Forgotten

North Borneo, or Sabah for Malaysians, barely lingers in Philippine history and politics. It remains an unresolved issue between Malaysia, the Philippines, and the heirs of the Sultan of Sulu who, in 1878, leased or ceded the territory to Dent and Overbeck (later to become the British North Borneo Company) for a perpetual annual payment of about 5,000 Malaysian dollars. Malaysia honored the annual payment until after the tragic Lahad Datu siege in 2013.

The Sabah issue is a forgotten one. It cropped up once during the frenzy of amending the 1987 Constitution, on whether or not the rewritten constitution would include the territory of North Borneo, better known as Sabah.

As much forgotten as the territorial claim are the thousands of Filipinos, mostly Tausug, residing in Sabah. They are undocumented in a foreign land—which they rightly call home—and deprived of consular services or government protection. The Philippines’ dormant territorial claim over Sabah prevents the country from establishing a consular office there, as that would amount to recognition of the sovereignty of Malaysia over the claimed territory. The Philippines, however, has long shelved such territorial claim, rendering dormant the proprietary claim of the Sultan’s heirs.

The history of Philippine territory as it is known today started from its discovery or occupation by Spain in 1521. Spain ruled over the Philippine archipelago, which included Sulu but not North Borneo, for over 400 years, until 1898 when Madrid ceded it to the Americans under the Treaty of Paris. When the Americans took over the Philippine islands, they did not take over North Borneo, much less exercise jurisdiction or sovereignty over it. Thus, there has been

no historical transfer of territorial sovereignty over North Borneo from the Sulu Sultan to either Spain, the United States, or the Philippines.

Territorial sovereignty over the Sulu archipelago was formally ceded by the Sulu Sultan to the Americans pursuant to the Carpenter Agreement of 1915, in which the Sultan recognized American sovereignty over the Sulu islands—but not North Borneo. The Salonga thesis proposes that the Sultan retained his sovereignty over North Borneo. How and when such sovereignty over North Borneo might have been transferred to the Philippines remains a big question mark.

In 1962, when the heirs of the Sulu Sultan ceded to the Philippine government their rights over North Borneo, excepting proprietary rights, they could not have ceded the Sultan’s residual sovereignty over North Borneo, because they were not sovereign in their own right. Sovereignty can only pass from one sovereign to another. In any case, the Cobbold Commission’s report on self-determination by the Sabah inhabitants wrote finis to the Sultan’s residual sovereignty. The report paved the way for United Nations

recognition of the Federation of Malaysia, which included Sabah. The Philippines’ sovereign claim over Sabah is thus tenuous, if not untenable.

The proprietary claim of the Sultan’s heirs also faces juridical hurdles. When the British North Borneo Company folded up, it transferred all its assets to the British government, including rights under the Deed of 1878 over North Borneo. The King of England thus issued Cession Order of 1946 declaring that North Borneo belonged to the realm.

When the Philippine government tried to assert the Sultan’s proprietary rights over Sabah, the British government rebuffed the claim, arguing that pursuant to the Macaskie judgment, the Deed of 1878 was a cession, subject only to perpetual payment of cession money. Malaysia relied on this British position on Sabah, but stopped its annual payment to the Sulu Sultan’s heirs after the Lahad Datu siege. Finding a solution to this impasse is a huge challenge, and finding a tribunal to resolve it is even more daunting.

Frank E. Lobrigo is a retired regional trial court judge and president of the Integrated Bar of the Philippines-Sorsogon Chapter.