ON May 23, 2008, when the International Court of Justice (ICJ) in The Hague delivered its judgment on our territorial dispute with Singapore, many Malaysians – especially Johor folk – felt disappointed that Batu Puteh had been lost.

The judgment is painful because, in the eyes of Malaysians, Singapore’s allegations – since the dispute emerged in 1980 – have shown the island’s cavalier attitude to relations with Malaysia and insensitivity to Malaysians.

Either way, Batu Puteh is 7.7nm from the coast of Tanjung Penyusup, Johor, and 25.5nm from Singapore.

The discovery of three documents in the UK national archives between August 4, 2016, and January 30, 2017, has given Malaysians a new lease of life, prompting Malaysia to apply for a review of the ICJ decision.

These documents include internal correspondence of the colonial authorities of Singapore in 1958, a report on an incident filed by a British naval officer in 1958 and a map with notes on naval operations from the 1960s that certify that Batu Puteh has not become part of the sovereign territory of Singapore during the period in question.

However, according to open source searches, it has been confirmed that the then Pakatan Harapan government decided not to proceed with the revision application on June 11, 2018.

Coincidentally, this decision was made when former attorney-general Mohamed Apandi Ali was instructed to take unrecorded leave for 30 days, from May 14 to June 14, 2018.

During the hiatus, Malaysia lost its sovereignty over Batu Puteh forever. Singapore’s sovereignty over Batu Puteh can no longer be challenged in any way because it is now time-barred by article 61(5) of the ICJ Statute, which provides that:

“No application for revision may be made after the lapse of 10 years from the date of the judgment”.

Thus, the allegation of possible negligence and wrongdoing was published; according to the media statement made by Prime Minister Ismail Sabri Yaakob on October 13, 2022, based on findings made by the Special Task Force on the Law Review of Batu Puteh.

This is because the said actions have caused Malaysia to miss the opportunity to file a revision.

The question that arises now is: why a decision, which had a major impact on national policy and involved national sovereignty, was implemented in a hurry, and without obtaining further views or advice from the international affairs division of the Attorney General’s Chambers and stakeholders, including the Foreign Ministry, Defence Ministry and the Johor government?

As Johor native, I am deeply disappointed by this decision and questioned why Malaysia gave up its territorial rights so easily?

I agree with the task force recommendation that action should be taken against those involved.

This is notwithstanding that the international community may have the perception Malaysia does not maintain a consistent stand on this issue, due to us launching then withdrawing of legal proceedings.

I also urge the government to uphold the order of His Majesty Sultan Ibrahim Iskandar to make the task force report public because this is also a matter of Johor sovereignty.

The people of Johor have the right to know why the federal government at the time acted in such a way.

Those who commit such negligence and mistakes must be brought to justice.

Malaysia should ensure that her rights as a sovereign nation are fully defended by the government without compromise, and this should be supported and maintained.

As many members of the public are still in the dark about what this is all about, I have prepared a simple FAQ:

1. Where is Batu Puteh?

Batu Puteh is a maritime feature 7.7nm south of Tanjung Penyusup, Johor, and 25nm east of Singapore.

2. To whom does Batu Puteh belong?

Batu Puteh now belongs to Singapore. This is in furtherance to a dispute that both Malaysia and Singapore brought to the International Court of Justice (ICJ) in 2003. In 2008, the ICJ held that Batu Puteh belongs to Singapore.

3. Does it mean Batu Puteh is part of Singapore although it is closer to Malaysia?

Yes.

4. What is the implication of the ICJ judgment?

The most apparent domestic implication here is that Batu Puteh is part of Singapore.

Beyond Malaysia, the legal implication would be that Singapore will be able to claim territorial water around Batu Puteh, which under international law is upwards of 12nm.

As both sides have set up the Malaysia-Singapore Joint Technical Committee (MSJTC) to determine our maritime boundary, this is still in the middle of negotiations.

As part of Singapore, it falls under the East Coast Group Representation constituency. If Batu Puteh belonged to Malaysia, it would have been part of Pengerang.

