Published in Astro Awani, MalayMail, and theSundaily, image by Astro Awani.
There are legal and physical dimensions of Malaysia’s battle against the so-called and now-defunct Sulu Sultanate claimants (“Sulu Claimants”).
To start, there are at least five fundamental flaws in the claimants’ position and stance as explained below:
- Weak or non-existent legal and diplomatic premise
In actuality, Malaysia could have presented the case long ago that it has no legal obligations to continue making the cessation payments to the Sulu Claimants. This is on the basis that the deal was initially between the British North Borneo Company and later on the British Government in 1946, and does not involve the newly formed Malaysia Federation.
Most importantly, the people in the territories claimed to be historically under the Sulu Sultanate i.e., the Sabahans had invoked their right to self-determination by voting to join the Malaysian Federation in 1963.
Additionally, then president of the Philippines, Ferdinand Marcos, declared in 1966 his recognition of Malaysia soon after he came to power. This finally led to an official announcement in 1977 by former president Marcos that The Philippines would withdraw its claim to Sabah.
Thus, both Sabahans and The Philippines government recognised Sabah as part of Malaysia.
Despite these events, Malaysia assumed responsibility as the successor-in-title to the British Government and continued to make the annual payments without fail.
It may have been a strategic mistake on the part of Malaysia, but the fact remains that Malaysia could have just brushed it off, but Malaysia did not.
- No moral or legal grounds for territorial reclamation
There are no grounds for Sulu Claimants to forcibly claim back any lands they have given up as the initial deal was that of cessation, not a lease or rent of its claimed historical (and disputed) territories.
As reported by former Attorney General Tan Sri Tommy Thomas, the 1878 Grant between then Sultan of Sulu and the British North Borneo Company clearly states the perpetual cessation of north Borneo (now Sabah) their own “free and sovereign will” including all the rights and powers in these territories and lands, for an agreed compensation to the Sultan worth initially five thousand dollars per annum.
The Sultan of Sulu signed the Confirmation Deed of 1903, also known as “Confirmation of cession of certain islands” which does not have any mention of the deal as a form of leasing of the land, removing any linguistic or translational ambiguity and clarifying it as a complete cessation to British North Borneo Company.
Hence, there are no grounds to take back these ceded territories—what more through outright armed invasion?
This makes the claimed 1899 Kiram-Bates Treaty—which reportedly includes the claim or interpretation of Sabah to be under lease to the British North Borneo Company—to be void and null as the 1878 Grant came into force earlier.
Even if chronologically the Confirmation of Deed by the Sultan of Sulu was done in 1903, this could be seen as merely an extension or an addendum to the 1878 Grant.
When both of these agreements are read together, they are irrefutable and clear.
Trying all possible legal avenues, Sulu Claimants have been reported to invoke the provisions of the claimed Carpenter–Kiram 1915 agreement which could entail US support and protection of the Sulu Sultanate on matters regarding North Borneo.
Similarly, the 1878 Grant and the Confirmation of Deed 1903 signed by the Sultan of Sulu make the claimed 1915 agreement to be invalid.
Any deals the Sulu Sultanate signed with other countries which come in direct dispute with the content of the 1878 Grant (or any of its future addendums such as the Confirmation of Deed 1903) are null and void.
How can the Sulu Sultanate sign deals with other nations to protect territories they already ceded to another nation earlier?
Even if the Sulu Claimants try to wiggle their way out of the 1878 grant by invoking the clause that “…the rights and privileges conferred by this grant shall never be transferred to any other nation or company of foreign nationality without the sanction of Her Brittanic Majesty’s Government first being obtained”, the Sulu Claimants cannot deny that Malaysia is the successor-in-title to the British Government.
Denying this would contradict their acceptance of the cessation money from Malaysia for 50 years.
- Lahad Datu Invasion challenged Malaysia’s sovereignty, burned diplomatic bridges
Despite five decades of continuous payments and having no legally justifiable grounds for territorial reclamation as explained above, the self-proclaimed heirs of the sultanate allegedly influenced (if not directly instructed) its followers to invade the sovereign land of Malaysia, culminating in the Lahad Datu invasion in 2013.
Thus, the Sulu Claimants have more than disqualified themselves (beyond legal or moral rights) to cessation payments.
- Link between the Sulu Claimants and 2013 Lahad Datu invaders
Investigative strategy in courts would be to document the linkage between the 2013 Lahad Datu invaders with the Sulu Claimants.
Malaysia ceased to make further payments in 2013, which happened after the resolution of the failed Lahad Datu invasion. It was not formally stated that the two events are linked or that it was the reason behind not continuing with the cessation payments, at least not in public spaces.
The mistake of the Malaysian government at that time, which was during the reign of former prime minister Najib, was to not officially link the Lahad Datu invaders with Sulu Claimants.
The eight self-proclaimed heirs of the Sulu Sultanate who reportedly initiated international arbitration proceedings all have Kiram in their names aside from one person with an initial K, and there have been many global reports and from Philippines media that reported quotes or statements by the Kiram family relating to the Lahad Datu invasion operations.
