The Philippine Claim to Sabah: Is It Time for a War Dance? (Part 1)

Tuesday, 31 May 2011 01:57
Written by Marvin Bionat
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Marvin Bionat

Tags: Bottom Line

At Stake

The second largest state in Malaysia, Sabah is 72,500 square kilometers (almost a quarter of the total land area of the Philippines) of natural beauty and resources, with 1,440 kilometers of coastline. A fast-growing tourist destination, it is home to the Kinabalu National Park, a designated World Heritage Site. Sabah contributes an estimated 30 billion dollars to the Malaysian economy.

The Proprietary Claim of the Sultanate of Sulu

The Sultan of Sulu acquired Sabah in 1658 as a gift from the Sultanate of Brunei after Sulu warriors helped end a civil war in Brunei.

In 1878, the Sultan of Sulu signed a treaty with the representatives of the British North Borneo Company, giving them “rights and powers” over Sabah. In return, the company promised to pay 5,000 Malaysian dollars annually.

Within the same year, Singapore papers reported that the Sultanate had ceded Sabah to the British company. The Sultan wrote successive letters to the Spanish governor-general vehemently denying the reports.

When the Sultan died without direct descendants in 1936, the annual payments stopped. His rightful heirs formed the Kiram Corporation to represent his estate, and in 1939, the Malaysian High Court upheld the Sultanate’s entitlement to the yearly payments promised in the 1878 treaty (increased to 5,300 Malaysian dollars in 1903).

Seven years after the court case, the British government assumed the rights and powers of the British North Borneo Company over Sabah. They in turn assumed the same rights and powers stipulated in the 1878 treaty, which the Sultan claimed was a lease agreement. The Sultanate continued to receive the annual payment.

The Philippine Legal Claim

In 1962, the heirs of the Sultan decided to transfer the Sultanate’s proprietary claim to the Philippine government. It was stipulated that “should the Republic fail to recover North Borneo after exhausting all peaceful means, then the transfer document shall ipso facto become null and void and the Sultan of Sulu shall be free to assert his sovereignty by other means.” Within the same year, Philippine President Macapagal made the government claim official.

Malaysia acknowledged the Philippine claim by signing the Manila Accord on August 5, 1963. The treaty spelled out that the inclusion of Sabah in the Federation of Malaysia is subject to the final outcome of the Philippine claim; that the Philippines has the right to continue to pursue the claim in accordance with international law and the principle of pacific settlement of disputes; that the inclusion of Sabah in the Federation would not prejudice the claim; and that both sides agree to bring the problem to a just and expeditious resolution through negotiation, conciliation, arbitration, or judicial settlement.

The primary basis of the Philippine claim is the assertion that Malaysia received from Britain only the non-sovereign rights acquired in Sabah by the British from the British North Borneo Company, to whom the territory had been leased by the Sultan of Sulu. Even British Foreign Minister Lord Earl Granville said in 1882 that “the Crown in this present case assumes no dominion or sovereignty over the territories occupied by the (British North Borneo Company), nor does it purport to grant to the Company any powers of Government thereover; it merely recognizes the grants of territory and the powers of government made and delegated by the Sultans in whom the sovereignty remains vested.”

Grand Deception

It was not until 1946 that a copy of the Arabic original of the 1878 treaty was obtained by the U.S. State Department from the British. The word used to transfer the territory was “padjak,” which means “lease.” This was significantly different from the treaty translation used in the 1939 court case, in which the term used was “grant” (thus justifying the use of “cession payments” in the 1939 decision). Arabic scholars agreed with the new translation. Likewise, Spanish documents used the word “arrendamiento” or rent.

In his letter to the Spanish governor in 1878, the Sultan asserted that the British North Borneo Company representatives had a new contract written after the original treaty was signed. One other significant alteration in the British version was the provision that “the rights and privileges conferred by this grant shall never be transferred to any other nation or company of foreign nationality without the sanction of Her Britannic Majesty’s Government first being obtained.” In the Arabic version, it said, “the rights and powers hereby leased shall not be transferred to another nation, or a company of another nationality, without the consent of Their Majesties’ Government” (meaning the Sultanate’s government).

(To be continued)