Brunei, Sulu sultans had no territory to cede to British North Borneo Chartered Company

By Joe Fernandez

BANDAR SERI BEGAWAN : It's interesting that your reader Mr Chong Tet Loi should write in the DE Forum on Sunday 3 Feb, 2013 -- "Ancestors of Migrants came via front door" -- that the Brunei and Sulu Sultans ceded territory in Sabah to the British North Borneo Chartered Company and/or its predecessors.

I beg to differ.

The westerners found early on that their idea of territory and land ownership was not as practised by many other cultures especially the Islamic, the Maori and Indians (America).

The Indians in Manhattan probably thought that they had gone one up on the Palefaces when the latter agreed to give them a handful of coloured glass beads for the island. Coloured glass beads were valued in all tribal societies.

In American Indian culture as in other tribal nations, no one could possibly own land since it could not be carted away like other material and worldly posessions. So, land could only be owned by the people.

The situation was similar in New Zealand, another example.

It was only when the whites began fencing off land that they had "bought" from the Maoris that the troubles began. In Maori culture it was unthinkable to deny anyone access to land.

The whites also had trouble with the Indians in America when they began fencing off land which they had "bought" or "stolen" from the Natives and began killing off the bison which was life itself to them.

The entire land area of America belonged to the Indians, based on their Adat, but in a collective (families) and/or communal (people) sense.

This is similar to the situation in Sabah. Hence, the decision by the Government to issue Communal Titles and not individual titles. The Government should issue Collective Titles as well to eligible claimants.

If I am ventilating any ignorance at all here on individual NCR titles, I would welcome an explanation from subject matter experts.

The Palestinians, especially those in the west, sold land they did not "own" to Jewish settlers.

The Ottoman Empire did not recognise land in Palestine as belonging to the Palestinians or individuals. They had no titles to the land, whether collective, communal or individual. They were defenceless in the face of British colonialism which was publicly supportive of the Palestinians in some sort of vague undefined way but either did not or could not stand in the way of returning Jews determined to build the world's only theocratic state.

It was only when the Jews moved towards setting up a state that the Palestinians demanded "their land" back. Then the troubles began with the birth of Palestinian nationalism, defined by opposition to Jews owning land in the Holy Land. The Jews pointed out that they were the original owners of the land before they were expelled by the Roman Empire and cast into the Diaspora.

In Sabah, what the Brunei and Sulu sultans reserved for themselves was the right to collect toll along the waterways. Their respective Kerajaan Sungei was not defined by secure borders with territory.

What the Brunei and Sulu sultans transferred to the Company in Sabah was the right to collect toll along the waterways.

In the case of the Sultan Sultan, the transfer was not free. The Sultan is entitled to collect RM 5, 000 per annum in perpetuity in return for the Company collecting the tolls. This is a sum still being paid every year by the Malaysian Government to the nine heirs of the last Sulu Sultan although no tolls are being collected.

The Brunei and Sulu sultans did not cede any territory in Sabah to the Company because they had no such land to cede. The land area of Sabah and its waters belonged to the Orang Asal Nation collectively and communally.

In Peninsular Malaysia, the British found it unthinkable that the Bugis Sultans had no territory to rule and confined themselves to collecting toll along the waterways.

The British stopped the toll collection in return for a yearly purse, drew territorial borders for the Sultans and defined their "new" sultanates after the main waterways. Hence, Selangor after Sungei Selangor, Perak after Sungei Perak, Pahang after Sungei Pahang, Johore after Sungei Johor etc etc

The British also stopped the payment of bunga mas and perak to Bangkok after fighting two wars with Siam to hack away the southern half of the Kra Peninsula -- or the Malay Peninsula -- from the Thai kingdom. The bunga mas and perak were rent payable by the people, represented by the Sultans, to the Thai king for squatting on his land which stretched all the way to Tumasik (Singapore).

It's pointless for Mr Chong to get into rhetoric and polemics with "Pro Peace" on his take, "The other side of Sabah's illegals" in the DE Forum dated Sun 20 Jan, 2013.

We should be guided by the Constitution which is based on history, Adat, politics and constitutional documents.

Any Government policy on illegal immigrants in violation of the Constitution is unconstitutional and therefore unlawful and hence illegal. The reason for such errant policies may be treasonous activities, a crime against the state.

One case in point is the decision by the Sarawak Government to bring in 600,000 foreign workers into the SCORE energy-intensive industries area in Sarawak. Already, there are 600,000 foreign workers in Sarawak. Of these 260, 000 are illegal immigrants.

