NST yesterday featured an article on the ICJ decision by Datuk Deva Mohd Ridzam, former ambassador to the European Union, Belgium and Luxemburg and Cambodia, entitled ‘Opinion : Taking heed of the lesson bitterly learnt’.
The learned writer states in his article :
‘Malaysians should give credit to our team for having, in the first place, salvaged the country from a very bad situation. They cannot be held responsible for the 1953 letter nor for acts of omission and commission of our leaders and officials since then. In fact, our team did their best in an extremely difficult situation’.
I’ve read the ICJ judgment and, whilst my knowledge of public international law is woefully inadequate, I have to say that I, too, think that the Malaysian team took every possible argument it could to address an ‘extremely difficult situation’.
The learned writer further opines :
‘In the light of the foregoing, to criticise the government for taking the matter to the ICJ without a strong case is also unfair, to say the least.
There are, of course, risks to be run in bringing the matter before the ICJ. But the question is, was there any other practical alternative? Refusing to let our case be heard at the World Court would have suggested Malaysia lacked confidence in its claim’.
Here, I’ve got to say we don’t know enough to say, ‘Yes, Gani & team did right by us’.
Lawyers involved in litigation, when consulted by a client on possible litigation, are invariably confronted with 2 questions.
What are the chances of success, and at what price?
Fair questions, the second more susceptible of a definitive answer than the first, in my view.
Remember that on the matter of Pedra Branca, the ICJ decided 12 to 4 in favour of Singapore. This was not a photo-finish decision.
We know that before the judgment was delivered, Rais had made public statements that the government had every confidence that the ICJ would deliver Pedra Branca to us. Never mind the ‘win-win’ stance after the event.
I think the more important question is whether there was real confidence before the decision was made to refer the dispute to the ICJ in 2003?
If so, was this confidence premised on sound legal advise obtained by the AG’s chambers from experts?
The learned writer rightly points out that the decision of the ICJ to find for Singapore turned on two factors : ‘that for ‘over 100 years, we did nothing to positively assert our ownership over Pedra Branca in any significant way, leaving everything to the British. Then, we wrote that fateful letter in 1953 giving away this piece of territory in our waters to Singapore’.
Was AG’s chambers alerted to this weakness in our case and as to the significance it would have on the final outcome?
And if so advised, what was the indicated cost to litigate our prospects in the ICJ?
What was the advise of the AG’s Chambers to the government?
What was the final bill for this unsuccessful litigation? Are we, as the losing side, required to pay Singapore’s costs? What did putting together our team cost us?
Speaking of our team, here’s the list, in case you did not already know.
H.E. Tan Sri Abdul Kadir Mohamad, Ambassador-at-Large, Ministry of Foreign Affairs of Malaysia, Adviser for Foreign Affairs to the Prime Minister,
H.E. Dato’ Noor Farida Ariffin, Ambassador of Malaysia to the Kingdom of the Netherlands,
H.E. Dato’ Seri Syed Hamid Albar, Minister for Foreign Affairs of Malaysia,
H.E. Tan Sri Abdul Gani Patail, Attorney-General of Malaysia,
Sir Elihu Lauterpacht, C.B.E., Q.C., Honorary Professor of International Law, University of Cambridge, member of the Institut de droit international, member of the Permanent Court of Arbitration,
Mr. James Crawford, S.C., F.B.A., Whewell Professor of International Law, University of Cambridge, member of the Institut de droit international,
Mr. Nicolaas Jan Schrijver, Professor of Public International Law, Leiden University, associate member of the Institut de droit international,
Mr. Marcelo G. Kohen, Professor of International Law, Graduate Institute of International Studies, Geneva, associate member of the Institut de droit international,
