SULU CLAIM – A SAD, TRAGIC LIE

RISING.....Sabah became the vision of the last gold coin that could win back the possibility of rising again, getting back the worth of a name: the venerable House of Kiram.

By : RAYMOND TOMBUNG

The Sabah claim will continue to be raised by the Phlippines and Sulu as it is powerful and emotive international issue which many leaders from Manila will find convenient to bleed for political mileage. And the many “sultans” in Sulu will continue to cast their hungry eyes at Sabah, considered to be “the last gold coin” and aspire, albeit hopelessly, to try and achieve the impossible.

But Malaysians, especially Sabahans, should be able to give a cogent argument on the issue of this claim and in favour of Sabah.

All Malaysians and Sabahans need is three or four historical facts, events or political realities to win the argument.

So let’s always keep clear knowledge of the following:

1. The controversy arising from the 1878 treaty between Jamalul Alam and British North Borneo Company.

It can strongly be argued that it was a “cession” and not a “lease” as claimed by Filipinos.

Note that any argument on the matter was decisively clarified and settled when on April 22, 1903, Sultan Jamalul Kiram signed a document known as “Confirmation of cession of certain islands” in which he says the 1878 treaty was a CESSION.

The “confirmation” of the 1878 treaty says specifically that “We, the Sultan of Sulu, state with truth and clearness that we have ceded to the Government of British North Borneo of our own pleasure all the islands that are near the territory of North Borneo… This is done because the names of the islands were not mentioned in the 22nd January, 1878 [treaty]… that the islands were included in the cession…”

2. The purpose of the Madrid Protocol of 1885 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 that “The Spanish Government renounces… 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 [Jolo]….”

3. The signing of the Carpenter Agreement on March 22, 1915 in which Sultan Jamalul Kiram II was stripped off all temporal (worldly) power and retained only the empty title of Sultan. His claimed ownership of North Borneo was of no concern to the American colonists.

4. The Macaskie Dictum (Judgment) of 1939. This judgment doesn’t settle the argument although Macaskie said the annual payment was cession money and not rental money and that the nine plaintiff heirs were entitled to.

These payments, however, in no way had anything to do with territorial property. This is because a later translation by the Filipinos of the original 1878 treaty (written in Malayan Jawi) said the agreement was a “pajak” which they say meant “lease”.

(Today “pajak” can mean “purchase”). But even this judgment was preceded by the addition “cession” of 1903 and the Madrid Protocol of 1885.

Power of attorney questionable

5. The Sulu “sultans” cannot claim Sabah because there is no more a Sulu sultanate and there is no more any real sultan. The only legitimate royal group in Sulu are the descendants of the nine heirs who went to Macaskie in 1939.

6. Sulu (a region of the Philippines without any national sovereignty) cannot claim Sabah which is part of Malaysia – a sovereign nation.

Only a country can claim another country or a part of another country. This therefore means Sulu has no locus standi to claim Sabah. The power of attorney that was given to Macapagal by the Sulu Sultan to give Macapagal the “authority” to claim Sabah on Sulu’s behalf (now withdrawn) has very questionable validity.

Maybe this is one of the reasons why Manila had not really pursued the claim using the so-called power of attorney.

7. Manila had denied and re-recognised the sultanate a number of times, but this does not change the fact that there has been not been any sultanate to speak of since the Carpenter-Kiram Agreement of 1915.

8. By July 15, 1946, the British government had taken over North Borneo when the North Borneo Company could no longer manage it after the devastation of World War II.

The company had the right to hand over North Borneo to whoever it wanted because the country had been ceded to it in 1878 (and confirmed by the confirmation of cession in 1903 and the nullification of Sulu’s ownership of the country by the Madrid Protocol of 1885).

9. Many Brunei historians actually argue that Brunei never gave away any part of North Borneo to Sulu. And there is no document whatsoever to prove this cession.

10. After Sabah became part of Malaysia and Malaysia’s sovereignty was recognised by the United Nation and the world, that had effectively superceded and nullified any claim on Sabah.

If Sulu, by a very long shot, gets back Sabah, will it be able to pay Malaysia all the billions utilised to develop Sabah since 1963?

ICJ confirmed Sabah’s status

Sulu cannot be so arrogant and shameless to think that it can simply and freely take back a piece of land it “owned” 135 years ago after it has been developed by someone else for half a century.

11. The International Court of Justice (which is an arm of the United Nation) had recognised and confirmed Sabah as part of Malaysia when it made a verdict in 2002 that Sipadan and Ligitan islands belonged to Malaysia (and not Indonesia). This confirmation of ownership cannot be reversed in favour of Sulu (judgments of the ICJ cannot be appealed).

