By Hafiz Hassan
THE International Court of Justice (the Court) entertains two types of cases.
The first is legal disputes between states submitted to the Court by the former. These are referred to as contentious cases. The second is requests for advisory opinions on legal questions referred to it by United Nations organs and specialized agencies. These are advisory proceedings. https://www.icj-cij.org/en/how-the-court-works
In contentious cases, the proceedings include a written phase and an oral phase.
In the written phase, the parties file and exchange pleadings containing a detailed statement of the points of fact and of law on which each party relies while the oral phase sees parties’ agents and counsels address and submit to the Court in public hearings.
Following the oral proceedings, the Court will deliberate in camera. It will then deliver its judgment at a public sitting.
The judgment is final and binding on the parties to the case and without appeal. At the most, it is said, the judgment may be subject to interpretation or, upon the discovery of a new fact, revision. https://www.icj-cij.org/en/how-the-court-works
Article 61 of the Statute of the Court provides that a party may, within ten years of the delivery of a judgment by the Court, apply for revision of that judgment upon discovery of some fact that was unknown both to the Court and the party seeking revision at the time judgment was given, provided that the newly discovered fact would be a decisive factor in the Court’s consideration of the case.
In the case concerning the sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), a judgment was delivered on May 23, 2008 in which the Court awarded sovereignty over the island of Pedra Branca/Pulau Batu Puteh to Singapore (the Judgment).
Pursuant to Article 61, Malaysia filed an application for revision of the judgment. So it was a revision and not an appeal. Lawyers will tell you there are differences between revision and appeal.
As a matter of fact, it was Singapore’s contention that Malaysia’s application was “in effect an appeal of the judgment, and an attempt to obtain a rehearing of the original case, rather than a proper request for revision.”
Both countries’ written legal arguments – referred to as written observations and comments – and supporting evidence or documentation can be sighted here: https://www.icj-cij.org/en/case/167/written-proceedings
Despite having filed written observations and comments, and supporting documentation in the Court’s registry between February 14, 2017 and February 12, 2018, the Court was notified by Malaysia by a letter dated May, 28 2018 that “the Parties had agreed to discontinue the proceedings.”
Consequently, by agreement of both countries, the review application instituted on February, 2 2017 by Malaysia against Singapore was ordered by the Court to be discontinued. The order (discontinuance order) was dated May 29, 2018. (The discontinuance order can be sighted here: https://www.icj-cij.org/public/files/case-related/167/167-20180529-ORD-01-00-EN.pdf)
Public hearings of Malaysia’s application had already been scheduled to be held from June 11 to June 18, 2018. (The Court’s press release can be sighted here: https://www.icj-cij.org/public/files/case-related/167/167-20180601-PRE-01-00-EN.pdf)
Now, why the discontinuance of Malaysia’s review application?
It must again be informed that the discontinuance was notified to the Court by Malaysia after all written observations and comments, and supporting documentation had been filed in the Court’s registry. These included additional written observations and documentation.
The last of the above was filed by Singapore on February 12, 2018. All filings were made within the time limit fixed by the Court.
Between February 12 and May 28, 2018 both countries were therefore apprised of each other’s legal arguments and positions, as well supporting evidence.
Parties to pending proceedings are entitled to compromise or settle their disputes on any terms they desire without the approval of or reference to the court. A compromise can take place when there is a question of doubt over a party’s legal position following re-appraisal of the legal authorities. This despite initial “solid evidence, facts and foundations” for the party’s legal position.
Consequently, the parties can agree not to proceed.
Out-of-court settlement is the term often used. These are agreements between parties which are manifested to the court and have been said to be “a common and essential feature” of the conduct of civil legal proceedings. (See Tan Geok Lan (P) v La Kuan @ Lian Kuan  3 MLJ 758, CA)
It was former Attorney-General (AG) Tan Sri Mohamed Apandi Ali who claimed to have solid evidence, facts and foundations that Pedra Branca/Pulau Batu Puteh belonged to Malaysia and he was disappointed when the Pakatan Harapan (PH) government led by Tun Dr Mahathir Mohamad decided to withdraw the review application.
Apandi was also reported to have said that Malaysia had missed the opportunity to regain Pedra Branca/Pulau Batu Puteh after Dr Mahathir decided to withdraw the review application.
Apandi, who was appointed as AG on July 27, 2015 during the Barisan Nasional (BN) government, was given 30 days unrecorded leave from May 15, 2018. But the team at the Attorney-General Chambers (AGC), headed by the Solicitor-General in the absence of Apandi, might have reappraised Malaysia’s legal position.
The AGC team might have gotten it wrong. Then United Kingdom’s AG Geoffrey Cox too gave his legal advice to Her Majesty the Queen to prorogue Parliament which the Supreme Court held to be unlawful. Cox got it wrong.
Now, should Apandi head the special task force to scrutinise and recommend necessary options on the Pedra Branca/Pulau Batu Puteh case as announced by Prime Minister Datuk Seri Ismail Sabri Yaakob?
It looks like a case of conflict of interest.
More so when Apandi has filed a lawsuit against Dr Mahathir and the federal government, seeking compensation of more than RM2.23 million for what he claimed to be an “unlawful termination” in June 2018 of him as AG. The case will proceed after a failed mediation.