“THIS subject is too complicated and intricate to be disposed of without a good deal of research, but it seems the Governor’s fears as set out in paragraph 3 of his despatch are not well-grounded. Any concession the Sultan of Sulu may have made to the Americans would, I submit, exclude any concessions made by him previously.”
As expressed in this excerpt from minutes of a 1917 meeting between Charles Frederick Cunningham Macaskie and the British North Borneo Company’s Governor Alymer Cavendish Pearson, the Sulu claim to Sabah required research even back then. Macaskie was an English barrister who was the first chief justice of North Borneo (1934-1945). He later presided over a 1939 case of claims from the Sulu Sultanate.
The North Borneo Chartered Company was formed in Britain in 1881 to administer and exploit the resources of North Borneo, as Sabah was called before it formed Malaysia in 1963 with Sarawak, Singapore and Malaya. The company remained in control until 1946, when the Crown colony government assumed the administration of the area.
In 2015, Shari Jeffri, a private researcher of North Borneo/Sabah history, found the letter among company’s files on the Sulu Sultanate in Britain’s National Archives in Kew, London. Shari had previously found a list of Colonial Office files in the Sabah state archives but couldn’t find the actual files, so the obvious choice was to secure them in Kew.
“When I found the files, I felt that our history was incomplete. I felt that the documents were an important source of reference on the history of North Borneo and needed to be shared with the public as they contain significant facts and relevance to our national sovereignty,” he said in an interview in Kota Kinabalu.
The 52-year-old banker explained that the file is testimony to important events between rulers and colonial powers that were kept from the knowledge of most Malaysians. The documents formed the legal basis for the development of North Borneo into a modern nation-state, he said. Shari contended that without the knowledge contained in the documents, it would be challenging to visualise a conglomeration of several territories that could eventually merge into a single country.
“According to the documents, the Sultan of Brunei had always claimed a superior right of sovereignty over all territory in North Borneo, whether paying tribute or not to the Sultan of Sulu,” he said.
“This dispute over sovereignty has been the cause of bitter controversies and contests between the two Sultans.”
Referring to Cesar Adib Majul’s Muslims in the Philippines published in 1973, Shari said the Philippine/Sulu Sultanate’s claim on Sabah originated from the Chermin (or Kinarut) War that took place from 1660 to 1673. In 1672, the Sultan of Brunei, Sultan Muhyiddin, sent an envoy to the Sulu Sultan, asking for his aid in the war and promising him territories in North Borneo as a reward. But the Sulu Sultanate did not fight or contribute to Sultan Muhyiddin’s victory in the end.
“The Suluk people did not dare to launch an attack on Pulau Chermin other than hiding in Pulau Keingaran,” Shari quoted Dr Haji Awang Mohd Jamil Al Sufri’s Tarsilah Brunei (1997).
Referring to LR Wright’s The Origin of British Borneo (1970), Shari told me that “succeeding Sultans of Brunei have denied that northern Borneo (Sabah) was given to Sulu”.
The Sulu Sultanate narrative, he explained, is that North Borneo belonged to them as a reward for helping the Brunei Sultan quell a Bruneian civil war in 1672. But, he said, the reality is the Sultan of Brunei never gave anything to the Sulu Sultan as the latter did not aid him in the Chermin War. So while the Sulu Sultanate has claimed a part of North Borneo all along, it never actually owned it.
Fast forward to 1877.
On Dec 28 that year, Brunei signed four treaties and a commission granting diplomat, businessman and adventurer Baron von Overbeck and colonial merchant and entrepreneur Alfred Dent the following: Territory on the west coast of Borneo comprising Gaya Bay from Gaya Head to Sontut Point, including Sepanggar Bay and Gaya Bay and Sepanggar Island and Gaya Island; territories from the Sulaman River on the north-west coast to the Paitan River in the north-east; territories from Paitan to Sibuco River; provinces of Kimanis and Benoni on the north-west coast; and the appointment of von Overbeck as “Maharajah of Sabah (North Borneo)” and “Rajah” of Gaya and Sandakan.
