COMMENT: Complicating the Question (2)

II. Complicated

GENERAL SANTOS CITY (MindaNews/02 March)– We ended the first part of this piece with the conclusions of two analysts, Sen. Jovito Salonga and Sabahan journalist Vidal Yudin Weil, that Malaysia does not own Sabah and with the question “Does it mean the heirs of the Sultan of Sulu and, by extension, the Philippines own the Sabah in question?” for a clincher.

We clarified the question, “Who owns Sabah?”, thus: “Sabah” is the eastern part, less than half, of the present Sabah state as delineated in legal documents; “Who” refers to the Sultanate of Sulu or the Sultan and his heirs, Malaysia, the Philippines and the Sabahans; and “owns” denotes possession of a territory with sovereignty – not just possession or ownership of any piece of property with mere proprietary rights alone.

In the first case, “possession of a territory with sovereignty”, proprietary (territorial) and sovereignty rights are inseparable; the possessor must be a sovereign state or a political entity vested with sovereignty. In the second case, the possessor, limited to a private individual or group, is entitled to proprietary but not sovereignty right. [Quote and unquote]

What was simple is now complicated.

If Only …

Had time stopped in 1761 before the Sultan of Sulu could allow the British East India Company to establish trading posts in that part of North Borneo ceded to him by the Sultan of Brunei, the question, “Who owns Sabah?” could have remained simple with the simple answer, “the Sultan of Sulu and his heirs” – meaning, his heirs clad with sovereignty as sovereign heads of the Sultanate.

Had Sultan Jamalul Alam, after the British East India Company trading posts had failed to prosper not entered into a perpetual lease in 1868 with the ensuing British North Borneo Company but instead developed with his people and resources his part of North Borneo, he could have fortified his authority and his territorial and sovereignty rights against encroaching British and other European interests. He could have prevented his possession from becoming part the British Colony and the Federation of Malaysia.

In reality, the heirs of the Sultan of Sulu – of the many sultan claimants, in fact – are thinking and acting as if time had stopped in 1761. They are pathetically struggling in the quagmire called “The Sabah Question”, the bold statement of the paradox that the sovereign possession of the Sultanate of Sulu has become merely their “claim”. Now they have to contend with questions concerning the state of the Sulu Sultanate. Hence, who owns Sabah?

The Sulu Sultanate

The Sabahans, in declaring “Sabah for the Sabahans”, contend that the Sultanate of Sulu has become extinct, a myth. Is that statement reckless and condemnable? What do historical and contemporary facts and events say?

A sultanate is a sovereign political entity, its sovereignty residing in the hereditary sultan whose powers are of divine origin. The sultan ascends to the throne following the rule of succession binding to all potential heirs from the royal families. The sultan appoints to the different posts in the sultanate members of royal families to rule with him; thus, the royal families are also known as the ruling families.

Is the Sultanate of Sulu still a sovereign political entity?

By the 19th century, European powers believed Spain was in control of the Sultanate of Sulu, the Sultan having surrendered his sovereignty over the Sultanate and its North Borneo territory. This thinking must have been based on the European interpretation of a treaty between Spain and Sulu, showing the arrogance of European powers. At the same time, some of them had rival interests in Sulu.

In 1885, to solidify the rule of Great Britain in North Borneo and that of Spain over Sulu, the two countries signed the Madrid Protocol with Germany. Among the agreements, Spain gave up her sovereignty over the Sulu possession in North Borneo while the two other signatories renounced their interests in Sulu. In the Treaty of Paris, Spain did not include North Borneo in the territory she ceded to the United States.

According to an account, Spain returned to Sulu her sovereignty. But if a contrary account were to be believed, she returned what Sulu had not given away. When the Americans came, the United States obviously in recognition of Sulu’s sovereignty signed treaties with the Sultan – of course, at the “convenience” of the Americans.

But by the first decade of the 20th century, it was clear the Sulu Sultanate had lost its sovereignty. Like all other Moro leaders in mainland Mindanao, the Sulu leaders pled to or petitioned the U.S. President and Congress to return Sulu to them if they could not be treated justly and equally with the Filipinos who were oppressing them. Such pleas and petitions were not acts of leaders of a sovereign political entity.

In 1936, Commonwealth President Manuel L. Quezon, among his first acts, decreed the abolition of sultanates. Abolished in reality were sultanates as political entities since the political authority of the sultans conflicted with or even eclipsed that of appointed or elected heads of local government units. The sultanates evidently remained as religious and social institutions and the sultans continued enjoying the prestige, respect and privileges due to them; minus political powers, sultans continued to be enthroned.

From 1900 to 2013, Sulu has just been a province of the Philippines. As a province, Sulu has been reduced in area; the Archipelago that once composed the Sultanate was divided into three provinces with the creation of Tawi-Tawi (September) and Basilan (December) in1973. Of course, the heirs could claim the three as the sultanate.

Can the Sabahans be faulted in seeing the Sulu Sultanate as extinct and the heirs of the Sultan perpetuating it as a myth? Only a sovereign government can pursue any claim against another sovereign government. Only the Sulu Sultanate, if it were still active, could pursue the “Sabah claim” against Malaysia. Sulu as a province, devoid of any feature of a sultanate, cannot.  The heirs of the Sultan have asked the Philippine government to do that for them – a clear admission of the Sabahan argument.

The Philippines

In 1963, President Diosdado P. Macapagal initiated the Philippine claim to North Borneo, now Sabah. Evidently, the President had the case studied before formally laying the claim in June 1962 — a month after the publication of the study made by Congressman Jovito Salonga in three leading national papers in May.  Three months after, on September 12, the then reigning Sulu Sultan Muhammad Esmail E. Kiram I gave President Macapagal the authority and documents to pursue the claim.