Ms Penelope Nevill, college lecturer, Downing College, University of Cambridge,
Datuk Azailiza Mohd Ahad, Head of International Affairs Division, Chambers of the Attorney-General of Malaysia,
Datin Almalena Sharmila Johan Thambu, Deputy Head 1, International Affairs Division, Chambers of the Attorney-General of Malaysia,
Ms Suraya Harun, Senior Federal Counsel, International Affairs Division, Chambers of the Attorney-General of Malaysia,
Mr. Mohd Normusni Mustapa Albakri, Federal Counsel, International Affairs Division, Chambers of the Attorney-General of Malaysia,
Mr. Faezul Adzra Tan Sri Gani Patail, Federal Counsel, International Affairs Division, Chambers of the Attorney-General of Malaysia,
Ms Michelle Bradfield, Research Fellow, Lauterpacht Centre for International Law, University of Cambridge, Solicitor (Australia),
Dato’ Hamsan bin Saringat, Director, State Economic Planning Unit, Johor State,
Mr. Abd. Rahim Hussin, Under-Secretary, Maritime Security Policy Division, National Security Council, Department of the Prime Minister of Malaysia, – 3 –
Mr. Raja Aznam Nazrin, Under-Secretary, Adjudication and Arbitration, Ministry of Foreign Affairs of Malaysia,
Capt. Sahak Omar, Director General, Department of Hydrography, Royal Malaysian Navy,
Mr. Tuan Haji Obet bin Tawil, Deputy Director 1, Land and Mines Office of Johor,
Dr. Hajah Samsiah Muhamad, Director of Acquisition, Documentation and Audiovisual Centre, National Archives,
Cdr. Samsuddin Yusoff, State Officer 1, Department of Hydrography, Royal Malaysian Navy,
Mr. Roslee Mat Yusof, Director of Marine, Northern Region, Marine Department Peninsular Malaysia,
Mr. Azmi Zainuddin, Minister-Counsellor, Embassy of Malaysia in the Kingdom of the Netherlands,
Ms Sarah Albakri Devadason, Principal Assistant Secretary, Adjudication and Arbitration Division, Ministry of Foreign Affairs of Malaysia,
Mr. Mohamad Razdan Jamil, Special Officer to the Minister for Foreign Affairs of Malaysia,
Ms Haznah Md. Hashim, Principal Assistant Secretary, Adjudication and Arbitration Division, Ministry of Foreign Affairs of Malaysia,
Professor Dato’ Dr. Shaharil Talib, Head of Special Research Unit, Chambers of the Attorney-General of Malaysia,
Mr. Tan Ah Bah, Director of Survey (Boundary Affairs Section), Department of Survey and Mapping,
Professor Dr. Sharifah Mastura Syed Abdullah, Dean of the Faculty of Social Sciences and Humanities, National University of Malaysia,
Professor Dr. Nik Anuar Nik Mahmud, Director of the Institute for Malaysian and International Studies, National University of Malaysia,
Mr. Ahmad Aznan bin Zakaria, Principal Assistant Director of Survey (Boundary Affairs Section), Department of Survey and Mapping,
Mr. Hasnan bin Hussin, Senior Technical Assistant (Boundary Affairs Section), Department of Survey and Mapping,
The People's Parliament 
clearwater
May 30, 2008
The Malaysian litigation team looks very expensive, sounds very expensive and will not surprise if it was indeed very expensive. Typical bureaucratic ploy to hire costly top notch professionals at public expense, and if things turn out badly, you can’t be blamed because you got the best to fight the case. No one’s going to recall the fight was a no winner from the beginning and that you insisted to litigate instead of further negotiate.
Josh
May 30, 2008
Wow, a team of 33 losers. Or are they really the winners? I suppose it was to them a nice paid holiday in Europe.
Paul Warren
May 30, 2008
But for sure we now got the few little rocks and we can go fishing there right? I hear the fish there is pretty tasty! Anyway, with such a confusingly long list are we not bound to lose anyway? I got lost reading through that list alone. Anyway, shouldn’t there be a checklist of what would be considered for the purpose of determining sovereignty and then have that list tested? Such a testing should have given this result isn’t it?
But then again if such a test had been done and we did nothing and handed Pedra Branca to Singapore, would that mean they would have also got hold of the rocks?
We might still have the last laugh if drilling a hole next to the rocks we find oil!!
Paul,
And I thought I was the infernal optimist!
