HARRIS’ RM 200M FORMULA A NON-STARTER

By : JOE FERNANDEZ

Now we have heard it all from former Sabah Chief Minister Harris Salleh.  He wants the Federal Government to pay RM 200 million of our hard-earned money in 'compensation' to some riff-raff, for want of a better term, in the Philippines who claim to be 'heirs' of the defunct Sulu Sultanate. At last count, there were some 60 claimants to the Sulu Sultanship.

The 'heirs' involved in the on-going standoff in Lahad Datu claim that the defunct sultanate owns the entire Sabah and has private property rights to it. The Brunei and Sulu sultans, terrified of the fierce headhunters, incidentally never ventured inland beyond the coastal stretches in Borneo. Under Adat, the entire land area of Sabah is NCR (Native Customary Rights) and belongs to the Orang Asal i.e. the Dusunic and Murutic Groupings.

We know from history that the Sulu sultan at one time used to extort tolls from terrified traffic along the waterways in eastern Sabah. Later, the extortionist activities were extended to the waterways in northern by courtesy of the Brunei sultan, the previous extortionist, who gave up this 'right' to the former.

Brunei, Sulu claims not by war, conquest

These virtually criminal activities, by no means, confer territorial rights or any transfer of sovereignty which at all times resides with the people.

Neither the Brunei nor Sulu sultans can claim like William the Conqueror of Normandy, France that they acquired the ownership of the entire area by the act of war and conquest to set up a feudal kingdom. William defeated English King Harold II at the Battle of Hastings in 1066 and declared that he now owned the entire land area of England.

The sovereignty itself, the last time we heard anything about it ages ago, was “transferred”– if there’s any such thing -- to the Philippines Government by one of the many pretenders to the Sulu Sultanship. Manila then had the claim to much of eastern Sabah inserted in the Philippines Constitution and maps and flogged the issue at the time of Malaysia in 1963.

Harris’ suggestion obviously takes its cue from the fact that every year; the Malaysian Embassy in the Philippines issues a check in the amount of 5,300 ringgit (US$1710 or about 77,000 Philippine pesos) to the legal counsel of the heirs of the Sultan of Sulu. Malaysia considers the amount an annual “cession” payment for the disputed state, while the sultan’s descendants consider it “rent.

By the Mackasie Declaration of Dec 13, 1939 by the High Court of Borneo in Sandakan in Civil Suit No. 169/39, C. F. Mackasie, the then Chief Justice of Borneo, ruled that nine Plaintiffs were heirs of the defunct Sultanate of Sulu and were entitled to the yearly RM5, 300 cession monies from the Malaysian Government.

Two versions of 1878 Agreement

The nine were listed as Dayang Piandao Kiram, Princess Tarhata Kiram, Princess Sakinur Kiram, Sultan Ismael Kiram, Sultan Punjungan Kiram, Sitti Rada Kiram, Sitti Jahara Kiram, Sitti Mariam Kiram and Mora Napsa.

Alfred Dent, the founder of the Borneo North Borneo Chartered Company, and the Sulu Sultan came to an agreement on 22 Jan 1878 and wherein the former agreed to pay the latter 5,000 Malayan dollars in annual pension money in return for “transferring the sultan transferring his rights in North Borneo” – meaning in eastern Sabah –to Dent and/or his Company.

On 22 April 1903 His Majesty Sultan Jamalul Kiram signed a document known as "Confirmation of cession of certain islands", under what he either "grant and ceded" or "leased" additional islands in the neighbourhood of the mainland of North Borneo from Banggi Island to Sibuku Bay to British North Borneo Company. The sum 5,000 dollars a year payable every year increased to 5,300 dollars a year payable every year.

British version of the 1878 Agreement

“hereby grant and cede of our own free and sovereign will to Gustavus Baron de Overbeck of Hong Kong and Alfred Dent Esquire of London...and assigns forever and in perpetuity all the rights and powers belonging to us over all the territories and lands being tributary to us on the mainland of the island of Borneo commencing from the Pandassan River on the north-west coast and extending along the whole east coast as far as the Sibuco River in the south and comprising amongst other the States of Paitan, Sugut, Bangaya, Labuk, Sandakan, Kina Batangan, Mumiang, and all the other territories and states to the southward thereof bordering on Darvel Bay and as far as the Sibuco river with all the islands within three marine leagues of the coast.”

Sulu version of the 1878 Agreement

“do hereby lease of our own freewill and satisfaction to...all the territories and lands being tributary to [us] together with their heirs, associates, successors and assigns forever and until the end of time, all rights and powers which we possess over all territories and lads tributary to us on the mainland of the Island of Borneo, commencing from the Pandassan River on the west coast to Maludu Bay, and extending along the whole east coast as far as Sibuco River on the south,..., and all the other territories and states to the southward thereof bordering on Darvel Bay and as far as the Sibuco River, ..., [9 nautical miles] of the coast.”

We don’t know under what law the Dent-Sulu Agreements was made and whether it was registered in any Court. Philippine President Benigno Aquino has in recent days publicly indicated that his office will study the “legal basis” of the claims by the Sulu “heirs”. If so, why did previous Philippine Governments raise the Sabah claim?

Easier for Company not to deal with Orang Asal

The Company subsequently “acquired further sovereign and territorial rights” from the Sultan of Brunei, expanding the territory under control to the Putatan river (May 1884), the Padas district (November 1884), the Kawang river (February 1885), the Mantanani Islands (April 1885), and additional minor Padas territories (March 1898).

It was easier for the Company to deal with the Sulu and Brunei sultans than with the Orang Asal of Sabah.

Meanwhile, in 1885, the United Kingdom, Spain, and Germany signed the Madrid Protocol of 1885, which recognized the sovereignty of Spain in the Sulu Archipelago in return for the relinquishment of all Spanish claims over North Borneo.

In 1888 North Borneo became a protectorate of the United Kingdom and remained so until 1 Jan 1942 when Japan, by the act of war and conquest, demolished the British presence in Sabah and the so-called Sabah claim, if any.

It was not until 1945, when Japan surrendered, that the Company returned to Sabah.

In 1946, the Company sold Sabah to the Colonial Office in London for Sterling 1.2 million.

The Mackasie Declaration is the only claim the “heirs” of the Sulu Sultan, recognized by the High Court of Borneo, have on the Malaysian Treasury.

There’s no reason why Malaysia should unilaterally alter the sum mentioned in the Mackasie Declaration just because Harris Salleh woke up one morning on the wrong side of the bed and came up with “a better idea”.

Joe Fernandez is a mature student of law and an educationist, among others, who loves to write especially Submissions for Clients wishing to Act in Person.

He feels compelled, as a semi-retired journalist, to put pen to paper -- or rather the fingers to the computer keyboard -- whenever something doesn't quite jell with his weltanschauung (worldview).

He shuttles between points in the Golden Heart of Borneo formed by the Sabah west coast, Labuan, Brunei, northern Sarawak and the watershed region in Borneo where three nations meet.