all. Whoever says that, either he or she does not understand the international law result, or they are playing belukar politics.

There are those who say that Malaysia lost out to Singapore in terms of legal expertise, as they also had the Chief Justice in their team. How do you respond?

It is a subjective assessment, of course. The fact that Batu Puteh is not with Malaysia now, I think that is the nagging problem. The fact that we have Middle Rocks, not many people appreciate.

We had a good legal team. Luminaries in international law were with us. Elihu Lauterpacht, James Crawford, these are big names. Singapore did not have big names, but they got the failure of history to be noted ie why the maps of Malaysia were put forward to be the principle document to be exhibited. Which means we ourselves recognised that Batu Puteh was not under the jurisdiction of Malaysia. This is as much as saying the island did not belong to us, so it is not on our maps.

And then the letter of Sept 12, 1953 (written by the Acting State Secretary of Johor that the Johor government did not claim ownership of the island) which was obtained by the British, was vital. Coupled with the fact that for over 100 years, Johor or the Federation of Malaya did not do anything to supervise or administer Batu Puteh. Of course, we were saying other things, but this were the primary evidence that the court held.

We did put up very strong arguments on certain other aspects, but these were not evidenced by proper documents.

You were appointed Foreign Minister only in March this year. So, you did not have any part to play on the course of the case?

Yes, I came in at the tail end. I was the Foreign Minister in 1986 for a year. I am suffering the backlash, while the others (previous foreign ministers involved in the case) are bersiul-siul (whistling). I wish I was there at the beginning.

What would you have done differently then?

I would have told the Prime Minister then (Tun Dr Mahathir Mohamad) not to agree to go to the ICJ. That would have been one. The other is, to leave no stone unturned in terms of documentary evidence. Thirdly, the ministerial satisfaction should have been one of the factors to be determined before asking the PM to say “yes” or “no” to go to the ICJ.

But what I don't like is that after the case has been done, we like to lament. I'm not in that frame of mind. I like to look forward. There's nothing to be gained by criticising what we did not do, what we ought to have done. The power-that-be at that time should have thought about that. I'm now actually cleaning the dishes after the meal.

We must gear up and say this (Batu Puteh) is gone, we'd like to see what we can do for Middle Rocks, which could be bigger than Batu Puteh if Malaysia knows how to play its role.

There is an ancient letter written by the British Governor to the Johor Temenggong and Sultan, seeking permission for Britain to build the Horsburgh Lighthouse on Batu Puteh, which could not be located. How damaging was this?

If we can gain sight of that letter, the gate can be opened again. There is a maximum 10-year grace period for us to seek a judicial review of the case if we can get new evidence, but preferably it should be done within six years.

The letter could be in London. We have searched with them but it has not been conclusively proven that they don’t have it.

Probably it is in Singapore. That would be a double jeopardy. I have directed Wisma Putra to renew the search for the letter.

What impact would the letter have on the case if retrieved?

I can only anticipate that it would show sovereignty of the island never ceased to be Johor's despite the fact that the Horsburgh Lighthouse was built. But of course when you introduce (new) evidence, there could be other strong, compelling reasons under international law to rebut it.

Which means although we find the letter, it might cease to be of operation if we are shown not to have been operating in the island for 100 years. It could be that way too. Of course, we'll have to notify Singapore of any new evidence. This is in the rules of the game.

What could we do with Middle Rocks and South Ledge if we get that, too?

We must regard the rocks as gems, because international law will give us territorial rights. We can erect something notable like a research post and let fishermen go there.

You head the technical committee for Malaysia to determine the South Ledge issue. What will you propose?

Actually, my idea is to propose to Singapore to let fishermen from both countries have access to the entire area. That would be the humane thing to do. Indonesian fishermen should also be allowed in as South Ledge is southward looking. This has never been proposed. But of course, I don't mean trawler fishermen. I will visit the area with my Singapore counterpart George Yeo soon - The Star

Ruling the people, not the land

By Huzir Sulaiman

Has anything changed in 500 years?

THE May 23, 2008 judgment of the International Court of Justice was interesting, but for reasons I didn’t expect. Never mind the little white rock; it made me see Malaysian society in a whole new way.

In declaring who had sovereignty over the contested granite island of Pulau Batu Puteh, the Court summarised and evaluated the arguments that had been presented to them in the five years it took the case to be heard. One of the minor lines of argument advanced by Singapore had an unusual anthropological twist.

