DEWAN Rakyat Speaker Azhar Azizan Harun has chided MPs who want to debate claims for Petronas assets made by the purported heirs of the Sulu sultanate, because this could reveal the government’s legal strategies to the enemy.

“Do we want – as we are debating this, I don’t know what will be said – the government’s strategy revealed, and there are criticisms of it?

“Then the other side can learn (our strategy). Would that not hurt the government’s interest in its litigation proceedings? Do we want to show our strategy to the world?

“The first rule of litigation is the element of surprise, the first rule of war is the same,” he said in the house on July 20.

Hence, the speaker said it was his responsibility to ensure that the government’s strategies were not exposed.

The purported heirs of the last Sulu sultan, Sultan Jamalul Kiram II, are using international legal processes in a bid to claim US$14.9 billion (RM66.4 billion) in overdue cession payments for Sabah.

The arbitration process was initiated in response to Malaysia cutting off the annual cession payments of RM5,300 to the Sulu sultanate in 2013.

Following the award, the Sulu side, via their lawyers, managed to seize two Luxembourg-incorporated subsidiaries of Petronas worth US$2 billion.

Malaysia is challenging the Sulu claim in the Spanish and French courts, which according to Azhar means any debate on the matter runs afoul of parliament standing orders on sub judice.

Former prime minister Najib Razak is being blamed for cutting off the annual cession payments in 2013.

In line with the call by new PKR deputy president Rafizi Ramli that party members must lodge police reports every time Najib tells “lies”, more than 100 PKR divisions did so on July 19.

However, where is the lie and where is the truth when what Najib did was just cutting off the annual payments? It is indeed very strange for PKR to describe this action as constituting lies.

At most, it should be seen as just whether Najib’s action then was right or wrong, nothing to do with lies.

Why the need to overwhelm the police, whose main duty is to keep law and order, with more than 100 reports of the same thing?

You would have thought that, after some years of living in the political wilderness, Rafizi’s comeback to politics would add some dynamism to PKR and the nation’s political scene.

Yet, sad to say this will not be the case, as he can’t even tell the difference between a lie, and an action that could be right or wrong.

In which case, politics in Malaysia will be the same old, same old of scoring points in order to win power, and the same power-hungry politicians will again be at the forefront of politics for some years to come.

As it is, things are favourable on the Malaysian side. First, on July 12, Malaysia obtained a stay order preventing the enforcement of a French arbitration court ruling, requiring the government to pay the US$14.9 billion.

The Paris Court of Appeal decided enforcement of the award could infringe upon the country’s sovereignty, Minister in the Prime Minister’s Department (Parliament and Law) Wan Junaidi Tuanku Jaafar said in a statement.

Second, Petronas has said in a statement that, although its two subsidiaries had been served with ‘Saisie-arret’ on July 11, they had both previously divested their entire assets in the Republic of Azerbaijan and the proceeds from the exercise have been duly repatriated.

‘Saisie-arret’ is a French term, which generally means an act of seizure based on the number of judgments or arbitral awards obtained.

Petronas views the actions taken against it as baseless and is working vigorously to defend itself.

Hence, while the final conclusion of this saga will be played out in a Paris courtroom, for Malaysians – including MPs – it is enough for them to know the basic outline of the saga as provided by the government.

Revealing more through parliamentary debate will only hurt the national interest, as the other party will duly listen and take appropriate action.

The genesis of the Sulu claims on Sabah was vested in historical fact when in 1878 the Sultan of Sulu decided to grant ownership and cede Sabah to a British company.

The bone of contention in the 1878 agreement is the Malay word, “pajakkan”, used in the agreement.

While Spanish linguists in 1878 and American anthropologists H. Otley Beyer and Harold Conklin in 1946 translated pajakkan as “arrendamiento” or “to lease”, the British used the interpretation of historian Najeeb Mitry Saleeby in 1908, and William George Maxwell and William Summer Gibson in 1924, which translated pajakkan as “to grant and cede”.

The 1878 agreement also stipulated that in return for this cessation of territory, the British company must pay an annual sum of RM5,000 to the Sulu sultan.

Subsequently, under the British rule of Sabah, it had always paid this cessation monies.

The tussle between Malaysia and the Philippines over Sabah has been long-standing.

The Suluks wanted Sabah returned, claiming it was seized by the British from their government.

However, Malaysia has always rejected the Philippine’s territorial claim to Sabah as it deemed Sabah residents had exercised their right to self-determination when they voted to join the Malaysian federation in 1963.

The Sulu sultanate also lost their rights in the Madrid protocol of 1885 when their former colonial master Spain relinquished all its claims to Sabah, giving all control to of what is now part of Malaysia to the British.

However, it was subsequently learnt the Malaysian Embassy in the Philippines was issuing cheques for RM5,300 to the legal counsel of the heirs of the Sultan of Sulu in keeping with the terms of an 1887 agreement.

While the British considered it an annual cession payment for the disputed state, the sultan’s descendants considered it “rent”.

Yet all these ambiguities were settled, when in 1903 Sultan Jamalul Kiram II signed a document known as the Confirmation of cession of certain islands, under which he granted and ceded additional islands, in addition to the land agreed upon in 1878, in the vicinity of the mainland of North Borneo, from Banggi Island to Sibuku Bay to the British North Borneo Company.

In the 1903 agreement, the ambiguous term pajakkan was no longer used. Instead, the phrase “kita telah keredai menyerahkan kepada pemerintah British North Borneo”, which literally means “we have willingly surrendered to the Government of British North Borneo”, was used in the agreement, asserting the understanding of the Sulu Sultanate of that time of the meaning of the earlier agreement in 1878.

The confirmatory deed of 1903 makes it known and understood between the two parties that the islands mentioned were included in the cession of the districts and islands mentioned in the 1878 agreement.

The originally agreed RM5,000 increased to RM5,300 a year payable annually since 1903.

Thus, it is very important to understand the historical perspective of an international agreement, as you will only ignore history at your own peril. – July 23, 2022.

* Jamari Mohtar is the editor of Let’s Talk!

* 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.