The 1.2 million foreigners in Sarawak will change the demography in the state as the 1.7 million (2005 estimate) refugees, illegal immigrants and other foreigners are doing in Sabah.

It's counter-productive, being politically suicidal, for any Government to create jobs for foreigners when the local people are in dire need and there's widespread poverty. It appears that bringing in foreign workers is a more lucrative business for the parties concerned than hiring local workers.

I rather touch on the subject of the Orang Asal in Sabah and half-Natives since it involves the matter of Native Customary Rights (NCR) and non-Natives who are citizens.

The Indo Natives, for example, have to choose whether they want to be Indians or Natives. Only those who choose to be Natives can be Natives. (The Orang Asal are the first people to settle down in a geographically defined area and usually cannot point to remnants of their population elsewhere outside this defined area.)

No one can be both Indian and Native in Sabah at the same time. It's a principle in law not to open the floodgates. We need to draw the line somewhere.

Ethnic Indians are not Native even in India despite 8, 000 years of history. Only the tribals in India are Native. (Ethnic Indians who set up the Kadaram Civilisation in Kedah are also not Native in Peninsular Malaysia because they came after the Orang Asli. The Malay-speaking communities -- Bugis, Javanese, Minang, Acehnese, Indian Muslims etc -- in Peninsular Malaysia who came after the ethnic Indians of Kadaram are not Native either.)

However, anyone can go to India and become Indian if qualified under the Constitution just as anyone can come to Malaysia and become Malaysian if qualified.

Therefore, how can an Indian in Sabah, for example, be Native?

It's an insult to the Orang Asal and besides there are no safeguards against abuses taking place.

The same problem with Sinos in Sabah who insist on Native status but want to remain Sino at the same time. If they want to remain Sino, they have no business claiming to be Native. This is an insult to the Orang Asal.

Many Sinos in Sabah don't have even a drop of Native blood. But that's a different story.

I am speaking from personal experience.

The Native Court does not enter the picture in Sabah. The National Registration Department decides. Immigration decides with or without the NRD.

The Chief Secretary's circular in Nov 2010 on half "Bumiputera" refers.

(No Orang Asal went to Court for a Judicial Review to challenge this circular. This is because our Orang Asal politicians who are sleeping as usual are no politicians, but only after projects via corrupt practices. It's probably too late now for JR because there's generally a 45-day time bar on any challenge to administrative laws.)

Sarawak Immigration follows the Chief Secretary's said circular.

Sarawak NRD however, in "defiance" of the Chief Secretary, does not comply with the said circular and refers matters on Native status to the Native Court.

Here, half-Natives won't be declared Native because the law does not provide for it. That means no Native birth certificate. Ironically, the children of Native fathers and non-Native mothers, are by "practice" considered Natives. This sexist and blatant discrimination should be challenged by those with locus standi.

So, Sarawakians born in Sarawak are in a dilemma. There's a need for the Chief Secretary to rein in the Sarawak NRD since its violation of the said circular is causing untold hardship to half-Natives in Sarawak.

There are no problems for Sarawakians born in Malaysia outside Sarawak.

On NCR, we often forget that three terms apply in decided cases: maxims, principles and floodgates.

The law of course has to be in line with the Constitution.

The Constitution is made up of Constitutional documents and both must be read together.

Don't blame our Courts and Judges.

Blame the parties in a conflict.

Any Tom, Dick and Harry, as the practice in Malaysia shows, can be a Judge -- actually a Referee -- under our adversarial system of justice.

Most of our Judges are making strange decisions at times because the quality of most of our lawyers in private practice and prosecution leaves a lot to be desired.

Don't consider this as contempt of the Judiciary or looking down on lawyers.

It's the truth.

In short, a Judge can only avoid making a strange decision if both the prosecution and the defence or the lawyers for the Plaintiff and Defence are nothing short of being brilliant.

Logically, the most brilliant people in law should be in private practice as consultants, followed by legal advisors, solicitors and finally practising lawyers. It's better if they lecture as well.

The rest don't really matter and this goes as well for those who pretend to be great lawyers -- while they fleece and scam/con Clients left, right and centre -- but read their last law book while still in university.

There's a case for the people, especially NCR claimants, to get back the Courts from the Judges and lawyers and the Land Office from the bureaucrats and politicians.

The Sarawak Government routinely ignores Court decisions in NCR cases which go against it.