To quote paragraph 76 of the ICJ judgment: “Singapore, in support of its assertion that the Sultan of Johor did not have sovereignty over Pedra Branca/Pulau Batu Puteh, advances another argument based on what it describes as ‘the traditional Malay concept of sovereignty.’”

“Thus it contends: ‘Malaysia has glossed over . . . the traditional Malay concept of sovereignty. This concept undermines Malaysia’s claim to an original title. It is based mainly on control over people, and not control over territory. Traditional Malay sovereignty is people-centric and not territory-centric.’”

Now, the Court swiftly rejected this argument, saying that Malaysia had indeed shown that Johor owned Pulau Batu Puteh in the distant past.

Of course, the Court ultimately held that sovereignty had passed to Singapore, essentially because from 1953 onwards the Republic had acted as though it owned Pulau Batu Puteh, and had not been challenged by Malaysia.

But while politicians have been fixated on Malaysia’s failure to respond to Singapore’s acts of sovereignty, I find it intriguing to explore the ramifications of the rejected anthropological argument.

What would lead one to believe “traditional Malay sovereignty is people-centric and not territory-centric”? And more importantly, if it is indeed a justifiable notion, what does it then permit us to say about contemporary Malaysian society?

Going back to Singapore’s written submission of 25 Jan 2005 (“The Counter-Memorial of the Republic of Singapore”, to use the Court’s evocative phrase), we find the academic evidence set out in section 3.4, which I shall quote in full:

“The consensus among modern scholars of Malay history is that, unlike modern European States, the concept of 'sovereignty' in traditional Malay polities was based, not on the control of territory, but on the allegiance of inhabitants.

“For example, historian Nicholas Tarling wrote (in Nation and States in Southeast Asia): ‘The idea that the ambit of a state was geographically fixed was rarely accepted. What counted in Southeast Asia, sparse in population, was allegiance. Whom, rather than what, did the state comprise?... What concerned a ruler was the people not the place.’

“Historian Leonard Andaya has also written (in Writing a History of Brunei): ‘Historians have long accepted the truism that in Southeast Asia it is not the control over land but people which is the crucial element in statecraft.’

“The number of historians who have made the same point in one way or another is formidable. Their conclusions are further reinforced by the findings of Malay specialists in other disciplines such as sociology and anthropology.

“A useful summary of their findings is provided by Jane Carsten in her study of boundaries in Malaysia (Borders, Boundaries, Tradition and States in the Malaysian Periphery): ‘The traditional Southeast Asian state, or negeri, was a different kind of entity from the modern nation-state. Its borders were shifting and permeable... Anderson, Tambiah (1976), Wolters (1982), Errington (1989) and others have discussed the nature of the traditional Southeast Asian polity. In Southeast Asia the traditional state was defined by its centre not by its boundaries... control over people was of greater significance to the ruler than control over land....’”

What happens if we mentally divorce these excerpts from their recent use as part of a high-stakes legal argument, and put them back in their original, unemotional academic context?

The traditional Malay notion of sovereignty, these scholars are saying, is characterised by two things: A lack of concern about land, and a great deal of concern about the allegiance of the people.

But has anything changed in 500 years? Contemporary Malaysia still appears to conform to those two characteristics.

Our elected rulers do not have a very good track record in “controlling the land”, in all senses of the term: Malaysia does not adequately protect the environment. Illegal logging has taken a huge toll. Our water supply is not yet clean. We are not agriculturally self-sufficient. Illegal factories and developments abound. Land scams are a frequent occurrence. Landslides are a seemingly constant threat. And we cannot protect our territorial integrity: our borders are notoriously porous. Illegal immigrants are a source of social and economic tension in many parts of the country.

Meanwhile, the Government clearly shows that “control over people is of greater significance”, with the rhetoric of allegiance paramount: Critics are accused of sedition. Non-Malays are subject to accusations of disloyalty. Malays who do not support Umno are accused of betraying the Malay race. Academics must sign the “Aku Janji” loyalty pledge. Media are urged to display enthusiasm for government policies under implicit threat of revocation of licence. Charismatic politicians from Khairy to Anwar are accused of being agents of foreign powers. And our best-loved patriotic song: Setia.

Suddenly, everything that I find frustrating about our country becomes understandable in light of this paradigm. Malaysia simply doesn’t add up if you look at it as a modern nation-state, but it functions beautifully as a traditional 16th century one.

Perhaps it’s time to recalibrate our expectations. Vision 2020? Let’s try Vision 1520.

Huzir Sulaiman writes for theatre, film, television, and newspapers.