Did Mahathir committed treason out of spite against Najib?

The claim that Tun Dr. Mahathir Mohamad committed treason in relation to the Pulau Batu Puteh (Pedra Branca) issue is a highly charged political allegation. It is oftenly used partisan narratives in Malaysia's political landscape. 

Pulau Batu Puteh is a small island situated at the eastern entrance of the Straits of Tebrau. In 2008, the International Court of Justice (ICJ) ruled that the island belonged to Singapore, while two nearby maritime features (Middle Rocks and South Ledge) had differing sovereignty allocations. 

Malaysia's case was argued under the administration of Tun Abdullah Ahmad Badawi. In 2017, during Najib Razak's administration, Malaysia sought a review of the ICJ decision based on new evidence. 

Upon returning to power, Mahathir withdrew the application for review in 2018 without even attempting and looking at the work done by former Attorney General Tan Sri Apandi Ali. Mahathir claimed the legal advice was that the case had little chance of success. 

He argued pursuing the case further would have been futile and risked damaging Malaysia's credibility. 

The government's legal team reportedly advised against continuing the case because the "new evidence" was insufficient to overturn the ICJ's earlier ruling.

Critics of Mahathir accused him of withdrawing the ICJ review out of spite against Najib Razak, who initiated the appeal. Mahathir's supporters refused to acknowledge the necessity to defend sovereignty but argued Najib pursued the review for political gain.

This issue require examination of official government statements, legal opinions, and historical records. As of this morning, The Star's frontpage reads below: 

The Royal Commission of Inquiry proposes a criminal probe against Tun Dr Mahathir Mohamed to see if the former prime minister deliberately influenced the government to abandon the application for a review and interpretation of the International Court of Justice's decision on Batu Puteh, Middle Rocks, and South Ledge.

The reports below:

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Dr M misled Cabinet, says report

NATION

Friday, 06 Dec 2024

Reports by RAHIMY RAHIM, RAGANANTHINI VETHASALAM, FARIK ZOLKEPLI, ZAKIAH KOYA and GERARD GIMINO

KUALA LUMPUR: There is a basis for initiating a criminal probe against former prime minister Tun Dr Mahathir Mohamad, proposed the Royal Commission of Inquiry (RCI), which would examine issues surrounding the sovereignty of Batu Puteh, Middle Rocks and South Ledge.

In a highly redacted and declassified report tabled in Parliament, the Commission proposed that a criminal investigation be launched under Section 415(b) of the Penal Code, with penalties enforceable under Section 417 of the same code.

“In the context of Section 415(b), it must be demonstrated that Dr Mahathir had intentionally misled the Cabinet and deliberately influenced the government to abandon those applications, despite the fact that the decision was made unilaterally by himself without Cabinet approval,” said the Commission in the report released yesterday. 

The Commission also pointed out that if the Cabinet had been provided with the relevant action papers for the International Court of Justice (ICJ) and written opinions from international consultants, it is possible that the Cabinet would have arrived at a different view regarding both applications.

“In this case, Dr Mahathir may have deliberately influenced the Cabinet to forgo the applications, even though this contradicted the opinions of international consultants who believed there was a reasonable likelihood of success for the applications,” noted the report.

The Commission also believes a criminal investigation can be initiated against Dr Mahathir under Section 418 of the Penal Code.

“It is the Commission’s view that an investigation under this provision is warranted based on the facts that he deceived the government, knowing it could potentially result in wrongful loss to the Malaysian government.

“As Prime Minister, he had a legal obligation to protect the interests of the country,” said the Commission.

It pointed out that the elements required to prove an offence under Section 418, include the accused had cheated a person, under the legal obligation to protect that person’s interest, cheating was related to that obligation and the accused knew that his actions were likely to cause wrongful loss to the person involved.

In its finding, the Commission pointed out that Dr Mahathir might have deceived the government, which includes Cabinet members, leading them to decide not to proceed with both applications.

“This deception pertains to his duties, for which he had a legal obligation to safeguard Malaysia’s interests.

“As Prime Minister, he was responsible for protecting and upholding the nation’s sovereignty and welfare at all times.”

The report noted that Dr Mahathir caused a wrongful loss to the Malaysian Government by deciding not to proceed with the applications.

The Commission also recommended that the RCI secretary lodge a police report to initiate the probe.

