Malaysia’s inquiry into Pedra Branca issue recommends ex-PM Mahathir be probed for cheating

KUALA LUMPUR – Malaysia’s probe into how the government handled the review of an international court’s ruling on three islets, including Pedra Branca, has recommended “criminal investigations” for cheating against former premier Mahathir Mohamad.

The Royal Commission of Inquiry (RCI) into the matter also suggested that Malaysia can still make a request “at any suitable time” for interpretation of the 2008 International Court of Justice (ICJ) ruling that handed Pedra Branca to Singapore. But the royal panel said the country should not proceed with such an application.

The RCI’s 238-page report was declassified and tabled at Parliament on Dec 5.

“Criminal investigations can begin against Tun Dr Mahathir for an offence under Section 415(b) of the Penal Code and punishable under Section 417 and 418 of the same code,” said the report. The Penal Code sections cited refer to cheating offences with a maximum jail term of seven years.

The RCI said Dr Mahathir had committed a crime by making a unilateral decision, before informing his Cabinet in May 2018, to abandon the two applications to the ICJ for a review of the Pedra Branca case.

The report added that a civil suit against Dr Mahathir, who is now 99, as suggested by a special task force, “need not be taken” as the six-year statute of limitations for such a move from 2018, when the former premier abandoned the move for an ICJ review, had lapsed.

Malaysia’s King, Sultan Ibrahim Iskandar of Johor, Prime Minister Anwar Ibrahim and leaders of Umno – which lost power in 2018 to the Mahathir-led opposition –

have criticised

Dr Mahathir over the decision not to pursue the Pedra Branca review.

The RCI’s final classified report was handed over to Sultan Ibrahim on Aug 12 by the commission chairman, Tun Md Raus Sharif, at the national palace.

The ICJ made the 2008 ruling on the sovereignty of Pedra Branca, which Malaysia calls Batu Puteh, after both countries took the territorial dispute to the court.

The international court also said Middle Rocks (Batuan Tengah) belonged to Malaysia, and sovereignty over South Ledge (Tubir Selatan) will belong to the state in the territorial waters in which it is located.

Malaysia and Singapore have set up a joint technical committee to draw the maritime boundary around Pedra Branca and Middle Rocks, and to determine the ownership of South Ledge.

Both countries said in 2008 that they would accept and abide by the court’s decision, which is final.

But Malaysia in 2017, under then Premier Najib Razak, started an application for revision of the ICJ’s 2008 decision, citing new evidence that it had. A hearing was subsequently set for June 2018.

However, Dr Mahathir, upon becoming prime minister in May 2018, decided to abandon the proceedings. In December 2022, Datuk Seri Anwar instructed then Attorney-General Idrus Harun to review matters pertaining to claims over Pedra Branca, which he said would allow negotiations with Singapore over the island to be more fruitful.

The scope of the RCI that was

established in February 2024

and concluded in July largely revolved around the decision by the Mahathir administration to

withdraw Malaysia’s 2017 requests,

for a review as well as interpretation of the ICJ decision.

The royal panel was set up on the recommendation of a

special task force

formed by the government in 2021. The task force was led by former attorney-general Apandi Ali, who had spearheaded the Najib-era requests.

Singapore’s Ministry of Foreign Affairs had in January 2024 said the RCI was “

an internal matter

of Malaysia” and it did not foresee it affecting bilateral relations.

According to the declassified RCI report, the cheating offences involving Dr Mahathir occurred as he had on May 21, 2018, decided unilaterally – before any discussions with his Cabinet – not to proceed with the two ICJ applications regarding Pedra Branca.

Dr Mahathir, the report said, wrote to then Solicitor-General Engku Nor Faizah Engku Atek that “after studying suggestions of the interpretation of (the ICJ case), I am of the view that this effort need not be continued”.

Dr Mahathir had insisted in his June 2024 testimony to the RCI that his letter to the solicitor-general was “not a decision... but only an opinion”.

However, the royal panel found that Datuk Engku Nor Faizah “understood the letter as... instructions from Tun Dr Mahathir to discontinue both applications”.

The RCI also pointed out that Malaysia’s solicitor-general wrote to Singapore that it would not be proceeding with the two ICJ applications at 9am on May 23, 2018, half an hour before the Cabinet meeting began.

Meanwhile, the royal panel also suggested that Malaysia can still make a request “at any suitable time” for interpretation of the ICJ ruling. The panel said a request for interpretation differs from a request for review, citing Article 60 of the ICJ statutes that says “the judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the court shall construe it upon the request of any party”.

A request for review, on the other hand, can no longer be filed 10 years after the ICJ’s decision is made. This timeframe for the decision on Pedra Branca lapsed on May 23, 2018, which was also the same day Malaysia’s Cabinet under Dr Mahathir decided not to pursue the matter further.

“However, the commission does not recommend Malaysia refiles a request for interpretation in the near future given that the negotiation process between Malaysia and Singapore under the Joint Meeting of the Malaysia-Singapore 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 is ongoing,” it added.