No Deal on Sabah Claim by the Philippines, Please


March 11, 2013

No Deal on Sabah Claim by the Philippines, Please

by Emeritus Prof D. S. Ranjit Singh (03-10-13)@http://www.thestar.com.my

A major shift in Malaysia’s position on the Philippine claim to Sabah is needed.

Najib-Op DaulatTHE Philippines Government officially announced their claim to North Borneo (now Sabah) on June 22, 1962. Despite numerous attempts to settle the issue, it still festers on, exemplified by the latest tragic events unfolding in Lahad Datu on the east coast of Sabah.

The Philippine claim is based on two documents dated January 22, 1878. By the first document, Sultan Muhammad Jamaluladzam granted (pajak) all his territorial possessions in Borneo (tanah besar Pulau Berunai) to Gustavus Baron de Overbeck and Alfred Dent Esquire as representatives of a British Company for a yearly payment/ quit rent (hasil pajakan) of five thousand dollars (Spanish dollars).

By the second document, the said Sultan appointed Overbeck as “Dato’ Bendahara and Rajah of Sandakan” with the fullest powers of a “supreme ruler” (penghulu pemerintah atas kerajaan yang tersebut itu).

Descendants of Sultan Muhammad Jamaluladzam (the number cannot be ascertained, but is large), represented by the Kiram Corporation and the Philippine Government, have always claimed that this 1878 grant was a lease (pajakan) and not a cession as claimed by Malaysia. The continuous annual payment of the quit rent or cession monies of five thousand dollars (now RM5,300) to these descendants is cited as further proof of this contention. Based on these grounds, they claim, Sabah belongs to the Philippines/ the Sultan of Sulu’s descendants.

Before discussing how Malaysia has been responding to this assertion and how it should alter its position drastically, a little bit of historical narrative is in order.

Without going too far back in time, it is suffice to say historical documents confirm that both the Sultanate of Brunei and the Sultanate of Sulu exercised political control over parts of present-day Sabah (there was no State or Negeri Sabah at that time) in the late 19th century. Brunei had defacto jurisdiction on the west coast from Kimanis to Pandasan, while Sulu ruled the east coast from Marudu to the Sibuku River. The interior was largely independent under local indigenous suku chiefs.

Both Sultanates, however, claimed dejure jurisdiction from the Pandasan on the west coast to the Sibuku River on the east. Both Sultanates were also in a state of decline. Brunei was suffering from internal decay while large parts of its territories were being swallowed up by the new state of Sarawak under the Brookes.

In the Philippine region, the Spanish authorities in Manila had been trying to subjugate the independent and powerful kingdom of Sulu for three centuries without success. In 1871, the Spaniards launched another exerted campaign to conquer the stubborn kingdom.

It was in this kind of environment that a number of European and American speculators became interested in obtaining territorial concessions from the two weak Sultanates for speculative purposes. Among them were Lee Moses and Joseph Torrey of America; and Baron von Overbeck and Alfred Dent who had formed a company called the Overbeck-Dent Association on March 27, 1877 in London for the purpose of obtaining land concessions in Sabah and selling them for a profit.

Overbeck and Dent acquired Brunei’s jurisdiction over its Sabah possessions in five documents dated Dec 29, 1877 from the Sultan of Brunei and his ministers. After this, Overbeck sailed to Jolo where he also obtained the rights of the Sultan of Sulu in Sabah through two agreements concluded on Jan 22, 1878.

Why was Sultan Muhammad Jamaluladzan prepared to lease/ grant/ pajak his territories in Sabah to Overbeck and Dent? Sulu was on the brink of capitulating to the Spaniards and as such Sultan Muhammad was hopeful of obtaining some assistance from the Overbeck-Dent Association and possibly even from Britain. Placed in such dire straits, he was therefore not adverse to giving Overbeck and Dent territorial concessions in Sabah with some hope of salvation.

