INTERNATIONAL law does not recognise the use of history to advance your claims. Full stop.

If history can be used as an antecedent, the whole of South China Sea, which China is claiming based on sheer historical right, would have been an open and shut case.

However, the United Nations International Tribunal on the Laws of the Seas, of which the government of the Philippines is a litigant, successfully claimed that “history”, indeed cannot form the basis of China’s claim in 2017.

Indeed, with “living” civilisation traversing 5,000 years – so the Chinese often like to claim, augmented further by the scholar Zhang Wei Wei, who referred to China as a “civilisational state” – there isn’t a single part of Asia, or for that matter Africa, even the entire arch that forms the Silk Road, untouched by Chinese “history”. Even the computer bears the imprint of the famous Chinese abacus.

By this token, one of the most outrageous arguments of the “historical claims”, of the clan of Sultan Qiram, whom some believe has further sub divided into eight different clans, by some accounts a galling “16”, is that the Malaysian government is legally entitled to pay the clan as a whole a total of US$15 billion (RM66.8 billion).

Failing which, a compound interest rate of 10% would be added to the above amount each year. This is akin to the court acting as an illegal loan shark. That the adversarial French legal system can stoop so low is, for the lack of better word, abysmal.

What is unique is the nature of the first legal salvo of the Qiram “family”. Rather than reclaiming Sabah, it aimed at the most valuable asset of Malaysia: Petronas.

If the legal claim is built on ownership of Sabah, shouldn’t the case revolve entirely and wholly on the state?

Yet it wasn’t. The Qiram family does not want the onerous responsibility of taking back one of the poorest states in Malaysia.

Goaded and shepherded by its money grabbing legal sherpa, Therium of London, the family was coached and perhaps coerced into cherry picking the law.

Thus, Petronas became its target. Should this act of helping the enemy of Sabah in “lawfare” come from within elements of the state, the laws of treason should abidingly apply without fail.

To be sure, the national oil and gas entity is indeed responsible for up to 11% of government revenue.

Should this action cripple Petronas, it is not a stretch to wonder if certain higher colonial forces are fanning the flames to burn Malaysia to a crisp.

By this token, everyone must be careful of the foreign machinations working in cahoots with some elements of Sabah to either reap a financial reward or exact the penalty Petronas is being asked to pay. Either way, the enemies within and without have won a handsome windfall.

There are three reasons why Malaysia needs to fight this legal farce that verges on a neo-colonial conspiracy of the worst kind.

First and foremost, who really is the true Qiram family? If it is a royal family, with a single line of blood succession, perhaps they ostensibly have some legal basis to press their claims.

However, does the ‘family’ have many off-shoots of no clear family tree, other than sharing the Qiram name?

Some, if not a majority of them, may have one decided to remain in Sulu to ply a normal life, content without any accoutrements. Alternatively, some may have become naturalised Sabah folk.

What rights do they possess over anything that is extracted from the state? None.

Second, the Qiram family is not a united and cohesive entity. That is the key point. Whether Malaysia kept paying an annual lease of RM5,800 from 1878 until 2013 is not tantamount to acknowledging their sovereignty.

Each year, Malaysia pays a membership of US$2 million to the Asean Secretariat in Jakarta too, as are the rest of the 10 member states.

Does that mean Malaysia can intervene in the affairs of Singapore just because the states have pledged to be a single Asean community by 2025? Again, the answer is in the negative.

Third, the very fact that they needed 144 years to bankroll their claim against Petronas, backed by a legal vulture named Therium, can only suggest one thing: that the family was merely taking a wild jab in the dark based on sheer legal sophistry. Not facts.

For the lack of a better word, this was clearly a case of the right hand not knowing what the left hand was actually doing.

Little wonder then that when the verdict in favour of their supposed legal claim was announced by the French arbitration court, an immediate stay of judgment was automatically granted to Petronas the following day.

The New York Convention on Arbitration forms part of international law.

Even though it does allow the case originally heard, then spurned, in Spain, to be later heard in the French arbitration chamber, the US$64 million question is this: if the issue in contention was the 1878 lease granted by the Sultan of Qiram to the North Borneo British Company, why didn’t Therium file the case in London? Was it afraid that the statute of limitations on the lease has long expired?

To be sure, Therium is a company, not even a law firm proper, with the potential to score one of its largest financial windfalls ever.

Such entities thrive on all round ambiguities of any laws. In desperate times, such leading firms normally go after quick wins, to abscond with the lowest hanging fruits.

Is it any wonder – again – that Therium is an entity without any official presence in Kuala Lumpur at all, let alone Sulu, the very client it seeks to back?

Indeed, granted that the Philippines is a republic with various theoretical divisions of power, the mind boggles how a congressional system, can provide the legal status to the Qiram family in Sulu, when the Philippines has been trying to claim the whole of Mindanao since the 16th century.

For what is worth, the legal eagles in Petronas should not be resting on their laurels. The same applies to the Attorney-General’s Chambers, and for that matter the Research Department and Special Branch.

Truly, someone is trying to stir the proverbial pot in Sabah. Whatever the sinister goal, Malaysia must take this case seriously with the right legal competencies to protect and preserve its sovereign territories and rights.

Thus, all agencies should be closely watching how the Qiram family has been manipulated to enlarge its claims.

The key to their strategy seems to be to cut Petronas to size before the crown jewel of Malaysia can launch a counterattack.

Sometimes defence is not necessarily the best offence, especially when the opponent is supported by a spurious and amorphous entity. – July 19, 2022.

* Rais Hussin is the president and CEO of Emir Research.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.