Sabah claim: A tale of two versions

The great controversy with the Sulu Sultanate is whether the contract involving territories including Sabah was for a lease or a cession.

COMMENT

Sulu Sultan Jamalul Kiram III’s defiance against calls for his army in Lahad Datu to surrender despite having lost his soldiers in a shootout with Malaysian security forces and his men’s decision to “die in Lahad Datu” has stoked the curiosityof Sabahans.

His daring modus operandi in claiming Sabah as his rightful homeland has awakened the curiosity of many here who are in the dark or have only a vague knowledge about the historical background of Jamalul’s Sabah claim.

Why did Jamalul make his move now? In his own words he can no longer “trust” the Philippine government to justly pursue his claim on Sabah.

The fact is the Philippine government has been inconsistent in its claim and on its recognition of the Sulu sultanate.

Many parties in the Philippines, including the pretenders who claim the throne of Sulu, have been speaking up more out of political expediency than of historical realities.

And it is obvious that Malacañang Palace – the seat of the Philippine government – itself has been making decisions on these issues based on changing political climates and pressures, blowing hot and cold to fit its own needs at the material time in violation of past treaties and agreements, even its own declarations.

Let’s take a quick look at the history of the Philippines’ changing position on Sabah claims.

Two versions of contract

In 1658 the Sultan of Brunei gave away the north and eastern part of what is now Sabah (not the whole of Sabah) to the Sultan of Sulu after the latter helped the Sultan of Brunei quell a rebellion in Brunei.

The most critical turning point in the whole issue of the Sabah claim began on June 22, 1878 when a contract was signed between Sri Paduka Maulana Al Sultan Mohammad Jamalul Alam – representing the sultanate as “owner and sovereign of Sabah” – and Gustavus Baron de Overbeck and Alfred Dent, representing the British East India Company (later named the North Borneo Company) as the “lessee” of North Borneo.

The great controversy here is whether the signing of the contract was for a lease or a cession.

How history came up with two conflicting versions of this contract is difficult to understand.

The British version of the treaty says that “… hereby grant and cede… all the territories and lands being tributary to us on the mainland of the island of Borneo… from the Pandassan River on the north-west coast and extending along the whole east coast as far as the Sibuco River in the south and comprising, amongst other, the States of Paitan, Sugut, Bangaya, Labuk, Sandakan, Kina Batangan, Mumiang, and all the other territories and states to the southward thereof bordering on Darvel Bay and as far as the Sibuco river with all the islands within three marine leagues of the coast”.

The Sulu version says, “…do hereby lease of our own freewill… forever and until the end of time, all rights and powers which we possess over all territories and lands tributary to us on the mainland of the Island of Borneo, commencing from the Pandassan River on the west coast to Maludu Bay, and extending along the whole east coast as far as Sibuco River on the south…, and all the other territories and states to the southward thereof bordering on Darvel Bay and as far as the Sibuco River…”

If you lease something “forever and until the end of time,” can you reclaim it?

Now the question is which version is real?

Madrid Protocol

On July 22, 1878 – one month later – the “Bases of Peace and Capitulation” was signed by the Sultan of Sulu and Spain in Jolo in which the Sultan of Sulu relinquished the sovereign rights over all his possessions to Spain.

This means thereafter the sultanate no longer had the right to claim North Borneo of Sabah.

But Filipino writers argue that North Borneo was not mentioned, therefore not included in the “possessions”.

But what did “all his possessions” mean if it didn’t include everything he owned?

In 1881, North Borneo had its first government under the British North Borneo Company which was given royal charter by Britain.

On March 7, 1885, the famous Madrid Protocol was signed by Spain, Britain and Germany.

The purpose of the protocol was to recognise the sovereignty of Spain in the Sulu Archipelago and also for Spain to relinquish all claims it might have had over North Borneo.

Article III of the protocol states: “The Spanish government renounces, as far as regards the British Government, all claims of sovereignty over the territories of the continent of Borneo, which belong, or which have belonged in the past to the Sultan of Sulu… which form part of the territories administered by… British North Borneo Company.”

The sultanate was not involved in this protocol because despite the cession or lease to Overbeck and Dent on June 22, 1878, he had on July 22, 1878 surrendered “all his possessions” (by understanding including North Borneo) to Spain!

Didn’t cession to Spain therefore nullify the claim that the June 22 treaty was a lease?

