Safeguarding
our territory: Malaysian troops moving into Tanduo village during an
operation to flush out the armed intruders. — (Handout photo by Defence
Ministry)
A major shift in Malaysia's position on the Philippine claim to Sabah is needed.
THE
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 on the east coast of Sabah.
The Philippine claim is based on two documents dated Jan 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say historical documents confirm that both the Sultanate of Brunei and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.
The sultanate ended when Sultan
Jamalul Kiram II signed the Carpenter Agreement on March 22, 1915, in
which he ceded all political power to the United States.
Carpenter, Governor of the Department of Mindanao and Sulu, Philippine
Islands, from 1913-1920, with the Sultan of Sulu, Jamalul Kiram II.
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
claim, 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 Aug 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!
Comment by EMERITUS PROF DR D.S RANJIT SINGH
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).
Related posts:
The former Sulu Sultanate, a foreign problem in history that became Sabah's
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