The judicialisation of domestic politics has gained prominence since Bush versus Gore, when the US Supreme Court handed George W Bush the presidency of the country in 2000. South Africans are all too familiar with this habit of turning what should be ordinary political arguments that are part of the democratic process into drawn-out legal contestations.
However, when the judicialisation of politics bleeds into the international system it can threaten state sovereignty. For example, in the greater South China Sea the global superpower rivalry between the US and China overshadows numerous smaller, regional tensions. Most people would be aware of the claims and counterclaims between mainland China and Taiwan, but the South Korea-Japan dispute over a rocky outcrop called Liancourt Rocks is virtually unknown west of the region.
Another international legal saga, which may have implications for SA, is a Filipino family’s claim on Sabah, a Malaysian province in the northeastern corner of Borneo. The matter has reared its head every so often, with the latest instalment gaining attention at the end of September. The Kiram family, who claim to be descendants of a 400-year-old sultanate, have had their claim to Sabah discredited politically by their own government in Manila and by British colonial and Malaysian historical records.
They were defeated in an attempted violent paramilitary incursion that was condemned by their own government, and have now become somewhat vexatious litigants in European courts, apparently for financial as much as territorial gain. Should their legal claim for financial compensation be successful, it would set a precedent in international law.
Glaring contradictions and historical inaccuracies aside, the family claims to be “successors-in-interest” to the centuries-old Sultanate of Sulu. This sultanate has no political standing and is largely of cultural significance in the Philippines. Nevertheless, the historical record confirms that the family entered into a deal with a British trading company in 1878 for the exploitation of resources in territory that was under its control at the time and became part of Malaysia when the British left in the 1950s. In other words, the issue is a legacy of the British Empire in Southeast Asia.
Despite their claim having almost no modern political legitimacy, the Kiram family sponsored a paramilitary invasion and occupation of a Malaysian fishing village in 2013. They were soon repelled, and the “war” was condemned by all and sundry, including the Philippines president at the time, Benigno Aquino III. Interior secretary Mar Roxas complained that the family’s stubborn land claim was causing conflict between the two countries.
On February 26 2013 the Financial Times reported that Aquino had threatened the Kiram “clan leader” with prosecution if they (there is no clearly identified leader of the family) failed to end its armed occupation of the Malaysian village. “If you choose not to co-operate the full force of the laws of the state will be used to achieve justice for all who have been put in harm’s way,” Aquino said in a televised speech.
The family seemed to abandon its territorial claim thereafter, switching to the courts to pursue a political claim, with the prospect of a big payday. The Financial Times reported in July that this could also provide a windfall for London-based investor Therium, a commercial litigation corporation that specialises in “monetising” legal claims, which is now backing the family financially.
In February a French arbitration court ordered Malaysia to award the Kirams $14.9bn, and — presumably on the advice of Therium — the family demanded that Malaysian assets around the world be seized. This could include asset seizures against Engen’s retail operation in SA, which is majority owned by Petronas, the Malaysian state oil and gas company with interests in 35 countries.
Malaysia has subsequently gone to the Paris Court of Appeal for a stay of execution of the ruling on the basis that doing so could infringe its sovereignty, and no asset seizures had been carried out up to the end of September. But the Kiram family promptly turned to a Dutch court for permission to seize Malaysian assets in the Netherlands, and Reuters reported at the end of September that the Kiram family lawyers in London have upped the ante, threatening further legal action in the UK.
“This filing in the Netherlands will soon be followed by other enforcement actions, of varying types, in multiple jurisdictions. This may include immediate, direct attachment of specific Malaysian assets in the Netherlands and elsewhere,” Paul Cohen of the British law firm 4-5 Gray’s Inn Square, and a lead co-counsel for the Kiram family, told Reuters.
Earlier in October the Malaysian government explained that it had instituted legal proceedings in Luxembourg, and would also do so in the Netherlands, “to resist and set aside any attempt by the purported Sulu heirs to enforce or obtain a benefit from the impugned award”.
While the international legal saga remains up in the air, it could still bleed into SA. Perhaps more importantly, if such private international litigation gains traction it could present a new threat to state sovereignty in general.
• Lagardien, an external examiner at the Nelson Mandela School of Public Governance, has worked in the office of the chief economist of the World Bank and in the secretariat of the National Planning Commission.
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