1878 pact bars dispute on Sabah to be arbitrated, says lawyer

 

Firoz Hussein Ahmad Jamaluddin said it appeared that Tommy Thomas’ letter recognised that the claimants were the successors by admitting that the pact was still operational.

PETALING JAYA: The 1878 agreement among the related parties linked to the Sulu sultanate did not provide for any dispute over Sabah to be resolved by way of arbitration, says a constitutional lawyer.

Firoz Hussein Ahmad Jamaluddin said the agreement instead paved the way for any controversy to be referred to the Queen’s Consul-General then based in Brunei.

He said the tripartite agreement involving the then Sultan of Sulu, Sultan Jamal Al Alam, the then maharaja of Sabah, Baron de Overbeck, and British North Borneo Company’s Alfred Dent was written in Malay using the Jawi script.

“The agreement has no reference for parties to resolve any dispute of North Borneo (Sabah) by way of arbitration,” he told FMT.

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The lawyer said this in response to Spanish arbitrator Gonzalo Stampa, who on Feb 28 made an award of US$14.92 billion (RM62.59 billion) to the claimants of the Sulu sultanate.

Firoz said former attorney-general (AG) Tommy Thomas should have challenged the arbitration proceedings when the claimants’ London-based lawyer Paul H Cohen wrote to him about the matter.

“In my view, the AG made a mistake in not participating in the proceedings to challenge the jurisdiction of Stampa and to state the proceedings were invalid,” he said.

In the 2019 letter to the lawyer of the Sulu heirs sighted by FMT, Thomas attached a copy of a 1939 judgment by the North Borneo High Court and said Malaysia did not dispute the identity of the individuals and their right to be paid.

Thomas also regretted that payments to the heirs had ceased in 2013, and added that Malaysia was “now ready and willing” to pay all arrears from 2013 to 2019 amounting to RM48,300 with interest.

Firoz said it appeared that Thomas’ letter to Cohen recognised that the claimants were the successors in title to the sultanate by admitting that the agreement was still operational.

Firoz said Malaysia had no choice but to set aside the award but it was going to be a “challenging” task because of Article 5 of the New York Convention.

“Should we fail to set aside the order, we will have to challenge the enforcement of the award using the grounds stated in the convention,” he said.

The convention is a multilateral treaty which enables the enforcement of arbitral awards in member states of which Malaysia is a party.

Early this month, The Financial Times reported that the move to seize Petronas’ Luxembourg-registered subsidiaries, Petronas Azerbaijan (Shah Deniz) and Petronas South Caucasus, was part of legal efforts launched in 2017 by the heirs to receive compensation for land in Sabah which they said their ancestor leased to a British trading company in 1878.

Under the agreement, Jamal ceded sovereignty over large parts of Sabah to Dent and Overbeck, who agreed that they and their future heirs were to pay the heirs of the sultan 5,000 Mexican dollars annually.

In 1936, the last formally recognised Sultan of Sulu, Jamalul Kiram II, died without heirs, and payments temporarily ceased until North Borneo High Court chief justice Charles FC Macaskie named nine court-appointed heirs in 1939.

Although Malaysia took over these payments when it became the successor of the agreement following Sabah’s independence and the formation of Malaysia in 1963, these payments – equivalent to RM5,300 a year – ceased in 2013 after an incursion by armed men into Lahad Datu, along the eastern coast of Sabah. - FMT