LJ
May 30, 2008
Dear Haris,
I think Malaysia put forward a formidable case and proved its case fully in respect the 2 smaller outcrops and Malaysia’s historical sovereignty over Pedra Branca. Its failure to succeed emanated from (1) the failure of successive governments (including the British) to exert sovereignty at times of historical flux (so brutally & unfairly now judged with 20:20 hindsight); and (2) the unfortunate 1953 (and at that time, meaningless) letter written by an ill-advised and short-sighted British bureaucrat in Johore to another British bureaucrat in Singapore.
Malaysia’s arguments were more relevant, forceful and incisive than Singapore’s forlorn and feeble “terra nullus” stand which defied all logic and smacked of desperation, given that modern historical scholarship eschews the concept of terra nullus as colonialist and self-serving thereof.
The excellent Malaysian legal team should be congratulated rather than abused.
LJ
incognito
May 30, 2008
advice
matt
May 30, 2008
This bum’s all of them, think of it harris if u were on the govt side u would have done a better job.
a concerned voter
May 30, 2008
Hi there Bro Haris,definitely this litigation team has wrongly adviced the Goverment just like the 4th floor boys did to Pak Lah during the recent election and needless to say the results on both occasions are the same -embarassing.
a concerned voter
May 30, 2008
Oops sorry,not 4th floor boys.Should be 4th floor beruks.
raj raman 666
May 30, 2008
Any expenses and contracts with Federal Goverment is official secrect.
Maybe Pakatan rakyat de clasify all the expenses once they are in power (if).
Meanwhile.keep quessing,maybe can strike 4 ekor.
rajrman666.The kafir who dont gamble and dont use peoples money.
gobloking
May 30, 2008
My advice is FREE (for now)
1. Malaysia should Quickly build some sort of permanent structure on every rock outcrop it can find within & without her territory.
2. Hire the Singapore Legal Team
3. Include me on the legal team. I can photocopy & make kopi, so do I qualify already?
Let’s put it this way. We are so screwed up we deserve to be screwed.
A true Malaysian
May 30, 2008
To me, for Malaysia to bring this case to ICJ, Malaysia should weigh the level of winning the case before agreeing the case to be arbitrated by ICJ.
So, if level of winning is low, then better keep quiet and remain as status quo. At least we still have opportunity to claim back Pedra Branca in future.
Apparently, our legal team not doing their job well. We just kiss and say goodbye to Pulau Batu Putih.
Bye, Pulau Batu Putih.
Paul Warren
May 31, 2008
So Malaysia also lost it because for 100 years Malaysia took no action to restrain Singapore, or the British before them, from doing anything on the rock and conducting themselves in a manner of lordship over the rocks.
Fine. Want to digress a bit to something on the mainland itself.
Many Hindu Temples located in estates. Some over a hundred years old. Many have expanded, improved upon and so on. But mostly they continue to remain active temples actively maintained by the Hindus there.
It can easily be shown that the title holders of the land on which it stands failed to carry out any act of sovereignty and lordship over the said property.
Have the worshipers there a greater claim over the temple and the land it stands on than the title holders?
meng
May 31, 2008
Batu Puteh is as good as lost right from the beginning.
The case brought to ICJ was to save face otherwise there would have been a backlash from the johorean. Now they have an excuse to cool johorean down no matter what the cost was. I am sure the team players are smiling now with huge allowances.
I hope Sabah will also go?? I will wait for that day.
Ark
May 31, 2008
I thought the Johoreans will be appeased by the ban of petrol sale to Singaporean vehicles, or maybe not.
Bunda
May 31, 2008
The arguments in the ICJ were, at best, an intelectual exeercise in futility. So much to argue about, but only the fact of who exercised sovereignty in the recent past was relevant.
Malaysia’s argument that the Johor Sultanate had sovereignty since “time immemorial” was unsound logic. The Peninsula was ruled in the past by the Chola, Srivijaya, and Majapahit Empires. Does this mean that India or Indonesia can now claim sovereignty over the Peninsula since they had sovereignty since “time immemorial”, which was taken away by successive colonialist powers?
