“Who owns Sabah?”

Situated on the island of Borneo, Sabah is richly blessed with nature diversity, unique cultures, fun adventures, beautiful beaches and fantastic cuisines for the adventurous taste buds. Sabah have it all. From the world’s largest flower- the Rafflesia, one of the highest mountains in South East Asia- Mount Kinabalu, to one of the world’s top dive sites- Sipadan Island. Sabah is also known for their great natural treasures which include the world-renowned Danum Valley Conservation Area and Tabin which is Sabah’s largest wildlife reserve. And that’s the thing about Sabah.

But behind all of  this, there’s a story lies between Malaysia and the Philippines.

A claim over the island of Sabah has developed into a serious issue between Malaysia and the Philippines. The problem is so complex that a definite and viable solution seems unforeseeable in the near future.

From the time it was acquired by the Sultan of Sulu from the Sultan of Brunei up to 24 April 1962 when it was formally ceded and transferred to the Republic of the Philippines under the title of sovereignty, the Sultanate of Sulu had continuously been the rightful sovereign of the portion North Borneo known as Sabah.

In the course of internal armed conflict in the Sultanate of Brunei referred by some historians as “civil war,” lasting for more than 10 years, the Sultan of Brunei requested the assistance of the Sultan of Sulu, with the promise that in the event of victory he would grant him the territories in North Borneo under his dominion. Following the victory of Sultan Muaddin of Brunei, with the armed intervention of the Sultan of Sulu, accordingly he ceded Sabah to the Sultan of Sulu in 1704.

By the Declaration of 24 April 1962 issued by the Heirs of the Sultan of Sulu, the territory of Sabah as thus required by cession from the Sultan of Brunei was ceded and transferred in sovereignty to the Republic of the Philippines. The Declaration was entitled “Recognition and Authority in Favour of the Republic of the Philippines.”

By this Declaration, the Philippine claim to sovereignty and dominion over a portion of North Borneo became a legal claim. After the cession from the Sultanate, the Philippines acquired the rights over the territory of North Borneo which it was duty-bound as a sovereign to protect and preserve.

This Declaration followed the petition of 5 February 1962 of the Heirs of the Sultan of Sulu addressed to the Department of Foreign Affairs. In this Petition the Heirs expressed their intention to have the portion of North Borneo included in the national territory of the Philippines.

By the Instrument of 12 September 1962, the Republic of the Philippines accepted the cession of sovereignty over Sabah proclaimed by the Sultanate of Sabah.

On 24 April 1962, congress adopted “Resolution urging the President of the Philippines to take the necessary steps for the recovery of a certain portion of the Island of Borneo and adjacent islands which belong to the Philippines.

On the basis of the Declaration of 24 April 1962 of the Heirs of the Sultan of Sulu on the transfer of sovereignty over Sabah, Congress enacted Republic Act No. 5446 amending the Baseline Law in Republic Act No. 3046, the amendment providing that the “Philippines has acquired dominion and sovereignty” over Sabah situated in North Borneo.

The Philippine-Malaysian dispute over the State of Sabah remains a contentious diplomatic issue. n 1878, the Sulu sultan entered into a deed of pajak with Austrian Gustavus Baron de Overbeck and Englishman Alfred Dent, who were representatives of a British company. The deed was written in Arabic. In 1946, Professor Harold Conklin translated the term “pajak” as “lease.” The 1878 deed provided for an annual rental. This treaty constitutes the main basis of the territorial dispute between the Philippines and Malaysia over Sabah. The Philippines claims that the term “pajak” means “lease,” while Malaysia claims that it means “cession.”

The Philippine claim to Sabah was formally filed in 1961 at The United Nations  during the administration of President Diosdado Macapagal (1961-1965) based on historical and legal claims. President Ferdinand Marcos assumed presidency in 1965. His alleged Jabiddah plan, supposedly proposing the invasion of Sabah, was publicly exposed, bringing the relations of Malaysia and the Philippines into a state of mistrust.

On September 16, 1963 after a four-month referendum on Sabah and Sarawak, the Cobbold Commision report was presented to the British government joining Malaya, Singapore, Brunei, Sarawak and Sabah (North Borneo) to form Malaysia; this after just a month of Sabah’s gaining it’s independence. United Borneo Front chairman Jeffrey Kitingan disputes the referendum in which Prime Minister Najib Tun Razak and other’s claim that Sabahans’  desire to be part of Malaysia. “There has never been a referendum on Sabah as stated by some academics.  In fact, the so-called referendum in 1962-63 was actually only a sampling survey of less than four percent of the Sabah population,” he said.

Finally, Ariff argues that the peaceful settlement of the dispute would require the Philippines to drop the claim and concentrate all of its efforts in working closely and cooperating with Malaysia in the context of Association of Southeast Asian Nation ASEAN. For the heirs of the Sultan of Sulu, given their established proprietary rights in 1931 through the North Borneo Court, this kind of suggestion is unacceptable.

Former American Governor-General in the Philippines, Francis Burton Harrison, described the annexation as “political aggression” and urged the Philippine Government to take action.

