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Sanctity of the Water
Agreements and the Separation Agreements
Some Singaporeans and foreign observers have
asked why the two Governments are quarrelling over what appears
to be a small and simple issue of the price of water. Why cannot
Singapore be more accommodating, and pay a little more for the
sake of neighbourliness and good bilateral relations? If only
the matter were that straightforward.
Let me be clear. It is not a matter of money.
The issue goes well beyond whether we have
to pay 45 sen or 60 sen or stick to 3 sen. Of course, Singapore
will not be impoverished by an increase from 3 to 45 sen. Neither
will Malaysia be enriched. PM Mahathir himself has said that
"We don't depend on them to bring us revenue to finance the
government as income from selling water is a small fraction
(of our revenue). It's not a major source of income for the
government." (Bernama, 6 August 2002)
The significance of the water price, to both
countries, is Singapore’s existence as a sovereign nation separate
from Malaysia, and the sanctity of the most solemn agreements
which Singapore and Malaysia have entered into.
The two Water Agreements are no ordinary
agreements. They are so vital that they were confirmed and guaranteed
by both Governments in the 1965 Separation Agreement, also known
as the Independence of Singapore Agreement. This was registered
at the United Nations. Both countries have to honour the terms
of the agreements and the guarantee in the Separation Agreement.
Any breach of the Water Agreements must call into question the
Separation Agreement and can undermine our very existence.
[The Separation
Agreement is flagged at F
in Vol II of the compilation of documents]
Not many people know that Malaysia also gave
effect to the Separation Agreement by an amendment to the Malaysian
Constitution on 9 August 1965 through an Act of the Malaysian
Parliament, no 53 of 1965. Section 14 states:
"The Government
of Singapore shall guarantee that the Public Utilities Board
of Singapore shall on and after Singapore Day abide by the
terms and conditions of the two Water Agreements dated 1st
September, 1961, and 29th September, 1962, entered into between
the City Council of Singapore and the Government of the State
of Johore."
"The Government of Malaysia shall
guarantee that the Government of the State of Johore will
on and after Singapore Day also abide by the terms and conditions
of the said two Water Agreements."
[The Malaysia
Act No 53 of 1965 is flagged at G
in Vol II of the compilation of documents]
In other words, the guarantees are an inherent
part of an international agreement solemnly entered into, adopted
by a constitutional amendment in Malaysia and later registered
with the UN. In international law, both parties must ensure
that the Water Agreements are observed and neither side can
unilaterally vary their terms and conditions. If Malaysia can
unilaterally revise the price of raw water from 3 sen to 60
sen, and then from 60 sen to RM 3 then they can eventually fix
it at RM 8 which Malaysia has said is the price since that is
what Hong Kong pays to China, or any other price. The sanctity
of the Separation Agreement would have been breached. All other
agreements we have signed with Malaysia will become meaningless.
Nor will any new agreement we conclude with Malaysia be worth
anything. In such a world there would be no basis for international
relations. There would be no foundation for international law,
which all UN member countries have a duty to uphold, in order
to maintain a stable and peaceful international order.
[The 1961 and 1962 Agreements
are in Vol II of the compilation of documents flagged at B
and C respectively.]
Malaysia has acknowledged the importance
of the Water Agreements for a long time. For example, in 1968,
three years after our independence, the Malaysian representative
to the UN Conference on the Law of Treaties, Mr M. O. Ariff
said,
"Some treaties
might be so fundamental to the very existence of States that
they simply could not be dispensed with, whatever political
differences might arise. For example, the new island State
of Singapore was dependent on Malaysia for its water supply;
the treaty under which Malaysia had to supply a certain quantity
of water daily to Singapore could not be terminated or suspended
between the two states for any political reason." (UN Conference
on the Law of Treaties, First Session, Vienna 26 March – 24
May 1968, Official Records, pp 382, 385.)
