KUALA LUMPUR (Dec 5): The Royal Commission of Inquiry (RCI) into Batu Puteh has recommended a criminal investigation to be initiated against former prime minister Tun Dr Mahathir Mohamad.
This suggestion was among the RCI’s recommendations in its 271-page declassified report that was tabled in Parliament on Thursday.
The commission, chaired by former chief justice Tun Md Raus Sharif, looked into the International Court of Justice’s (ICJ) May 2008 decision in the Malaysia-Singapore sovereignty case over Batu Puteh, Middle Rock and South Ledge, including the Malaysian government's move to withdraw its applications for a review and interpretation of the decision a decade later in 2018 under the then Mahathir-led government.
But the seven-member commission's recommendation for criminal action against Mahathir was not a unanimous one. Two members — former Federal Court judge Tan Sri Zainun Ali and Universiti Kebangsaan Malaysia's constitutional and administrative law expert Datin Prof Dr Faridah Jalil — were of the opinion that Mahathir’s action did not constitute a criminal offence but was merely a dereliction of duty.
"I objected very strongly (to recommending the criminal investigation). The facts, as presented, do not disclose a criminal offence. Hence, I disagreed with RCI's recommendation to charge Tun Mahathir for cheating," said Zainun when contacted by The Edge.
The ones who were for the action were: Raus, lawyer Datuk Dr Baljit Singh Sidhu, former dean of Universiti Malaya's legal faculty Datuk Dr Johan Shamsuddin Sabaruddin, Johor state finance officer Datuk Mohammed Ridha Abd Kadir, and southern territory maritime director Dickson Dollah.
According to the RCI report, Mahathir “might have deliberately induced” the Cabinet to not proceed with both the review and interpretation applications despite international consultants’ opinion that there was basis for the applications to be successful.
“The commission is of the opinion that there is basis for a criminal investigation to be initiated against Mahathir,” the commission said in its report.
“The commission recommends that a police report be made by the secretary of the commission to enable a criminal investigation to be initiated against Mahathir for offences under Section 415(b) and Section 418 of the Penal Code,” it added.
Section 415(b) stipulates that a person is said to have cheated if he or she intentionally induces a person to do or omit to do something that is likely to cause damage or harm to anyone, while Section 418 stipulates that those who cheat with knowledge that wrongful loss may be caused to a person whose interest the offender is bound to protect can be jailed for up to seven years, or fined, or both.
Mahathir's letter
On May 23, 2008, the ICJ ruled that ownership of Batu Puteh lay with Singapore and Middle Rock with Malaysia. It also ruled that the sovereignty over South Ledge belonged to the state in the territorial waters of which it was located. Nine years later, Malaysia applied to review the Batu Puteh decision on the introduction of “new facts”, as well as filed interpretation applications on all three decisions.
A year later, the review and interpretation applications filed to the ICJ were withdrawn, just weeks after Mahathir was made prime minister on May 10, 2018. The applications were actually supposed to be heard in June that same year.
According to the RCI, Mahathir had testified that the decision to withdraw the applications was made by the Cabinet during its meeting on May 23, 2018, while the commission contended that evidence points towards Mahathir being the driver behind the decision to not proceed with the requests.
The crux of the RCI’s contention revolves around Mahathir’s letter dated May 21 to then solicitor-general (SG) Datuk Engku Nor Faizah, in which Mahathir wrote: “I am of the opinion that this effort does not need to be continued."
The RCI said Engku took this as the prime minister’s instruction, contrary to Mahathir’s claim that the letter served as his request for the SG’s opinion.
The commission did note, however, that the letter only referred to the interpretation application and not the review application. However, based on circumstances leading up to the letter, the commission said it was “reasonable” for the SG to have had the impression that Mahathir did not want to proceed with both applications.
Nonetheless, as a consequence of the letter, as well as imminent ICJ hearings over the applications, the SG took “immediate action” a day later by informing his Singaporean counterparts of Malaysia’s intent to not pursue the applications. The applications were withdrawn from the ICJ on May 29, 2018.
The withdrawal of the review application made the ICJ’s decision on the sovereignty over Batu Puteh final.
As for the interpretation application, which can be refiled any time, the RCI did not recommended a refiling on the basis that negotiations are still ongoing between Malaysia and Singapore under the Joint Technical Committee on the Implementation of the International Court of Justice Judgment on Pedra Branca, Middle Rocks and South Ledge and the Committee for Boundary Delimitation.
Grounds behind application withdrawals wrong, untenable
The commission was also of the opinion that the grounds behind Mahathir’s decision not to proceed with both applications were “incorrect and untenable”.
According to the RCI, Mahathir’s decision to not pursue the Batu Puteh decision review application and the interpretation application was based on a special agreement between Malaysia and Singapore to abide by the ICJ’s decision and not to appeal it.
He had also believed that the “new facts”, which formed the basis of the review application, were “very weak”, citing a government-appointed international consultant. However, this was disputed by the consultant, the RCI noted.
The RCI, however, said Malaysia’s applications for a review of the decision and its interpretation were different from an appeal.
"In conclusion, the commission found that the Cabinet, which had agreed to the decision not to proceed with the two applications, was solely based on the explanation given by Mahathir," the RCI report said.
"The [Cabinet's] decision was not made through comprehensive discussion," it added.