To confirm his surrender of North Borneo, Sultan Jamalul Kiram II signed a document on April 22, 1903 known as “Confirmation of cession of certain islands,” under which he either granted or ceded to British North Borneo Company additional islands in the neighbourhood of the mainland of North Borneo from Banggi Island to Sibuku Bay, which were not mentioned in the treaty of 1878.

Note that the document’s title says “cession,” not “lease” and that by the understanding of the Madrid Protocol he should no longer be authorised to cede any part of North Borneo.

Wrong translation of term

By 1915, the status of Sulu entirely changed because the Sultan had by then been stripped off all temporal power and retained only the empty title of Sultan.

Because the United States of America was not interested in the territory of North Borneo, the then powerless Sultan of Sulu was understood to continue keeping his sovereignty rights over North Borneo.

But remember, he had surrendered these in 1878 (if it was a cession) and in 1903 under the “Confirmation of cession of certain islands”.

Then in 1935, the Philippine Constitution was promulgated. It stated (in defiance of all contracts, treaties and the Madrid Protocol) that the national territory of the Philippines included, among other things, “all other areas which belong to the Philippines on the basis of historical rights or legal claims”.

But strangely, a letter to the Governor of North Borneo dated July 28, 1936 from His Britannic Majesty’s Consul General in Manila indicated that the Philippine government decided not to recognise the continued existence of the Sulu Sultanate.

By this year, therefore, the Sulu sultanate had come to an end.

But it is understood that the abolition of the Sulu Sultanate did not abolish the Sultan nor his line of succession, which can be interpreted as the sultan continuing to be sultan in a sultanate that no longer existed.

On Dec 18, 1939 the historic judgment of Chief Justice CFC Macaskie was made in the High Court of North Borneo in the civil suit filed by nine heirs of the Sultan of Sulu, including Sultan Jamalul Kiram II.

Macaskie ruled that the Grant of 1878 was a cession or sale, and that the money to be paid to the heirs was “cession money” and had nothing more to do with territorial property.

However, it is argued by the Philippines that Macaskie was relying on a wrong translation of the 1878 document (which was written in Malayan Jawi).

The Philippines claimed that the later translation said it was a “lease”, based on the meaning of “pajak” or “padjak”, which had been translated both as cession or lease (or rental).

Philippines recognises Sulu

Then in 1950, Congressman Diosadado Macapagal, together with Congressmen Lacson and Tolentino, sponsored a resolution calling the Philippine government to formally lodge a claim to Sabah.

Protracted studies were undertaken to support the claim.

These determined efforts led to the passing of a unanimous House resolution urging then President Diosdado Macapagal to legally reclaim Sabah.

Macapagal won the presidency partly by using the Sabah claim as an issue in his campaign.

In 1957 (according to Jovita Salonga), the heirs of the Sultan of Sulu issued a proclamation declaring the termination of the 1878 contract effective Jan 22, 1958.

The declaration was served on the British government for the return of the territory, but it was totally ignored.

The question here is: Did the heirs have any power to unilaterally withdraw the 80-year-old contract when the sultanate was no longer in existence?

In 1962, Sultan Esmail Kiram I handed over a Letter of Attorney to Macapagal to give the Manila government the right to claim “the territory of North Borneo and the full sovereignty, title and dominion are hereby ceded…” on the sultanate’s behalf.

By accepting this handover of rights, the Philippine government again had officially recognised the continued existence of the Sulu sultanate and the office of Sultan of Sulu.

Jabidah massacre

Subsequently, the Philippines’ Department of Foreign Affairs notified the British government of her claim of sovereignty, jurisdiction and proprietary ownership over Sabah as successor-in-interest to the Sultan of Sulu.

However, this power of attorney was withdrawn in 1989 when Jamalalul Kiram III felt the Manila government had neglected, or failed, in claiming Sabah.

On March 30, 1963 Senator Jovita Salonga said in a speech in the House of Representatives that “our claim is mainly based on the following propositions: that Overbeck and Dent, not being sovereign entities nor representing sovereign entities, could not and did not acquire dominion and sovereignty over North Borneo; that on the basis of authoritative British and Spanish documents, the British North Borneo Company… did not and could not acquire dominion and sovereignty over North Borneo; that their rights were as those indicated in the basic contract, namely, that of a lessee and a mere delegate…”

Interestingly in 1966, President Ferdinand Marcos declared his recognition of Malaysia soon after he came to power in the Philippines.

Recognition of Malaysia here, by clear implication, meant recognition of Sabah being part of Malaysia, not part of the Philippines.

In the following year, Marcos confirmed this stance when he made it known that he opted not to pursue the claim and focused his attention on the preservation of Asean unity.