12. Whatever the arguments are, all the past agreements and treaties – whether they were valid, arguable or controversial – are now effectively useless historical references because they have been superseded by bigger and more important events.

Therefore the argument by Harry Roque, a law professor at University of the Philippines, who says that a legal principle known as “uti posseditis juris” “accords pre-eminence of legal title over effective possession as a basis of sovereignty” is useless and ineffective due to this superceding by bigger events in history.

Also, this pre-eminence of legal title is a double-edged sword because it can also be applied to Malaysia.

13. Prof Dr Ramlah Adam recently said: “They cannot claim [Sabah] just based on history. For example, the Siam government handed Kedah, Perlis, Kelantan and Terengganu over to the British and [today] cannot claim the states.”

Prof Emeritus Khoo Kay Kim said that if the Philippines’ argument can be accepted, then “Singapore should be returned to Johor and Penang be returned to Kedah”.

And for that matter why does Brunei not claim Sabah as well because there is a Brunei argument that it never gave Sabah to Sulu? Or why doesn’t Indonesia claim Peninsular Malaysia and southern Thailand? After all, weren’t these regions under the Srivijaya Empire in the eighth century?

14. Sabahans do not want to be part of the Philippines, as confirmed by the findings of the Cobbold Commission.

Even today Sabahans feel a lot of trepidation at the mere thought of being under the so-called Sulu sultanate. If a referendum is held to seek Sabahans’ preference between Malaysia and the Philippines, many would dare say the foregone conclusion is for most preferring to stay on in Malaysia.

No referendum

15. There is an argument that Malaysia had agreed in the Manila Accord (signed July 31, 1963) that the formation of Malaysia was subject to the Philippines’ claim over Sabah.

But whatever was agreed in the Manila Accord has been superseded by later events, for example, the formation of Malaysia which included Sabah, two months after the Manila Accord.

In the Bangkok talk of June-July 1968, Malaysia had unilaterally rejected the Manila Accord.

With the benefit of hindsight, wasn’t the Manila Accord an exercise in futility, especially by the Philippines in trying to hang on to something which couldn’t be implemented and solved till the end of time?

If the terms of the Manila Accord were adhered to, there would have been no Malaysia.

Of prime importance was the wishes of Sabahans – two-thirds of whom wanted to join Malaysia as the findings of the Cobbold Commission indicated the year before.

And noteworthy is Article 10 of the accord which says: “The Ministers reaffirmed their countries’ adherence to the principle of self-determination for the people’s of non-governing territories. In this context, Indonesia and the Philippines stated that they would welcome the formation of Malaysia provided the support of the people of the Borneo territories is ascertained by an independent and impartial authority, the Secretary-General of the United Nations or his representatives.”

There was not much time to carry out such a referendum, but wasn’t this condition (to allow Sabah to be part of Malaysia) already fulfilled by the Cobbold Commission the year before?

A virtual paradise

16. Even Sabahan Tausugs do not want to be part of the Philippines.

Ed Lingao, a renowned Filipino author and journalist had on Feb 21, 2013, reported in Minda News that he had undertaken a random survey of the Tausugs in Sabah and found out that even they do not want Sabah to become part of the Philippines.

He wrote: “Many of the Tausugs we encountered detested the idea of the Philippine government reclaiming Sabah. Refugees from war and poverty, many of these Tausugs see little benefit in a Sabah under the Philippine flag; in fact, for them, it is a worrying proposition, not unlike jumping from the clichéd frying pan into an even bigger fire.

“One Tausug we encountered outside a mall in Kota Kinabalu bristled at the idea of the Philippines staking a claim on Sabah saying ‘sisirain lang nila ang Sabah. Okay na nga ang Sabah ngayon, guguluhin lang nila,’ (They will just destroy Sabah. Sabah is doing fine right now, they will just mess it up).

“It is hard to blame them for the cynicism. After all, they took great risks and fled their own troubled country in droves for a better life, only to have that same country reach out and stake a claim on what, to them, is already a virtual paradise where one can finally live and work in peace. That, to them, may be the ultimate irony, the ultimate tragedy.”

As such, what we see today is a group of desperate people trying to live in the glory of the distant past, stepping forward with their thick skins with no regard for the truth.

Lingao described the nature of the situation on Feb 19 in an article, “Sabah as the last gold coin”.

In it he notes: “Sabah became their clutch when their own Sulu was sinking, so to speak, from the heavy weight of bloodshed that spiralled into poverty.

“Sabah became the vision of the last gold coin that could win back the possibility of rising again, getting back the worth of a name: the venerable House of Kiram.”

How very sad and tragic indeed. And now more blood is being spilled in the name of a great overstated lie!