Activist traces history to show why Philippine claim on Sabah is flawed

KOTA KINABALU: The Philippines’ claim on Sabah is nothing but hot air as Sabah, then North Borneo, was annexed by the British Crown in June 1946 at the conclusion of World War II, said political activist Zainnal Ajamain.

Zainnal, who champions the Malaysia Agreement 1963 cause in Sabah, said by annexing Sabah, the British had full sovereign rights over the territory.

The annexation was recorded in Section 2 of the North Borneo Cession Order in Council 1946 which read “As from the fifteenth day of July, 1946, the State of North Borneo shall be annexed to and shall form part of His Majesty’s dominions and shall be called, together with the Settlement of Labuan and its dependencies, the Colony of North Borneo”.

“From this document, it is clear that the cession of North Borneo to the British Crown by the British North Borneo Company was done through annexation and not just a simple transfer of sovereignty,” Zainnal told FMT.

Earlier this week, a member of the Philippine consultative committee on amending the 1987 Constitution, Aquilino Pimentel Jr said he would propose the inclusion of Sabah in the Philippines as part of the country’s shift to a federal system of government.

The Philippines claim on Sabah is based on the argument that the British North Borneo Company did not have sovereign rights and the British government did not acquire sovereignty from Spain under the Protocol of 1885 nor from the British North Borneo Company under the Protectorate Agreement of 1888.

Those in the Philippines who say it belongs to them claim the Section of the Order in Council proves that the British government was only claiming sovereignty over North Borneo for the first time on July 15, 1946.

They also claim that considering that sovereignty over North Borneo has remained vested in the Sultanate of Sulu, the North Borneo Cession Order in 1946 constitutes an unwarranted assumption of sovereign rights by the British Crown.

It is also allegedly a repudiation of the contract of lease of 1878, which merely ceded or gave leasehold rights to Gustavus Baron de Overbeck of Hong Kong and Alfred Dent Esquire of London as representatives of a British company.

However, Zainnal said it was not as simple as this because of World War II.

He pointed out that with regards to the legal status of Eastern Greenland (Denmark vs Norway), the International Court of Justice upheld ‘A claim of sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involve two elements each of which must be shown to exist; the intention and will to act as sovereign, and some actual exercise or display of authority’.

Zainnal said: “The Sultan of Sulu did not do any of the above, the same as the Republic of Philippines. Where was the Sultan of Sulu during the Japanese occupation? Nowhere to be found. Was the Sultan of Sulu involved during the liberation of North Borneo at the end of the Japanese occupation?

“The answer is a resounding no. It was the Australian 9th Division Army on behalf of Great Britain that liberated North Borneo for Britain, not the Sultanate of Sulu or the Republic of Philippines, which did not exist yet at the time,” he said.

One could view the annexation of North Borneo then, he said, as the British Crown claiming its war booty which was why, during that time, no other power could dispute its action.

“So when the British signed the Malaysia Agreement and the Malaysia Act 1963 Chapter 35 to create a vesting by agreement to allow Sabah and Sarawak and the Federation of Malaya to form the Federation of Malaysia, it was well within the rights of the British to do so and the Philippines have no right to say anything about it,” he explained. -FMT