It all boils down to who had exercised sovereign powers over those little specks of rocks in the recent past. Of course, the 1953 letter didn’t help, but our “learned” legal team always goes back to the standard Malaysian excuse… “He has no authority to sign on our behalf!”… which obviously the ICJ didn’t bite.
The Malaysian legal team is a microcosm of what is wrong with this country. We are in self-denial of our woes, and belief in our own fantasies and fairy tales. It has become bad enough that we display it for all the world to see at the ICJ.
Assalamualaikum
drsaravananr
May 31, 2008
Well, until all the documents dating back to DR.M’s era are unveiled, we will only be able to assume as to what our team knew and on what grounds they tried to secure the custody of PB. Knowing DR.M’s attitude and style, and knowing the fact of how much he loved Singapore, there must have been something up his sleeve when handed the case for judgment to the ICJ. Maybe there was a different game back then? As long as we have the OSA and as long as all correspondence during DR.M’s era remains undisclosed, it’s just going to be a guessing game for us.
cheers
drsaravananr
May 31, 2008
Sorry, typo. Maybe there was a different game plan back then?
JJ
May 31, 2008
I suspect that at the time of referring this case to ICJ, we are not aware of this damaging letter that was written to the British in Singapore. A crop of rocks 25 nautical miles from Singapore and only 7.7 naut miles from mainland Johor, can be claimed by Singapore? If there is only a lighthouse being operated there, why the need for it to be so secretive that fishermen are barred from anchoring there? The lighthouse in Cape Rachado in PD is opened to visitors.
The only thing that caused the rocks to be given to Singapore is that some idiot wrote that we do not claim soverignty over them. And as LJ wrote above, it’s probably from one British bureaucrat to another.
Cheers.
Mr Bojangles
May 31, 2008
What a bunch of luminaries-truly a who’s who of the Malaysian legal fraternity. Any idea who the opposing team members were?
yellowkingdom
June 1, 2008
The International Court of Justice (ICJ) will be holding its public hearings in the case concerning sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), at the Peace Palace in The Hague (Netherlands) from 6 – 23 November 2007. The public hearings follow three rounds of written pleadings exchanged between Singapore and Malaysia from March 2004 to November 2005, in accordance with the terms of the Special Agreement signed by the Foreign Ministers of both countries on 6 February 2003 for the submission of the dispute to the ICJ.
The Singapore delegation will comprise Deputy Prime Minister, Coordinating Minister for National Security and Minister for Law Professor S Jayakumar, Chief Justice Chan Sek Keong, Attorney-General Chao Hick Tin, and Ambassador-at-Large Professor Tommy Koh, who is also serving as the Agent of Singapore for this case. They will be accompanied by senior government officials. The Singapore delegation also comprises an experienced team of international legal Counsel, namely, Mr Ian Brownlie Q.C., Professor Alain Pellet, Mr Rodman Bundy and Ms Loretta Malintoppi.
For more information, please visit http://www.mfa.gov.sg/pedrabranca
yellowkingdom
June 1, 2008
Prof Jayakumar received his early education in Raffles Institution and University of Singapore where he graduated with a Bachelor of Law (Honours) degree. He was admitted to the Bar in 1964, and later furthering his education at Yale Law School and receiving his Master of Law in 1966.
Upon his return to Singapore, Prof Jayakumar took on a lecturing position at the Faculty of Law in the National University of Singapore between the years 1964 and 1981, assuming the position as Dean of the Faculty in 1974. In his career with the university, he also served as Singapore’s Permanent Representative to the United Nations (UN) and High Commissioner to Canada between 1971 and 1974, and as a member of Singapore’s delegation to the UN Law of the Sea Conference from 1974 to 1979. He also authored 3 books and 32 articles on the topics of constitutional law, international law and legal education.
http://en.wikipedia.org/wiki/Shunmugam_Jayakumar
yellowkingdom
June 1, 2008
Tommy Koh, (Tommy Thong-Bee Koh or Tommy Koh Thong Bee) was born in Singapore on 12 November 1937. He is an international lawyer, professor and Ambassador-At-Large for the Government of Singapore. He is Professor of Law at the National University of Singapore and Chairman of the Singapore Institute of Policy Studies.
