Pedra Branca: Response to Apandi Ali's statement

1. It is indeed surprising that the Pedra Branca issue has suddenly made news again. It seems to be political in nature.

2. On 23.5.2008, the International Court of Justice:

(i) by twelve votes to four, decided that sovereignty over Pedra Branca/Pulau Batu Puteh belongs to the Republic of Singapore;

(ii) by fifteen votes to one, decided that sovereignty over Middle Rocks belongs to Malaysia; and

(iii) by fifteen votes to one, decided that sovereignty over South Ledge belongs to the State in the territorial waters of which it is located. It is worth mentioning that the above decision was after both Malaysia and Singapore agreed to submit to whatever the ICJ decided. That was the gentlemen’s agreement.

3. On 2.2.2017 and 30.6.2017 respectively, Malaysia then filed an Application for Revision and Request for Interpretation of the International Court of Justice Judgment of 23.5.2008 in relation to the Pulau Batu Puteh case (hereinafter referred to as ‘the two Applications’).

4. On 31.5.2018, the Attorney General’s Chambers announced that Malaysia and Singapore had entered into agreement regarding the two Applications. Subsequently, the International Court of Justice informed both Malaysia and Singapore that the Court had removed the two Applications from the Court’s List. In simple parlance, the matter was ended. By virtue of Article 60 of the ICJ statute, the decision was final and no appeal lies thereafter.

5. On 13.7.2018, the Attorney General’s Chambers via a Press Release refuted the claim made by the former Attorney General, Tan Sri Apandi Ali in his Mingguan Malaysia interview entitled “Malaysia ada bukti kukuh” in relation to the Pulau Batu Puteh case. The said Press Release was strongly worded and telling.

6. On 9.10.2021, the Prime Minister via a The Press Release announced, amongst others, that the Cabinet has agreed to establish a Special Committee to review issues relating to Pulau Batu Puteh case to be headed by ex-Attorney General Tan Sri Apandi Ali. The committee is also tasked to oversee whether there is ‘Tort of Misfeasance’ committed by any party in furtherance of the discontinuance of the said two Applications.

7. It seems as though the establishment of this special committee is politically motivated to put the blame on the then Prime Minister, Tun Dr. Mahathir for the discontinuance of the two Applications, rather than to seek to review its legal points. This is despite the fact that the AGC in its Press Release dated 13.7.2018 in no uncertain terms stated that the decision to discontinue the two Applications was endorsed by the Cabinet on 23.5.2018. It was a collective decision of the Cabinet.

8. It was not made out of the whims and fancies of one person. The decision to discontinue the two Applications was made meticulously after having heard the opinions of Dr. Brendan Plant representing three (3) international consultants and also two local lawyers. The said two local lawyers were the same lawyers appointed by Tan Sri Apandi Ali to be in his team in 2016. They are Dato’ Firoz Hussein Bin Ahmad Jamaluddin and Dato’ Abu Bakar As-Sidek Bin Dato’ Haji Mohd Sidek respectively.

9. Furthermore, the AGC on 31.7.2018 refuted Tan Sri Apandi Ali’s claim that the letter from the Acting State Secretary of Johore dated 1953 as being the ‘decisive factor’ which caused Malaysia to lose the case. In fact, records from ICJ Document CR 2007/30 clearly shows that Malaysia had argued at length on the said issue before the ICJ and that the ICJ was of the opinion the letter does not have conclusive legal effect. In fact touching on Johore, the Cabinet decision not to carry on with the Revision was given presented to the Sultan of Johore.

10. The establishment of this Special Committee to be headed by Tan Sri Apandi Ali casts a real danger of biasness as he is directly involved in this saga from the very beginning. He is in a position of conflict of interest to be the Head of this Special Committee. It is a blatant disregard of Natural Justice and Rule of Law.

11. As former Attorney General and former Federal Court judge, Tan Sri Apandi Ali should turn down this invitation or resign. He should not have stooped so low to be ‘a judge of his own cause’. The fact that this Special Committee is headed by a person with a conflict of interest clearly shows that the Government is not interested in the Rule of Law and Natural Justice.

12. In the midst of it all, there is a legal suit pending in the High Court of Kuala Lumpur regarding the discontinuance of the said two Applications (KLHC No. WA21NCVC103-05/2021). The matter is still pending determination in the High Court. A plaintiff in that suit by the name Mohd Hatta Sanuri has filed an action against the government for withdrawing a review application over the International Court of Justice’s (ICJ) decision that Singapore has sovereignty over Pulau Batu Puteh. He is seeking, among others, for the defendants to give an explanation for the withdrawal and for a declaration that they had been negligent and violated the trust placed on them by citizens.

13. The establishment of this Special Committee where the subject matter of its determination is still pending in the High Court further shows that the Government has preceded the Court and does not respect the separation of power as well as the Rule of Law.

14. Just because Tan Sri Apandi Ali does not agree with a decision of the previous government to discontinue the two Applications, it does not follow that the new government from the opposing political parties should waste public money to establish a Special Committee to review such decision with no merits attached to it.

15. In any event it is again worthwhile to mention that there was an Agreement by both Malaysia and Singapore to agree to whatever the ICJ decided. It will be more pertinent for Malaysia to concentrate in developing what is still ours or within our sovereignty rather than indulge in issues for political mileage.

Muhammad Rafique Rashid Ali

Advocate & Solicitor