Invalidity of the Penang treaty? — Mohd Hazmi Mohd Rusli and Fareed Mohd Hassan

JUNE 30 — Introduction

In 1786, Francis Light leased the island of Pulau Pinang (Penang) from Sultan Abdullah Mukarram Shah of Kedah through a treaty, renaming it Prince of Wales Island, the first British

outpost ever to be established on the Malay Peninsula. Was the treaty valid?

History

Malaysia has its origin from a number of ancient Malay kingdoms namely Srivijaya, Majapahit, Kedah, Malacca, Brunei, Johor and Aceh. Kedah is the oldest surviving sultanate established in the year 630AD still existing today.

Kedah was a relatively influential kingdom, encompassing areas beyond modern day territory of the Malaysian state of Kedah to include other parts within the Malay World. It was a prosperous port-kingdom and ancient Tamil accounts described it as “the seat of all felicities.”

However, it was subjugated under the might of the Malay kingdom of Srivijaya and became an integral part of this formidable empire in the seventh century AD. After the fall of Srivijaya in the 13th century AD, Kedah was made a vassal of other stronger regional empires like Majapahit, the Malacca Sultanate and Siam. Kedah was later placed under British protection by virtue of the Anglo-Siamese Treaty of 1909.

Cession of Penang

By mid eighteenth century AD, Kedah was struggling to survive, being sandwiched between two hostile regional powers of Burma and Siam. Both were equally aggressive threatening the survival of the Kedah Sultanate.

During the reign of Sultan Abdullah Mukarram Shah, Kedah has started to despatch bunga mas to Siam as a symbol of tribute in acknowledging the overlordship of Siam over Kedah. This practice started in 1781.

Nevertheless, there was also a divergent argument that the sending of bunga mas was just a sign of friendship, goodwill and cordial relations between the two sovereign kingdoms and in no way compromising the sovereignty of Kedah. In fact, the gift bestowed upon the Kingdom of Siam to Kedah was even more than what Kedah sent to Siam.

Unwilling to go through the same fate as the Pattani Sultanate that was ravaged and dismantled by Siam in 1785, Kedah began seek diplomatic assistance from the British. Francis Light at that time was scouring all over the Malay Peninsula, looking for a suitable site to establish a trade station.

In 1785, Light failed to persuade the East India Company (EIC) to acquire Jung Ceylon (Phuket). He then focused on Penang, an island located strategically at the northern entrance to the Strait of Malacca.

Light approached Sultan Abdullah Mukarram Shah in 1786 and entered into a treaty on behalf of the EIC among others, allowing Light to settle on Penang, which was later renamed Prince of Wales Island.

This was made possible in return of military protection provided by the EIC to Kedah. The fact that the British entered into a treaty with the Sultan of Kedah and not with the King of Siam to acquire Penang clearly shows that the British acknowledged Kedah as a sovereign state possessing sovereignty over Penang.

This treaty, nevertheless, was never honoured as the EIC refused to protect Kedah from subsequent attacks by the Siamese.

Angered by the situation, the Sultan attempted to retake Penang in 1790 but before the Kedahans were able to do so, Light launched a surprise attack on Prai and this forced the Sultan to retreat.

In helpless condition, he had to unwillingly lease Penang, and subsequently, Prai too, which was renamed ‘Province Wellesley’ in 1800 with a nominal annual payment of 16, 000 Spanish dollars. The Penang state government, to this day pays an honorarium of RM18,800.00 to the Sultan of Kedah.

This historical episode explains why Penang ceased to be part Kedah and was regarded as ‘Straits Settlement’ alongside with Malacca and Singapore.

Was the cession valid?

Many empires have set up vassal states out of kingdoms that they wish to bring under their auspices without having to conquer or govern them. In other words vassalage (or suzerainty) refers to forfeiting foreign-policy independence in exchange for full internal autonomy and perhaps a formal tribute. This is practised by many States around the world including among the Malay kingdoms themselves.

