Insula Est, Non Tua

Of late there have been calls for the return of Pulau Pinang to the sovereign Ruler of Kedah.  This is because since being governed by the DAP, Pulau Pinang (Penang) has been behaving like an autonomous state while chasing out Malays, Indians as well as marginalised Chinese from the island state.

If I were to follow my heart, I would wish for Kedah to reassert its sovereignty over Penang. However, legally that would be disastrous for Malaysia.

The History of the 

The proponents for the return of Penang to Kedah base their arguments on the agreement made in 1786 between the British East India Company and the Ruler of Kedah at the time, Sultan Abdullah Mukarram Shah.  During that time, Kedah was already under the Rattanakosin Kingdom established by King Taksin. Kedah was already paying tributes in the form of Gold Flowers to the Kingdom of Siam in 1781 and had accepted the Siamese sovereignty.

In the 1786 agreement, Francis Light was supposed to assist the Kedah ruler in the event that Kedah comes under attack by another power; the British East India Company (BEIC) was not to protect enemies of Kedah (namely the Burmese and Siamese); and BEIC was to pay the Kedah government an annual repariation of 30,000 Spanish Dollars for the lease of Penang.

Tension grew when Francis Light did not inform his superiors in India of the full details of what he had promised to Sultan Abdullah.  In the end, Light was asked to provide Sultan Abdullah with less than what had been requested. The EIC decided to to provide the Sultan with any form of protection and nothing was said of financial repariation.

Light was forced to use the island’s revenue to pay the Sultan but offered only $10,000 Straits Dollars a year for eight years for the island, or $4,000 Straits Dollars a year for so long as the Company occupied the island.

The unamused Sultan then gathered his forces in Prai in late 1790 to take Penang back by force which was defeated by Light. Sultan Abdullah sent his emmissaries Tunku Sharif Muhammad, Tunku Alang Ibrahim and Datuk Penggawa Telibun to negotiate a treaty with Light.

In 1791 a treaty called the Treaty of Friendship and Peace was signed between the BEIC and the Sultan of Kedah and the annual payment of a sum of 6,000 Spanish Dollars was promised to the Sultan for the rights to Penang and the two countries promised “to live in peace by sea and land, to continue as long as the Sun and Moon give light.”  BEIC was to no longer provide protection to Kedah against its enemies.  This treaty supercedes the treaty of 1786. (Dr Cheah Boon Kheng, former lecturer, History Department of the Universiti Sains Malaysia)

In 1800, another treaty was signed between BEIC and Sultan Ahmad Tajuddin Halim Shah II, the successor of Sultan Abdullah for the lease of Seberang Prai (called Province Wellesley then) for an annual sum of 4,000 Spanish Dollars that is to continue “as long as the Sun and Moon give light.”

From 1826, the BEIC placed Penang under the Straits Settlements. Subsequently, in 1874 the BEIC was dissolved and as a result of the 1873  East India Stock Dividend Redemption Act the Straits Settlements came under direct British Crown rule via its government in India.

The Brtish Government became the rightful owner of Penang as successor of the BEIC.

Towards The Independence of Malaya

Each state in what was called Malaya were sovereign states up until 31st August 1957 when the Federation of Malaya that existed following the breakdown of the Malayan Union in 1948 ceased to exist.

“Malaya” as it was known then was made up of the Federated Malay States (Selangor, Perak, Negeri Sembilan, Pahang), the Unfederated Malay States (Kedah, Kelantan, Terengganu, Perlis, Johor), and the Straits Settlements (Penang, Melaka and Singapore).

The discussions leading to the formation of the 1957 Federation of Malaya excluded Singapore in the equation.

During these discussions, both Melaka and Penang were referred to as the Crown Colonies whose people are citizens of Britain. The discussions involved Her Majesty Queen Elizabeth’s Government, the Nine Malay Rulers, and the Alliance government the people had elected to represent them.