When Sabah was incorporated into the formation of the Federation of Malaysia, the illegality of annexing Sabah as a Crown Colony remains in Malaysia’s succession-in-interest from Great Britain.

Through the Government of Malaya, the British Government announced that its territories in North Borneo, including Sabah, would form part of a new Federation of Malaysia.

The Philippines protested the British decision and called Britain’s attention to the sovereign rights of the Philippines over Sabah. After protracted negotiations, the British Government agreed to meet Philippine representatives to discuss the problem of North Borneo. Held in London in 1963, the negotiations proved to be inconclusive. In the meantime, the founding date of the new Federation was announced.

On the initiative of President Diosdado Macapagal, a Summit conference was convened in Manila from July 30 to August 5, 1963. In this conference, on 31 July 1963, President Soekarno of Indonesia, President Diosdado Macapagal and Prime Minister Tunku Abdul Rahman of the Federation of Malaysia “approved and accepted the Manila Accord, paragraph 12 of which stipulates as follows:

“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 Borneo. 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 the pacific settlement of disputes. They agreed that the inclusion of North Borneo in the Federation of Malaysia would not prejudice either the claim or any right thereunder. Moreover, in the context of their close association, the three countries agreed to exert the best endeavors to bring the claim to a just and expeditious solution by peaceful means…of the parties’ own choice, in conformity with the Charter of the United Nations and the Bandung Declaration.” (Emphasis added.)

In the same Summit Conference, the three Heads of Government signed a Joint Statement on 5 August 1963, paragraph 8 of which reads:

“In accordance with 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)…The three Heads of Government take cognizance of the position regarding the Philippine claim to Sabah (North Borneo) after the establishment of the Federation of Malaysia as provided under paragraph 12 of the Manila Accord, that is, that the inclusion of Sabah (North Borneo) in the Federation of Malaysia does not prejudice the claim or any right thereunder.”

Malaysia had repeatedly acknowledged the Philippine claim to Sabah and that it is a claim that should be settled as soon as possible, including the prospect of settlement in the International Court of Justice. On its part, the Philippines persistently offered the settlement of dispute arising from its claim to Sabah.

In February 1964, the Malaysian Prime Minister had the understanding with the Philippine President to discuss “as soon as possible the best way of settling the dispute, not precluding reference to the International Court of Justice.”

In August 1964, the two governments agreed in an exchange of aides memoir to a meeting of their representatives in Bangkok for the purpose of clarifying the Philippine claim and of discussing the means of settling the dispute.

In February 1966, in response to Malaysia’s diplomatic note reiterating its assurance to comply with the Manila Accord and the concomitant Joint Statement, the Philippines proposed that “both Governments agree as soon as possible on a mode of settlement that is mutually acceptable to both parties.”

In June 1966, the two Governments, in a joint communiqué, agreed once again to abide by the Manila Accord and the Joint Statement; they reiterated their common purpose to clarify the Philippine claim and the means of settling it.

In July 1968, the Philippine delegation presented the Malaysian delegation with a written question, “Will you discuss with the modes of settlement of our claim at the conference in Bangkok, irrespective of your own unilateral assessment of the sufficiency of the clarification given?” Malaysia’s answer was unqualifiedly in the affirmative.

In August 1968, again in a joint communiqué, the two Governments agreed that talks on an official level would be held as soon as possible regarding the Philippine claim to Sabah.

The foregoing undertakings assume significance for the reason that they are not unilateral acts of the Philippines; they are commitments jointly made by Malaysia and the Philippines. They repeatedly affirm Malaysia’s recognition of the existence of the Philippine claim to Sabah and its willingness to settle the dispute arising from this claim.

In complete disregard of its commitments, Malaysia has been in full retreat. It is now in denial of the existence of the Philippine claim to Sabah. In consequence, it rests its case on the illegality of the colonization of Sabah by the British Crown.

Other basis of the proposition

On the basis of authoritative British and Spanish documents, The British North Borneo Co. being a private trading concern to whom Dent transferred his rights, did not and could not acquire dominion and sovereignty over North Borneo; as those indicated in the basic contract, that of a lessee and a mere delegate. In accordance with established precedents in International Law, the assertion of sovereign rights by the British Crown in 1946 is in complete disregard of the contract of 1878. Our commitments under the United Nations Charter, the Bandung Conference Declaration and the 1960 decolonization resolution of the General Assembly are matters of record and there is no quarrel about them. The British Crown never considered North Borneo as British territory, nor the North Borneans as British subjects.

In relation to Chapter 14 of the United Nations Charter, “the heirs of the Sultan” could not possibly litigate before the International Court of Justice for the simple reason that they have no international legal personality. They do not constitute a State, as that term is understood in law. Chapter 2, Article 34, paragraph 1 of the Statute clearly provides: “Only States may be parties in cases before the Court.”

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The Philippines has nothing to lose by preserving the status quo in Sabah.  Their inactivity comes at a price of missed opportunities.  However, Malaysia stands to benefit from the treasures of Sabah and its waters.  Though the price of the status quo is negligible, this non-resolution of a claim by the Philippines would be a stumbling block to the intra-ASEAN cooperation.

