COMMENT: A New Theory on Line: The Sabah Claim

2nd of 3 parts

GENERAL SANTOS CITY (MindaNews/28 June) – The historical trail of the Philippine Sabah claim or Sabah dispute intrigues and confuses.

 

The Cart before the Horse

 

In June 1962, the Philippines under President Diosdado P. Macapagal formally laid claim to North Borneo. This was a year after Malaya Prime Minister Tunko Abdul Rahman had agreed with Great Britain (May 12, 1861) to expand the Federation of Malaya into the Federation of Malaysia by including Sarawak, North Borneo and Singapore which were still British colonies.

 

On September 12, 1962 – three months after President Macapagal had filed formally the Philippine claim to North Borneo – “the territory of North Borneo and full sovereignty, title and dominion over the territory were ceded by the then reigning Sultan of Sulu, HM Sultan Muhammad Esmail E. Kiram I, to the Republic of the Philippines”… to give “the Philippines the full authority to pursue their claim in international courts”.

 

Evidently, the formal filing of the claim was a reaction to Malaya’s expansion plan. But, by what ground and authority was the filing laid? The “full authority” to do so was obtained three months after. This was putting the cart before the horse.

 

The Manila Summit

 

Not only the Philippines but also Indonesia – having territorial stake in North Borneo – was alarmed by the plan to form the Federation of Malaysia. As a consequence, the July 3 – August 5, 1963 Manila Summit was held on the initiative of President Macapagal with President Soekarno of Indonesia and Prime Minister Tunko Abdul Rahman of Malaya.

 

While it appeared that main Summit objective was to organize a regional cooperation later named Mapilindo (Malaya-Pilipinas-Indonesia), the three documents signed – Manila Accord, Manila Declaration, and Joint Statement – dwelt more on the North Borneo dispute.

 

Some of the most notable agreements:

 

  1. 1.      On the Federation of Malaysia: Adhering “to the principle of self-termination for the peoples of non-self-governing territories … Indonesia and the Philippines stated that they would welcome the formation of Malaysia provided the support of the people of the Borneo territories is ascertained by an independent and impartial authority, the Secretary-General of the United Nations of his representatives” (Par. [Paragraph] 10, Manila Accord).

 

This was reaffirmed in the Manila Declaration – the first of the five declarations. Pars. 4 to 7 of the Joint Statement prescribed how the UN Secretary-General or his representatives would undertake this with the three governments cooperating.

 

Malaya promised to do this (Par. 11, Manila Accord). In so doing, Malaya set aside the results of the referendum conducted earlier by the Cobbold Commission finding the majority of the North Borneans in favor joining Malaysia in 1962.

 

  1. 2.      On the Philippine Claim (Par.12, Manila Accord): First: “The Philippines made it clear that its position on the inclusion of North Borneo in the Federation of Malaysia is subject to the final outcome of the Philippine claim to North Borneo.”

 

Second: “The Ministers took note of the Philippine claim and the right of the Philippines to continue to pursue it in accordance with international law and the principle of pacific settlement of disputes.”

 

Third: “They agreed that the inclusion of North Borneo in the Federation of Malaysia would not prejudice either the claim or any right thereunder.”

 

[NOTE: The “first” proved unacceptable to Malaya and the North Borneans while the “second” and “third” proved to be futile and meaningless, although the second must have encouraged the Philippines.]

 

  1. 3.      On British Role: Citing Paragraph 12 of the Manila Accord, “the three Heads of Government decided to request the British Government to agree to seek a just and expeditious solution to the dispute between the British Government and the Philippine Government concerning Sabah (North Borneo) by means of negotiation, conciliation and arbitration, judicial settlement, or other peaceful means of the parties’ own choice in conformity with the Charter of the United Nations” (Par. 8, Joint Statement).

 

The British Equation

 

Great Britain was not involved in the Manila Summit; yet, it was recognized as a key player in the North Borneo dispute. By virtue of the lease to the British North Borneo Company, North Borneo was a British protectorate. After the Company’s dissolution, North Borneo became a Crown Colony.

