NOVEMBER 2 ― It is curious that, yet again, a call has been made to investigate the withdrawal of Malaysia’s review application on Pulau Batu Puteh in the International Court of Justice (ICJ).

This time it is Member of Parliament for Pekan, Datuk Seri Najib Razak who made the call. The former prime minister repeated the much-asserted fact that the country had acquired at least three new pieces of evidence on the matter which led to the Cabinet that he led to apply for a revision of the ICJ judgment on Pulau Batu Puteh.

"I am very dismayed why the seventh prime minister cancelled our [review application] to ICJ as if we have purportedly accepted the decision of ICJ,” Najib said during the debate on the 2022 Supply Bill in the Dewan Rakyat yesterday.

According to the review application, Malaysia contended that it had "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 Pedra Branca/Pulau Batu Puteh from Johor.”

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 laid down in Article 61 of the Statute of ICJ have been met. This is made clear in Article 99(1) of the Rules of Court 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.”

The ICJ has in a previous judgment (El Salvador v Honduras) emphasised that if any one of the conditions in Article 61 is not met, the application must be dismissed. 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.

Malaysia ― or any party for that matter ― would therefore be held to a high standard of proof. One has to be mindful that there were three previous requests for review submitted to the Court under Article 61 and none had been found to be admissible. (Tunisia v Libyan Arab Jamahiriya; El Salvador v Honduras; Yugoslavia v Bosnia v Herzegovina)

Why the high standard? Review or 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 standard must therefore be rigorously applied.

It is also 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.” Any attempt to reargue the merits of a party’s case is not only irrelevant to a review application under Article 61 but is contrary to Articles 59 and 60 of the Statute which provide that judgments of the ICJ are binding as between the parties and "final and without appeal”.

It is interesting that Najib should say that "Singapore was shocked with our decision” to withdraw the review application. On the contrary, Singapore was surprised by Malaysia’s review application and contended that the application gave "every impression of having been submitted owing to internal factors within Malaysia that are unconnected with the merits of the case.”

Najib should know that one of Singapore’s contention against Malaysia’s application was that the documents were only "recently discovered” because of "negligence attributable to Malaysia alone” and that the documents "would certainly have been known to Malaysia had it acted with reasonable due diligence”.

Malaysian warship KD Perdana is seen at the Abu Bakar Maritime Base in Middle Rock. — Picture via Twitter/mykamarul

If it had been a diligent litigant, Malaysia should have conducted extensive research ― including in the UK National Archives ― given the history of Singapore and Malaysia.

Should the current government also investigate whether the government at that time had been diligent?

Be that as it may, the matter of Malaysia’s withdrawal of its review application is now before the High Court. On May 28, Mohd Hatta, 45, filed an action on his behalf and on behalf of the more than 32 million Malaysians affected by the withdrawal of the review application, without discussing and tabling it first in Parliament.

In his statement of claim, Mohd Hatta sought an order for the defendants to provide a written explanation as to why they had withdrawn the review application. The plaintiff also sought a declaration that the defendants (Prime Minister and government of Malaysia) were negligent, committed treason, fraud and breach of trust against all Malaysians including the plaintiff when they dropped the review bid.

A defence to the claim has reportedly been filed in the court. According to a Free Malaysia Today (FMT) report, the government abandoned the idea of seeking a review of Pulau Batu Puteh’s sovereignty three years ago after weighing the views of foreign legal consultants.

According to the defence, after taking into account "the views of international legal experts, national interest, including cost implication, the first defendant (prime minister) is of the view that there is no need for continuation of the review application, and that a plan was made to do a land reclamation on Middle Rocks as decided by the ICJ to belong to the second defendant (government of Malaysia).”

Then prime minister Tun Dr Mahathir Mohamad felt the review should be discontinued in the interest of the nation and also due to cost implications.

So, the matter is sub judice. The term is Latin for "under judicial consideration”. The Concise Dictionary of Law describes the sub judice rule as "a rule limiting comment and disclosure relating to judicial proceedings, in order not to prejudge the issue”.

The rule is part of the law relating to contempt of court. It governs what public statements can be made about ongoing legal proceedings before the courts.

It is therefore mind boggling that the withdrawal of the review application should be investigated when the government has asserted in court documents that it acted as such after weighing "the views of international legal experts, national interest, including cost implication.”

Malaysia should move on. In May 2011, Malaysia and Singapore completed a joint hydrographic survey of the area in and around Pedra Branca and Middle Rocks. Malaysia should therefore work towards finalising maritime boundaries between Malaysia's Middle Rocks and Singapore's Pedra Branca/Pulau Batu Puteh, as urged by the country’s legal experts.

* This is the personal opinion of the writer or organisation and does not necessarily represent the views of Malay Mail.