I ASKED a noted authority on public international law, what she thought about the claims of the descendants of the Sulu sultan to Sabah.
She said there are several complex issues involving two important principles of international law — the law on the interpretation of treaties, and the law on state succession.
Let's look at the facts first. The following is a summary of the dispute, recently published in a local news portal.
The dispute had its origins in the 1878 Deed of Cession between the then sultan of Sulu, Sultan Jamal al Alam, and Baron de Overbeck, the then maharaja of Sabah, and the British North Borneo Company's Alfred Dent.
Under that agreement, Jamal ceded sovereignty over large parts of Sabah to Dent and Overbeck, upon consideration of an annual payment of "5,000 Mexican dollars" by them (and their future heirs) to the heirs of the sultan.
In 1936, the last formally recognised sultan of Sulu, Jamalul Kiram II, died without heirs, and payments ceased until North Borneo High Court chief justice Charles F Macaskie named nine court-appointed heirs in 1939.
Although Malaysia took over the payments following Sabah's independence and the formation of Malaysia in 1963, the disbursement — equivalent to RM5,300 — ceased in 2013 after the Lahad Datu incursion.
In 2019, in a letter to a London-based lawyer, the then attorney-general, Tommy Thomas, attached a true copy of the Macaskie judgment of 1939 and said Malaysia did not dispute the identity of the individuals and their right to be paid.
The former A-G also "regretted that payments ceased in 2013", adding that Malaysia was then "now ready and willing" to pay the London-based lawyer's clients the arrears from 2013 to 2019.
The news portal also stated that it had "sighted a document from the Malaysian embassy" in Manila, dated June 28, 2012, requesting the heirs to collect their cheques for "cession money".
Despite the seemingly favourable "legal response" to the historical claims, the response from politicians is negative and dismissive.
Sabah Chief Minister Datuk Seri Hajiji Noor was recently quoted as saying "It is an absurd claim. Sabah's sovereignty in the Malaysian federation should never be questioned".
He seemed to miss the point. The claim by the heirs that payment should be "continued" and not terminated unilaterally in 2013 has nothing to do with the sovereigny of Sabah, but with the fulfilment of past treaty obligations and the principles of state succession to that obligation.
A separate and bigger question that has now emerged and clouded this case is who were the eight claimants at the Paris arbitration proceedings by Spanish arbitrator, Gonzala Stampa.
According to Datu Mohammad Kudhar Sultan Kiram (who claimed to be the true descendant of the Sulu sultan), the eight claimants were "just people out to make money" and were not legitimate heirs of the sultan.
Kudhar stated that he was the son of Sultan Julaspi Kiram II, and his great-grandfather was Jamal al Alam, who signed a lease agreement with de Overbeck and Dent in 1878. He said since his father's death, all his siblings had agreed to appoint him as the administrator of the estate and assets.
"The regional trial court in Manila has pronounced me as the court-appointed sole administrator of my late father's assets and estate," he added.
Although Wisma Putra and the Attorney-General's Chambers had stated, in a joint statement on March 2, that they did not recognise the award by the arbitrator, the Sabah Law Society urged the Malaysian government to take immediate steps to overturn the Paris award.
Notwithstanding investigations by the Spanish and French authorities into the reasons why Stampa went ahead with the case, it is important for Malaysia to have it set aside.
According to Roger Chin (the society president), under French law, its courts may set aside an award on one of the following grounds:
• The arbitral tribunal wrongly upheld jurisdiction;
• The arbitral tribunal was irregularly constituted;
• The arbitral tribunal ruled without complying with the mandate conferred on it; due process requirement was violated; or
• Recognition or enforcement of the award would violate international public policy.
The writer was a federal counsel at the Attorney-General's Chambers and visiting professor at Universiti Teknologi Malaysia. He is now a full-time consultant, trainer and author