 

Whether this happened by intent or by differences in the translation of the lease contract that was “in Arabic” but “worded in Malayan language” – not in Arabic alphabets – could only be speculated. However, as reported (Wikipedia: North Borneo Dispute), in the January 22, 1878 “treaty” the Sultan of Sulu “leased the territory of North Borneo … without giving away his sovereignty rights. The same condition was stipulated when, on April 22, 1903, the Sultan of Sulu “leased additional islands” to the Company.

 

[NOTE: In August 1881, three years after the British East India Company had leased North Borneo, the British North Borneo Company was chartered headed by Sir Alfred Dent as the first chairman. This Company existed until July 15, 1946 with Sir Neill Malcolm, the last head, as president.

 

“The British North Borneo Company was … assigned to administer … North Borneo [which] became a protectorate of the British Empire with internal affairs administered by the company until 1946 when it became the colony of British North Borneo. The main motto was Pergo et Perago (Latin), which means ‘I undertake and I achieve’.

 

Among the early tasks assigned to the Company were “[e]stablishing law and order …, as well as expanding trade, a system of government, courts to enforce laws and punishment and building both a railway line from Jesselton to Tenom and encouraging the harvesting and barter trade of both local agriculture produce and crops, as well as establishment of plantations”. (Wikipedia: North Borneo Chartered Company)]

 

With the British hold on North Borneo also firmed up by the 1885 Madrid Protocol, Great Britain ignored formal reminders “that North Borneo did not belong to the Crown and was still part of the Sultanate of Sulu”. Instead, “the British did turn Sabah into a Crown Colony”. The first reminders were by the United States in 1906 and 1920; the last were those by Philippine delegations sent to London before the establishment of the Federation of Malaysia in 1963. (Wikepedia: North Borneo Dispute)

 

[NOTE: Great Britain had no intention to terminate the “lease” and to relinquish North Borneo to the Sultan of Sulu. With the adoption by the United Nations General Assembly of the Declaration of the Granting of Independence to Colonial Countries and Peoples (Resolution No. 1514) on 14 December 1960, Great Britain was under compulsion to free its colonies. After intricate arrangements – including the “20-Point Agreement” drawn up by North Borneo – it handed over North Borneo to Malaysia with the obligation to continue paying the yearly lease.]

 

Referendums

 

Two referendums were held before the establishment of the Federation of Malaysia – the first, by the Cobbold Commission which submitted its report on August 1, 1962 – one year before the holding of the Manila Summit; and the other, after, by the UN Mission to Borneo. But, in reality, they were irrelevant to Philippine side of the Sabah issue – the legality of the claim or the sovereignty of the Sultanate of Sulu.

 

As reported (Wikepedia: North Borneo Dispute), “neither commission was mandated with addressing the legal status of North Borneo; [they were] mandated at addressing self-determination of the people of Sabah, i.e., the right of the people of Sabah to freely determine their own political status and freely pursue their own economic, social and cultural development”.

 

The five-member Cobbold Commission, besides Lord Cameron Cobbold as head, had two representatives each from Malaya and Britain as members. North Borneo was not represented. Parenthetically, it could be asked: Did the Sultan of Sulu ever come to the minds of Malaya and Britain?

 

Remaining under the Sultanate of Sulu was never an issue. [Were the North Borneans aware of the sovereignty claim of the Sultan of Sulu?] The referendum result: (1) about one-third of the population strongly favored federation “without too much concern over terms and condition”; (2) another third favored but asking, “with varying degrees of emphasis, for conditions and safeguards”; (3) the remaining third were divided between “independence before Malaysia is considered” and seeing “British rule to continue”.

 

The UN Mission composed of members of the UN Secretariat from Argentina, Brazil, Ceylon, Czechoslovakia, Ghana, Pakistan, Japan and Jordan “found ‘a sizeable majority of the people’ in favour of joining Malaysia”. This “sealed the creation of Malaysia” even if the Philippines and Indonesia rejected it.

