Malaysia Parliament can end US$15b Sulu heirs bid for Sabah in former British Borneo by granting independence. Sarawak gets independence by default!
Commentary and Analysis . . . Philippine President Diosdado Pagan Macapagal, distant cousin of Sulu Sultan, reportedly warned the Colonial Office in London in 1962 that Malaysia in British Borneo was controversial. Indonesia’s President Sukarno immediately launched “konfrontasi” (confrontation) and the “Ganyang Malaysia” (hang Malaysia) campaigns.
Macapagal stressed that the Sabah claim would not arise if British North Borneo was granted independence before it participated in Malaysia.
The Sabah claim, for those unfamiliar, covers the southern part of the Eastern Sabah Security Zone (EssZone) under the Eastern Sabah Security Command (EssCom), and by arbitrary extension — disputed by Brunei — covers areas north of the southern part.
The High Court of Borneo, sitting in Sandakan in 1939, disregarded the territorial and sovereignty claims by nine Sulu Heirs. The claims were based on the 1878 Deed between the Sulu Sultan and two merchants viz. Baron de Overbeck and Alfred Dent. The High Court recognised that the Sulu Heirs were eligible to receive RM5,300 per annum in compensation for giving up toll collection along the main waterways. Malaysia, under Prime Minister Datuk Seri Najib Tun Razak, stopped the annual payment after the 2013 Lahad Datu intrusion.
The Colonial Office in London, brushing aside Macapagal’s caution, transferred the Administration of British North Borneo and Sarawak and placed them under the central government in Malaya on 16 September 1963.
The Equal Partnership of British North Borneo (renamed Sabah), Sarawak and Malaya (Singapore merged), under the Malaysia Agreement 1963 (MA’63), was the proverbial fig leaf. Independence for Sabah and Sarawak, after 60 years, emerges as an idea whose time has come. More on independence later.
No matter how much we wish well for Malaysia and the former British North Borneo in their tussle in European Arbitration with the Sulu Heirs, it remains uphill task, probably losing battle if ex-parte Award becomes inter-parte tussle bogged down in legal minefield. Opinion, in any case, isn’t law. Only the court can declare law.
Malaysia, so far, has evaded setting aside the ex-parte US$15b Award handed down by Arbitration court in Spain. In law, the Sulu Heirs can only agree on setting aside the ex-parte ruling if there’s inter-parte Arbitration.
Therein the matter lies.
The 11 December date in Madrid court on the jurisdiction of Spanish Arbitrator Gonzalo Stampa may not pan out as reported by local media.
Arbitrators are appointed for fixed tenure which probably may not be renewed as integrity in the alternative dispute resolution method must be maintained. There isn’t any issue in conflict if Stampa announced the ruling and Award after tenure expired in June 2021. He would have concluded hearing the ex-parte application before tenure ended.
Malaysia has complained that the ruling and Award was announced in February 2022 in Paris, the separate jurisdiction, and not in Madrid where the ex-parte application was heard. Stampa’s discretion would cease if abuse of power can perferably be proven in the court of law. There may also be cause for complaint on breach of ethics. In that case, the body responsible for ethics would meet. The matter, being redundant, may be academic i.e. there’s no “live” issue.
We learn, based on media reports, that Stampa would probably be fined and jailed on the grounds that he handed down fraudulent Award for the Sulu Heirs. We don’t know whether Intention can be proven. Malaysia’s complaint against Stampa would be heard in the Madrid Court on December 11.
Malaysia, if it does not set aside the Award, can only fall back on fire fighting techniques in fighting off attempts by the Sulu Heirs eyeing diplomatic and other assets in jurisdictions abroad. The opposition against freezing, seizing and forfeiting assets hangs by slender thread: the US$15b Award wasn’t based on ruling after inter-parte hearing.
Malaysia will not take risks in inter-parte Arbitration. So, it’s highly unlikely that Putrajaya will endorse any application for setting aside the ex-parte ruling if inter-parte hearing comes in.
