The Malay Peninsula stretches for about 842 miles or about 1,355 km in length from the Isthmus of Kra in Thailand to the southernmost tip of mainland Asia in Tanjung Piai, Malaysia.
As a natural barrier between the Indian Ocean and the Chinese Seas, many Malay kingdoms flourished along the length of the Peninsula.
Langkasuka, Srivijaya and Malacca were among the kingdoms that left huge impacts on the socio-political structure of the Malay Peninsula.
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For centuries, the sovereignty of these Malay polities extended beyond the modern territories of Peninsula Malaysia until the Anglo-Siamese Treaty was concluded between Siam and the British in 1909 without taking into consideration the interests of the Malay Sultanates.
Was the Anglo-Siamese Treaty 1909 valid?
After the fall of Malacca in 1511 to the hands of the Portuguese, the Malay Peninsula was predominantly ruled by a number of other Malay States.
The Portuguese only remained in the city of Malacca, unable to expand their influence to the rest of the Peninsula.
The Sultanate of Pattani had huge territories encompassing the modern Thai provinces of Satun, Trang, Yala, Pattani, Narathiwat.
Pattani had close relationships with Siam and send tributes to Siamese Kings in the form of bunga mas which Siam claimed as a symbol of vassalage.
Besides Pattani, the Sultanates of Kedah, Kelantan and Terengganu also sent bunga mas to Siam. Although Siam saw this practice as a symbol of vassalage, these Malay States perceived this as a token of friendship.
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For example, as documented in the book entitled ‘Historical Dictonaries of Asia, Oceania and the Middle East’ edited by Jon Woronoff, Terengganu sent bunga mas to Siam in return for the valuable gifts presented earlier by the Siamese king to them.
Kedah also claimed that the sending of bunga mas was a mere gesture of its friendship with its Siamese counterpart.
The Anglo-Siamese Treaty 1909
The present Malaysian-Thai boundary line was drawn via the Anglo-Siamese Treaty 1909 between the British and Siam, without consulting the rulers of the Malay states, resulting in adverse socio-demographic impacts that affected majority Malay population particularly in the Thai provinces of Pattani, Yala and Narathiwat.
The small river of Sungai Golok was made the international boundary between Malaya and Siam separating the Malays in Kelantan from their former fellow countrymen in Pattani, Yala and Narathiwat.
The international boundary line drawn through the hills of Perlis and Kedah also alienated the Malay communities in the Thai provinces of Satun and Songkhla from their brethrens in Kedah.
Was this Treaty valid?
International law dictates that only sovereign States could enter into valid international treaties. Some scholars argued that Malay states were not sovereign as they were vassals of Siam.
This contention, however, may not be entirely true. International customary practice portrays that a State could be a sovereign when it fulfils a number of requirements.
This includes having a territory with a number of population, possessing a working government and having capacity to enter into legal relations with other countries.
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Kedah is one of the oldest surviving sultanates in the world founded in 1136.
Prior to becoming part of Malaysia, it had a well-defined territory and population supported by a working government and had previously entered into various legal relations with other nations like Siam and the British.
Siam has been claiming that Kedah was part of their kingdom.
Firstly, if this was the case, the British colonists would not have entered into treaties with the Sultan of Kedah for the purpose of the cession of both the island of Penang in 1786 and Prai strip in 1798.
Secondly, if Kedah did belong to Siam, the Siamese should have insisted the British officials to conclude that treaty with them instead.
The other Malay states of Kelantan, Terengganu and even Perlis fulfilled these requirements as they too possessed the capacity to enter into legal relations with other sovereigns.
This was evident through the long-standing practice of the two-way exchanges of gifts and bunga mas taking place between these Malay polities and Siam.
Similarly, at the end of World War II, the British government despatched Sir Harold Mac Michael to obtain the consent of the Malay rulers to relinquish their sovereignty in streamlining the formation of the Malayan Union in 1946.
They would not have done this if the Malay sultans were not sovereign rulers.
These facts proved that the Malay states were actually sovereign entities and therefore should be treated as such.
In addition, the legal maxim nemo dat quod non habet explicates that ‘no one can transfer a better title than he himself has’.
As Kedah and the other Malay states were neither colonies nor territories under direct rule of Siam or the British, the British government and Siam therefore did not possess rights to delimit international boundaries across the Malay Peninsula without first consulting and seeking the permission of the Malay rulers whom their territories were affected by the terms of the treaty.
Prior to the Anglo-Siamese Treaty of 1909, the sovereignty of the Malay kingdoms in the northern part of Peninsula Malaysia extended beyond the present day Malaysian-Thai border running from the mouth of Sungai Golok in Kelantan to the hills of Bukit Puteh in Perlis.
The British government and Siam entered into this treaty without taking into consideration on how it may affect the socio-demographic feature of the Malays in northern Peninsula Malaysia and southern Thailand.
It is not too simplistic to state that the modern day Thai-Malaysian border was not drawn to separate the actual territories of the Malays and the Siamese accordingly.
It was unbecoming for the British and the Siamese to sacrifice the historical and traditional territories of the Malays to accommodate their own imperialistic ambitions.
On the other hand, the Malay rulers at that time were too weak to rise up againts the British and the Siamese.
In fact, none of the sultans radically opposed to such territorial demarcation.
The legacy of this treaty remains to this day.
Whether or not the treaty was valid under international law, it is quite impossible for Malaysia to question the validity of this treaty now as it has been acquiesced for more than a century.
The territory of our country is what it is today.
Malaysians should take this unwarranted colonial demarcation of our former territories as a lesson.
Let us stand together to protect the one and only priceless possession we all have – our beloved country, Malaysia.
Mohd Hazmi bin Mohd Rusli (Ph. D) is a senior lecturer at the Faculty of Syariah and Law, Universiti Sains Islam Malaysia and a visiting professor at the School of Law, Far Eastern Federal University, Vladivostok, Russia.
Views expressed are personally those of the author and do not necessarily reflect those of Astro AWANI.
Mohd Hazmi Mohd Rusli
Thu Aug 11 2016
Whether or not the treaty was valid under international law, it is quite impossible for Malaysia to question the validity of this treaty now.
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