Award In Arbitration Claimed Fear Of Violence Against Sulu Heirs

Malaysia can stop the entry of Filipino, in wake of the Final Award to the Sulu ‘heirs’, detain all PTI for expulsion from Sabah

The proper forum for the Sulu heirs on their claims in Sabah is the High Court of Borneo. It has already ruled on the matter in 1939. See here.

It must be stated at the very outset that Arbitration isn’t a court of law. It’s a Tribunal not bound by the technicalities in a court of law. Arbitration, in promoting alternative dispute resolution (ADR), is a court of equity, good conscience and social justice for both sides. Maxim states that “he who comes to equity must come with clean hands”.

Generally, lawyers are not allowed to be present in Tribunal, unless permitted by the Chairman and based only on “points of law being involved”. Any point of law must be referred by Arbitration to the superior court for declaration on the issue.

On Equity, the jury is still out on whether the Sulu heirs were behind the intruders who occupied parts of Lahad Datu in southeast Sabah in 2013. Nine Sulu intruders were sentenced to death for waging war against the Agong.

The Final Award expressed fears that the Sulu heirs were at risk of violence. Indeed, if push comes to shove, it won’t be surprising if only violence brings closure. The Sulu heirs’ claim involves the sovereignty and territorial integrity of Malaysia.

Sulu ‘Heirs’ Lives At Stake?

“Our clients’ lives are at stake,” said the Final Award in quoting the lawyer for the Sulu heirs.

“They do not have the luxury of living in London, Paris, or Madrid, where throwaway misrepresentations against them are mere abstractions.”

“Allegations that blur the otherwise-obvious distinction between this arbitration and the incursion of 2013 are dangerous. They must stop.”

“Although there appears to be no evidence of any link between the Sulu descendants who were receiving the annual fees from Malaysia under the 1878 Agreement and the armed invaders into Lahad Datu”, according to the Final Award, “the Malaysian government ceased payments from 2013”.

The Final Award, among others, added that “Malaysia’s counsel has turned what its Attorney-General had conceded was a dispute over resuming payment in a contract – albeit one in which the Parties disagree radically over the quantum – into a full-blown fight about the ownership of Sabah”.

Deluded rhetoric of this kind not only massively misrepresents the nature of the case (as indeed Malaysia has (allegedly) done before the French courts), but stressed the Final Award, “it also exposes Claimants to a very real risk of violence, because of the volatile part of the world where they live”.

Entry Of Filipino

Indeed, Malaysia can stop the entry of Filipino, in the wake of the Final Award, and detain all PTI (pendatang tanpa izin or illegal immigrants) for expulsion from Sabah and blacklisting. It may be kinder to be cruel. Enough is enough!

In the words of the Final Award, Malaysia did inform the ex-parte Arbitrator in Paris that the Sulu heirs would receive all arrears accumulated since 2013 on annual compensation in lieu of toll collection along the main waterway in southeast Sabah and by extension further northward along the eastern seaboard.

The Final US$14.98b Award in Paris, in favour of the Sulu heirs, declared that Malaysia was in breach of the 1878 Agreement and 1903 Confirmatory Deed in the wake of Lahad Datu 2013. The Arbitration did not consider the special circumstances behind the alleged breach.

We don’t know how Arbitration arrived at the restitution value of US$14.92b. The breach should refer to the 1939 High Court of Borneo ruling only which dismissed Sulu land claims in Sabah but upheld annual compensation based on toll collection along the main waterways. Instead, Arbitration accepted the Sulu heirs territorial claim in the 1878 Agreement and claim for revenue from land including oil and gas resources.

Sultans In Malaya

We know from Malaya that the sultans received annual compensation for giving up toll collection. The British built roads and railways for movement of goods and people. The rivers fell into disuse.

The British could not fathom a Ruler having no territory. They created territorial states out of rivermouth dwelling toll collectors and named them after the main waterways.

Likewise, the British North Borneo Company (BNBC) built roads and railways after doing away with toll collection. The Sulu sultanate did not cover territory in North Borneo.

It’s history that unlike the British in Malaya, the BNBC did not recognise the Sulu Sultan as Sultan concurrently of southeast Sabah. Sabah and Sarawak are headed by Governor.

In Malaya, the nine rivermouth dwelling toll collectors were recognised as sultans i.e. as the spiritual head of the local ummah (faithful). They also presided over local culture, customs, traditions, and language.

After Merdeka on 31 Aug 1957, the sultans were also recognised as head of states like the Governor in Penang and Malacca. One of them took turns, every five years, to be Agong or chief of state and supreme commander of the armed forces.

No Inter-Parte Hearing

It’s highly unlikely that Arbitration in Paris will convene inter-parte on the Sulu heirs’ claim. Malaysia in recent days successfully set aside the ex-parte Final Award for US$14.98b.

There’s no reason for Malaysia to participate in the proposed inter-parte Arbitration.

In 1939, the High Court of Borneo dismissed the territorial claims of the Sulu heirs. In an obiter dictum, the judge said that the sovereignty of Sabah resides with the people.

The High Court recognised the Sulu heirs and held they were eligible to share the annual RM5300 compensation, in lieu of toll collection, under the 1878 Agreement and 1903 Confirmatory Deed.

Final Award In Arbitration

The Final Award in Arbitration reads as follows.

For the reasons set forth above, having carefully considered all the Parties’ arguments and submissions and the evidence before him, the Arbitrator makes the following award and order. Read the rest here. – New Malaysia Herald

About the writerLongtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. He’s not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here.

The points expressed in this article are that of the writer and do not necessarily reflect the stand of the New Malaysia Herald.

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Joe Fernandez
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.

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