“In terms of sovereignty, Dent and von Overbeck acquired North Borneo from Brunei, which was known as a thalassocracy (or maritime) state. Brunei had conquered our [North Borneon] coastal areas but not the interior, which was considered terra nullius (no man’s land),” Shari explained.
On the significance of the four treaties and commission, he said Brunei had ceded North Borneo to von Overbeck and Dent.
A month later, on Jan 22, 1878, Sulu Sultan Jamal Al Alam signed a treaty with von Overbeck and Dent granting part of North Borneo to the two businessmen.
“If you look at the legal perspective – as a banker, I study agreements – if you have already acquired the areas with one party [Brunei in 1877], the second agreement [with the Sulu Sultan in 1878] is not valid. It [the 1878 agreement] is an afterthought,” Shari said.
“After signing the four treaties and commission for the whole territory of North Borneo – except the interior – with the Brunei Sultanate, von Overbeck and Dent were advised and felt the need to sign another treaty with the Sulu Sultanate for a territory that was claimed by them, especially the east coast of North Borneo and surrounding islands, for ease of business transactions and administration of the area.”
Signing the second agreement was a way of addressing the piracy situation on the east coast of North Borneo, he explained: “The east coast was unruly, as the Sulu Sultanate claimed it. And as von Overbeck and Dent did not want to have any headaches, they signed the treaty with the Sulu Sultan.”
Shari explained that the arbitration ruling on Feb 28, 2022, that ordered Malaysia to pay US$14.92bil (RM65.2bil) to Sulu Sultanate descendants, and the Macaskie judgement, which ruled in 1939 that the North Borneo cession money was payable to the heirs of the Sultan of Sulu, was based on the 1878 treaty only.
“As far as the Chartered Company and the colony were concerned, they always treated the cession payment as a commercial transaction and not a sovereign transaction.
“There was no passing of sovereign title because the only recognised sovereignty at that time was Brunei. Only Brunei could grant the sovereign title. Meaning the Sulu Sultan doesn’t have a sovereign title to give away North Borneo,” he said.
In search of information on his home state’s origins, Shari has accumulated copies of thousands of pages of manuscripts from vintage books and documents of antiquity. His house in Luyang, Kota Kinabalu, has become a private library and digital repository with documents secured from most of the world’s major archives, such as the Library of Congress in Washington DC, Britain’s archives in Kew, the British Library in London, the University of London’s School of Oriental Studies, and Spain’s National Archives and National Library.
Former chief minister and nominated assemblyman Datuk Seri Yong Teck Lee contends that the political and legal strengths of any territorial claim or counterclaim under international law depend on facts backed by evidence such as written documents. He said people should remember that the International Court of Justice (ICJ) award of Pulau Ligitan and Pulau Sipadan to Malaysia (against Indonesia’s claim in 2002) was because of a historical document.
“The British-era authorities issued the document in North Borneo [Sabah] to collect turtle eggs on Sipadan Island. That document originated from Sabah’s historical records. At the ICJ, [Malaysia’s] Attorney General’s Chambers relied on that turtle egg document and others that belonged to Sabah,” he said.
The Sabah Progressive Party president believes that Sabah needs a historical repository. Yong argued that the need for one became apparent when former attorney general Tan Sri Tommy Thomas revealed at a webinar that he was not aware of certain historical documents when he was handling the Sulu arbitration case in Spain in 2019.
“The federal authorities will need the assistance of the Sabah government to provide much of the historical documents. I recall that the Sabah state government had similarly provided extensive information to the Federal Government in the Ligitan/Sipadan case in the 1990s. That was one of the reasons Malaysia won the case at the ICJ in 2002,” he said.
“That is why Sabah needs to have a repository or centre to compile, record and study all historical documents concerning Sabah.”
To paraphrase that 1917 communication, the complicated and intricate Sulu claim to Sabah needs to be disposed of with a good deal of research.
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