The Philippine Claim To Sabah: Is It Time For A War Dance? (Part 2)

Friday, 10 June 2011 02:18

Written by Marvin Bionat

Spain’s and America’s position

Spain never acquired Sabah since it was not included in the list of possessions of the Sultanate in the Spanish-Sulu treaties. In 1885, Spain signed a treaty with Britain and Germany that renounced “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) and which comprise the neighboring islands of Balambangan, Banguey, and Malawali, as are those comprised within a zone of 3 maritime leagues from the coast, and which form part of the territories administered by the company styled the British North Borneo Company.” While equivocating about the Sultan’s claim to ownership, Spain acknowledged the effective control of the British company. In return, the British recognized Spain’s sovereignty over Sulu.

America, on the other hand, was quite explicit in favoring the Sultanate’s claim. On November 19, 1906, the State Department sent a note to the British embassy in Washington D.C. stating that Sabah was under lease and did not have a national status. On June 25, 1919, Vice Governor Charles Yeates said that the US must “insist with Great Britain that the British North Borneo Company continue to respect and carry out the agreement with the Sultan who receives annual payment from the company under lease of sovereignty to Sandakan district, which is a dependency of the Sultanate of Sulu.” Then on May 4, 1920, Frank Carpenter, the governor of Mindanao and Sulu, signed a treaty with the Sultan, which terminated the latter’s sovereignty in Sulu but acknowledged his claim to Sabah.

Arguments and precedents

The Philippine argument that annual payments necessarily imply a lease arrangement was countered by the British by citing the 1824 treaty between Sir Stamford Raffles of the East Indies Company and the Sultan of Johore, whereby the island of Singapore was ceded. The cession involved a monthly stipend, but unlike the Sabah transfer, a lump sum of 33,000 Spanish dollars was paid. Another related precedent occurred in 1764 when Alexander Dalrymple of the British East India Company obtained from the Sultan of Sulu a transfer of rights and powers over the North Borneo territory. However, due to personal friction, the Sultan regained his territory in 1805, suggesting the transfer was not absolute.

As to the argument that the government cannot allow one of its subjects to have sovereignty over any territory (that is, the Philippines allowing the Sultan sovereignty over Sabah), the British were estopped, because in 1856 they themselves allowed Rajah Javers Brooke to govern Sarawak.

Some defenders of the Philippine claim refer to the 1939 Malaysian High Court decision as a favorable precedent. However, the issue in that case, as Judge Macaskie stated, was who was to receive the yearly payments, and since the government did not, the judge ruled that the payments should go to legitimate heirs of the Sultanate. In fact, the petition in that case stated that the transaction was a permanent cession, so it was really unfavorable to the Philippine claim, although heirs to the Sultan insisted that they were denied access to the original document and were pressured to use an altered English translation (where the term used was “grant,” not “lease”).

UN survey

A major blow to the Philippine claim occurred in August 1963 when the UN team commissioned to determine the will of the people of Sabah declared that the majority agreed to be a part of the Federation of Malaysia. Immediately, the Philippines joined Indonesia (who also had territorial issues with Malaysia) in denouncing the reliability of the survey. In October 1963, the Indonesian ambassador issued a statement accusing the British of detaining anti-Malaysia leaders, banning three anti-Malaysia newspapers, and restricting the right of domicile in some areas. He also dismissed the UN “samplings” as below the Gallup Poll standard. The Malay Mail reported on August 19, 1963 that “unlike Sarawak where all demonstrations were banned, the British government was quietly encouraging a show of support in Sabah … Buses, trucks, and other vehicles were mobilized to bring hundreds of villagers from remote areas into this picturesque North Borneo capital. Special trains were also laid on by organizers of the pro-Malaysia (campaign).” The British themselves admitted that they mobilized police riot squads, Royal Air Force helicopters, and nine warships.

Philippine-Malaysian relations

Since the official Philippine claim to Sabah was made in 1962, relations between the two ASEAN members have been less than smooth. The Corregidor incident, which according to then Senator Benigno Aquino involved the summary killing of a mutinous group within a special force secretly formed and trained to invade Sabah, provided evidence that President Marcos considered the use of force to resolve the dispute. Some speculated that the plan was to infiltrate Sabah solely to destroy the base of the secessionist movement in Mindanao. The negative public reaction foiled the plot, whatever it was.

Malaysia, for its part, has violated the 1963 Manila Accord (which acknowledged the Philippine claim and “the right of the Philippines to continue to pursue it in accordance with international law and the principle of the pacific settlement of disputes”) by refusing to further negotiate the issue. Neither side has agreed to a conciliation or mediation. President Macapagal’s proposal to submit the problem to the International Court of Justice was rejected, and Prime Minister Mahathir demanded that the Philippines amend Article 1 of its Constitution (which ultimately happened in the 1987, when the Constitutional Commission excised from the National Territory provision the reference to “territories belonging to the Philippines by historic or legal title”).

Friction between the two countries has continued in the last few decades. In September 26, 1985, four Malaysian gunboats and three helicopter gunships bombed and strafed an island within Philippine waters where 53 alleged Filipino pirates were killed, wounded, or kidnapped. In April 1988, Malaysia seized 49 Filipino fishermen within Philippine waters, where one died in the process. Records show that from 1986 to 1989, there were 37 intrusions by Malaysian gunboats into Philippine territory. Coming from the Philippine side, the Sulu-based Abu Sayyaf in 2001 kidnapped 21 people (19 foreigners and two Filipinos) from a resort in Sipadan, Malaysia. The hostages were brought to Sulu. Within Sabah, Malaysian authorities once claimed that up to 65% of solved crimes were committed by illegal immigrants from the Philippines. In recent years, Sabah police has periodically arrested, detained, and deported thousands of Filipinos, many of whom have considered Sabah their home.

(To be continued)

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