 

Judicial Interventions

 

Malaysia exploited two court judgments to strengthen its case in Sabah – the Makaskie Dictum of 1939 and the 2002 decision of the International Court of Justice in the dispute of Indonesia and Malaysia over the islands of Sipadan and Ligatan off Sabah.

 

The Makaskie Dictum was the judgment of Chief Justice C.F.C. Makaskie of the High Court of North Borneo in the civil suit filed in 1939 by the late Dayang Dayang Hadji Piandao and eight other heirs of Sultan Jamalul Kiram “for the purpose of collecting the money due to them under the 1878 Grant”. The High Court “upheld the validity of the claim of the heirs”. (Wikipedia: North Borneo Dispute; La Solidaridad: Philippine Claim on Sabah Baseless?)

 

What validity did the High Court uphold?

 

According to the “Dictum”, as explained in Sabakini.net that La Solidaridad quoted in “Philippine Claim on Sabah Baseless?”, “The issue before the court was the identity of the heirs of the sultan who were entitled to receive payments after his death.” Evidently, the petitioners were identified as the rightful heirs.

 

To justify their claim, the heirs presented the English translation by Maxwell and Gibson of the “1878 Grant”. As translated, the “Grant” was “cession instead of lease”. Hence, the Court decided that “the Grant of 1878 was … a permanent cession or sale, and that the money that is to be paid to the heirs is ‘cession money’.”

 

By this High Court decision, the Sultan of Sulu had ceded or sold North Borneo to the British North Borneo Company; consequently, to Malaysia, the Philippine sovereignty claim over Sabah is baseless.

 

This position of Malaysia has prevailed despite attestations to the contrary by Overbeck and Dent in their statement before the Royal Colonial Institute on May 12, 1885; and by the British Secretary of State for Foreign Affairs Lord Granville in his letter of January 7, 1883.

 

An English translation of “The Land Grant of 1878”, posted by J.P. Sakuragi in his blog “Istoryadista” is headed: “Grant by the Sultan of Sulu of a Permanent Lease Covering His Lands and Territories on the Island of Borneo.” Most probably this is the translation by Dr. Henry Otley Beyer of the photocopy of the original lease that former Governor General Francis Burton Harrison furnished Vice President and Foreign Secretary Elpidio Quirino on February 27, 1947.

 

The International Court of Justice handed down in December 2002 its decision in the sovereignty dispute between Indonesia and Malaysian over the islands of Sipadan and Ligitan. This was 39 years after the Manila Summit when the Philippines, Indonesia and Malaya agreed to submit to the ICJ their disputes.

 

This decision was, in the least, confusing and intriguing – as the Makaskie Dictum was. The 15-member court upheld Malaysia in the case. But by 14-1 vote, the court rejected the petition to intervene with the assurance that the case was irrelevant to – and would not affect – the Philippine claim over Sabah. Yet, this was not how Malaysians see it.

 

The Sabah paper Daily Express (15th October 2004) featured a Malaysian historian’s opinion at dialogue with the Sabah Law Association in Kota Kinabalu touching on the Sabah issue:

 

“Any attempt to settle an international dispute at the International Court of Justice (ICJ) in The Hague must have the concurrence of both the parties involved. The ICJ will not accept the case if it is done unilaterally as both Malaysia and the Philippines must agree on the matter before it is brought before the World Court.

 

“Malaysia has not agreed to take the claim to ICJ because Sabah has been recognized as part of Malaysia when the case of Sipadan and Lititan Islands were decided (by the ICJ) in December 2002. (Bold supplied)

 

“Furthermore, the United Nations also recognises Malaysia as comprising the Peninsula, Sabah and Sarawak. So if Malaysia were to agree to bring the matter to the World Court, it would mean that we acknowledge the (so-called Sulu Sultan’s) claim.”

 

The above are examples of the thinking and sentiment prevailing in Sabah. The fact is: Malaysia will not agree to take the Philippine Sabah claim to ICJ despite the Manila Summit agreement.

 

(Next: Quo Vadis)

 

(“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/comment/2012/06/29/24210/


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