Before colonial times, Srivijaya has established suzerainty over large areas of Sumatra, western Java and much of the Malay Peninsula between the seventh to the thirteenth century AD. Many smaller kingdoms in Sumatra and the Malay Peninsula were under the cloak of vassalage of the Malacca Sultanate in the fourteenth century AD.

Vassals do not share the same status as colonies or annexed states, as vassal states enjoy a certain degree of autonomy in managing its internal affairs. Annexed states like that of Portuguese-Malacca or Pattani, are governed directly by the coloniser.

The Montevideo Convention of the Rights and Duties of States 1933, which is based on customary international law dictates that only sovereign States have the capacity to enter into a treaty with another sovereign, and this does not include vassal States.

The cession of Singapore by the Johor Sultanate to the British in 1819 was valid as Johor was recognised as a sovereign State up to 1914. The same applies to the cession of Sabah by the Sulu Sultanate to the British as the Sultan of Sulu was a sovereign ruler of Sabah back in 1878.

There were arguments that the Sultan of Kedah at that point of time was not a sovereign and merely a vassal of Siam. Did he possess rights to lease Penang off to the British? How could the sultan give away something that does not belong to him?

This concept coincides with the legal maxim nemo dat quod non habet (no one gives what he doesn’t have). Therefore, was the cession (through lease) of Penang valid?

Conversely, one may also argue that the Sultan of Kedah was indeed a sovereign and therefore had the capacity to lease Penang off to the British. In addition, the fact that the British willingly engaged international relationship with Kedah added up to the fact that the Sultan of Kedah was undeniably a sovereign ruler.

Nevertheless, Article 26 of the Vienna Convention on the Law of Treaties, which is a restatement of customary international law applicable to all States mentions that “Treaties are to be upheld in good faith.”

Francis Light never honoured the treaty entered between him and the Sultan of Kedah in 1786. Upon failing to repossess Penang, the Sultan of Kedah was forced to enter into another treaty in

1791 officiating the formal taking over of Penang by the British.

Obviously, the British exercised duress and undue influence to compel the helpless Sultan to give in. Consequently, such a treaty should be considered voidable. Under such circumstances, was the cession valid?

Conclusion

Whether or not the cession was valid, the British government of the Straits Settlement has administered Penang for 171 years, indicating effective occupation over this territory. Penang was largely recognised by the international community as a former British colony.

However, putting the element of effective occupation aside, it is not too simplistic to state that the validity of the treaty of cession of Penang is questionable, both from legal and historical point of view.

If the Sultan of Kedah was not a sovereign, how could he lease something he did not own? On the other hand, considering the Sultan of Kedah was a sovereign and had rights to give Penang away, the treaty entered into in 1791 was executed unwillingly, rendering it voidable.

At present, Kedah is neither a vassal of Siam nor a British protectorate but an independent state within Malaysia. The former Sultan of Kedah, the late Sultan Abdul Halim Mu‘adzam Shah was the King of Malaysia, the sovereign ruler of the land.

Unlike Johor and Singapore or Sabah and the Sulu Sultanate that are no longer territories within the same country, Penang and Kedah are states of Malaysia. Penang has always been traditionally acknowledged as part of Kedah.

Since Malaya gained independence in 1957, Penang has undergone rapid development placing it as one of the most developed states in Malaysia. This is the time to rectify the mistake fabricated by the deceitful Francis Light more than two centuries ago.

The return of Penang to Kedah in no way affects the sanctity of Malaysia’s sovereignty. Nevertheless, this has to be done with the consent of both Penangites and Kedahans. Needless to say, the fact remains that Penang was never legally ceded.

* Associate Professor Mohd Hazmi Mohd Rusli and Fareed Mohd Hassan are senior lecturers at the Faculty of Shariah and Law, Universiti Sains Islam Malaysia.

** This is the personal opinion of the writer(s) or organisation(s) and does not necessarily represent the views of Malay Mail.

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