THE LEGAL HISTORY OF SABAH -
- FROM TENANCY UNDER THE NORTH BORNEO COMPANY TO SOVEREIGNTY UNDER MALAYSIA
This Thursday 18th January, 2007, the Judiciary in Sabah with the cooperation of the Sabah Law Association will hold an opening of the Legal Year 2007 in Kota Kinabalu, in a tradition that dates back to about 100 years and revived at the beginning of the 21st century. Around 8 a.m. there will be a procession by all lawyers and judiciary in full High Court regalia along Jalan Pantai to the Court House led by the Chief Judge of the High Court in Sabah and Sarawak Yang Amat Arif Dato’ Richard Malanjum, S.P.S.K., S.I.M.P., S.P.D.K., P.G.D.K.
Last week we took a guided tour of locations in the legal history of Sabah. In the light of this event, it is appropriate for Lex Borneo to continue our tour by looking at extracts of actual legal documents showing in part the creation of North Borneo, as Sabah was then known.
Mr. Justice Dato James Foong records in his well known work THE MALAYSIAN JUDICIARY – 1786 TO 1993 how North Borneo began existence by a series of treaties which look more like tenancy or lease agreements in the following manner:- “By 1865, under various treaties with the Sultan of Brunei and the Sultan of Sulu, the British North Borneo Company obtained concessions to vast tracts of land which is now Sabah. By the terms of an agreement between the British North Borneo Company and the British Government in 1888, North Borneo became a British protected state.
As the British North Borneo Company was a private commercial enterprise, administrative development in this state was slow. Being profit-making company, it had to rule cheaply with the number of employees (both foreign and local) kept to the barest minimum.
For administrative purposes the state was divided into residencies which were further sub-divided into districts. Each residency was administered by an administrative officer who was also the judge of all the Sessions Court as well as the magistrate of the district. At the higher level, there was a Supreme Court. The Governor was the chief judicial officer of this court. The law applied then was the Indian Penal Code and the procedure adopted was the Indian Criminal Procedure with the Indian Evidence Act being used to lend assistance.
By 1905, due to a need for a legally qualified person to be appointed, the position of Judicial Commissioner was created. Unfortunately it was not until 1912 that one, Mr Cookson, was able to occupy this position. In 1929 the post of Judicial Commissioner was changed to that of Chief Justice.
After the Second World War, North Borneo became Crown Colony, and, in 1951, joined Sarawak and Brunei to form the Combined Judiciary of Sarawak, North Borneo and Brunei. This position lasted until 1963 when Sarawak and North Borneo (later known as Sabah) became part of Malaysia.”
The remaining part of this article is devoted to looking at extracts of these treaties. If you have a tenancy or sublease agreement take it out and make comparisions on the language and terminology that is used. Don’t be dettered by the fancy or ‘bunga’ language.You will see the following framework or skeleton by which the grant is made:-
(a) Identity of the parties;
(b) Demarcation of the territories granted;
(c) The consideration namely the rental;
(d) The length of the grant;
(e) The default provision if rental unpaid;
(f) The place and date of execution.
(This articles reproduces some of the grants in full text and others in extract form due to lack of space but the same arrangement above is used in all the grants)
THE 3 GRANTS MADE BY THE SULTAN OF BRUNEI
THE FIRST GRANT- COMPLETE DOCUMENT
GRANT by Sultan of Brunei of Territory comprising Gaya Bay and Sapangar Bay, &c. Dated 29th December, 1877.
(Translation)
I the Sultan Abdul Mumin Ebn Marhoum Maulana Abdul Wahab of Brunei do hereby grant to Gustavus Baron de Overbeck and Alfred Dent Esquire of London co-jointly their heirs associates successors or assigns all the territory and land belonging to me on the West Coast of Borneo comprising Gaya Bay from Gaya Head to Loutut Point including Sapangar Bay and Gaya Bay and Sapangar Island and Gaya Island and all other islands within the limits of the harbour and within three marine leagues of the coast likewise the province and territory of Papar adjoining the Province of Benoni and belonging to His Highness the Sultan as his private property.