In the dissenting view, commission members Tan Sri Zainun Ali and Datin Dr Prof Dr Faridah Jalil expressed that Dr Mahathir’s actions in deciding not to proceed with both applications amount to dereliction of duty rather than a criminal offence.

The Commission said the loss of sovereignty over Batu Puteh, as decided by the ICJ on May 23, 2008, should serve as a lesson, emphasising that weaknesses, carelessness and a complacent attitude in matters involving national sovereignty, as seen in that case, must not be repeated.

“It is also a lesson that a simple letter of inquiry from an external party, along with the written response provided, can at any time be used as evidence by outside parties to claim rights and sovereignty over the nation’s territory.

“Careless and uninformed statements can be used by opponents and turn against oneself.

“Every action and decision regarding policy matters that involve national sovereignty and interests must be made carefully and in accordance with the law,” the Commission said.

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‘Dr M may have acted unilaterally’

NATION

Friday, 06 Dec 2024

Under scrutiny: Dr Mahathir seen at the Kuala Lumpur Courts Complex.
— MUHAMAD SHAHRIL ROSLI/The Star

PETALING JAYA: The Royal Commission of Inquiry (RCI) found that Tun Dr Mahathir Mohamad may have acted unilaterally in deciding not to file applications to review and interpret the 2008 International Court of Justice (ICJ) decision on the Batu Puteh, Middle Rocks, and South Ledge territorial claim.

According to the RCI report tabled in the Dewan Rakyat yesterday, the former prime minister had a briefing with international consultant Dr Brendan Plant on May 17, 2018.

It added that Plant was part of the team of international and local consultants on the issue, and no other members were present at the briefing.

Following that, Dr Mahathir informed then-solicitor-general Datuk Engku Nor Faizah Engku Atek in a letter dated May 21, 2018, of the decision not to proceed with a move to review and interpret the ICJ decision.

“He had ordered for plans to be made to redeem the maritime area around Batu Puteh that is owned by Malaysia. Through the letter, he also wanted to know the cost incurred to engage local and international consultants and their payment receipts,” the report said.

Dr Mahathir subsequently informed the Cabinet of the decision in its May 23 meeting that year and it took note of the matter, according to the report.

“On the morning of May 23, before the Cabinet met, Engku Nor Faizah had acted on the prime minister’s letter... and written to the Attorney-General of Singapore informing of the Malaysian government’s intention not to proceed with the application for review and interpretation,” the report said

In his witness statement to the RCI, Dr Mahathir said he did not decide in his May 21 letter to the solicitor-general but only voiced his opinion.

He had also claimed that the decision not to proceed with the applications was made by the Cabinet at its May 23 meeting, the RCI found, but it determined that the Cabinet “simply confirmed” Dr Mahathir’s view.

The report also said Dr Mahathir decided not to proceed with the application because of the Special Agreement between Malaysia and Singapore to abide by the ICJ’s decision and not file an appeal.

Dr Mahathir also said Malaysia had a weak case in convincing ICJ to review its decision based on three facts.

He said the conclusion that Malaysia had a weak case was based on legal opinions from international consultants furnished by the Attorney General’s Chambers and the meeting and briefing with Plant.

The RCI report concluded that based on the witness statements, no such legal opinions were given either by the local or international consultants appointed by the government.

“There were (also) no legal opinions from the AGC that Malaysia had a weak case in both applications,” it read.

“The commission is of the view that (what) Dr Mahathir (told) the Cabinet... (that) the basis to convince the ICJ to review its decision was weak, was his personal opinion,” it said.

The RCI added that the Cabinet was not furnished with the consultants’ legal views or any related documents to the appeal.

Witnesses, including Dr Mahathir, said Plant mentioned that Malaysia lacked the “silver bullet” to be successful in its applications.

Plant, however, said that the “silver bullet” in this context meant that there was no guarantee of a win for Malaysia at the ICJ, the RCI found.

The report considered Malaysia to have an “arguable case” and not extremely weak, as Dr Mahathir stated.

“The decision to stop pursuing the case at the final stages is very regrettable.

“Based on statements given by Malaysia’s legal team, they were ready to argue on this at the ICJ,” it said, adding that all pleading papers and written submissions had been filed.

It added that the only matter to be handled before the hearing was to elect a new Agent as the then Attorney-General Tan Sri Mohamed Apandi Ali was ordered by Dr to go on garden leave.

