The elephant in the room: Sabah

Initially, we could not make heads or tails over media reports that around 300 armed men from the Philippines had landed in Sabah. In fact, it took a number of days before we realized that the men were calling attention anew to the “elephant in the room” in the precarious bilateral relations between Malaysia and the Philippines.

When I discussed the Sabah issue in a conference in Kuala Lumpur last December presided over by former Malaysian Prime Minister Abdullah Badawi, a Malaysian career diplomat turned red and assailed me for resurrecting what he claims to be “a long-settled issue.” According to this Malaysian diplomat, he was present when the dictator Ferdinand E. Marcos unequivocally declared in 1977 that the Philippines “had abandoned its claim to Sabah.” Arturo Tolentino, then minister of foreign affairs, allegedly reiterated this position.

It was not a surprise then that in the 1990s, Malaysia vehemently objected to the Philippines’ attempt to intervene in a case with the International Court of Justice (ICJ) on the issue of conflicting claims to territory on Pulau Sipadan and Pulau Ligitan between Malaysia and Indonesia. There, the counsel for Malaysia, Sir Elihu Lauterpacht, my own mentor in international law, argued that while we claim a legal interest in some of the primary documents to be presented in the case to prove our title to Sabah, the reality is that there is no pending Philippine claim to Sabah, citing anew the Marcos and Tolentino declarations.

The Sabah issue would hence be relegated to the back of our consciousness. In the words of a senior Filipino diplomat, the Sabah claim “remains unsettled but had been relegated to the back burner given the importance of our bilateral relationship with Malaysia.” The latter has, after all, taken on the sensitive role of facilitator in the ongoing peace talks in Mindanao. Ironically, the same Filipino diplomat deplored Malaysia’s role in the peace talks, saying it is not a disinterested party precisely because of the unresolved Sabah claim. Many believe that the claim to Sabah, together with the notorious 1968 Jabidah massacre, or the killing of soldiers who were then being trained in Corregidor for a planned military invasion of Sabah, has prompted Malaysia to stoke the embers of the insurgency groups in Mindanao. Some have even claimed that even recently, Malaysian submarines were utilized to deliver arms to armed insurgents in Mindanao.

There is not much dispute on what the Sabah claim is other than for one word: “pajak.” It is undisputed, for instance, that the Sultanate of Brunei ceded a big chunk of Sabah to the Sultanate of Sulu as a token of its gratitude for the latter’s role in quelling an armed rebellion in Brunei.  It is also undisputed that in 1878, the Kiram family of Sulu, with Gustavo von de Overbeck of the British North Borneo Co., entered into a contract for pajak. English and, later, Malaysian authorities would construe pajak as a contract of “sale.” The Philippines maintains it is one of “lease.”

It is also undisputed that “estoppel” is a recognized mode of losing title to territory. This was the ruling of the ICJ in the “Temple case of Preah Villar,” then being disputed between Cambodia and Thailand. The ICJ ruled that because Thailand signed a 1933 map indicating the temple to be in Cambodian territory, Thailand was estopped from claiming title to the temple.

Our dilemma now is while the Malaysians insist that we are estopped from asserting a claim to Sabah because of the Marcos and Tolentino declarations, what happens to the rights of the Sultanate of Sulu? Malaysia itself admits the execution and authenticity of this contract entered into by the Sultanate of Sulu with Overbeck as in fact; it used the same as its basis of title over Sabah in the case decided upon by the ICJ. The issue now is: What exactly is this contract of pajak and what should be done now that its rightful owners want Sabah back?

In any case, even the Malaysians themselves have questioned whether the Marcos and Tolentino declarations will suffice to extinguish our claim to Sabah. They have demanded that in addition to the declarations, the renunciation should be done through a constitutional amendment. The rationale for this is that Sabah is included in the definition of our national territory in both the 1935 and the 1987 Constitutions. The proceedings of both Constitutions will show that the intent of the drafters was to include Sabah as part of “territory over which the Philippines has sovereignty or jurisdiction.”

The arrival of the armed men in Sabah sends the message that the Sultanate of Sulu wants its property back. This would mean that while we may not assert a superior claim to the territory during the pendency of the Sabah lease, our nationals, claiming to be its owners, now want their property back.

It is incumbent on President Aquino’s administration to espouse the claims of the sultanate. Certainly,  Article 1 of the 1987 Constitution on the National Territory mandates this.

Harry Roque is the director of the UP Law Center’s Institute of International Legal Studies.