OCTOBER 22 — Incumbent Member of Parliament (MP) for Pengerang MP Datuk Seri Azalina Othman Said has described Malaysia’s position over the sovereignty of Pulau Batu Puteh as “between a rock and a hard place”.
On May 23, 2008 the International Court of Justice (ICJ) in The Hague delivered a judgment in which the court awarded sovereignty over the island of Pulau Batu Puteh to Singapore. The judgment is final and binding on Malaysia and Singapore and without appeal, although it may be subject to interpretation or, upon the discovery of a new fact, revision.
Malaysia, accordingly, filed an application for revision of the judgment pursuant to Article 61 of the Statute of the Court. The Article provides, in paragraphs 1, 4 and 5, as follows:
1. An application for revision of a judgment may be made only when it is based 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 the party claiming revision, always provided that such ignorance was not due to negligence.
4. The application for revision must be made at latest within six months of the discovery of the new fact.
5. No application for revision may be made after the lapse of ten years from the date of the judgment.
The application was filed on February 2, 2017. According to the application, Malaysia “recently discovered three significant documents that indicate that, in the critical years following the 1953 correspondence, during a period that witnessed Malaysian independence and the transition of Singapore from a self-governing colonial territory to incorporation as part of Malaysia and then independence as the Republic of Singapore, Singapore officials at the highest levels did not consider that Singapore had acquired sovereignty over Pulau Batu Puteh from Johor.”
Malaysia contended that the documents showed that “Singapore’s perception that Pulau Batu Puteh did not fall within Singapore’s territory persisted through the critical period of the first half of the 1960s during which Singapore underwent various constitutional changes, and lasted until at least February 1966, by which time Singapore had ceased to be part of Malaysia and became an independent State in its own right.” (See Malaysia’s application for revision of the judgment which can be sighted here)
Malaysia further contended that the court “would have been bound to reach a different conclusion on the question of sovereignty over Pulau Batu Puteh had it been aware of this new evidence.”
However, the “three significant documents” must first be admissible and Malaysia would have the burden of demonstrating that all of the conditions for the admissibility of a request for revision laid down in Article 61 have been met.
There were three previous applications for revision submitted to the Court under Article 61 (Tunisia v Libyan Arab Jamahiriya; El Salvador v Honduras; Yugoslavia v Bosnia v Herzegovina). According to the Court’s decisions in these applications, for an application for revision to be admissible, the following requirements must be fulfilled:
(a) the application must be based on the “discovery” of a “fact”, described in Article 61 (2) as a “new fact”;
(b) the newly discovered fact must be “of such a nature as to be a decisive factor”;
(c) the newly discovered fact must have been “unknown” to both the Court and the party claiming revision at the time when the judgment was given; and
(d) ignorance of the newly discovered fact must not be “due to negligence”.
In the case of Tunisia v Libyan Arab Jamahiriya (1985) the court said:
“Strictly speaking, once it is established that the request for revision fails to meet one of the conditions for admissibility, the Court is not required to go further and investigate whether the other conditions are fulfilled.”
This is consistent with Article 99(1) which states that a request for the revision of a judgment “shall be made by an application containing the particulars necessary to show that the conditions specified in Article 61 of the Statute are fulfilled.”
In a later case of El Salvador v. Honduras (2002) the court found that none of the new facts alleged by El Salvador in its application for a review were “decisive factors” in relation to the Court’s judgment in 1992. Accordingly, the Court held that it was unnecessary for it to ascertain whether the other conditions laid down by Article 61 were satisfied.
A party seeking to review a judgment of the court, like Malaysia, is therefore held to a high standard of proof.
Why the high standard? Revision is an exceptional procedure. It has the possibility of “impairing the stability of the jural relations established by the [principle of] res judicata.” In the interest of stability of legal relations, the high standards must be rigorously applied.
It is said that the findings of a judgment must be taken as correct, and “may not be reopened on the basis of claims that doubt has been thrown on them by subsequent events.”
Malaysia is indeed between a rock (the judgment of the court in 2008) and a hard place (the strict requirements of Article 61).
When one is stuck between the two, perhaps it is best to consider moving on.
In May 2011, Malaysia and Singapore completed a joint hydrographic survey of the area in and around Pulau Batu Puteh and Middle Rocks. Malaysia should therefore work towards finalising maritime boundaries between its Middle Rocks and Singapore’s Pulau Batu Puteh, as urged by legal experts — Prof Datuk Dr Rahmat Mohamad, formerly of the Faculty of Law, UiTM and Assoc Prof Mohd Hazmi Mohd Rusli of the Faculty of Syariah and Law, USIM and senior research fellow at the Asian Institute of International Affairs and Diplomacy (AIIAD), UUM.
The former is currently the chairman of the Human Rights Commission of Malaysia (Suhakam).
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