But diplomatic ties which Marcos tried to build with Malaysia faced a possible breakdown when the “Jabidah Massacre” (of the Corregidor Incident) was exposed, whereby Moros had been recruited for a plan to stage a rebellion and eventual occupation of Sabah under the code name “Project Merdeka”.

As if to withdraw its recognition of Malaysia, and disregarding diplomatic sensitivities, the Philippines’ Republic Act 5446, took effect Sept 18, 1968 to regard Sabah as a territory “over which the Republic of the Philippines has acquired dominion and sovereignty”.

On May 24, 1974 the Manila government again recognised the sultanate when Datu Moh. Mahakuttah A Kiram, the eldest son of Sultan Moh. Esmail E. Kiram, was crowned in the public coronation as Sultan of Sulu.

This crowning was after the issuance of the Presidential Memorandum Order 427 by Marcos, then President of the Philippines, which states: “Whereas, the Government has always recognised the Sultanate of Sulu as the legitimate claimant to the historical territories of the Republic of Philippines.”

Jamalul rescinds decision

But three years later, in 1977, in a speech at the Asean Summit held at Kuala Lumpur, Marcos formally announced the withdrawal of the Philippine claim to Sabah.

He said: “Before Asean can look to the outside world for equity, for justice and fairness we must establish order, fairness and justice among ourselves… I wish to announce that the Government of the Republic of the Philippines is therefore taking definite steps to eliminate one of the burdens of Asean – the claim of the Philippine Republic to Sabah.”

Two years later, in 1989, the Philippine government had cooled down its claim in the interest of resuming cordial economic and security relations with Kuala Lumpur.

On Feb 12, 1989 Sultan Jamalul Kiram III revoked his power of attorney to the Philippine government to claim Sabah.

In a press conference on Sept 4 at the Sulo hotel, the Sultan reiterated the revocation of the Philippine government’s authority to claim Sabah on Sulu’s behalf.

His lawyer, Firdausi Ismail Abbas, said: “We actually consider the authorisation nullified as far back as 1963, when Sabah became a part of the Malaysian federation.”

Last year, Onn Ariffin, the Sabahan adviser to Sultan Kiram III, published a statement which, among others, said: “This action [revoking the Sultanate’s power of attorney], therefore, reinstates the power to claim Sabah to the Sultanate, and no longer within the authority and jurisdiction of the Philippines’ central government.

“Therefore any claim on Sabah made by Manila today is illegitimate because the sole authority to make or to drop the claim is Sultan Kiram III.”

On May 24, 2008, at the Second MNLF Peace Summit held in Davao City, Nur Misuari, before the presence of the “Sultan of Sulu and North Borneo”, Muhammad Fuad A Kiram I, held a sword and vowed to work for the return of Sabah to the Royal Sultanate of Sulu by peaceful means.

On July 16, 2011 the Supreme Court of the Philippines ruled that the Philippines’ claim over Sabah is retained and may be pursued in the future.

Manila backtracks

On Feb 20, 2013, eleven days after Jamalul Kiram III’s intruding followers arrived in Kampung Tanduo, Lahad Datu, the Phlippines’ The Daily Tribune reported that a Malacanang Palace official said there is no proof that Sabah is part of Philippine territory.

The official, who sought anonymity, said the government does not have any record of the supposed lease contract signed between the British government and the Sultan of Sulu, which is the basis of the Philippine territorial claim.

“It was a private contract which neither the government of Malaysia nor the Philippines has any participation,” the official said.

The Daily Tribune asked the official if the Philippine government has a copy of the lease contract but the official said: “There was not any contract in the archives. So how can the Philippine government claim a thing that is not included in the Philippine territory? It is very awkward to do it.”

Then on the same day a legislator, Teddy Casiño, pushed the government to revive the claim over Sabah.

Said Casino: “It would be about time to seriously consider reviving the Philippine claim to Sabah and vigorously pursue a diplomatic and peaceful solution on Sabah, which is based on the national interest of the Filipino people. The recent actions of the heirs of the Sulu Sultanate (in Lahad Datu) have very strong historical and legal grounds.”

But President Benigno Aquino, embarrassed that the whole world is watching the Lahad Datu incident and concerned over diplomatic relations with Malaysia, as well as being aware of the danger of real fighting breaking out and affecting the wellbeing of the 800,000 Filipinos in Sabah, is adamant that the group “surrender” unconditionally and go back to Sulu before any discussions begin.