In an early stage, it was agreed by both Her Majesty’s Government and the Nine Rulers that the office and person of the Yang DiPertuan Agong and the Queen would jointly administer the Settlements as “equal partners.”  According to this arrangement, the Queen would delegate her sovereign authority to the Yang DiPertuan Agong as the representative of the Queen and the Nine Rulers and that the Melaka and Penang would have a Governor appointed in consultation with the Straits Settlements’ office (CO1030/132(28) dated 16 August 1956).

This would be in line with protecting the Straits Chinese who were British subjects whose representation to the British government expressed fears that if Penang is administered by the independent Malayan government, they would be subjected to discrimination.

The British High Commissioner to Malaya, Sir Donald MacGillivray had already expressed grave doubts as to whether that arrangement would be accepted by the Alliance Party as the latter had wanted all the Settlements involved to be part of the newly independent and self-governing Malaya (CO1030/135 (2) dated 19 July 1956).

UMNO as represented by Tunku Abdul Rahman had also proposed that the provisions for Malay reservations in the proposed Constitution should be applied to Penang and Melaka.  However, this was met with stiff resistance by the British government. The Secretary of State said the proposal could “aggravate racial feeling”, adding that during the 180 years of British rule in the Settlements there had been no racial discrimination (CO1030/496 (8) dated 14 May 1957).

A compromise was proposed by the Rulers’ legal adviser, Neil Lawson, who suggested that one of the clauses on land reservations to include a provision to allow the State governments to set up a trust to buy land for the settlement of the Malays. This compromise was accepted by the meeting. This proposal was contained in Article 88 of the Federal Constitution allowing Parliament to modify the articles on land (Articles 83 – 87) for application in Penang and Melaka (Constitutional Proposals for Malaya, Cmnd, 210, op.cit).

If you noticed in all the above meetings not once did the Sultan of Kedah, Sultan Sir Badlishah ibni al-Marhum Sultan Abdul Hamid Halim Shah, discussed the return of Penang to Kedah as well as asserting His Royal Highness’s sovereign authority over Penang.

This demonstrates that Pulau Pinang and Seberang Perai were no longer legally part of the Kedah Sultanate.

However, what also almost happened was the return of Melaka to the Dutch.

On 16 May 1957, a newspaper Straits Budget reported that the Malayan Party under Tan Kee Gak had planned to ask the British Secretary of State about the Anglo-Dutch Treaty of 1824 in respect of Melaka.  According to Tan Kee Gak, Britain was planning to abandon Melaka to Malaya and as a contracting party was in breach of the said contract.  Therefore, Melaka should be returned to the Dutch instead of be part of an independent Malaya.

The Colonial Office viewed the report seriously and sought the advice of the Foreign Office which in turn sought the help of the government of the Netherlands to renounce such a claim explicitly (CO1030/439 (79) dated 20 June 1957).

Summary

I have no reservation whatsoever in expressing my disgust at the way Lim Guan Eng runs Penang and uses it in a very unMalaysian way.  But I doubt there is any legal avenue that would allow for the return of Penang to Kedah that would be undamaging to the country in its present legal form.  It would allow for parties in Melaka perhaps to ask Netherlands to reconsider claiming the state as its own based on the 1824 treaty, and Manila would have a legal precedence to follow in its claim on Sabah.

Not once did the Sultan Of Kedah from the days of Sultan Ahmad Tajuddin Halim Shah II through Sultan Abdul Halim Mu’adzam Shah have ever staked a claim on Penang.  This is simply because the treaties of 1791 and 1800 have superceded the one made in 1786.

And Penang’s current form is because of the 1957 Federal Constitution, cemented further by the 1963 Federal Constitution, agreed upon by all including by the Nine Malay Rulers without a single objection to its sovereign status. So how is it that Penang should be taken back by Kedah?

If the current claim is about the maruah (face/pride) of the Kedah Sultanate or about the pride of the Malays, that is just the mouth talking before the brain could think.

It would be nice to live dreaming about the day Penang becomes another district of Kedah but that is what the heart wishes. It is the legal and constitutional implications that have to be thought of thoroughly.