The RCI, chaired by Tun Md Raus Sharif, was tasked with reviewing the handling of matters related to the sovereignty of Batu Puteh, Middle Rocks and South Ledge.

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Ex-AG agrees with RCI’s call for criminal probe against Dr M

NATION 

Friday, 06 Dec 2024

KUALA LUMPUR: Former Attorney General Tan Sri Mohamed Apandi Ali concurred with the recommendation of the Royal Commission of Inquiry (RCI) to carry out a criminal investigation against former prime minister Tun Dr Mahathir Mohamad.

The RCI on the handling of sovereignty issues involving Batu Puteh, Middle Rocks and South Ledge had proposed that a criminal investigation should be brought against Dr Mahathir.

“I agree with the recommendation of the RCI,” Mohamed Apandi said when contacted yesterday.

In a highly redacted and declassified report tabled in Parliament yesterday, the RCI report recommended that investigations cover offences of cheating under Sections 415 (b), 417 and 418 of the Penal Code which resulted in the loss of Batu Puteh.

Earlier in January, Mohamed Apandi said he was ready to be called up by the RCI.

He also said that it was high time an RCI was formed on the loss of Batu Puteh.

On Aug 29, Minister in the Prime Minister’s Department (Law and Institutional Reforms) Datuk Seri Azalina Othman Said stated the RCI report on the Batu Puteh, Middle Rocks and South Ledge issue would be tabled in Parliament, after the report was presented to the Cabinet on Aug 28.

The RCI, chaired by Tun Md Raus Sharif was tasked with reviewing the handling of matters related to the sovereignty of Batu Puteh, Middle Rocks and South Ledge.

In February, the government announced that His Majesty Sultan Ibrahim, King of Malaysia, had consented to the establishment of the RCI.

The issue stems from a decision made by the government in 2018 to withdraw Malaysia’s application to review the International Court of Justice’s decision on the sovereignty of Batu Puteh.

At the time, the government was led by Dr Mahathir.

In 2008, the ICJ ruled that Batu Puteh belonged to Singapore while Middle Rocks was awarded to Malaysia.

It also ruled that the ownership of South Ledge would be determined based on the delimitation of territorial waters.

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Ex-AG’s decision to exclude agencies from review team ‘unreasonable’

NATION 

Friday, 06 Dec 2024

PETALING JAYA: It was unreasonable for former Attorney-General Tan Sri Mohamed Apandi Ali to exclude several Attorney-General’s Chambers (AGC) officers and related government agencies from the team responsible for Malaysia’s application to review and interpret the decision over the International Court of Justice’s (ICJ) ruling on the Batu Puteh, Middle Rocks and South Ledge, according to the Royal Commission of Inquiry (RCI) report.

The report revealed that neither the National Security Council, National Hydrography Centre, Foreign Ministry, Johor state government or officers from the AGC’s international affairs division were part of the team.

It also revealed that the Foreign Ministry’s involvement was only limited through the appointment of Malaysia’s Ambassador to the Hague, Netherlands, who was appointed Malaysian co-agent.

“Tan Sri Apandi, in his statement, said his decision to exclude various agencies in both applications was to preserve confidentiality.

“The commission finds that in such crucial matters involving the nation’s sovereignty, interagency engagements must be held to obtain the views of all parties.

“The commission is of the view that Tan Sri Apandi’s actions to exclude officers from the AGC and other related agencies are unreasonable and should not be a precedent,” according to the RCI report tabled in Parliament yesterday.

The report also said AGC officers like Datuk Almalena Sharmila Johan and Dr Suraya Harun were not part of the team despite the duo’s involvement during the ICJ trial in 2008.

It added that they were still attached to the AGC during the applications and should have been part of the team.

It was also noted that Dr Suraya is competent in maritime laws from an international context and well-versed in the case of Batu Puteh, Middle Rocks, and South Ledge, which was first filed in 2003.

According to the report, Mohamed Apandi led the initiative in filing the application to review and later interpret the ICJ’s decision after receiving the mandate from the then Prime Minister Datuk Seri Najib Razak on Jan 31, 2016.

The task force, led by Mohamed Apandi, comprised two local consultants, Datuk Abu Bakar As-Sidek Mohd Sidek and Datuk Firoz Hussein Ahmad Jamaluddin; five international consultants comprising Prof Malcolm Shaw, Sir Daniel Lincoln Bethlehem, Dr Brendan Plant, Prof Laurence Boisson and Coalther Lathrop; three research officers from the AGC, Norliyana Abdul Manaf, Hafizah Hamdzah and Mohd Shahrysham Kamran; and Malaysia’s Ambassador to the Hague, Netherlands Datuk Ahmad Nazri Yusuf.