In consideration of this great grant the said Baron de Overbeck and Alfred Dent promise to pay severally and co-jointly to the said Sultan Abdul Mumin his heirs or successors the sum of four thousand dollars per annum. The said territories are from this date declared vested in the said Baron de Overbeck and Alfred Dent their heirs associates successors or assigns for so long as they shall choose and desire to hold them. Provided however that His Highness the Sultan shall have the right to resume the control and government of the said territories if the above-mentioned annual compensation shall not have been paid for three successive years.
Done at Brunei this 29th day of December, A.D. 1877.
THE SECOND GRANT- EXTRACT
GRANT by Sultan of Brunei of Territories from the Sulaman River to the River Paitan. Dated 29th December, 1877.
(Translation)
I the Sultan Abdul Mumin Ebn Marhoum Maulana Abdul Wahab of Brunei do hereby grant to Gustavus Baron de Overbeck and Alfred Dent Esquire of London co-jointly their heirs associates successors or assigns all the territories belonging to me from the Sulaman River on the north-west coast of Borneo unto the River Paitan on the north-east coast of the island containing twenty-one states together with the island containing twenty-one states together with the island of Banguey and all the other islands within three marine leagues of the cost for their own exclusive uses and purposes.
In consideration of this grant the said Baron de Overbeck and Alfred Dent promise to pay severally and co-jointly to the said Sultan Abdul Mumin his heirs or successors the sum of six thousand dollars per annum…………………………
Done at the Palace at Brunei this 29th day of December, A.D. 1877.
THE THIRD GRANT- EXTRACT
GRANT by the Sultan of Brunei of Territories from Paitan to Sibuco River.
Dated 29th December, 1877.
(Translation)
I the Sultan Abdul Mumin Ebn Marhoum Maulana Abdul Wahab of Borneo do hereby grant to Gustavus Baron de Overbeck and Alfred Dent Esquire of London their heirs associates successors or assigns all the following territories belonging to the Kingdom of Brunei and comprising the states of Paitan, Sugut, Bangaya, Labuk, Sandakan, Kinabatangan, Mumiang, and all the territories as far as the Sibuco River with all the islands within three leagues of the coast belonging thereto for their own exclusive and absolute uses and purposes.
In consideration of this grant the said Baron de Overbeck and Alfred Dent Esquire promise to pay co-jointly and severally and co-jointly to the said Sultan Abdul Mumin their heirs or successors the sum of six thousand dollars per annum.
…….. Done at the Palace at Brunei this 29th day of December, A.D. 1877.
THE GRANT OF THE SULTAN OF SULU DATED 22ND JANUARY 1878
(Translation)
GRANT by Sultan of Sulu of Territories and Lands on the Mainland of the Island of Borneo. Dated 22nd January, 1878.
WE Sri Paduka Maulana Al Sultan Mohamet Jamal Al Alam Bin Sri Paduka Al Mahrom Al Sultan Mohamet Fathlon Sultan of Sulu and the dependencies thereof on behalf of ourselves our heirs and successors and with the consent and advice of the Datoos in council assembled hereby grant and cede of our own free and sovereign will to Gustavus Baron de Overbeck of Hong Kong and Alfred Dent Esquire of London as representatives of a British Company co-jointly their heirs associates successors and assigns for ever and in perpetuity all rights and powers belonging to us over all the territories and lands being tritutary to us on the mainland of the island of Borneo commencing from the Pandassan River on the north-west coast and extending along the whole east coast as far as the Sibuco River in the south comprising amongst others the States of Paitan, Sugut, Bangaya, Labuk, Sandakan, Kina Batangan, Mumiang, and all other territories and states to the southward thereof bordering on Darvel Bay and as far as the Sibuco River with all the islands within three marine leagues of the coast.
In consideration of this grant the said Baron de Overbeck and Alfred Dent promise to pay as compensation to His Highness the Sultan Sri Paduka Maulana Al Sultan Mohamet Jamal Al Alam his heirs or successors the sum of five thousand dollars per annum.
