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Neo-colonial designs on Malaysia

Self-declared Sultan of Sulu Jamalul Kiram III (R) talks to his brother Sultan Bantilan Esmail Kiram II (L) during a photo opportunity in his home in Manila on March 10, 2013, as the crisis continues to fester after his followers entered the Malaysian state of Sabah to reassert his claim over the area. So far 53 militants and eight police officers have been killed since the stand-off in Sabah erupted into violence and 85 people have been arrested for possible links to the intruders, Malaysian officials have said. AFP PHOTO / Jay DIRECTO (Photo credit should read JAY DIRECTO/AFP via Getty Images)
Self-declared Sultan of Sulu Jamalul Kiram III (R) talks to his brother Sultan Bantilan Esmail Kiram II (L) during a photo opportunity in his home in Manila on March 10, 2013 [JAY DIRECTO/AFP via Getty Images]

European legal and financial instruments and institutions should not be manipulated to violate the sovereignty of Malaysia from behind the fig leaf of a spurious claim to Malaysian territory by the so-called Sultan of Sulu, Sultan Jamalul Kiram II.

While the claim is lacking in historical, legal and political veracity, as well as being thoroughly expedient, its absurdity is underscored by Kiram's demand of an estimated RM66.4 billion for "unpaid yearly leases" from Malaysia, after an annual payment of RM5,300 was stopped less than 10 years ago. Exactly how 10 years of RM5,300 amounted to RM66.4 billion is unclear. It smacks, nonetheless, of attempts by the Kiram family and its backers, Therium Capital Management Ltd., to get a quick pay day. Besides trying for a quick pay day, the Sultan's claim has also paved open a way for European colonial intervention in Malaysia, through processes that should have become redundant when the European empires around the world collapsed.

Malaysia is a sovereign and independent country, in which private European legal corporations have no jurisdiction. A line has to be drawn under the Kiram family's spurious claim to Sabah. The claim is invalid, as there never was a time when Sabah was not an integral part of independent Malaysia. It was, also, never the property of a single family. To claim this is just absurd, and potentially disastrous. In fact, Britain, as the last colonial power in Malaysia, should carry much of the burden and political responsibility for the disaster it left behind when the British left Malaya.

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As for the claims of financial compensation by the Kiram family, it has to be exposed for what it is: a claim based purely on greed and an insidious demand for easy money. What is more deleterious is that the European backers of the spurious claim have found – as has been demonstrated by European colonialists over decades – a docile body of former colonial "subjects" in the Kiram family, which can be used to tap into a rich seam of money. This is perfectly consistent with the dissolution of empire (politically), but the retention of de facto-type of empire through European legal and financial institutions. In other words, the colonialists may have left, but they want their laws and financial practices to prevail in Malaysia. This is as unacceptable as it is offensive. Malaysia is a sovereign and independent country; it cannot be held accountable to legal norms of foreign countries, especially not those of its former coloniser.

We should be clear: the Kiram family is being led by a firm, a European firm, Therium, that is primarily a "global provider of legal finance", as its website makes clear, which extends European legal instruments, principles and practices across the world, notably in former European colonies, like Malaysia. British legal firms, especially, use instruments via the Judicial Committee of the Privy Council – which is a formal body of advisers to the Sovereign of the United Kingdom – to interfere in Commonwealth countries, and use the UK Supreme Court as a kind of "court of last resort" to discipline and punish former colonies. The Sovereign of the UK has no legal or political rights in Malaysia. The Kiram family, led by Therium, and using European legal instruments and institutions, is nothing but colonisation by different means, and should be rejected outright.

This type of financial imperialism, and the enduring inequalities between the former colonial empire-builders and colonised, continues to define global inequality and power relations. Today's inequality between these rich (former colonial powers) and poor (formerly colonised societies) is the path-dependent outcome of a range of historical processes. With respect to Europe and South-East Asian countries, companies like Therium are simply the extension of European colonial legal and financial instruments and institutions to the former colonies.

It is notable that Therium has operations in the UK, Europe, the Asia-Pacific Region, the United States and Jersey (a tax-haven for shady dealings, that was part of the British empire – and under constant scrutiny for its shady dealings), and from whence it stretches its legal tentacles to resemble European colonialism. Malaysians have gotten rid of their political colonisers, but the financial imperialism attempts continue – emboldened, in this particular instance, by the Kiram family and their spurious claims to Sabahan resources.

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The Kiram Family Claim

Therium has found a sufficiently docile body in the Kiram family which, quite ironically, has turned to its former colonial masters, the Europeans, to settle disputes that are a legacy of, especially, the British Empire in South-East Asia. The family claim has to be seen in the context of European, especially British, imperialism and colonialism. The claim is completely illegitimate, based purely on monetary gain, and ill-informed. Therium will be the only financial beneficiary in this process, and that fact has to remain in focus.

The actual claim is deeply lacking in historical and legal validity. In January 1878, the Sultan of Sulu granted and ceded of "own free and sovereign will" Territories and Lands on the Mainland of the Island of Borneo to Gustavus Baron de Overbeck of Hong Kong and Alfred Dent Esquire of London, as representatives of a British Company. This grant was to remain effective "forever and in perpetuity all the rights and powers belonging to us over all the territories and lands", for which the Sultan of Sulu would receive compensation of five thousand dollars a year. An important caveat was inserted: "In case any dispute shall arise between His Highness, the Sultan, his heirs or successors and the said Gustavus Baron de Overbeck or his Company, it is hereby agreed that the matter shall be submitted to Her Britannic Majesty's Consul-General for Borneo."

These material facts are straightforward and incontestable. They are legally binding, as the Sultan of Sulu stated the land should be transferred and held "for ever and in perpetuity" by the British Company. Consequently, at Independence, all land in Malaya held by colonial Britain, including Sabah, became part of present-day Malaysia. That a single family, the Kirams, now backed by a European legal institution, has conjured reason to stake a claim to Sabah, is not just illegitimate, historically ignorant and politically ill-informed and downright expedient, it is absurd. Ultimately, it is part of the mess that the British left behind in Malaysia.

The Kiram family claims to Sabah are a perfect opportunity for former European empires to continue forcing their legal and financial instruments and institutions on Malaysia. This should be rejected by all parties, as it may set a nasty precedent for post-colonial societies around the world.

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The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.

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