The commission said no other AGC officers were directly involved in either application or had in-depth knowledge of its legal merits besides the three research officers.

The report also recommended that matters about national sovereignty, especially territories, be handled collectively and involve relevant agencies.

“The commission also proposes for the National Security Council to be fully responsible over issues on the country’s sovereignty while also preparing orders and guidelines to be adhered to on the matter,” it said.

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RCI: Johor govt not consulted on ICJ decision

NATION

Friday, 06 Dec 2024

PETALING JAYA: The Royal Commission of Inquiry (RCI) has found that the Johor government was not consulted in the decision not to proceed with the applications to review and interpret the 2008 International Court of Justice (ICJ) decision on the Batu Puteh territorial claim.

“The decision had resulted in the Johor state government losing the chance to regain what was once its territory,” the report said.

The report said that based on the statement by former attorney-general Tan Sri Mohamed Apandi Ali, the decision was presented to His Majesty Sultan of Johor before it was brought to the Cabinet’s consideration.

“Tan Sri Apandi conducted presentations on the latest developments on the matter without involving other parties. This was because Apandi was of the view that the matter was confidential,” the report said.

“Apandi’s move to not inform the Johor government on the matters presented to His Majesty Sultan of Johor resulted in the Johor state government being unable to act on the matter, including in providing feedback to help strengthen the application for review and interpretation,” the report found.

The Johor government, said the commission, was involved in the process when the case was brought to the ICJ in 2003.

A representative from the state government was present in the ICJ hearings in 2008.

“Based on this practice, the commission is of the view that the Johor state government should have been involved in both the applications be it during the filing or when the decision to not continue both the applications were made,” the report said.

The commission proposed that a state should be involved in any matters about its sovereignty or related matters, such as those of the Batu Puteh, Middle Rocks and South Ledge.

“The state’s involvement will allow the state government to provide assistance, views and inputs, and state its stance on the issue,” the report said.

Meanwhile, the report also called out Foreign Ministry officials for “washing hands” after Mohamed Apandi took over the role as Malaysia’s agent for the country’s application to review and interpret the ICJ ruling.

The commission said this was because the Foreign Ministry (KLN) knew issues in both applications due to its involvement in providing comments for a Cabinet memorandum.

Then, Foreign Ministry secretary-general Datuk Seri Ramlan Ibrahim was appointed Malaysia’s agent for both applications before Mohamed Apandi took over.

The report also said the ministry’s officers, led by Ramlan, did not provide feedback during a briefing session on May 17, 2018.

“It is irresponsible of the ministry to just let go of their duty when no longer being the agent,” it added.

“Datuk Seri Ramlan gave the excuse that he was no longer involved in both applications after being replaced as Malaysia’s agent,” according to the report tabled in Parliament yesterday.

Ramlan had said in his statement to the commission that the ministry “totally detached from the case because KLN was never in the loop on the findings nor engaged in any meaningful discussion as any member of the team should be expected to”.

However, the commission found the statement inaccurate, as Ramlan, in his statement to them, revealed that he had contacted the Attorney-General’s Chambers to discuss how both applications would proceed after being replaced as Malaysia’s agent.

“According to him, the request to have discussions also did not result in any positive response.

“The commission finds that the Foreign Ministry secretary-general and his officers should not absolve responsibility.

“The ministry is important and responsible for international relations alongside national sovereignty matters,” said the report.

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Hope this release is not another of Fahmi Fadzil's diversion following new affidavit from son of Dato Najib, Nizar Najib who may have had an audience with his Highness the Sultan of Pahang and acknowledged the existence of the addendum.

During the SRC case, the prosecution had the habit of using the argument after thought to disallow new information and evidence into the defense case. 

In the rejection of the application by Zahid Hamidi and Wan Rosdy on the existence of the Adendum, the government legal team used the excuse hearsay. 

Will the same hearsay excuse be used again? 

The Istana in Pekan is slightly more than 3 hours from Kuala Lumpur. Does it take more than 8 months to seek audience with the Sultan of Pahang to verify the issuance of such document in his Highness capacity as Agong? 

The Istana of Pahang should make a police report against former Attorney General Dato Terrirudin.