Malaysia is fully supported by Great Britain and the Commonwealth of Nations in rejecting the claim, while the Philippines has literally no international support. Even the United States, Philippine’s biggest ally had assumed a neutral position. Though the other ASEAN countries appeared to distance themselves from the issue so as not to take sides between two of their members, privately acknowledged Malaysia’s rights to the territory.

Malaysia asserts that it has honored its financial obligations and is prepared to negotiate directly with the Sulu heirs without Philippine intrusion. They assert this matter is between them and the heirs of the Sultan of Sulu. In fact the descendants of the Sultan receives M$5,000 ($2,008 US) every year as part of the cession of the area leased to the British Company in the 19th century.

What has the Philippines to gain?

In 1963, Malaysia was still unsure of its hold on the sentiment of the people of Sabah before the Federation of Malaysia was made official signifying her independence as a colony of Britain. Kuala Lumpur continued to court the population with economic programs designated to secure their allegiance, US$7.3 million (Ringgit 22M) for 12 states to finance land settlement schemes in the East Tawau to Sandakan.

The distribution of free land, equally divided from ten to fifteen hectares, with housing and free seedling per family will enable each settler to earn P750 monthly from oil palm. These 400 families resettled near Sandakan to develop 7,000 acres of oil palm to become members of the planned Federation of Malaysia.

The Philippine-Malaysia dispute over Sabah was, and still is, a contentious diplomatic issue. In the interest of understanding its complexity (and one cannot discount that someone might be interested in the near future), a bibliographic essay, one that lists all available literature which directly or obliquely deals with the subject, is here undertaken

Sabah claim: History on Malaysia’s side

KUALA LUMPUR:  A scholar has urged Putrajaya to reject any call for a negotiation on the Sulu claim over Sabah, saying the issue was settled decades ago.

“Neither the Sulu Sultanate nor the Filipino government has a claim over the North Borneo state,” said DS Ranjit Singh, an expert on Southeast Asian political history who is now a visiting professor at Universiti Utara Malaysia.

“The moment we negotiate with them, we compromise our sovereignty,” he said in a talk at Universiti Malaya today.

He said the Sulu claim was futile for three reasons: the Philippine government’s predecessors renounced all claims over the state, the Sulu court has never administered the state, and the people of Sabah agreed to form Malaysia.

He said the sultanate lost its status as an independent entity after its capture by the Spaniards, which happened six months after the signing of the 1878 treaty stipulating that the British administrators of Sabah must pay cession fees to the Sulu court.

“Instead, the Spaniards became the sovereign rulers of the Philippines and it was they who renounced all claims of sovereignty over the territory in Borneo.”

When the United States took over the Philippines from the Spaniards, the American administrators in turn signed documents defining the international boundary of the country, Ranjit added.

“The Republic of the Philippines then inherited the Philippines from its predecessor, the US. So how can they claim in 1962 that Sabah is theirs when the predecessor has renounced that claim?”

According to him, these circumstances also give good reason for Malaysia to stop the monthly cession payment of RM5,300 to the sultanate. He urged Putrajaya to do so immediately.

Principle of effectivity

Ranjit also cited what he called the “principle of effectivity” as a reason why Sabah belonged to Malaysia and not the Philippines.

According to this principle, an authority loses its title over a state if it has never administered it or passed any law for it.

Ranjit gave as an example the dispute over Pulau Batu Puteh between Johor and Singapore. Johor lost the case because it had never administered the island.

He also pointed out that Sabah became independent on Aug 31, 1963, and agreed to form Malaysia on its own accord.

This was the essence of self-determinism, he added. “The people of Sabah did not say they wanted to join the Philippines. They preferred to form Malaysia.”

Ranjit also cautioned Malaysia against taking the issue to the International Court of Justice out of respect for Sabahans.

“We can’t just tell the three million Sabahans that the court will be deciding their fate, and they may be dislocated,” he said.

“We have to respect the will of the people of Sabah.”

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SOURCES:

http://www.dlsu.edu.ph/research/journals/apssr/pdf/200712/4Fernandez.pdf

http://www.philstar.com/education-and-home/2013/03/14/919440/historical-facts-about-sabah-filipinos-must-know

http://philippineclaimoversabah.blogspot.com/

http://www.freemalaysiatoday.com/category/nation/2013/03/22/sabah-claim-history-on-malaysia%E2%80%99s-side/

http://newsjunkiepost.com/2013/07/15/resolving-the-sabah-island-conflict-between-malaysia-and-the-philippines/

http://www.up.edu.ph/an-outline-of-the-philippine-claim-to-sabah/

http://www.cdpi.asia/cdpi/blogs.php?id=19&t=SABAH%3A+For+Philippines+or+Malaysia%3F

http://philnews.ph/2013/03/02/history-of-sabah-sultanate-of-sulu-claim-against-malaysia/

http://opinion.inquirer.net/49361/sabah-issue-in-international-law

http://sabahtourism.com/essentials/about-sabah.com

NOTICE TO THE PUBLIC:
As you can see, It’s supposed to be Danielle Ligan, from group 2, who’s going to post an article. But due to some reasons, our group decided that it will be me who’s going to take his part.

–NAQUILA, ROSARY FAITH P.

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