5. Did we take further action to rectify the ICJ 2008 judgment?

Yes, we tried to. The previous BN administration attempted to seek a revision of the ICJ judgment in 2017 upon the discovery of new facts.

The hearing was set for July 2018, but the PH administration decided to abandon the proceedings.

6. Why did the PH administration do that?

It remains a mystery to us. The then ministers seem to be suffering from “selective amnesia”.

7. Will this affect my livelihood?

If you are a fisherman in Pengerang, yes. This is on top of the fishing area lost to the massive development of Petronas Rapid oil and gas refinery.

For Singapore now claims sovereignty over Batu Puteh and its navy now patrols the area.

Since it is now part of Singapore, the fishing community can no longer fish in its waters.

8. Are there broader security implications here?

Batu Puteh today has a lighthouse, a helipad, a desalination plant and more importantly a military rebroadcast station.

Many of these seem to suggest that Singapore intends to establish Batu Puteh as an outpost with military purpose of some sort.

Bear in mind, Batu Puteh is at the eastern entrance of the Straits of Singapore. The security implication here is potentially immense.

9. News headlines in the recent past suggested that Singapore is embarking on land reclamation around Batu Puteh. What is this about?

Singapore in July 2021 announced its intention to begin land reclamation 0.5nm south of Batu Puteh.

This is earmarked to be around 7ha, or approximately 10 football fields, supposedly to provide berthing facilities for vessels.

All this is happening when the MSJTC has yet to finalise the delimitation of the maritime boundary, so it is underhanded.

10. In broader terms, how does this affect the people of Johor?

If you would look closer at the news, this reclamation will be carried out by the Singapore Housing & Development Board (HDB).

If you are familiar with Singapore, you would know that the HDB is tasked to build homes and townships.

Now imagine Singapore having a settlement or, God forbid, a town on our doorstep. This is certainly an affront to the people of Johor.

11. Isn’t it a bit too late to act?

It will be dependent on the task force findings, which have yet to be made public. This adds to the reasons why it is imperative for them to be so.

There is certainly a possibility that should fault be attributable to anyone, declaratory relief could be sought for as a matter of recourse.

12. Who is accountable?

Hmm… for the withdrawal of the revision application to the ICJ occurred in June 2018, the then PH cabinet, on the basis of collective responsibility.

13. What can they be sued for?

Tort of misfeasance in public office.

14. What is tort of misfeasance and can it be brought against an entire government?

Misfeasance is one of the triumvirates of tortious liability of public officers embedded in common law. Misfeasance means the improper committing of an act which the agent might lawfully do. In other words, it is the performing of his duty to his principal in such a manner as to infringe upon the rights and privileges of third persons.

15. Who can sue?

Legal action under the tort of misfeasance may be taken by those with legal grounds, eg the people of Johor or the state government.

It is for the courts to decide whether they have committed negligence and error for not proceeding with the application for review and interpretation of the Batu Puteh case.

16. What is the prospect of success of suing on the tort of misfeasance?

Mohd Hatta Sanuri has sued the previous PH government in High Court on the tort of misfeasance in May 2021. Regrettably, the court in July 2022 struck out the suit on the grounds that actions by the government is non-justiciable as it concerns foreign policy.

The court also ruled that Hatta lacked the grounds for a suit. For the local court held so, and the avenue in ICJ has been shut, this puts us in a Catch-22 situation, for there seems to be no viable legal avenue to bring a case.

17. The task force has presented its report to the cabinet. What’s next?

For we are now in this Catch-22 situation, the government should initiate a Royal Commission of Inquiry (RCI) through the Commissions of Enquiry Act 1950 to independently investigate and put to rest everything that has happened since 1979.

An RCI will be effective because it is provided with extensive powers to summon witnesses and documents.

Any failure to do so would allow the RCI to issue warrant of arrest to compel attendance. This would enable the parties concerned, especially from the PH administration, to explain why they withdrew the application despite fresh evidence that favoured Malaysia’s sovereignty claim.

Those willing to compromise on the sovereignty of the country must be held accountable and the findings of the RCI should be made public. – October 17, 2022.

* Azalina Othman Said is the MP for Pengerang.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.