The said territories are hereby declared vested in the said Baron de Overbeck and Alfred Dent Esquire co-jointly their heirs associates successors or assigns for as long as they choose or desire to hold them. Provided however that the rights and privileges conferred by this grant shall never have transferred to any other nation or company of foreign nationality without the sanction of Her Britannic Majesty’s Government first being obtained.
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.
The said Gustavus Baron de Overbeck on behalf of himself and his Company further promises to assist His Highness the Sultan his heirs or successors with his best counsel and advice whenever His Highness may stand in need of the same.
Written in Lipuk in Sulu at the Palace of His Highness Mohamet Jamal Alam on the 19th Moharam A.H. 1295, answering to the 22nd January, A.D. 1878.
THE APPOINTMENT OF THE MAHARAJAH OF SABAH
DATED 29TH DECEMBER, 1877
COMMISSION from Sultan of Borneo appointing Gustavus Baron de Overbeck Maharajah of Sabah (North Borneo) and Rajah of Gaya and Sandakan. Dated 29th December, 1877.
TO ALL nations on the face of the earth whom these matters may concern We Abdul Mumin Ebn Marhoum Maulana Abdul Wahab Sultan of Borneo send greeting.
WHEREAS we have seen fit to grant unto our trusty and well-beloved friends Gustavus Baron de Overbeck and Alfred Dent Esquire certain portions of the Dominions owned by us comprising the entire northern portion of an Island of Borneo from the Sulaman River on the west coast to Maludu Bay and to the River Paitan and thence the entire eastern coast as far as the Sibuco River comprising the States of Paitan, Sugut, Bangayan, Labuk, Sandakan. Kina Batangan, and Mumiang, and other lands as far as Sibuco River furthermore the provinces of Kimanis and Benoni, the province of Pappar, and the territory of Gaya Bay and Sapangar Bay with all land and Islands belonging thereto and likewise the island of Banguey for certain considerations between us agreed.
AND WHEREAS the said Gustavus Baron de Overbeck is the chief and only authorized representative of his Company in Borneo.
NOW THEREFORE KNOW ye that we Sultan Abdul Mumin Ebn Marhoun Maulana Abdul Wahab have nominated and appointed and hereby do nominate and appoint the said Gustavus Baron de Overbeck Supreme Ruler of the above-named territories with the title of Maharajah of Sabah (North Borneo) and Raja of Gaya and Sandakan with power of life and death over the inhabitants with all the absolute rights of property vested in us over the soil of the Country and the right to dispose of the same as well as the rights over the productions of the country whether mineral vegetable or animal with the rights of making laws coining money creating an army and navy levying customs rates on home and foreign trade and shipping and other dues and taxes on the inhabitants as to him may seem good or expedient together with all other powers and rights usually exercised by and belonging to sovereign rulers and which we hereby delegate to him of our own free will.
And we call upon all foreign nations with whom we have formed friendly treaties and alliances to acknowledge the said Maharajah as ourself in the said territories and to respect his authority therein and in case of the death or retirement from office of the said Maharajah then his duly appointed successor in the office of supreme ruler and Governer-in-chief of the Company’s territories in Borneo shall likewise succeed to the office and title of Maharajah of Sabah and Rajah of Gaya and Sandakan and all the powers above enumerated be vested in him.
Done at the Palace at Brunei the 29th December, A.D. 1877.
EXTRACTS FROM THE CHARTER OF THE
BRITISH NORTH BORNEO COMPANY,1881
GRANTED BY QUEEN VICTORIA
CHARTER granted to the British North Borneo Company, Westminster, November 1st, 1881.
VICTORIA, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith:
TO ALL to whom these presents shall come, greeting.
