Sabah in federal Philippines

A draft framework for the envisioned federal constitution proposes the inclusion in Philippine territory of Sabah, specifically that part which belongs to the Sultanate of Sulu — a thalassocracy founded in 1405. Sabah’s inclusion is being pushed based on historical fact. But the history of Sabah in the Philippine context might not be on our side sovereignty-wise.

The Philippine territory, as defined in the 1935 Constitution, comprises those territories ceded under the Treaty of Paris of 1898 and the Cession Treaty of 1900—both between Spain and the United States — and the Boundaries Treaty of 1930 between Britain and the United States.

Under the 1973 Constitution, the Philippine territory comprised the Philippine archipelago and all territories belonging to the Philippines by historic right or legal title. Under the 1987 Constitution, the Philippine territory simply comprises the Philippine archipelago.

When the second Philippine republic was established in 1946, its territory was defined by the treaty limits set forth in the 1935 Constitution. The United States handed over to the second republic a territory circumscribed by the Treaty of Paris and the Cession Treaty of 1900 which clarified that the islands of Cagayan Sulu and Sibutu are part of the archipelago ceded by Spain to the United States. The ceded archipelagic territory did not include North Borneo or Sabah.

On July 22, 1878, the Sulu Sultanate became a Spanish protectorate under the Spanish Treaty of Peace between the Sultan and Spanish Crown. On Dec. 10, 1898, Spain and the United States signed the Treaty of Paris wherein Spain ceded to United States the Philippine islands including Sulu, but not Sabah.

On March 24, 1899, the Sultan of Sulu and the United States signed the Bates Treaty whereby the Sultan recognized US sovereignty over Sulu and its dependencies. After the United States’ unilateral abrogation of the Bates Treaty in 1904, and subjecting the Moro provinces and their residents to US sovereignty, the Sultan and the United States signed on March 22, 1915, the Carpenter Agreement wherein the Sultan ratified, and confirmed, US sovereignty over Sulu and its dependencies. By 1915, the Sultan of Sulu had ceased to be sovereign.

After the Sultan of Sulu leased in perpetuity Sabah—a gift from the Brunei Sultan for the assistance in quelling a rebellion—to Overbeck in 1878, the Sultan did not rule over the leased property. The British North Borneo Company (BNBC) formed by the British government administered the territory until 1946.

In 1930 the United States and Britain entered into the Boundaries Treaty to delimit the boundary between North Borneo as British protectorate, and the Philippine archipelago as US territory. In 1946 the British Crown issued the Cession Order which transferred dominion over the properties of the BNBC in Sabah to the British Crown.

Uti possidetis is a principle in international law which stipulates that newly formed sovereign states should have the same borders that their preceding dependent area had before independence. The United States never acquired sovereignty over Sabah, and did not transfer any to the Philippines.

The cession of claim over Sabah by the Sultan’s heirs in 1962 to the Philippine government amounted only to a transfer of proprietary claim. The heirs could not transfer sovereignty or territorial claim over Sabah. Thus, Philippine territory under a federal constitution cannot be greater than that acquired under the Treaty of Paris.

The Sabah claim can perhaps be best understood if it is bifurcated in separate issues — territorial or sovereignty on one hand, and proprietary on the other. The first is tenuous; the second is formidable. A strong lobby before the British Crown would be equally important to rectify the injustice wrought upon the Sultan of Sulu by the Cession Order of 1946. After all, the greatness of a king lies not in his power but in his capacity to be the fountainhead of justice.

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Frank E. Lobrigo practiced law for 20 years. He is a law lecturer and JSD student at San Beda College Graduate School of Law in Manila.