However, in early 2002, PM Mahathir began
to criticise the water agreements as allegedly unequal treaties
foisted on Malaysia by the British. PM Mahathir said that the
price for water under the agreements was too low and that as
such "practically, they (Singapore) get their water free". (New
Straits Times, 22 January 2002). He said that "also, the
agreement was drawn up by the British which of course favoured
Singapore." (New Straits Times, 23 January 2002). Later
he said "what we know is that we have been charging them [Singapore]
3 sen per thousand gallons of raw water and we know also that
countries like Hong Kong buy their raw water from mainland China
at RM 8 per thousand gallons". Other Malaysian leaders took
up the refrain and stoked a frenzy of media criticism against
Singapore. For example Johor Menteri Besar Ghani said "all this
while, we have been supplying Singapore with free water..."
(Star, 2 February 2002)
This deliberate raising of Malaysian ground
sentiments seriously alarmed Singapore. It could easily have
spiralled out of control and led to grave consequences.
Therefore, on 5 February 2002 we sent Malaysia
a diplomatic note (TPN) in which we pointed out that "pending
a binding agreement on the overall package of issues, all legal
obligations of the existing Water Agreements and the Points
of Agreement (POA) remain in force and are binding on both Governments".
We reminded them that the Water Agreements
are binding legal arrangements duly confirmed and guaranteed
by the Governments of Malaysia and Singapore in the Separation
Agreement.
We said that the Separation Agreement "is
the fundamental basis of Singapore's existence as an independent
sovereign nation" and that "any variation of the Water Agreements
without the consent of both Governments will be a breach of
the Separation Agreement that cannot be accepted".
We also pointed out that "further negotiations
on new agreements pertaining to the long term supply of water
to Singapore can only proceed on the basis that the agreements
already concluded cannot be altered without the explicit consent
of both parties. Otherwise any new agreements on water can
similarly be altered without consent. This will have grave implications
for bilateral relations [emphasis added]".
[Singapore’s
TPN dated 5 February 2002 is flagged at I in Vol I of the compilation of documents.]
On 14 March 2002, the Malaysian Government
replied to Singapore’s demarche. Malaysia’s TPN conveyed its
"commitment to resolving the issue of water with Singapore in
the context of an agreement on the overall package of issues",
and that "at no time was there a suggestion that the Government
of Malaysia would depart from such a commitment." They said
that any suggestion to the contrary is "misleading and constitutes
a gross misinterpretation of the well known position of the
Malaysia Government."
[Malaysia’s
TPN dated 14 March 2002 is flagged at L in Vol I of the compilation of documents.]
We replied through a TPN on 25 March 2002
taking note of their commitment and assurances. We also reiterated
our own commitment to reaching a mutually beneficial agreement
on the package of outstanding issues.
[Singapore’s
TPN dated 25 March 2002 is flagged at M in Vol I of the compilation of documents.]
FM Syed Hamid himself noted at the First
Ministerial Meeting at Putrajaya on 1 July 2002 that:
"Malaysia
has repeatedly said that it will honour the 1961 and 1962
Agreements until their expiry in 2011 and 2061 respectively…."
"…During
the Separation of Singapore, Malaysia did not propose for
the Agreements to be reviewed. It continues to honour the
Agreements and such commitment is further reinforced when
Malaysia signed the Separation Agreement in 1965."
We were thus flabbergasted when Malaysian
Minister in the PM’s Department Rais Yatim publicly declared
on 24 October 2002, that as Malaysia’s solution, Malaysia could
enact domestic legislation to render the Water Agreements null
and void. As I had said at the 31 October 2002 sitting, no country
can evade its international treaty obligations by enacting any
domestic law. This is a very well established principle of international
law. Should any country choose to violate this principle, it
would signal to the world that it can and will do likewise for
any other international agreements.
Let me also add that contrary to what Malaysia
has alleged, these Water Agreements of 1961 and 1962 were not
fixed by the British in Singapore’s favour. These Agreements
were signed by the Johore State Government and the Singapore
City Council in 1961 and 1962 respectively. By then, Malaya
was already an independent and sovereign nation, and Singapore
had achieved self-government. It is absurd to suggest that the
Federal Government of an independent and sovereign Malaya would
allow the Johore State Government to be manipulated by the British
to sign an agreement that was against Malaysia’s national interests.
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