A history of Pulau Pinang from a legal perspective, as far as I am aware of, has rarely been raised, nor significantly written. In my forthcoming book titled The Avatar of 1786: Decolonizing the Penang Story, published by Penerbit Universiti Sains Malaysia,  among other sources, I cited a 2007 paper titled “Lifting the Veils: The Mystique (Mistake) of Penang Legal History” (henceforth referred to as “Lifting the Veils”).

 In their paper, authors Bashiran Begum Mobarak Ali, Noriah Ramli and Siti Junaidah Muhamad raise the problem of legal historical discrepancies surrounding the British occupation of Pulau Pinang with a plethora of questions that need to be decided. It has always been claimed that the legal history of Malaysia, in general and Pulau Pinang, specifically begins with the British occupation  of the island in 1786 and the three Charters of Justice; 1807, 1826 and 1855.

That has to be revised. They cite legal scholar Professor Ahmad Ibrahim as arguing that Pulau Pinang legal history did not begin from 1786. There was a legal system in existence on the island prior to 1786.  This can be observed from the way of life of the local inhabitants. The Avatar of 1786 discusses the population existent on the island before that year. That population must be reframed as a society with its norms and order, and not forgetting a history; not as a “band of natives and pirates” as stated by colonial sources.

Professor Ahmad Ibrahim

The authors account that the application of the Islamic Law modified by the Adat Temenggong could be seen in the law of marriages and divorce, the payment of tax, law of property, transaction, types of offences, either in civil and criminal, maritime rules, the sultanate kingdom and the administration of the society.  Ahmad Ibrahim is of the view that Islamic law modified by the Adat Temenggong should have been accepted as the lex loci of Pulau Pinang.

Arguments were also raised as to the status of Kedah as a sovereign state. Writers such as Wan Arfah Hamzah and Ramy Bulan, both from the legal fraternity, opine that Kedah was not an independent state as it was a vassal of Siam. In their 2004 book, An Introduction to The Malaysian Legal System, they argue that sovereignty belongs to Siam. The payment of ufti (Bunga Emas) to Siam was made once in every three years. It symbolises ‘friendship’ between Kedah and Siam and accepting Siam as a strong and powerful government. But Siam was also sending Bunga Emas to China. Siam has never acknowledged that its country has been ruled by China. Siam rules according to its own law and custom. Similarly, Kedah has never perceived that she is subjected to Siam.

Their views are Thai-centric, pandering to the Siamese geopolitical narrative in the expansion of the Thai state.

The authors of “Lifting the Veils” lend further credence to their argument  on the sovereignty of Kedah by a series of letters sent by Sultan Abdul Hamid to the Government of Siam that Siam will not interfere with their administration. Kedah has full authority to apply its own laws and customs. Historically it is proven that in 1605 there were already rules relating to port management in Kedah – the Undang-undang Laut.  These rules were drafted according to the Sultanate’s own custom related to marriages, divorce, custody, and land dealings, criminal or civil offences.

The Kedah Sultanate is through lineage, and there has never been any interference or suggestion from Siam to elect the Sultan. No approval was needed from Siam on the appointment of the sovereign of the Kingdom. However, the situation changed following the Burney Treaty 1826. Owing to the Sultan’s reluctance to assist Siam to fight against Burma, the Siamese government attacked and dethroned the Sultan of Kedah and declared him as a Governor of Kedah. The East India Company refused to support and provide protection to Sultan Ahmad Tajuddin. Instead, the sultan was detained.

In Ishmahel Laxamana v. East India Company,  the Sultan of Kedah’s petition was dismissed. The Court nor the Government of Pulau Pinang recognized any person as a Sultan of Kedah. Unexpectedly, theSultan o f Kedah has been officially and judicially betrayed not only by Siam but also by the British. It was contended in this case that the treaties between Sultan of Kedah and the EIC were confidential and the Company had never been granted the Sovereignty of the Island by the King of England.

 In Nairne v. Ahmed Tajudin Bin Sultan Zainal Noor Rashid (Rajah of Quedah) and Wan Ismail, the Sultan was described as Governor of Kedah and the Kedah Territory is a state tributary to the Kingdom of Siam. He proceeded by saying that it cannot be denied that the country of Kedah “was permanently occupied and treated as part and parcel of …Siam Empire., and it was their right to expel the old Rajah’. In 1842, the Sultan Ahmad Tajuddin was reinstated.

The colonizers clearly could not justify their illegal occupation of Pulau Pinang. Would a similar transaction be “legally justifiable” if it had occurred in Europe?  The British has not been able to justify their “acquisition” of Pulau Pinang in terms of European concepts of international law. The island was never territorium nullius (uninhabited territory).

There must be a closure. Time for a British government public apology to the Sultan of Kedah? At the same time, Kedah seeking redemption, not from Pulau Pinang, but from the successors of the EIC.