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The land below the wind

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Amid the turmoil and conflict generated by the unending rebellion in Mindanao and the renewed claim over the disputed Spratly Islands, another territorial claim that has greater consequences for the country continues to be ignored by the Philippine government.

The Philippines’ dormant claim over Sabah (North Borneo) was rekindled recently by the reigning and 34th leader of the once great Sultanate of Sulu and North Borneo, Sultan Esmail D. Kiram II, and Engineer Abraham J. Idjirani, the Sultanate’s executive director and national spokesperson, during a forum on Oct. 15 at the Pimentel Center for Good Governance of the University of Makati.

Former Sen. Aquilino Pimentel Jr., head of the Pimentel Center for Good Governance, furnished this writer a brief outline of the speeches of both Sultan Kiram and Engineer Idjirani.

The Sultan sought the support of the Filipino people in renewing the country’s claim to Sabah, the second largest state in the Malaysia federation. Sabah, located in the northern portion of the island of Borneo, is often referred to as “the land below the wind” because of its location south of the typhoon-prone region around the Philippines.

Just like Mindanao and the Spratlys, Sabah, which is about the size of Mindanao and with a population of about 2.5 million people, is believed to be rich in oil and other natural resources. One of the world’s biggest oil-producing countries, the tiny Sultanata of Brunei, is located in the same island of Borneo.

“Allow me to appeal and request your support in furtherance of the Sabah claim for the future of our nation and for the good of Filipino generations yet to come,” Sultan Kiram told the audience composed of academics, historians and politicians.

Engineer Idjirani, on the other hand, bewailed the lack of information and education of the Filipino people on the history of the Sultanate of Sulu and its claim over Sabah. He hopes that with the proper orientation of the Filipino people on the historical facts about the dispute over Sabah, the claim could be pressed again before international courts and agencies.

The last time Sabah broke into the consciousness of the Filipino people was during the time of President Ferdinand Marcos in 1972 when a top-secret military operation involving a planned armed intrusion in Sabah was exposed in the media. The military apparently had been training a group of Muslim Filipinos in Corregidor, but when the recruits learned of their mission, they mutinied and were eliminated except for one who escaped by swimming on the bay.

The incident was described by the Philippine press as the infamous “Jabidah Massacre,” named after the planned military operation in Sabah. After that incident, the Philippine claim to Sabah was shelved once more, never to be revived again.

The claim by the Sultanate of Sulu over Sabah is based on historical facts and backed by legal documents that are available in the archives of Spain, Great Britain, Holland, Germany and the United States, as shown by a thorough study conducted by the Philippine Senate and House of Representatives from 1950 to 1963.

It all started when at the height of the Suluk-Spanish War between 1675 and 1704, the Sultan of Brunei negotiated with his cousin, the Sultan of Sulu, to send military aid to his kingdom to quell the rebellion mounted by the Brueni king’s half-brother. In gratitude, the Sultan of Brunei gave North Borneo, which is now called Sabah, to the Sultan of Sulu and vested the latter with sovereign rights.

Two hundred years later, the ceded territory of North Borneo was leased from Sultan Jamalul Ahlam by the British East India Company, which was later renamed British North Borneo Company, through a lease contract signed on January 22, 1878 by the Sultan and Gustavo von Overbeck, an Austrian national representing the British firm.

The annual lease payment was a meager amount of 5,300 Mexican gold in exchange for the company’s rights to exploit and develop the territory’s natural resources. After signing the contract, Overbeck sold his rights to Alfred Dent, a British subject, who then became the sole owner of the leasehold rights.

A provision of that lease contract read: “The above-mentioned territories are from today truly leased to Mr. Gustavus Baron Von Overbeck and Alfred Dent, Esquire, as already said, together with their heirs, their associates [Company] and to their successors and assigns for as long as they choose or desire to use them, but the rights and powers hereby leased shall not be transferred to another nation, or a company of other nationality, without the consent of their Majesty’s Government” (italics, supplied).

In 1888, the British government signed a Protectorate Agreement with the British North Borneo Company declaring that the British Crown had the power to exercise external sovereignty over North Borneo (Sabah). Thus, the British Government recognized unilaterally – without the consent of the Sultan of Sulu – the leased-territory of North Borneo as an “independent State”.

On July 9, 1963, Great Britain and the Federation of Malaya signed the Acts Relating to Malaysia in London that recognized the establishment of the Federation of Malaysia that included the leased-territory of North Borneo as the New State of Sabah.

