KL cites declassified UK files in bid to revise judgment

KL cites declassified UK files in bid to revise judgment
A key consideration in ICJ’s judgment was a letter in 1953 in which Johor’s top official informed British authorities in Singapore that “the Johor government does not claim ownership of Pedra Branca”.
PHOTO: The Straits Times

Malaysia has cited three documents recently declassified by Britain to support its application for a revision of an International Court of Justice (ICJ) ruling on Pedra Branca.

They are: Internal correspondence of Singapore colonial authorities in 1958, an incident report filed in 1958 by a British naval officer and an annotated map of naval operations from the 1960s, the ICJ said in a press statement on Friday.

These items were discovered in the UK National Archives between Aug 4, 2016 and Jan 30, 2017.

"Malaysia claims that these documents establish the new fact that 'officials at the highest levels in the British colonial and Singaporean administration appreciated that Pedra Branca/Pulau Batu Puteh did not form part of Singapore's sovereign territory' during the relevant period," the ICJ said.

"Malaysia argues 'that the court would have been bound to reach a different conclusion on the question of sovereignty over Pedra Branca/Pulau Batu Puteh had it been aware of this new evidence'."

Photo: Straits Times Graphics

Pedra Branca, some 40km east of Singapore at the eastern entrance of the Singapore Strait, is known as Pulau Batu Puteh in Malaysia. Britain, and later, Singapore, has maintained control over the island since the 1850s.

Malaysia staked its claim to the island in a 1979 map. The dispute saw both neighbours refer the case to the ICJ, which is based in the Hague, in 2003.

The court found on May 23, 2008, that sovereignty over Pedra Branca belongs to Singapore, sovereignty over Middle Rocks belongs to Malaysia and sovereignty over South Ledge belongs to the state in the territorial waters of which it is located.

The 16 judges of the ICJ voted 12 to four in Singapore's favour.

A key consideration in its decision was a letter dated Sept 21, 1953, in which Johor's top official informed the British authorities in Singapore that "the Johor government does not claim ownership of Pedra Branca".

The court said in its 2008 ruling that it considered this correspondence and its interpretation of central importance for determining the understanding of both parties about sovereignty over the island. It found that Johor's reply showed that "as of 1953, Johor understood that it did not have sovereignty over Pedra Branca".

ICJ's statement on Friday came as Malaysia's Attorney-General Apandi Ali said the same day that his country had applied to revise the 2008 judgment on Feb 2. He said the bid was made "upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the court and also to Malaysia as the party claiming revision".

A spokesman for Singapore's Ministry of Foreign Affairs (MFA) said Malaysia had informed Singapore it had made an application for revision of ICJ's judgment.

MFA said "Singapore is studying Malaysia's application and documentation closely and has formed its legal team to respond to Malaysia's application", which includes Attorney-General Lucien Wong, Professor S. Jayakumar, Professor Tommy Koh and former chief justice Chan Sek Keong.

In its release, the ICJ noted that Malaysia based its application on Article 61 of the ICJ's Statute, which provides that an "application for revision of a judgment may be made when it is based only upon the discovery of some fact of such a nature as to be a decisive factor". The fact had to be "when the judgment was given, unknown to the court and also to the party claiming revision, always provided that such ignorance was not due to negligence". The request for revision must also be made within six months of discovery of the new fact - in this case Aug 4, 2016 - and no later than 10 years from the date of judgment.

The ICJ noted that "proceedings for revision are opened by a judgment which decides whether an application for revision is admissible, that is, whether the above conditions have been fulfilled".

The Straits Times understands that this process could take over a year.

The ICJ added that Malaysia, in its application, contends "there exists a new fact of such a nature as to be a decisive factor within the meaning of Article 61". Malaysia said the new fact was not known to it or the ICJ when the judgment was given because it was "only discovered on review of the archival files of the British colonial administration after they were made available to the public by the UK National Archives after the judgment was rendered in 2008", the ICJ said.

"Malaysia also argues that its ignorance of the new fact was not due to negligence as the documents... were 'confidential documents which were inaccessible to the public until their release by the UK National Archives'," it added.

Yesterday, Johor Menteri Besar Khaled Nordin said the state government welcomed and fully supported the efforts by Malaysia's Attorney-General on the case.

"Our hope naturally is that it will succeed this time," he added.

Law Minister K. Shanmugam told reporters that a number of conditions have to be satisfied before a judgment can be relooked. Among them are that there are new facts which will make a decisive difference.

"Looking at it from that perspective, I'm wondering what are the new facts in these documents, and how they would make any difference to the case. But these are very quick observations. Our team will study it and respond," he said.

Read also: 
Malaysia seeks to revise judgment on Pedra Branca, citing discovery of 'new facts'
MFA: Singapore studying closely KL's application over Pedra Branca

This article was first published on Feb 5, 2017.
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