Historical records suggest Kedah’s territorial rights were never extinguished, with boundaries defining administration, not land title, says constitutional law expert
PETALING JAYA: Kedah’s claim to historical rights over Penang is not necessarily about reclaiming control of the state but highlights unanswered legal questions over who truly owns the land after independence.
International Islamic University Malaysia constitutional law expert Assoc Prof Datuk Dr Wan Ahmad Fauzi Wan Husain said historical records and the Constitution suggest that Kedah’s territorial rights over Penang were never fully lost when the state joined the Federation of Malaya in 1957.
“Article 1(3) of the Federal Constitution, which defines the boundaries of Malaysia’s states, must be read together with Clause 5 of the Federation of Malaya Agreement 1957,” he explained.
“This provision only defines the boundaries within which Penang’s state government can manage its administration. It does not determine who actually owns the land.”
He added that records of discussions involving the Sultan of Kedah, the Keeper of the Rulers’ Seal and constitutional committees show that Kedah’s rights were considered intact when Penang became a state.
He said the Kedah–Penang (Alteration of Boundaries) Act 1985, which adjusted administrative boundaries, did not settle the question of ownership.
“The issue is not about boundary lines – it is about who legally owns Penang’s territory.”
Wan Ahmad Fauzi also said that Article 166(3) of the Constitution, which once gave the Penang government a legal lease over the island and Seberang Perai, was repealed in 1963.
The ownership question is complicated, he said, because under an 1869 treaty the British Crown only had rights to Penang while it controlled the territory.
“As a result, the British could not transfer those rights when they no longer possessed the land on Aug 31, 1957.”
He further said while Penang’s state government was established in 1957, any formal transfer of ownership should have involved the sultan and the government of Kedah to affect a new lease agreement.
He said Article 166(3) was meant as a temporary measure and was voidable unless Kedah’s rights were formally confirmed, similar to how Kuala Lumpur, Labuan and Putrajaya were made federal territories.
Cautioning against politicising sovereignty issues, he said: “Political discourse must be guided by the rule of law, based on constitutional provisions read in harmony with legal and historical documents.”
He emphasised that Penang’s sovereignty ultimately lies with the Yang di-Pertuan Agong, who represents the Malay Rulers, including the Sultan of Kedah.
“The administration of Penang is carried out under the Penang state constitution and the Federal Constitution,” he said, adding that this arrangement does not, in his view, negate the rights of the sultan or the Kedah government over the historical title to Penang’s territory.
As a solution, he suggested that the Federal and Penang governments hold discussions with Kedah to resolve any outstanding legal issues to end the dispute amicably within the spirit of a federation.
“This could include negotiations over formal ownership arrangements, possible compensation for lost revenues under Article 110A or other solutions agreed by the Sultan of Kedah.”
The issue resurfaced after Kedah Menteri Besar Datuk Seri Muhammad Sanusi Md Nor said Penang historically belongs to Kedah, claiming the island and Seberang Perai were leased to the British in 1791.
The Penang government, however, insists the territories were effectively ceded after independence and that Penang’s status as a state is legally settled.
