The Indefeasibility of Malaysia’s Territorial Sovereignty Over Sabah

 

So, what does Jamalul Kiram want? He has been shifty about this. On one count he said he doesn’t want to claim Sabah. On another, he said he wants recognition. Okay. So we call him a Sultan. Is that recognition enough? Of course not. At the end of it, he said he is the poorest Sultan in the world. That is more than sufficient answer to the question. He wants money. 

Art Harun 

The incursion into Sabah by a ragtag “army” of a now defunct “Sultanate” with the intention of having a picnic in their “homeland” (to borrow the description by a self-styled Princess of the said “Sultanate”) would be comical, if not for the utterly tragic consequences that follows.

In weeks after the incursions, eight Malaysian policemen were killed, some of whom were allegedly tortured, killed and their body mutilated by the “army” of the now defunct Sultanate. As of the date of writing, a total of 62 people have been killed. That the so-called Sultan declared a Jihad and the self-styled Princess calling the Malaysian army un-Islamic lend a surrealistic aura to the whole episode which would make Salvador Dali green in envy.

The fact remains that their acts were an act of terrorism perpetrated by armed bandits on an unsuspecting State and her people. There was nothing Islamic about those acts. To use Islam and Jihad in this totally illegal and inhumane act of aggression against a peaceful State which has been treating some of them with unlimited generosity is a misuse and abuse of the religion and God of the worst kind.

So, what does Jamalul Kiram want? He has been shifty about this. On one count he said he doesn’t want to claim Sabah. On another, he said he wants recognition. Okay. So we call him a Sultan. Is that recognition enough? Of course not. At the end of it, he said he is the poorest Sultan in the world. That is more than sufficient answer to the question. He wants money. Forget altruism. Forget the advancement of his so-called people. Forget honour. Forget dignity. It is just about money.

However, why must Malaysia, as a State, give money to some delusional people who live in the 17th century? What would prevent this very same people from coming back to ask for more when the money runs out? What basis do a people have to hold a State to ransom every now and then just because this people do not have a source of income other than from partaking in piracy, kidnapping and now, terrorism as well as prostituting Islam?

One can read and try to grasp the historical dynamics of this so-called Sulu Sultanate’s claim over North Borneo, a State which later became part of Malaysia and known as Sabah. Even the origin of this claim, that the Sultan of Brunei had given this area to the Sulu Sultanate for the latter’s help in a battle is historically denied by the Brunei Sultanate. Without further delving into these murky historical accounts, there is only one political reality and that is Sabah is part of Malaysia and Malaysia has territorial sovereignty over Sabah. Period.

During the post-world war de-colonisation period, between February to April 1962, a commission of inquiry, known as the Cobbold Commission, conducted meetings in Sarawak and Sabah (then, North Borneo). The Commission concluded that more than two third of the people of these two areas wished that the two areas joined and be part of Malaya.

During this de-colonisation period, international laws have evolved so as to recognise without limitation the right of the people of a territory to determine their own ruling. This right is known as the right to self-determination. This right is enshrined in the United Nation’s General Assembly resolution 1541(XV). Principle IX of the same provides:

“Integration should have come about in the following circumstances:

(a) The integrating territory should have attained an advanced stage of self-government with free political institutions, so that its peoples would have the capacity to make a responsible choice through informed and democratic processes;

(6) The integration should be the result of the freely ex­pressed wishes of the territory's peoples acting with full knowl­edge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage. The United Nations could, when it deems it necessary, supervise these processes.”

Following the finding of the Cobbold Commission, the Governments of the United Kingdom and Malaya issued a joint statement on 1^st August 1962 to the effect that a Federation of Malaysia should be established by 31^st August 1963. A formal agreement was prepared and signed in London on 9th July 1963 on behalf of the Governments concerned (the Federation of Malaya, North Borneo, Sarawak and Singapore).

On 5^th August 1963, Indonesia, the Philippines and Malaya, following a 6 day meeting in Manila, requested the Secretary General of the United Nation “to send working teams to Sabah (North Borneo) and Sarawak in order to ascertain the wishes of these peoples with respect to the proposed Federation.” It was agreed that these States would also send observers during the exercise.

The term of reference of the exercise was, among others, as follows:

“The Secretary-General or his representative should ascertain, prior to the establishment of the Federation of Malaysia, the wishes of the people of Sabah (North Borneo) and Sarawak within the context of General Assembly resolution 1541(XV), Principle IX of the Annex, by a fresh approach, which in the opinion of the Secretary-General is necessary to en- sure complete compliance with the principle of self- determination within the requirements embodied in Principle IX.”

Further, the Mission was to take into consideration:

“1) The recent elections in Sabah (North Borneo) and Sarawak but nevertheless further examining, verifying and satisfying himself as to whether: (a) Malaysia was a major issue if not the major issue; (b) electoral registers were properly compiled; (c) elections were free and there was no coercion; and (d) votes were properly polled and properly counted; and (2) the wishes of those who, being qualified to vote, would have exercised their right of self-determination in the recent elections had it not been for their detention for political activities, imprisonment for political offences or absence from Sabah (North Borneo) or Sarawak.”

