How Sabah was unjustly lost

The Sultanate of Sulu was founded on Nov. 17, 1405. At its peak, the Sultanate stretched over the islands that bordered Mindanao in the east to Palawan in the north. It also covered the area in the northeastern side of Borneo, stretching from Marudu Bay to Tepian Durian in present-day Kalimantan.

Due to the arrival of western powers such as the Spanish, British, Dutch, French, German and American, the Sultan thalassocracy—an empire at sea—relinquished its sovereignty in 1915 when it signed the Carpenter Agreement with the last colonialist, the United States.

In 1704 the Sultan of Brunei ceded Sabah to the Sultan of Sulu for the latter’s assistance in quelling a rebellion in the former’s kingdom. On Jan. 22, 1878, the Sultan leased Sabah to Baron Gustavos von Overbeck, who later transferred his interest to Alfred Dent.

On Nov. 1, 1881, the British Crown awarded Dent a provisional charter to form the British North Borneo Provisional Association Ltd. The Dutch government objected to the charter. The British foreign minister, Lord Earl Granville, assured the Dutch government that the charter did not in any way imply the assumption of British sovereign rights over Borneo.

On Jan. 7, 1882, Granville also wrote British Minister Morier, in light of the provisional charter granted to Dent, that sovereignty over Sabah remains vested in the Sultan of Sulu.

Julian Pauncefote, assistant permanent undersecretary to the British foreign minister, reinforced the position of Granville by declaring that sovereignty over North Borneo remains vested in the Sultan of Sulu, and any stipulation that Britain might make respecting the territory must have the prior assent of the Sultan. In a speech before the House of Commons, British Prime Minister William Gladstone made reference to the Deed of 1878 as a contract of lease.

In May 1882 the British government organized the British North Borneo Company (BNBC) that replaced the Provisional Association. In 1888 North Borneo, or Sabah, together with Sarawak and Brunei, became a protectorate of Great Britain. But the administration of Sabah remained vested in the BNBC until 1946.

On June 26, 1946, Britain entered into an agreement with BNBC transferring the dominion over Sabah to the British Crown. Upon the advice of the Privy Council, the King of England issued the Cession Order of 1946. The order divested the Sultan of Sulu of his ownership of a portion of Sabah that was given by the Sultan of Brunei. The cession order was actually a confiscation of a private property of the Sultan of Sulu that was against the English Great Charter of 1215.

In 1215 some English barons petitioned King John to sign the Great Charter which guaranteed the protection of their rights against royal excesses. Article 39 of the Magna Carta of 1215 gave rise to the modern-day constitutional guarantee that no person shall be deprived of his or her life, liberty or property without due process of law. The same guarantee subsisted even against the British Crown in 1946, and continues to subsist in the present day.

In 1066, when William, the Duke of Normandy, invaded England and defeated his cousin, King Harold, in the Battle of Hastings, the victor William proclaimed himself the fountainhead of justice. The proclamation led to the creation of the King’s Bench, and the King’s Chancellor from whose official work emanated the writ system, jurisprudence as judge-made law, and the concept of justice based on equity.

For over 71 years the Sultanate of Sulu has been a victim of injustice from the British fountainhead of justice. State confiscation of private property without due process of law is grave injustice under the unwritten common-law British constitution, the Magna Carta of 1215, or even a basic sense of fairness.

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.