Legal basis for the Sabah claim

By Rita Linda V. Jimeno | Apr. 08, 2013 at 12:01am

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It has been two months since the followers of the Sultan of Sulu sailed to Sabah to reclaim it. Since then, little has been said in the news about how the men are faring except when the police and military started attacking them in early March. There has also been little report about the atrocities committed against them and other Filipino Muslims, mostly Tausugs, living in Sabah although one news item remains vivid in my mind. This was about the menfolk being ordered to run for their lives and while they ran, they were shot at the back. One can only wonder: is the news blackout deliberate? What is the Philippine governments stand on the Sultanates claim? Does the Philippines have basis in history and in international law for claiming Sabah? In a booklet titled The Facts about Sabah and the Royal Sultanate of Sulu and North Borneo written by professor Emmanuel Yap, founder of the Peoples Patriotic Movement, many questions that linger in most peoples minds are answered. For those who want to understand the issues on Sabah and those following the developments in the Sultanates claims, here are a few excerpts from the booklet. How did the Sultan of Sulu acquire sovereignty and ownership over North Borneo (Sabah)? In the early 17th century, the Sultan of Brunei ceded North Borneo to the Sultan of Sulu for having helped him quell a rebellion. Since then, the Sultan became the effective and legal sovereign over Sabah and the Sulu archipelago. The historical ties between Sabah and Sulu are so close that in fact, a former Chief Ministry of Sabah served as one our guerrilla leaders in Sulu during the resistance movement in the last war. How close is Sabah to the Philippines and to the Malaysian capital of Kuala Lumpur? The nearest distance from the Philippine boundary to Sabah is 18 miles which is nearer than the distance from Manila to Malolos. On the other hand, Sabah is a thousand miles away from Kula Lumpur and is not connected by any land mass to the Malayan peninsula. Why is the territory now in the possession of Malaysia? In 1878, as evidenced by a lease contract, the Sultan of Sulu leased the territory to Australian Gustavus Baron de Overbeck who, together with his British partner, Alfred Dent, paid the rentals to the Sultan. When they ran out of money they organized the British North Borneo Company which continued to pay the rentals

until 1946. The agreed annual rentals was initially 5,000 Mexican dollars and/or British pounds but increased to 5,300 in 1903. Then on July 14, 1946, just after the Philippines had gained its independence from the US, Britain annexed Sabah as part of its dominion. Still, Britain continued to pay the rentals to the Sultanate. In 1963, the British government turned over Sabah to Malaya to become part of the new Federation of Malaysia. Since 1963 the Malaysian government through its embassy in Manila has been the one paying rentals to the Sultanate. Why does Malaysia say that what it has been paying is not rentals but cession money? The lease contract of 1878 between the Sultan of Sulu and Overbeck was in the Malay language but written in Arabic. The contract was called in Arabic as Padjak which means lease and described in contemporary Spanish documents as Arrendamiento which also means lease. This document has been translated by a Dutch scholar, an American scholar and by Spanish scholars. All these authoritative translations translated Padjak as lease. The British, on the other hand, had its own version. They simply referred to it as cession. Was there any subsequent acknowledgment of the Sultans continuing sovereignty in Sabah by the British North Borneo Company? Yes. In 1903, the British North Borneo Company asked the Sultan to execute a confirmatory deed to confirm the lease agreement in consideration of the increase in rentals beginning that year. When the British government annexed Sabah in 1946 did it not acquire sovereignty over it as against the Sultan of Sulu and consequently, the Philippines? No, because it acquired Sabah from the British North Borneo Company which did not exercise sovereignty over the territory. Britain could not have acquired a better right than the company which was only a lessee. Therefore, it had no power to give (to Malaysia) what it did not own. Thus, Malaysia did not acquire sovereignty over Sabah either. Does the Philippine government have a right of dominion over the territory and therefore, a duty to lay a claim? Yes. A series of acts and transactions created the cumulative effect of transferring dominion and sovereignty to the Philippine government. In 1962, a formal instrument of transfer of sovereignty was executed by the Sultanate in favor of the Republic of the Philippines. However, a proviso in the 1962 document states that Should the Republic of the Philippines fail to recover North Borneo (Sabah), after exhausting all peaceful means, this transfer document shall, ipso facto, become null and void and the Sultan of Sulu shall be free to assert his sovereignty over North Borneo by other means available to all sovereign claimants. So, has the Philippines laid claim on Sabah? Yes. On Septemebr 4, 1950, when the Federation of Malaysia was not yet existent, the Philippines advised the British government that a dispute

over North Borneo existed. This position was reiterated by the Department of Foreign Affairs to the British Embassy on 22 June 1962. Then on 12 September 1962, the Philippines sought the holding of talks with the United Kingdom regarding the dispute. This led to the holding of a Ministerial Conference in London in 1963. A series of important events relating to the claim followed. These, together with how Malaysia has reacted, will be discussed in the next article in this column.

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