Alert on the Sulu claim

While Malaysia is preparing to challenge the French arbitration decision, the Sulu Sultanate supporters could be mounting another attack on Lahad Datu.

IT takes two to tango, as the saying goes.

For some legal experts, the Sulu Sultanate danced solo in its pursuit of compelling Malaysia to pay compensation for not paying cessation money to them since 2013.

Malaysia had stopped the RM5,300 annual payment stipulated in an 1878 treaty that granted and ceded lands in North Borneo (which Sabah was called before it, together with Sarawak, Singapore and Malaya, formed Malaysia in 1963) “forever and in perpetuity”.

Last March, Arbitrator Gonzalo Stampa, from Spain, ordered Putrajaya to pay US$14.92bil (RM62.6bil) to the descendants of a Sulu Sultan in a Paris court where Malaysian officials were not represented.

“The arbitration requires the involvement of two parties (Malaysia and the Sulu Sultanate) who have a dispute. We refused to get involved in the process by using the right of sovereign immunity. But the Sulu claimants continued unilaterally until an arbitration court decided to favour the Sulu Sultanate claimants,” said a Malaysian legal expert with inside information on the arbitration ruling.

The heirs’ claims were initially heard in Madrid in 2018.

On March 17, 2020, Kota Kinabalu High Court judge Datuk Martin Indang ruled that Malaysia was the proper venue to resolve disputes arising from the 1878 Deed of Cession and not the Spanish courts, which do not have authority nor jurisdiction over Malaysia.

Justice Indang said this when deciding in favour of the Malaysian Government in its suit against eight of the descendants of the Sultan of Sulu. He said there was no binding agreement between the Government and the sultan’s heirs that compelled either party to also submit to arbitration in the event of a dispute.

In June 2021, the Madrid High Court annulled Stampa’s appointment as arbitrator and decided that all arbitration proceedings and any decision by Stampa were invalid and could not be legally enforced.

In September 2021, the French arbitration court, without knowing the decision of the Madrid court to cancel Stampa’s appointment as an arbitrator, went ahead with the Sulu descendents’ case against Malaysia. Subsequently, Stampa, who former Attorney General Tan Sri Tommy Thomas called a “rogue” arbitrator, made the US$14.92bil decision.

The legal source said Malaysia could challenge the French arbitration decision from the point of view of:

1) the arbitration court was formed illegally.

2) the arbitration court exercised its authority without obtaining a valid mandate.

3) the recognition and enforcement of the final award violate international law.

4) questioning the validity of the status of claimants and Stampa and their relationship is not professional.

The legal source said Putrajaya stopped the payment after the Sulu Sultanate launched an attack on Lahad Datu in which six civilians, 10 Malaysian security forces personnel and about 56 Sulu intruders were killed on the east coast of Sabah.

A regional security expert warned that the 2013 Lahad Datu intrusion could be repeated ten years later.

The late Sultan Jamalul Kiram III ordered the attack. In Manila, during the height of the armed conflict, Jamalul declared that his followers would not leave Lahad Datu and that they were reclaiming the area as their ancestral territory.

“Why should we leave our own home? Our followers will stay in Lahad Datu. Nobody will be sent to the Philippines. Sabah is our home,” he said, adding, “there will be no turning back for us”.

Jamalul’s younger brother, the late Raja Muda Azzimudie Kiram, led the armed intruders. The High Court in Kota Kinabalu sentenced to death Datu Amir Bahar Hushin Kiram (the son of the late Sulu Sultan Esmail Kiram, the brother of Jamalul and Azzimudie) for waging war against the Yang di-Pertuan Agong in connection with the Lahad Datu intrusion.

Jamalul, Azzimudie (also spelt as Agbimuddin) and Esmail are the sons of Sultan Punjungan Kiram, one of the nine claimants in the 1939 Macaskie judgement. Punjungan is a grandchild of Sulu Sultan Jamal Al Alam, who signed a treaty with von Overbeck and Dent granting part of North Borneo to the two businessmen on January 22, 1878.

(A month earlier, Brunei signed four treaties and a commission on December 28, 1877, granting Baron de Overbeck and Alfred Dent parts of North Borneo.)

Punjungan’s descendants are also the eight claimants in the 2022 French arbitration case. The one with the clearest bloodline is Dayang Dayang Sheramar T. Kiram, the daughter of Jamalul, who took responsibility for the Lahad Datu intrusion.

“The Malaysian Government is too focused on the arbitration ruling. It is important. But more important is what is going on in Jolo (the seat of the Sulu Sultanate) and Manila. And also what will happen when the Sulu Sultanate family do not receive the billions of pesos they think are owed to them,” said the security expert, who forewarned the 2013 Lahad Datu intrusion.

According to him, the narrative in the Philippines and Sabah, where there is a sizable number of illegal Filipino immigrants, is that the Stampa ruling proves that Sabah belonged to the Sulu Sultanate. In the media and social media, the families of the Sulu Sultanate are saying that “Sabah is ours”, he said.

The security expert was concerned that Lahad Datu intrusion 2.0 could be launched.

“In the 2013 intrusion, the Sulu Sultan’s followers were told to go to Sabah to claim it,” he said.

“When there is no payment from Malaysia for the Stampa arbitration ruling or if the Malaysian Government wins the case, the followers will be told they will get a portion of the US$14.92bil if they are part of Lahad Datu intrusion 2.0.”

The security expert said recruitment for Lahad Datu intrusion 2.0 was ongoing. “They are issuing identity cards and distributing flags in southern Philippines and Sabah. There is an imminent threat,” he said.

The security expert warned that it would be urban warfare not isolated in Lahad Datu if the attack was activated.

“Lahad Datu intrusion 2.0 will be in a bigger theatre of war in the whole of Sabah and strategic locations in Peninsular Malaysia. The death toll will be higher than the Lahad Datu intrusion,” he said.

The bloody history of Lahad Datu intrusion could repeat itself.