In 1939, the High Court of North Borneo awarded a ‘cession of right’ from the late Sultan of Sulu, Jamalul Kiram II, to nine of his heirs, in a judgement known as the Macaskie Judgement.
Whereas, in 2011, the Jolo Regional Trial Court recognized nine other sub-heirs from the nine original heirs of Sulu Sultan Jamalul Kiram II to be the administrators of the late Sultan’s ‘estate’.
These sub-heirs believe that these two documents (1939 Macaskie Judgement and 2011 Jolo Trial Court) serve as crucial evidence to the Kirams’ family claim over a portion of Sabah.
According to the Jolo Judgement, “The intestate estate of Sultan Esmail Kiram, the letter of administration was given to his son Sultan Fuad Kiram.
For the intestate estate of Dayang-Dayang Hadji Piandao Kiram, the letter of administration was given to granddaughter Dayang-Dayang Putri Taj-Mahal Kiram Tarsum Nuqui.
For the intestate estate of Mora Napsa, the letter of administration was given to granddaughter Hja Sitti Ayesha Sampang.
For the intestate estate of Sitti Putli Jahara Kiram, the letter of administration was given to granddaughter Sitti Jenny K.A. Sampang.
For the intestate estate of Sitti Mariam Kiram, the letter of administration was given to grandniece Princess Permaisuli Kiram-Guerzon.
For the intestate estate of Sultan Punjungan Kiram, the letter of administration was given to granddaughter Dayang-Dayang Sheramar Kiram.”
Which version of the treaty need be followed?
The 1939 Macaskie Judgment had, in fact, affirmed the British North Borneo 1878 and 1903 Treaties as legally binding contracts.
More so, it acknowledged the British version of the treaties. (There were two versions of the 1878 Treaty, an English and a Sulu version. The two major differences are the word CEDED versus LEASED, and the right to transfer. In the English version, the word ‘CEDED and GRANT’ was used, and the right to transfer was subjected to ‘Her Majesty’s Government’. On the other hand, the Sulu version used the word, LEASED and accorded the right to transfer, to the Sulu Sultanate.)
An excerpt of the English version of the 1878 Treaty is as follows:
“In consideration of this grant the said Baron de Overbeck and Alfred Dent promise to pay as compensation to His Highness the Sultan Sri Paduka Maulana Al Sultan Mohamed Jamal Al Alam his heirs or successors the sum of five thousand dollars per annum.
The said territories are hereby declared vested in the said Baron de Overbeck and Alfred Dent Esquire co-jointly their heirs associates, successors or assigns for as long as they choose or desire to hold them. Provided however that the rights and privileges conferred by this grant shall never be transferred to any other nation or company of foreign nationality without the sanction of Her Britannic Majesty’s Government first being obtained.
In case any dispute shall arise between His Highness the Sultan his heirs or successors and the said Gustavus Baron de Overbeck or his Company, it is hereby agreed that the matter shall be submitted to Her Britannic Majesty’s Consul-General for Borneo.”
By virtue that the late Sultan’s adopted daughter, Dayang-Dayang Hadji Piandao Kiram went to the North Borneo High Court to obtain a judgement, asserted the Kirams’ acceptance of the English version.
The Effects of the 1939 and 2011 Judgements.
In effect, the 1939 Macaskie Judgement granted a Letter of Administration to the the late Sultan’s adopted daughter and eight anothers, the right to share equally the yearly tribute paid by British North Borneo government, as per the British North Borneo 1878 and 1903 Treaties.
The 2011 Jolo Trial Court judgement should not be recognized by Malaysia since the Treaties explicitly conferred that any dispute shall be submitted to the Counsel-General for Borneo. The endorsement from the High Court of North Borneo (Sabah) need be obtained.
Moreover, the transfer (cession) of right for the estate of the original heir (as recognized in 1939), Sultan Punjungan Kiram, to granddaughter, Dayang-Dayang Sheramar Kiram (should it be accepted by a Sabah High Court), cannot then be re-transfered to the former’s brother, Jamalul Kiram III. Instead, it would have gone to Dayang-Dayang Sheramar’s own children.
Should Malaysia File a Claim for Sabah in ICJ?
First, the people of Sabah have spoken. During the (more than three) referendums conducted and administered by the United Nations in the early 1960s, Sabahans preferred to be with Malaysia.
Second, the Philippines had rejected UN’s findings, unless the later ruled to their favour. They may once again reject the UN’s body, ICJ’s rulling, should the latter again ruled against the Philippines’ favour.
Third, the Treaties explicitly provide an avenue to tackle future disputes, i.e, the High Court of North Borneo (Sabah).
Should Malaysia Stop the Annual Cession Payments?
No. Should Malaysia stop the annual Cession Payments, we would have to stoop as low as the Kirams. The Munafiqoons. They make promises, only to break the promises, whenever they feel like it.
Malaysia must take the lead and demonstrate to the Philippines that we are an honourable nation and people. That we will continue to pay the Cession Money as per to the letter, for as long as we desire, as had been agreed upon, by those who lived before us.
Alternatively, as a friend suggest, should Malaysia-Philippines ever decide to dishonor the 1885 Madrid Treaty, we then must reclaim northern Sabah (Kudat area, Balambangan and their northern islands) and the southern half of Palawan.
“And while we are at it,” the friend continued, “we might as well reclaim Riau, Temasik, Bengkalis, parts of Sumatra and all those islands which used to constitute, the Great Empire of Malacca.”