Aside from the 1878 lease agreement with Overbeck and the British North Borneo Company, the Sultanate’s claim is based on the following historical facts and legal documents:
• Joint-Statement signed on August 5, 1963 by Malaysia, Indonesia and the Philippines under paragraph 12 of the 1963 Manila Accord that reads: “The Three Heads of States of the afore-named countries take cognizance of the position of the Philippine Claim to Sabah after the establishment of the Federation of Malaysia in 1963, that is, the inclusion of Sabah in the Federation of Malaysia does not prejudice either the Claim or any rights thereunder until finally resolved by the United Nations, not precluding the International Court of Justice”.

• The 1881 Royal Charter of Incorporation that precluded the company of Dent from acquiring sovereignty over Sabah for the simple reason that the authority granted to Overbeck was merely a delegation of administering authority made by the Sultan of Sulu, in whom sovereignty still remained vested.

* The British Parliament reply to the protests lodged by Spain and Holland that reiterated the provision stated categorically in the Royal Charter that the authority given to Overbeck was merely to administer North Borneo but the Sultan of Sulu retained sovereignty.

• The 1898 Kiram-Bates Agreement that underscored the US recognition that North Borneo [Sabah] was merely under lease with the British North Borneo Chartered Company.

• The Kiram-Carpenter Agreement in 1915 where the US Government reiterated the recognition articulated by the 1899 Kiram-Bates Agreement regarding the status of North Borneo [Sabah] BEING LEASED ONLY TO OVERBECK, THEN, LATER TO BECK; assured full protection to the Sultan of Sulu should the question of Sabah in the future arise between him and any foreign authority; and, agreed to place the Sultanate of Sulu under an American Protectorate.

• The Sessions Court of North Borneo ruling in 1939 where the court resolved a suit filed by the Sultan of Sulu in favor of the heirs, naming then Datu Punjungan Kiram as Administrator of the leased-territory of North Borneo [Sabah]. That was the first court case won by the Sultanate of Sulu.

• A resolution passed by the United Nations in 1950 rebuffing British claims over the territory by mandating all colonizing countries that the three modes of acquiring territories by means of discovery, conquest and occupation were no longer recognized as valid. Following the UN resolution, the British Government restored and returned the title of sovereign and proprietary ownership of the Sultan of Sulu over the Turtle Island and all small Islands comprised therein to Sultan Esmail Kiram 1 and the other Nine Principal and Rightful Heirs under the leadership of the Court-appointed Administrator, then Crown Prince Punjungan Kiram.

The late Senator Arturo M. Tolentino, who backed the Sultanate’s claim throughout his political career, listed three historical facts that supported the claim:
• First fact – that the British North Borneo company merely based its rights upon the rights of Overbeck and Dent — rights which were not those of a sovereign but those of a LESSEE;

• Second fact – that the United Kingdom, in turn, based its alleged rights of sovereignty over the territory on the rights of the British North Borneo Company — rights which were not those of a sovereign but those of a LESSEE; and,

• Third fact – that Malaysia’s claim to sovereignty over North Borneo [Sabah] is based on the rights of the United Kingdom — rights which were not those of a sovereign but those of a LESSEE.

A major dispute in the original1878 contract was the interpretation of the word “Padjak” in the document. Language experts on Bahasa Malay agree that the term “Padjak” a Tausug dialect and Malaysian language used as word of conveyance of the 1878 contract, written in Arabic character, meant “lease”. Dent, one of the lessors, hired two British nationals to interpret the word “padjak” and they said it meant “cession in perpetuity.”

Despite the interpretation by Yale University Professor Harold Conklin and other language experts that it meant “lease,” Great Britain and Malaysia insisted on the two British nationals’ translation.

However, if it was not a lease, why does Malaysia continue to pay $5,300 Malaysian ringgit every year to the heirs of the Sultan?
In 1962, the Philippine government, under then President Diosdado Macapagal, filed a formal claim on Sabah before the United Nations on behalf of the Sultan of Sulu based on a special power of attorney granted by the Sultan.

It contained a provision that said the special power of attorney shall become ipso facto null and void if the Philippines fails to exhaust all peaceful means to assert the claim. The Sultan can void the power of attorney anytime because obviously the Philippines has all but forgotten about the claim.

The Philippines stands to gain more and has more solid evidence to pursue its claim over Sabah than it has over Spratlys, and yet administrations after administrations have chosen to ignore the Sultan of Sulu’s plea to assert the claim. It would seem the country’s leaders prefer the status quo than ignite tensions with Malaysia, which is mediating the peace talks between the Philippine government and the Muslim rebels.

Why gear up for war for a few shoals and islets in the middle of the ocean, and not lift a finger for an oil-rich land as big as Mindanao that is legally and historically a part of the once-great Sultanate of Sulu?

By Val G. Abelgas




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