PUTRAJAYA (Dec 10): Former prime minister Tun Dr Mahathir Mohamad alleged that Malaysia’s claim on Batu Puteh has long been lost, citing an over seven-decade-old letter which formed the core of the International Court of Justice’s (ICJ) decision to award the island to Singapore.

The reply letter dated September 1953 penned by acting secretary of the then Johor government to the British colonial secretary of Singapore conveyed Johor did not claim Batu Puteh, according to Mahathir, which he said formed the basis of the ICJ’s 12-to-4 majority ruling in awarding Singapore sovereignty over the island in 2008.

“Batu Puteh has long been lost, and this matter was confirmed by the majority ICJ decision,” Mahathir said.

Mahathir was responding to the Royal Commission of Inquiry’s (RCI) 271-page report on the sovereignty of Batu Puteh, the Middle Rocks and South Ledge. The report’s findings, among others, recommended a criminal probe against Mahathir over the decision to drop Malaysia's challenge over the loss of Batu Puteh to Singapore.

The former prime minister’s lawyer Zainur Zakaria said the 1953 letter served as “critical evidence” and turned the tide against Malaysia in the ICJ case.

“If you have already unequivocally or categorically stated that you do not claim Batu Puteh and then change your mind later, I think that is something that will not be upheld in any court of law,” he added.

According to the 271-page RCI report declassified and released last week, the four dissenting judges said the reply letter from the acting secretary of the Johor government used the word “ownership” and not “sovereignty”, and did not touch on the transfer of sovereignty of Batu Puteh.

“Singapore should have sought clarification on the status of Batu Puteh,” the report read, explaining that Singapore’s main objective in its correspondence was to determine the boundaries of the colony’s territorial waters.

“Singapore did not seek any clarification on the matter,” it added.  

Again, Mahathir reiterated that his decision, and allegedly the Cabinet’s, to withdraw the review and interpretation applications was formed on the advice of foreign legal experts.

Mahathir underlined that while the RCI’s report included the opinion of foreign legal consultant Dr Brendan Plant, which disagreed with Mahathir’s claim the “new facts” that formed the basis of the review application were “very weak”, Mahathir said it did not contain the opinion of Queen’s Counsel Prof Malcolm Shaw, which the former PM claimed was the principal legal consultant.

He claimed his decision to withdraw the review application was in line with Shaw’s advice.  

Regardless, Zainur said these factors were not highlighted in the report due to “certain motivations and interests”.

“It was the indifference and neglect of the then Johor government which caused the loss of Batu Puteh,” the lawyer said.

Looking at the RCI report, the commission said foreign legal consultants Shaw, Plant and Queen’s Counsel Sir Daniel Lincoln Bethlehem in their joint opinion dated Jan 26, 2017, did not state that Malaysia's case for the review application was “very weak”.  

In response to a question on whether there were hidden hands behind the RCI, Mahathir affirmed that there “must” be someone who has a special interest in his case and is attempting to neutralise him in the political arena.

“Now I am also to be made a prisoner (banduan), not an honourable prisoner like that person who was sentenced to five years’ jail,” Mahathir said, insinuating at Prime Minister Datuk Seri Anwar Ibrahim, whose five-year jail sentence was pardoned in 2018.

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