He was President of the Third United Nations Conference on the Law of the Sea, 1980-1982 and Chairman of the Main Committee of the UN Conference on Environment and Development, 1990-1992, where he presided over the negotiations on Agenda 21. He has also served as Singapore’s ambassador to the United Nations and the United States.
Koh was the first Executive Director of the Asia-Europe Foundation, established in Singapore in 1997 by the countries of the Asia-Europe Meeting (ASEM).
Koh received a Ll. B. (First Class Honours) degree from the University of Malaya in Singapore (now National University of Singapore), has a Ll. M from Harvard University and a post-graduate Diploma in Criminology from Cambridge University. He was conferred a full professorship in 1977. Prof Koh was awarded an honorary degrees of Ll. D. from Yale University and Ll. D. from Monash University. He has also received awards from Columbia University, Stanford University, Georgetown University, the Fletcher School of Law and Diplomacy, and Curtin University.
http://en.wikipedia.org/wiki/Tommy_Koh
yellowkingdom
June 1, 2008
Singapore commenced the hearing on 7 November 2007 by disputing Malaysia’s claims over the island and demonstrating Singapore’s consistent exercise of authority through various acts since 1847.[15][16][17] The Singapore delegation was led by Deputy Prime Minister and Minister for Law Shunmugam Jayakumar, with Chief Justice Chan Sek Keong, Attorney-General Chao Hick Tin and Ambassador at Large Tommy Koh forming up the rest of the delegation. They were accompanied by a legal counsel team formed by international experts, namely Queen’s Counsel Ian Brownlie from the University of Oxford, Professor Alain Pellet of the University of Paris X: Nanterre, and two law specialists from English firm Eversheds, Mr Rodman Bundy and Ms Loretta Malintoppi.[18]
http://en.wikipedia.org/wiki/Pedra_Branca_dispute
yellowkingdom
June 1, 2008
Ian Brownlie, CBE, QC, FBA, is a British jurist, specialising in international law. He was called to the Bar in 1958 (Gray’s Inn).
During his academic career he taught at the University of Leeds, the University of Nottingham, and Wadham College, Oxford. He was a professor of international law at the London School of Economics between 1976 and 1980. From 1980 to 1999 he was Chichele Professor of Public International Law at the University of Oxford and a Distinguished Fellow of All Souls College, Oxford.
He served as an advisor to U.S. President Jimmy Carter during the 1979 Iranian Hostage Crisis. The cases in which he has argued before the International Court of Justice include Nicaragua v. United States, Nauru v. Australia, Bosnia and Herzegovina v. Serbia and Montenegro, and Libya v. United Kingdom and v. United States; he has also argued several important cases before the European Court of Human Rights, including Cyprus v. Turkey. He also represented Amnesty International at the extradition trial of Chilean coup-leader Augusto Pinochet before the English courts in 1999. Since 1997 he has been a member of the United Nations’ International Law Commission.
He is a Fellow of the British Academy and his memberships include the International Law Association and the Institut de Droit International. In 2006 he was awarded the Wolfgang Friedmann Memorial Award for international law.
The Original Man
June 6, 2008
Dear Haris,
It’s funny how people who dont know always have more to say than those who do. I think the Malaysian legal team had put up all their best in the case and based on the Judgment, Malaysia won more legal arguments than Singapore. It is unfortunate however that while we win the legal arguments, we still did not get Pulau Batu Puteh. Since you are diligent enough to reproduce the list of the Malaysian delegation, didn’t it occur to you that the Malaysian team is headed by the Ministry of Foreign Affairs rather than the country’s top legal fraternity. Therefore, I do not think that the grouses should be directed to the Attorney General’s Chambers but rather to the Ministry of the Foreign Affairs given that they are in control of the whole affairs. Anyway, I’ve dedicated a blog that I wish to share with you on the case. Hopefully, it will help explain why Malaysia did not loose the case, we just did not get Pulau Batu Puteh. Please feel free to vivit http://pbpverdict.blogspot.com