Sabah and Bangsamoro

Has anyone imagined that if Agbimuddin Kiram succeeded in Sabah, Bangsamoro would have an additional territory of 30,000 square miles, the Sultan of Sulu (or the Philippines) would reap about $95 billion in annual revenue, and the Philippine government would get substantial taxes? After all, legally, Malaysia does not have  de  jure  sovereignty over Sabah.

Let us take a closer look at the issues.

• Political. On March 1, with 10 followers of Agbimuddin and two Malaysian commandos dead in a shootout in Lahad Datu, Sabah, the dream of a new political entity called Bangsamoro in an expanded Autonomous Region in Muslim Mindanao—with Sulu and Tawi-Tawi as a constituent part—seemingly became distant. Nur Misuari, a “founder” of the ARMM and feeling left out in the peace agreement, publicly threatened war.

Together with Malaysia, President Aquino gave an ultimatum to Agbimuddin and followers to “surrender without conditions.” He blamed unnamed conspirators for the debacle; the justice secretary vowed to prosecute them to the full extent of the law. The President stressed that what occurred in Lahad Datu has disturbed relations with Malaysia and the ongoing peace process, and endangered the safety and well-being of 800,000 Filipinos in Sabah.

• Historical. Jovito Salonga’s well-documented study traces the history of our claim to Sabah: that Sabah was gifted to the Sultan of Sulu by the Sultan of Brunei in 1704; that the Sultan of Sulu leased North Borneo to an Austrian national, Baron de Overdeck; that Overdeck sold his rights of lease to a British, Alfred Dent, who established the British North Borneo Co., clarifying to some countries, like the Netherlands and Spain, that “sovereignty remains with the Sultan of Sulu;” and that the company was merely an “administering authority.”

In 1946, the company transferred all its rights and obligations to the British Crown, and on July 10, 1946, Britain “asserted full sovereignty” over North Borneo, with Francis Burton Harrison, the US adviser to the Philippines on foreign affairs, vehemently objecting. In 1962, the President of the Philippines was urged by the Philippine Congress “to recover North Borneo consistent with international law.” Thus, “having acquired all the rights and interests of the Sultan of Sulu,” the Philippines, through its President, filed the claim to North Borneo (Salonga, speech in Congress, March 30, 1963).

• Legal. In 1963, the Federation of Malaysia was formed, with North Borneo as one of the constituent states. Malaysia assumed that it has the rights of dominion and sovereignty over Sabah.

We beg to disagree. Firstly, as pointed out by Salonga, what were transferred by the British North Borneo Co. to the British Crown were lease (commercial) rights, the Sultanate of Sulu having retained sovereignty. According to former Chief Justice Artemio Panganiban, sovereignty “is  perpetual  and  absolute  power,” hence inalienable. Therefore, when Britain asserted sovereignty in 1946, it was, in international law, an empty gesture.

Secondly, and more importantly, we respectfully submit that when the 1935 Philippine Constitution took effect, the whole archipelago became one country, state or republic. Hence, the sovereignty of the Sultanate of Sulu over Sabah automatically devolved, by operation of law, on the republic of the Philippines. (Incidentally, titles of nobility were extinguished. Of course, honorific titles, by custom, subsisted.) Thus, President Manuel L. Quezon refused to recognize the “sultanate” after the death of Jamalul Kiram II, the  last sultan, in 1936.

To our minds, the legal situation is: The Philippines has had (de jure) sovereignty since 1935. The Federation of Malaysia merely  exercises  acts of sovereignty (de facto); Britain could not have transferred something it did not have. The “Sultanate of Sulu” remains entitled to annual payments from Malaysia, by virtue of the lease in perpetuity, until new arrangements are made among the parties, or until the Philippines obtains possession of Sabah. After all, the term “pajak” in the original contract is, in Malaysian language, “lease” or “rent,” and not “sale,” much less “cession.”

Fifty years ago the Philippines invited Malaysia to have the Sabah issue resolved by the International Court of Justice. Malaysia refused, backed by Britain. Of course, under international law a state cannot be sued without its consent. Thus, the Philippine claim became dormant, but was not abandoned.

• Diplomatic. Upon the formation of the Federation of Malaysia, the Philippine Embassy in Kuala Lumpur was closed and its staff recalled to Manila. While some efforts continued to have the Sabah question settled, Ambassador Leon Ma. Guerrero had to be summoned to Bangkok to “reject the rejection” by the Malaysian panel of our claim to Sabah.

From Cory Aquino to Benigno Aquino III, the Department of Foreign Affairs has been marginalized, except in a brief moment during the last year of the Arroyo administration. Sadly, the MNLF/MILF issues have been internationalized, with the Organization of Islamic Conference countries and other “disinterested” states meddling in the negotiations. Ironically, Malaysia has become the main facilitator. The Sabah claim was consequently consigned to the “back burner,” until the Sultan of Sulu sent his brother, Agbimuddin, “to settle in their homeland.”

While Ferdinand Marcos might have intended to relinquish our claim to Sabah, in view of misplaced friendship with Malaysia or due regard to Asean solidarity, it was done subject to certain conditions, like the conclusion of the border-crossing agreement with Malaysia. This did not take place during his incumbency. Again, Malaysia demanded the deletion of, or reference to, Philippine territory in the Philippine Constitution and laws, like the baseline statute. That was done subsequently, but there was no mention of, much less intention to, abandoning the claim.

• Treaties. Curiously, seemingly lost in the diplomatic interactions among the Philippines, Malaysia and other countries are treaties and agreements buttressing our claim. The Manila Accord of 1963 states in Paragraph 12 that the ministers took note of the Philippines’ claim and its right to continue to pursue it in accordance with international law and the principle of pacific settlement of disputes. They agreed that the inclusion of North Borneo in the Federation of Malaysia would not prejudice either the claim or any right thereunder. The countries agreed to exert best efforts to bring the claim to a just and expeditious solution by peaceful means, such as negotiation, arbitration, or judicial settlement, or other means of the parties’ choice, in conformity with the UN charter and the Bandung Declaration.  Pacta  sunt  servanda. International agreements and obligations must be upheld by all signatories.

• State responsibility. All these years, the government has displayed lack of interest in the claim of the Sultan of Sulu.

The present peace process has likewise shown lack of transparency in reforming the ARMM. Jovito Salonga, with other patriots of his time, initiated our claim to North Borneo; some lawmakers now urge the vigorous pursuit of the claim. The Sabah question is resuscitated. The ladies of the Sultan of Sulu express the best argument why we should recover it: “Sabah is the patrimony of the Filipino people.”

Lauro L. Baja Jr. and Nelson D. Laviña are retired ambassadors.