WHEREAS an humble Petition has been presented to us in Our Council by Alfred Dent, of 11, Old Broad Street, in the City of London, merchant; the British North Borneo Provisional Association Limited; Sir Rutherford Alcock,of 14, Greet Queen Street, in the City of Westminster, Knight Commander of our Most Honorable Order of Bath; Richard Biddulph Martin, of 68, Lombard Street, in the City of London, banker, a Member of the Commons House of Parliament; Richard Charles Mayne, Companion of Our Most Honorable Order of the Bath, a Rear-Admiral in Our Navy; and William Henry Macleod Read, of 25, Durham Terrace, in the County of Middlesex, merchant:
...........................................................
NOW THEREFORE WE, having taken the said petition into Our Royal consideration in Our Council, and being satisfied that the intentions of the Petitioners are praiseworthy and deserve encouragement, and that the enterprise in the Petition described may be productive of much benefit to Our dominions and to many of Our subjects, by Our Prerogative Royal and of Our especial grace, certain knowledge and mere motion, have constituted erected and incorporate into one body politic and corporate, by the name of the British North Borneo Company, the said Alfred Dent, Sir Rutherford Alcock, Richard Biddulph Martin, Richard Charles Mayne, and William Henry Macleod Read, and such other persons and such bodies as from time to time become and are members of that party, with perpetual succession, and a common seal, with power to alter or renew the same at discretion, and with the further authorities, powers, and privileges conferred, and subject to the conditions imposed by this Our Charter; and We do hereby accordingly will, ordain, and declare as follows (that is to say);
BRITISH CHARACTER OF COMPANY
The Company shall always be and remain British in character and domicile, and shall have its principle office in England; and all the members of its Court of Directors or other governing body and its principal representative in Borneo shall always be natural-born British subjects or persons who have naturalized as British subjects by or under an Act of the Parliament of Our United Kingdom.
RESTRICTION ON TRANSFER BY COMPANY
The Company shall not have power to transfer, wholly or in part, the benefit of the grants and commissions aforesaid, or any of them, except with the consent of one of our Principal Secretaries of State (in this our Charter referred to as our Secretary of State)
DIFFERENCES WITH SULTANS
In case at any time any difference arises between the Sultan of Brunei or the Sultan of Sooloo and the Company, that difference shall on the part of the Company be submitted to the decision of Our Secretary of State,if he is willing to undertake the decision thereof.
SLAVERY
The Company shall to the best of its power discourage and, as far as may be practicable, abolish by degrees any system of domestic servitude existing among the tribes of the coast or interior of Borneo; and no foreigner, whether European, Chinese, or other , shall be allowed to own slaves of any kind in the Company’s territories.
RELIGIONS OF INHABITANTS
The Company as such, or its officers as such, shall not in any way interfere with the religion of any class or tribe of the people of Borneo, or of any of the inhabitants thereof.
ADMINISTRATION OF JUSTICE TO INHABITANTS
In the administration of justice by the Company to the people of Borneo, or to any of the inhabitants thereof, careful regard shall always be had to the customs and laws of the class or tribe or nation to which the parties respectively belong, especially with respect to the holding possession transfer and disposition of lands and goods, and testate or intestate succession thereto, and marriage, divorce, and legitimacy, and other rights of property and personal rights.
FACILITIES FOR BRITISH NATIONAL SHIPS
The Company shall freely afford all facilities requisite for Our Ships in the harbors of the Company.
APPOINMENT OF COMPANY’S PRINCIPAL REPRESENTATIVE
The appointment by the Company of the Company’s principal representative in Borneo shall always be subject to the approval of Our Secretary of State.
FLAG
The Company may hoist and use on its buildings and elsewhere in Borneo and on its vessels such distinctive flag indicating the British Character of the Company as Our Secretary of State and the Lords Commissioners of the Admiralty from time to time approve.
GENERAL POWERS OF COMPANY
………………………..(15 powers were set out in the Charter such as power to acquire land, collect revenue, promote immigration, sell liquor etc.)
IN WITNESS WHEREOF WE HAVE caused these letters to be made patent.
WITNESS OURSELVES at Our Palace at Westminster, this 1st day of November, in the 45th year of Our Reign.
By Her majesty’s command,
CARDEW
Sunday, July 1, 2007
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