There should be clear motive and consistency in various sources which could be presented to prove the linkage beyond any reasonable doubts in unbiased, uncorrupted and competent courts of law.
- Claims limited to the cessation payments—no more no less!
The 1878 Grant clearly outlines the perpetual cessation of north Borneo and their own “free and sovereign will” including all the rights and powers in these territories and lands, for an agreed compensation.
If Malaysia is to entertain their claims—even in the backdrop of a good payment track record that was reciprocated with an invasion of Malaysia’s sovereign lands—it is only limited to the cessation payments.
In fact, and as reported by Tommy Thomas, in 2019 Malaysia offered via a written letter to the Sulu Claimants to pay the cessation payments from 2013 to 2019 including interest with a total sum of RM48,230.
Not only the considerate offer by Malaysia was rejected, but the Sulu Claimants were reported by Tommy Thomas to be pursuing claims of “…actual value of the territory, in light of the unanticipated discovery and development of certain substantial natural resources”.
Note again that the 1878 Grant—and by extension, the 1903 Confirmation of Deed— clearly states the perpetual cessation of north Borneo including the free and sovereign will, and all the rights and powers in these territories and lands—this extends to any and all natural resources that are in the territory!
These original agreements state nothing about the “actual value” of the lands they ceded. Any claims regarding Petronas or other assets or any other resources have nothing to do with the agreement. This is a ridiculous claim and no sane person would accept this.
It is as clear as day and night that the Sulu Claimants—probably under advice by their legal counsel and/or under commercial pressure by their litigation sponsors (Therium) to generate profits—are forcing these ridiculous and outrageous words, assumptions, and frankly the blatant and obscene re-writing of history to maximise the sum of their claims.
This is economic colonisation through legal imperialism masked by the virtues of justice, driven by commercial and personal greed and madness.
The physical dimension: Prepare for “Lahad Datu 2.0”
The following chronological events since 2020 (non-exhaustive list) point to a potential physical invasion being planned, which appears to be a strategic parallel effort behind the scenes to the ongoing and outwardly visible legal battle happening recently.
2020: Reports made on August 1, 2020, by Philippine-based news portal Daily Tribune in an article titled “Sabah shadow government revived” reported that “The Sultanate of Sulu has reactivated a shadow government in Sabah (North Borneo) that had been in place long before the disputed territory”.
The article further included the following statements (emphasis on bolded items):
“Abraham Idjirani, Sultanate Secretary General, confirmed the existence of an alternative government that openly cooperated with the British in the past.”
“He [Idjirani] also said the veterans of the 2013 Lahad Datu siege have regrouped in Sulu to assert their historic and legal rights over the disputed territory.”
“Idjirani added that of the more than 200 Tausug warriors who landed in Lahad Datu, only 60 were killed in action. The rest, including their leader, Crown Prince Rajah Muda Agbimmudin, were able to return safely to Sulu. Some who are already Sabah residents remained on the island.”
“The sultanate at this point, he [Idjirani] said, seeks the help of countries that signed arms and trade pacts with them in the past. Among the countries that recognized the sultanate and honored existing treaties include the United States, China, Great Britain and the Netherlands.”
2021: According to a report by South China Morning Post dated December 9 2021, the source claimed 19 locally elected mayors from the Sulu Archipelago met on December 1, 2021, to discuss plans on sending a “Royal Sulu Army” of 600 men to invade Sabah.
February 2022: It was reported that The Eastern Sabah Security Command (ESSCom) was investigating the alleged infiltration into Lahad Datu by more than 10 armed men believed to be Filipinos. Reportedly, local sources may have heard these men conversing in the Suluk language.
July 2022: Recently, there were reports of a group charging a fee for the issuance of “Sulu Sultaniyah Darul Islam” identity documents in Sabah.
It is acknowledged that the Sabah police have denied the allegations of member recruitment activities by the Sulu Sultanate group but the allegations as reported in foreign news media of a shadow government in Sabah and claims of Sulu militants integrating with the locals could spell serious internal threats.
If true, these underground operators might be spreading propaganda (and probably money or other resources) to coerce or gain support and grow a local population of Sulu sympathisers, if not rebels or militants.
This is a multi-billion-dollar case, with the potential backing of foreign powers with huge influence and resources to spare—a recipe for corruption and coercion. One can imagine how a fraction of the sum involved could buy individuals to betray the nation.
So, even local politicians and civil servants must be monitored and investigated by security forces and intelligence services. Needless to say, Malaysia’s security forces and both police and military intelligence should be on high alert.
These statements warrant serious investigation by the security forces, and for immediate international correspondence and diplomatic ties by Wisma Putra to seek clarifications and response on the statements, and their position on the issue. Malaysia must engage with these countries and neighbouring nations to proactively solidify Malaysia’s stance on the matter.
Ameen Kamal is the Head of Science & Technology at EMIR Research, an independent think tank focused on strategic policy recommendations based on rigorous research.