If the Malaysia Parliament takes the cue from Singapore being granted independence in 1965, then Sabah and Sarawak would be set free as well. That would take the wind out of the sails on the Sulu Heirs US$15b Award in Paris. In science, we learn that there are mathematical directions on the behaviour of forces in nature and the universe. Also, chaos has been observed as the only predictable property of the universe. The moral of the story: nothing remains static.
If so, 60 years may be good time for the Malaysia Parliament on the former British Borneo. It can deliberate on independence for Sabah and Sarawak. The two Borneo territories can still remain in the Malaysian Common Market with Brunei and Singapore added as well. In fact, Singapore left Malaysia after being denied Malaysian Common Market accces. Now, times have changed.
Sulu Heirs, or no Sulu Heirs, there are other reasons for Sabah and Sarawak exiting Malaysia. It’s open secret that the IGP, MACC, AG and Bank Negara are sleeping with eyes open on bribery and corruption cases in Sabah and Sarawak, money laundering activities, nepotism, cronyism and collusion.
Malaysia, instead of complying on MA’63, virtually imposed proxy government on Sabah and Sarawak since 1963. The Pairin government in Sabah from 1990 to 1994 and Sarawak’s Stephen Kalong Ningkan government before 1966 were exceptions.
Immigration, the High Court and the English language are among the few powers that Sabah and Sarawak retain.
Najib was working on the devolution of greater administrative powers for Sabah and Sarawak before the ruling BN (Barisan Nasional) lost power in GE14 on Wednesday 9 May 2018.
Najib became scapegoat, victim of Trial by Media, and was dragged before the court for numerous cases, criminal and civil. The jury may no longer be out on whether he suffered selective political prosecution and selective political persecution.
The people of Sarawak, under international law, have in fact lost sovereignty. The small group in power maintains absolute control.
The First Past the Post System (FPtPS) fell on undemocratic soil in Sarawak.
In the absence of straight fights, there’s no run off and winners are declared even where they get less than 51 per cent of the votes. Then, there’s the notorious practice where candidates are returned unopposed on D-day. Nomination forms are taken for all seats and allegedly exchange hands for fees. The highest bidder collects the forms and gets declared unopposed on D-day itself. Postal votes, allegedly another scam, can be added where the government party candidate risks losing.
No Government Change
The government in Sarawak has not changed since 1966. It’s the duty of the international community, under international law, that sovereignty be restored where the people have lost it. In 2006, Iraqi President Saddam Hussein was hanged after sovereignty was restored. There were also other reasons for the Iraq War launched by the “UN sanctioned” Coalition of the Willing in 2003.
Proxy government has facilitated the Federal government’s non-compliance on MA’63, allowed internal colonisation policies and created inaction in law on the Southeast Asia Sea which Beijing claims almost in its entirety. Sabah in particular has been plagued by PTI (pendatang tanpa izin or illegal immigrants) allegedly on the electoral rolls. That has compromised consent of the governed, legitimacy, democracy, sovereignty, territorial integrity and the rule of law.
Many people may not be aware that the Federal government remains the ultimate loan shark (ah long) for the sultanates and states in Malaya and the Malaysian territories in Borneo.
International law, after World War II, outlawed colonialism, nazism, facism, apartheid, the caste system which prohibits upward social mobility, political Islam, and ketuanan Melayu, among others.
Colonialism stands defined in international law as form of criminal enterprise for accumulating capital. Wealth, it has been observed, risks being transferred out from those who have no power. Those who have power are the ultimate beneficiary.
The Federal government has real power as evident from the fact that it has removed local tyrants and control freaks who go rogue and virtually thumb their noses at their Master.
There’s also case for Sabah and Sarawak having their own separate Federal government before independence comes. The Federal concept delineates power at three levels viz. Federal, state and local. The Federal government protects the people from local tyrants and control freaks at the state level.
Place In The Sun
Ironically, Malaysia risks Sabah and Sarawak emulating the Sulu Heirs and freezing, seizing and forfeiting Federal government assets in overseas jurisdiction.
Petronas, operating in Sabah and Sarawak waters, also risks its assets being frozen, seized and forfeited in overseas jurisdictions, allegedly for denying Sabah and Sarawak their place in the sun. — NMH
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.