In the event, no such aid came either from the Overbeck-Dent Association or the British Government. Six months after the Overbeck-Dent grants were concluded, Sulu was conquered by the Spanish authorities on July 2 1878. With the fall of Sulu, the said Sultanate ceased to be an independent entity as it was incorporated as part of the Spanish colonial administration of the Philippines.

In 1898, Spain lost the Philippines to the United States by the Peace of Paris (Dec 10, 1898), which ended the Spanish-American War. The US ruled the Philippines till 1946 when independence was granted.

Meanwhile, in 1936, the US colonial administration of the Philippines abolished the Sulu Sultanate upon the death of Sultan Jamalul Kiram II (1894-1936) in the same year in an attempt to create a unitary State of the Philippines. Jamalul Kiram III is a self- appointed “Sultan” with a dubious legal status.

Now, coming back to the question of Malaysia’s ongoing treatment of the Philippine Presidentclaim, and why and how it should completely alter this position. Since the official announcement of the claim by the Philippine Government on June 22, 1962, Malaysia has been pursuing an ambivalent policy. On the one hand, it has persistently rejected the Philippines claim, but on the other it has compromised Malaysia’s sovereignty by agreeing to settle the “dispute” by peaceful means (such as the Manila Agreement, Aug 3, 1963) and a number of other mutual agreements between the two countries.

Most damaging of all is Malaysia’s willingness to honour the clause in the 1878 Sulu grant pertaining to the payment of the annual quit rent or cession monies as Malaysia says, of RM5,300, to the descendants of the former Sulu Sultanate. To this day, Malaysia is still paying this quit rent, lending credence to the claimants’ argument that the 1878 grant was a lease and not a cession and therefore it still belongs to them.

If Malaysia continues to follow this policy, there will be no end to this problem except to buy out the rights of the descendents of the Sultan of Sulu. But this course is fraught with danger as it will lead to further legal complications with the Philippines and even endless litigation with the descendants.

My proposal is that Malaysia should go by the laws of “effectivities”, as in the case of the International Court of Justice’s (ICJ) judgement pertaining to the issue of sovereignty over the Sipadan and Ligitan islands, and the law of acts of a’titre de souverain as in the case of Pulau Batu Puteh.

No title, however strong, is valid once the original owner fails to exercise acts consistent with the position of a’titre de souverain. The opposite is true, that is, the holder of the lease may not have original title but he ultimately gains permanent possession of the lease by virtue of continuous state “effectivities”.

In this case, the Sultan of Sulu and its successors including the Philippine government have failed to conduct any acts of a’titre de souverain since 1882, and so they have legally lost their title.

On the other hand, the successors of the Overbeck-Dent Association, that is the British North Borneo Company (1882-1946); the British Colonial Administration (1946-1963); and Malaysia, (from 1963) have been exercising continuous acts of a’titre de souverain for a period of 131 years.

Since we have all this evidence on our side, Malaysia should now take a new stand by totally rejecting the validity of the 1878 grants on the grounds of “effectivitie” and a’titre de souverain. It should also immediately stop paying the so-called annual quit rent or cession monies. This payment has always brought huge embarrassment to Malaysia and has in fact compromised its sovereignty.

We should also never agree to go to the International Court of Justice not because our case is weak (it is very strong), but because we don’t want to trade the fate of sovereign territories and people through the judgment of any court, even the ICJ.

There’s one more point that should be pondered upon. No country or state or nation which has obtained independence has ever paid ownership monies to its former masters. The 13 Colonies of America did not do so, India did not do so, the Federation of Malaya did not do so.

Sabah became an independent state on August 31, 1963 and decided to form the Federation of Malaysia with three other partners on Sept 16, 1963. It is strange indeed, if not preposterous, that a sovereign state is paying ownership or cession monies to certain people based on a colonial, pre-independence treaty that is 131 years old!

Emeritus Prof D. S. Ranjit Singh is Visiting Professor at the College of Law, Government and International Studies, Universiti Utara Malaysia (ranjit@uum.edu.my).