(Source: United Nation General Assembly 18^th Session, the Question of Malaysia, pages 41-44)

It is interesting to note that the terms of reference requested the United Nation to ascertain the wishes of the people “by a fresh approach.” Many, including our own citizen, Jeffrey Kitingan, have complained that there was no referendum made. This complaint fails to take into consideration the “fresh approach” which was requested by the three governments. This complaint also overlooked the fact that that there was and is no requirement under international laws that a referendum is made before the people in a territory could be said to have voted for self-determination or to join any State.

After all, Principle IX of the aforesaid Resolution 1541(XV) provides:

“The integration should be the result of the freely expressed wishes of the territory's peoples acting with full knowl­edge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage. The United Nations could, when it deems it necessary, supervise these processes”

A referendum is just another method to determine the wishes of the people and it is not a mandatory method.

During the United Nation’s General Assembly (18^th session) the followings were reported:

“The Mission had considered that it would be meaningful to make a "fresh approach" by arranging consultations with the population through elected representatives, leaders and the representatives of political parties as well as non-political groups, and with any other persons showing interest in setting forth their views. During the Mission's visits to various parts of the two territories, it had been possible to consult with almost all of the "grass roots" elected representatives. Consultations were also held with national and local representatives of each of the major political groups and with national and local representatives of ethnic, religious, social and other groups, as well as organizations of businessmen, employers and workers in various communities and social groups.”

On the wishes of the people of Sarawak and Sabah, the Mission was left without any doubt that they had made an informed decision to join the Federation of Malaysia. In the Mission’s own words:

“As far as the specific questions which the Secretary-General was asked to take into consideration were concerned, the members of the Mission concluded, after evaluating the evidence available to them, that: (a) in the recent elections Malaysia was a major issue throughout both territories and the vast majority of the electorate understood the significance of this; (b) electoral registers were properly compiled; (c) the elections were freely and impartially conducted with active and vigorous campaigning by groups advocating divergent courses of action; and (d) the votes were properly polled and counted; the number of instances where irregularities were alleged seemed within the normal expectancy of well-ordered elections. The Mission came to the conclusion that the number of persons of voting age detained for political offences or absent from the territories when voting took place was not sufficient to have affected the result. The Mission also gave careful thought to the reference in the request to the Secretary-General that "he ascertain prior to the establishment of the Federation of Malaysia the wishes of the people of Sabah (North Borneo) and Sarawak within the context of General Assembly resolution 1541 (XV), Principle IX of the Annex."

The Mission then concluded that the both Sarawak and North Borneo (later, Sabah) had:

"attained an advanced stage of self-government with free political institutions so that its people would have the capacity to make a responsible choice through informed democratic processes." Self-government had been further advanced in both territories by the declaration of the respective Governors that, as from 31 August 1963, they would accept unreservedly and automatically the advice of the respective Chief Ministers on all matters within the competence of the State and for which portfolios had been allocated to Ministers. The Mission was further of the opinion that the participation of the two territories in the proposed Federation, having been approved by their legislative bodies, as well as by a large majority of the people through free and impartially conducted elections in which the question of Malaysia was a major issue and fully appreciated as such by the electorate, could be regarded as the "result of the freely expressed wishes of the territory's people acting with the full knowledge with the change of their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage.” (emphasis is mine).

It is thus clear as daylight that the choice to join Malaysia was made by the people of Sabah. Due recognition was later given to the Federation of Malaysia by the United Nation.

On 16^th September 1963, Malaysia was then officially formed. Indonesia and the Philippines, despite their joint request to the United Nation with Malaya and despite sending their own observers while the Mission was undertaking its work refused to recognise Malaysia’s sovereign over Sabah.

The Philippines reserved her claim over Sabah in the Manila Accord 1963. Despite such reservation, no official claim has ever been made. Under the law, the Philippines can be said to have abandoned her claim as such. The Philippines know that any claim which it may wish to make over Sabah is doomed to failure. The aforesaid Mission was established pursuant to the Philippine’s’ joint request. It does therefore not make sense that the Mission’s findings could be challenged by the Philippines.

The so-called Sultanate of Sulu must be aware that territoriality of a sovereign nation must be determined at a finite era or period in accordance with the acceptable norm of international laws at the relevant time. Historical time travelling in respect of a territorial sovereignty must be limited to the time when a sovereign is established over a region. Failure to do so would result in copious, comical, baseless and even tragic claims over a region resulting in instability and loss of lives.

Otherwise, what would prevent some lunatics who claim he or she is the descendant of Caliph Al-Makmun from the Abbasid dynasty from claiming a third of the world as his or hers? Or Spain from being claimed by a self-professed descendant of the Umayyad? Or Singapore being claimed by a descendant of the Thai representative who was killed by Parameswara? Or a descendant of the Emir of Hejaz from claiming Mekah and Madinah from the Saudis?

Malaysia has every right to defend its sovereignty over any part of its territory in any manner she deems fit. Anything less would make a mockery of international laws and accepted norms and conventions of international relation.