(Dec 9): The 217-page Royal Commission of Inquiry (RCI) report on Pulau Batu Puteh, Middle Rocks and South Ledge which was released on Dec 5 criticised the decision by the then executive government of the day not to proceed with the revision application on the sovereignty of Pulau Batu Puteh to the International Court of Justice.
There was a recommendation in the RCI report that a criminal investigation could be initiated against the former prime minister Tun Dr Mahathir Mohamad under Section 415(b) and 418 of the Penal Code for “the offence of cheating”, which has elicited public comments.
It is, however, noteworthy that there were two dissenting views: one from a retired Federal Court judge and Deputy RCI Chairman Tan Sri Zainun Ali and academician Prof Datin Faridah Jalil.
The dissenting opinions demurred from the recommendation and pointed out that at most, the way Dr Mahathir may have conducted himself on this matter may be characterised as ‘dereliction of duty’. However, their dissent was not highlighted in mainstream media reports.
The RCI report also highlighted that on matters concerning sovereign territorial claims, there has been evidence of neglect to consult and involve the Johor State government.
It is salutary that the RCI observed that when state boundary matters are involved, making decisions solely from a federal-centric position is wrong.
The RCI report highlighted the shortcomings of proper and adequate advice that was made available for the decision making.
It is necessary to point out that reliance on ‘experts’ is a legitimate defence and that Dr Mahathir’s decision was also ratified by the Cabinet.
It is also a fundamental principle of criminal law that the intention is a necessary ingredient in proving the commission of a criminal offence.
One feature of the RCI report that was released is that major parts of it were “redacted”, i.e. blackened out, so that access to the paragraphs is denied. This is regrettable.
One can only speculate whether there was a clear security matter of national interest that merited such redaction. If the redacted portions provided grounds for the dissenting views and their rationale, the public is denied access to them to evaluate the cogency (or otherwise) of their views.
The RCI members must be congratulated for discharging their duties, and some of the RCI's recommendations certainly merit attention. For example, the note that maritime laws are not part of legal education points to a flaw that ought to be corrected. One may add that in this era of global interconnectedness, the teaching of history, international laws (both public and private), and international politics and relations must be given support and resources in our institutions and curricula.
Philip TN Koh is an advocate and solicitor of the High Court of Malaya and adjunct professor of Universiti Malaya and the School of Business, Monash Malaysia University. He is the senior partner of Messrs Mah-Kamariah & Philip Koh.