Sanusi doubles down on Penang claim, says Kedah's case rests on law and history, not politics

ALOR SETAR: Kedah Menteri Besar Datuk Seri Muhammad Sanusi Md Nor has brushed aside criticism from Penang Chief Minister Chow Kon Yeow over Kedah’s claim to Penang, insisting the issue is grounded in constitutional law, historical treaties and unresolved legal obligations rather than political posturing.

Responding to Chow’s remark likening Kedah’s claim to the Sulu Sultanate’s claim over Sabah, Sanusi said the comparison was “absolutely irrelevant”, adding that Kedah would allow its legal team to pursue the matter based on documented agreements predating the formation of modern Malaysia.

These include treaties governing British occupation before 1869, the Federation of Malaya Agreement 1957, the Reid Commission Report, the Malaysia Agreement 1963 and provisions of the Federal Constitution.

“The core issues are whether the Federation of Malaya Agreement 1957 extinguished the Sultan of Kedah’s interests in Penang, and the implications of Articles 167(7) and 1(3) of the Federal Constitution,” Sanusi told Twentytwo13, stressing that he would not retreat from Kedah’s position.

Yesterday, Chow, who is also the Batu Kawan MP, told the Dewan Rakyat that Sanusi’s claim over Penang was unconstitutional, drawing a comparison with the Sulu claim over Sabah, which was rejected on the basis of law and national sovereignty.

He said Penang is a sovereign state within the Federation of Malaysia following the independence of the Federation of Malaya in 1957, adding that the Malaysia Agreement 1963 further reinforced that position by placing Penang firmly under the Federal Constitution rather than any pre-independence historical claims.

Last month, Malaysia secured another decisive legal victory in its dispute with the purported heirs of the defunct Sulu sultanate after the Paris Court of Appeal annulled a US$14.9 billion arbitration award against the country, effectively rejecting the claim in its entirety.

The French court ruled that arbitrator Gonzalo Stampa lacked jurisdiction, as there was no valid arbitration agreement binding Malaysia, and ordered the claimants to pay €200,000 in legal costs.

The claim, brought by eight Filipino nationals alleging to be heirs of the Sulu sultanate, stemmed from a colonial-era 1878 agreement over Sabah, which Malaysia maintains involved the cession of all rights to the territory, not a lease.

Although Stampa had issued awards asserting jurisdiction and ordering Malaysia to pay damages, French courts consistently rejected those decisions. The Paris Court of Appeal had earlier refused to recognise a partial award in 2023, and France’s highest court dismissed the claimants’ challenge in November 2024, further reinforcing Malaysia’s position that the arbitration had no legal standing.

Sanusi, however, said Kedah’s argument rests on a different legal footing, asserting that the British never legally owned Penang Island or Seberang Perai and therefore had no lawful right to hand them over to either the Federation of Malaya or the Penang state government upon independence.

This position is supported by legal scholarship advanced by Datuk Dr Wan Ahmad Fauzi Wan Husain, founder of Jurisprudence and Fiqh al-Watan, who argues that Penang was never ceded outright by Kedah but merely occupied under conditional arrangements resembling a lease.

Writing in Dewan Masyarakat magazine earlier this month, Wan Ahmad Fauzi said Penang Island and Seberang Perai were occupied through the Treaties of 1791 and 1802, not the often-cited 1786 agreement, which was never signed.

The associate professor at the International Institute of Islamic Thought and Civilisation (ISTAC), International Islamic University Malaysia, and Universiti Malaysia Pahang Al-Sultan Abdullah said both treaties acknowledged Kedah’s sovereignty and imposed obligations on the British East India Company, including annual payments to the Sultan of Kedah for as long as the British occupied the territory.

He argued that because the British held no transferable sovereign rights once they ceased to occupy Penang, Articles 166 and 167 of the Federal Constitution could not lawfully vest those rights in the Penang government. Article 167(7), which obliges the federal government to continue annual payments to Kedah, therefore produces no legal effect, even though payments continue to be made, because the British could not transfer what they never owned.

Sanusi has consistently cited these arguments in defending Kedah’s demand for a review of the annual compensation paid by the federal government for Penang, which currently stands at RM10 million. He maintains the issue is not about reclaiming territory, but about resolving unfinished legal and commercial arrangements dating back to Merdeka.

The dispute has resurfaced publicly in recent years after Kedah leaders, including the Sultan of Kedah, spoke up on what they described as Kedahans’ right to raise legitimate historical and legal questions over Penang. Sultan Sallehuddin Sultan Badlishah has previously reminded all parties that discussing Penang’s history and Kedah’s role in it should not be treated as sedition or provocation.

The issue has strained relations between the two neighbouring states, with Penang leaders rejecting Kedah’s claims outright and warning of constitutional instability.

Prime Minister Datuk Seri Anwar Ibrahim has sought to strike a conciliatory tone, urging all sides to handle the matter calmly and through legal channels, while affirming that the federal government remains committed to constitutional processes.

Sanusi himself has faced police investigations following remarks on the issue, though no charges have been brought against him. He has argued this reflects the politicisation of a matter that should instead be addressed through sober legal scrutiny.

For Kedah, the argument is simple: if Penang’s status was never conclusively settled through lawful instruments approved by the Kedah State Council, then negotiations, similar to those undertaken for federal territories such as Kuala Lumpur and Putrajaya, are long overdue. Whether the courts or the political process will eventually resolve the matter remains uncertain, but Sanusi insists the facts are firmly on Kedah’s side.