13 thoughts on “No Deal on Sabah Claim by the Philippines, Please

  1. A well written piece by Ranjit Singh. Stand firm as we are on the right side of the law and history. It is up to the Philippines to see the light of day and renounce their claim to Sabah. President Aquino has the opportunity to do so now, rather than drag his country into a crisis with Malaysia. –Din Merican

  2. I like to put this claim in proper perspective. IF Mahathir claim is right that the Malays will lose their rights if UMNO/BN does not take back Selangor, then I say the Sulu Sultanate grievances and claims are JUST AS IF NOT MORE LEGITIMATE and their sad state is no fault of their own..

  3. With BN promising to make RM 500-00 BR1M payments a yearly feature and with promises of the payments to be increased to RM 1,000 yearly should it retain power, Malaysian recipients can consider themselves almost like ” royalty” akin to Kiram the self styled sultan of now mythical Sulu Sultanate !!!

  4. Ninoy is a Pinoy. He does what is emotionally expedient after some serious thought. I believe that he wants to put this ghost to rest. He just can’t do it without provoking the usurious entitlement conduct that most of his subjects have.

    When it comes to ‘Nationalism’ no leader can survive the emotional fury of such freaks, who pride self-entitlement above reason. If he truly has the cojones, he will clearly state his position that Sabah is Malaysia and be willing to forgo whatever spurious claims and avoid ridiculous ‘treaties, accords and roadmaps’ to perdition.

    The reason why the Philippines is in such a mess is precisely the same reason why Malaysia is in the same position – useless, corrupt, nepotistic, egoistical politicians and the entitlement hubris.

  5. ” We should never agree to go to the International Court Of Justice …… “. – Ranjit

    Agreed.

    After the Pulau Batu Puteh debacle, and the quality of our civil servants in Wisma Putera and the quality of their research and ability as reflected from that debacle, Ranjit’s advise seems like good advise.

  6. W e need more and more leaders whose politics is governed by principles and less and less leaders whose principles are driven by politics. Barring a certain segment of the population in Sabah and Sarawak, mjority of the people have to live with poor education, health and other government and welfare services. And we have given the people of Sabah the most ironic presents of all- foreigners with blue ICs. I do not know what principles drove us to do this but clearly as in the case of other immigrants who were brought into this country to do the dirty, difficult, and dangerous jobs the main impact of this measure has been the suppression of wages in this country. If you look at the wages of those in the middle class and below you will find that their wages do not reflect the 20 times growth in GDP since independence and the inflation that has plagued our nation since that time,

    Yes, Sabah belongs to Malaysia and I will never agree to any kind of negotiations to dilute that status. But we, too, must do some soul searching and ask ourselves if we have governed those two states based on the principles of the constitution or did we allow our politics to drive the running of that state. We need wise leaders who can get us out of this situation without doing long-term harm to the nations. A protracted struggle with there intruders will only dilute our international standing with every Tom Dick and Harry telling us how to settle the issue. In this regard I hope that our leaders will have the strength to prevent this issue from becoming an international issue because that will mean that we may have to accept an unacceptable international solution.

    We need the slogan ‘Satu Malaysia’, now more than ever to guide us through this unfortunate event in our history.

  7. Thumb Logic – what 1Malaysia? Its crazy to promote 1Malaysia on one hand and selective screening of TANDA PUTERA to Felda Settlers and now Universiti Islam Antarabangsa undergrads… this PM has no credibility as a leader who is sincere in building a united and garmonious Malaysian society… he is more focused on holding on to power at all cost so that he could enjoy all the perks that come with it and that include taking a whole Airbus 319 planeload of friends and supporters to Milan and Sydney for shopping on taxpayers’ money…

  8. Siang,
    This Najib is a goner. That’s for sure. Worst still, we have Madhater who still messes with Malaysia political system. Time to chuck them into the dustbin of history. That’s after the trials…….Pardon can be given subject to the grace of the people

    Thumb,
    What we need is action, execution & constant monitoring, feedback & execution again. There is no easy way of it…..So says the song

