Firstly, before proceeding any further, the GRP should formally pre-empt any claims made by the supposed heirs of the Sulu Sultanate (over Sabah) – by passing an Act in Congress. All matters pertaining to the claims should be strictly and exclusively between the two governments. There should be no direct contact – legal proceedings or otherwise – with the Sulu Sultanate heirs which should only go through the GRP as mediator and intermediary, if at all.
By implication, this means that in future, the heirs of the Sulu Sultanate will be deprived of a locus standi (legal standing) to pursue their claims in court.
Furthermore, Asean unity and solidarity is at stake, no less.
Secondly, as has already been hinted at, claims of jurisdiction and or a right to compensation by the Sulu Sultanate heirs lack legal credibility because sovereignty has already passed to Spain under the Madrid Protocol of 1885. At the same time, Spain relinquished its claim over what was then known as North Borneo (Sabah).
Article III of the Madrid Protocol of 1885 states that:
“The Spanish Government renounces, as far as regards the British Government, all claims of sovereignty over the territories of the continent of Borneo, which belong, or which have belonged in the past to the Sultan of Sulu (Jolo), and which comprise the neighbouring islands of Balambangan, Banguey, and Malawali, as well as all those comprised within a zone of three maritime leagues from the coast, and which form part of the territories administered by the Company styled the ‘British North Borneo Company’.”
It’s to be noted that nowhere at anytime has the GRP ever sought to challenge or question the relevant parts of the Madrid Protocol of 1885, including North Borneo. This is probably because it’d be a legal impossibility.
What’s not often mentioned, however, is that the North Borneo Chartered Company (NBCC) founded by Baron von Overbeck and Alfred Dent also signed a treaty in the same year with the Sultanate of Brunei which has a stronger claim to Sabah. In fact, the treaty with Brunei was signed first as a matter of sequence – thus giving rise to the implied and tacit recognition (at least) of the priority of claim vis-à-vis the Sulu Sultanate.
Brunei’s claim can be attested to by the historical fact that in the late 17th century, Sultan Muhyiddin had promised to cede the eastern coastal part of Sabah to his cousin, the Sultan of Sulu. The condition for the cession was for the Sultan of Sulu to come to the aid of Sultan Muhyiddin in defeating the rival/previous occupant of the throne, Sultan Abdul Hakkul Mubin. The civil war lasted from 1661-1673 but the Sultan of Sulu never made good of his assurances, thereby resulting in Sultan Muhyiddin refusing to enforce the unfulfilled promise.
According to political analyst and prominent think-tank figure Bunn Nagara, the Sulus “… had a reputation for raiding coastal settlements, so as an insurance policy the [NBCC] made another cession agreement with Sulu three weeks later” (“Renewed assault on Sabah” (The Star, March 6, 2022).
As such, the claim of the Sulu Sultanate has been all along a mere claim – without any proper exercise of sovereignty per se compared to the Sultanate of Brunei. This has been well acknowledged in The History of Java by Sir Thomas Stamford Raffles (founder of modern Singapore).
Thirdly, as to the well-rehearsed argument that the original Malay version of the 1878 Treaty contains only the word, “lease” (pajakan), this has been superseded by the Madrid Protocol of 1885 and, by extension, the 1903 Confirmation of Cession. Under the 1903 confirmatory deed, there’s no mention whatsoever of the word, “lease”. Instead, the document clearly stipulates that the Sulu Sultanate thereby relinquishes (surrenders) and cedes (“menyerahkan”) the adjacent islands of North Borneo to the NBCC.
It’s a fundamental principle in international law that should there be an apparent conflict between two treaties relating to the same subject-matter (that are separated in time), the logical sequence shall be dictated by the temporal sequence. That is, the later/newer document will be definitive, overriding and (ultimately) authoritative – lex posterior derogate priori and as per Article 30 of the Vienna Convention on the Law of Treaties. This legal principle, of course, applies without qualification to domestic laws as well.
Its application in full force can be seen in none other than the pre-eminent context of the European Union (EU) as regards that fundamental question of national sovereignty.
The latest case where the French Arbitration Court in Paris – decided by Dr Gonzalo Stampa (Spanish national) – that ordered Malaysia to pay approximately RM62.59 billion (USD14.92 billion) is wholly inconsistent with the spirit and text of the EU’s Treaties and laws (regulations, directives, decisions of the European Commission together with the judgments of the European Court of Justice/ECJ) of which France and Spain are member-states.
Furthermore, leaving aside the extent of the geographical limits or boundaries, none of the parties, i.e., neither the NBCC nor the Sulu Sultanate, had ever chosen to exercise the principle under international law of rebus sic stantibus (“things standing thus”). That is, where there has been a fundamental change of circumstances, a party may seek to withdraw from or terminate the treaty in question – in the following years whether consequent upon the Madrid Protocol or the Confirmation of Cession.
If difference of interpretation of the 1878 Agreement was a critical issue, this would have been deduced from the actions of the parties. Either party would have taken the step to nullify or update the 1878 Agreement in the ensuing years.
Fourthly, the 1878 Agreement no longer applies legally – since to reiterate what’s a well-known fact, the Sulu Sultanate no longer has any rightful claim, if at all, over Sabah as confirmed by the Madrid Protocol of 1885 and the 1903 Confirmation of Cession.
This by itself has that effect, therefore, of legally abrogating the obligation to make yearly payments to the Sulu Sultanate and, by extension, its heirs. This notwithstanding the act of continuing the yearly payments up until 1936 when the then Sultan Jamalul Kiram II died in that year without leaving an heir, and later on by the Government of Malaysia (GOM).
Assuming for the sake of argument that it’s a lease, still this presupposes and implies ownership. But as highlighted, ownership had been relinquished by the Sulu Sultanate under the Madrid Protocol of 1885.
Whatever payment paid to the heirs is ex gratia (something done out of favour, voluntarily). It follows, therefore, that an ex gratia payment can be withheld or withdrawn permanently/indefinitely should the payer (GOM) decides to do so – as we have done in 2013 following the Lahad Datu incursion.
Again, in playing the devil’s advocate, some might argue that the 1903 Confirmation of Cession would imply that the Sulu Sultanate understood that it maintained legal sovereignty over Sabah with NBCC exercising de facto (“in fact”) sovereignty. This argument, although perfectly reasonable, can simply be countered by the following:
1. The document is understood to be a confirmation of cession and not the act of cession or concession as such.
It confirms the 1878 Agreement and doesn’t add anything substantive or legally alters the (character of the) said document. If at all, the 1903 Confirmation of Cession merely makes explicit what was implicit in the 1878 Agreement as regards to the islands concerned.
As unequivocally stated in the 1903 Confirmation of Cession, “[t]his is done because the names of the islands were not mentioned in the Agreement made with Baron de Overbeck and Mr. Alfred Dent … [on] the 22nd January, 1878[.] It was known and understood between the two parties that the islands were included in the cession of the districts and islands mentioned in the above-stated Agreement” (the website of the State Attorney-General’s Chambers of Sabah).
2. Payment is, therefore, made on the basis of pre-existing practice or arrangement, i.e., based on the provisions of the 1878 Agreement (which had been abrogated).
To sum up, by virtue of the Madrid Protocol of 1885, the Sulu Sultanate and its heirs – and the GRP – had forever forfeited their sovereign claim over Sabah and payments made in connection with it as a legal entitlement.
Jason Loh Seong Wei is Head of Social, Law & Human Rights at EMIR Research, an independent think tank focussed on strategic policy recommendations based on rigorous research.
** The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of Astro AWANI.