According to the Sultan’s men – as well as those of today’s Sultan – the “authority” given by the Sultan would be revoked should the government fail in its suit; so in 1989, after the claim had lain idle, the “authority” was revoked. There has been no report of the “authority” having been revived although there have been calls for President Aquino III to revive the claim, which can be done only – as emphasized — with a “special power of attorney” from the Sultan of Sulu.

The Philippines is in a very awkward situation. If the Government pursues the claim by its own initiative, on what ground can it do? If by the “authority” of the Sultan of Sulu, how valid is that “authority” for the president of the sovereign state, the Philippines, from the so-called head of a defunct sultanate within a province of that state?

Any sovereign country has the obligation to protect the rights and interests of its citizens in another sovereign country. However, the “Sabah claim” does not involve a piece of property with legal title under the laws of Sabah but about half the territory of the state of Sabah – a federal state with limited sovereignty under the broader sovereignty of Malaysia. And the principal claimants are not residing in Sabah. How could have they been wronged under the Sabah and international laws? That’s a complicating question.

Historically, the eastern half of Sabah once belonged to the Sultanate of Sulu. The latter has become defunct. The heirs of the Sultan are now private citizens of the Philippines. Has the Sultanate’s sovereign title to the territory not prescribed? Who has the better claim to the territory – the Philippines or the federal state of Sabah and Malaysia? This is at the core of the Sabah claim.

An analogy may help unravel this complicating question. A citizen of Country A has acquired property in Country B. He dies. Can Country A claim the property of its citizen should no nearest kin of that citizen claim his property according to the laws of Country B? Or, will the property revert to Country B? In principle, can any country claim as its sovereign property the private property of its citizen in another country?

Malaysia and Sabah

Malaysia and Sabah were beneficiaries of historical events and circumstances. As an aftermath of the decolonization movement under the United Nations after World War II, Great Britain granted independence to her Malay Peninsula colonies as Federation of Malaya in 1957. In 1963, this was reconstituted into Federation of Malaysia to include North Borneo and two other Crown colonies – Sarawak and Singapore.

 

When President Macapagal filed the Philippine claim to North Borneo in 1962, it was still a colony of Great Britain. The claim must be for Great Britain to return North Borneo to the Sultanate of Sulu and the Philippines instead of ceding it to Malaya as part of the forthcoming Federation of Malaysia.

 

Great Britain ignored the claim.

 

There were significantly relevant antecedent events and circumstances. North Borneo was on lease [established in the Makaskie (British) court in 1939 as “cession” or “grant”] for perpetuity without condition by the Sultan of Sulu to British North Borneo Company which Britain assumed in1946 when the Company was dissolved. The Sultanate of Sulu has become the Sulu province following the American occupation in 1900 and by virtue of the decree of President Quezon in 1936 abolishing the sultanates.

 

Consequently, some significant questions:

 

If the lease was for perpetuity, did that not give the lessee perpetual right to North Borneo? The Sultanate had ceased to be a sovereign political entity and the Company had been abolished. Was North Borneo still under lease? If not, should North Borneo not been returned to the heirs of the Sultan as private Filipino citizens? If not, should it not been turned over to the Philippines? Was Britain right in keeping it and ceding it to Malaya?

 

Under the Charter and relevant Resolutions of the United Nations, the North Borneans were entitled to their right to self-determination. In two referendums, they opted to join Malaysia. Had Britain returned North Borneo to the heirs of the Sultan or turned it over to the Philippines would that not have violated their right to self-determination? Which should prevail: The claim of the heirs of the Sultan based on the 1658 grant by the Sultan of Brunei or the rights of North Borneans under UN Charter and Resolutions?

What is the claim of the heirs of the Sultan all about? Do they want Sabah returned to them? Even if, as private Filipino citizens, they could own Sabah, it is on perpetual lease. Do they want the recognition of their proprietary right and title? They continue receiving from Malaysia the “cession” money which they consider “lease” in recognition of their “possession”. Do they want the restoration of the Sultanate’s sovereignty over Sabah?  The Sultanate is defunct. How can it have and exercise sovereignty?

 

The simple question, “Who owns Sabah?”, has become complicated.

 

Best Option

 

While holding out in Tanduo, Lahad Datu, Sabah after landing there last February 9, Sultan Jamalul Kiram III’s brother, known as Rajah Mudah Agbimuddin, said that the only way to settle their Sabah claim is for Malaysia and the Philippines to sit down with them to “renegotiate” the claim. Good, though quizzical, proposition.

 

Can the parties whose conflicting interests created the “Sabah Question” resolve the question among themselves? The best option is for Malaysia to agree to have the case submitted to the International Court of Justice. If this is not done, let the “claim” die a natural death.  What can the heirs of the Sultan – as private Filipino citizens – do?

 

POSTSCRIPT: The Tanduo or better known as “Sabah Standoff” ended in tragedy. Yesterday, March 1, the Malaysian security forces broke the standoff. In the brief battle, two Malaysian policemen and ten (a later report mentioned 12) from the Sulu Sultan’ men called “intruders” died. The “intruders” dispersed. But unless they could swim back to the nearest Tawi-Tawi island, they will all be eventually rounded up dead if not alive .

 

(“Comment” is Mr. Patricio P. Diaz’ column for MindaViews, the opinion section of MindaNews. The Titus Brandsma Media Awards recently honored Mr. Diaz with a “Lifetime Achievement Award” for his “commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate.” You can reach him at patpdiazgsc@yahoo.com.)

URL: http://www.mindanews.com/mindaviews/2013/03/02/comment-complicating-the-question-2/


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