    Kera,
    It has nothing with the competency of our civil servant. It has to do with our sovereignty. No world court presides over us. If it does, go over my dead body

    CLF,
    Noy noy is not incompetent la. This is the ploy by some pinoys who wanted to create havoc on Noy Noy’s administration. Just as some pinoys did to his mother when these folks alleged that his mother hide under the bed when the mutiny happens. The sight of Noy noy’s daddy’s shot down while stepping down from plane will guide him to do the right……He needs to be even more courages. Anyway, what can you do when Imelda Marcos & his son is in the Pinoy senate

  9. Talking about ‘Lease’ Agreement, please read Brunei Grants (compensation $16000/annum for Sabah Regions) on Dec. 29, 1877 and Sulu Grant (compensation $5000/annum for North-East Sabah region) on Jan. 22, 1878. You will notice that both sultanates transmit the sovereignty of those regions to Her Majesty’s Government thus annulling the claim of it being lease. It is in fact ceded regions.

    “The said territories are hereby declared vested in the said Baron de Overbeck and Alfred Dent Esquire co-jointly their heirs associates successors or assigns for as long as they choose or desire to hold them. Provided however that the rights and privileges conferred by this grant shall never be transferred to any other nation or company of foreign nationality without the sanction of Her Britannic Majesty’s Government first being obtained.”
    Borneo : Shewing the Lands Ceded By the Sultans of Brunei & Sulu to the British North Borneo Company.

  10. It is better for Malaysia to agree to bring the Sabah claim issue through UN Arbitration or by ICJ… Let the court see and validate each side’s claim on Sabah.. This is the peaceful way to settle the dispute..

  11. Malaysia is a police state akin to the sewer and septic tank of society where the dregs of humankind proliferate!

    They acted as the conduit through which arms coming from Libya’s Muammar Kadaffi that fanned and sustained the secessionist movement in Southern Philippines since the late 70′s came through. Many of the improvised explosive devices used in Mindanao were proven to have Malaysian origins and Malaysia was the favorite safe haven for the secessionists whenever the Philippine military conducted its search and mopping up operations.

    It is a well documented fact that at least two of the Al Qaeda linked conspirators of 9/11 spent time in Malaysia on their way to the US. Malaysia’s ulterior motive in brokering the peace deal between the MILF and the Philippine government, marginalizing the MNLF and the heirs of the Sultanate of Sulu in the process, is precisely so that it can shift attention from the Philippine’s dormant claim to Sabah to the backburner, forgotten and not revived again.

    However, Malaysia’s and its British colonial master’s dastardly motive is backfiring on them and has now finally come to roost. Malaysia’s use of superior weaponry in trying to crush the Royal Sultanate of Sulu’s army may work in the short run but in all likelihood, it has simply incited the followers of the Sultan of Sulu and their numerous Muslim brothers in Mindanao to fight a war of attrition that will last a while, especially since the border between Sabah and the Philippines is so porous that Malaysia could not realistically keep it completely secure.

    Malaysia’s hesitancy to elevate this matter to the ICJ for adjudication is indicative is indicative of the tenous nature of its arguments.

  12. i beg to differ ; Novus Cause Interveniens had overtaken the course of Events when the British North Borneo Co with Her Majesty’s Govt, began to witness a semblence of civil unrest or disorder of sorts amongst the diverse population of Sabah, restlessness had reared its ugly head in the supervining period.

    It then became necessary to hold the Referendum in order to throw back responsibility to its own people to decide on their own future. Thus, the Cobbold Commision had made a finding that the Majority Will of its people wanted Sabah to be with Malaysia.

    This matter had actually been adjudicated at the ICJ which had in effect CONFIRMED the Recomendations of the said Commision, and that Judgement/Decision with supplementary orders is Valid For All Times – The matter cannot be re-opened, as if people can be given a ‘ Second Bite ‘ on concluded matters, which then makes a mockery of International Law……

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s