Thursday, March 12, 2015

The Sabah Claim

NB: The elements for making this an article about the Mamasapano massacre are complete, yet this is not about it. Though not entirely unrelated, this digs the Philippines’ long standing claim over Sabah, which is threatened to be in vain following the proposed Bangsamoro Basic Law (BBL).

Bangsamoro: The Sabah equation

The Sabah claim has been a contentious issue, a festering sore in Philippine foreign policy agenda. And so there goes the fifty-year old sword of Damocles hanging over the head of Philippine-Malaysian relations.

In the art of diplomacy, however, the first lesson is that there are no permanent friends, only permanent interests. Obviously, the Palace took this diplomatic cliché by heart if it would mean a lasting peace in Mindanao. Indeed, Gladstone was right when he said, “the first principle of foreign policy is good government at home.”

But could we really say that by forging peace in Mindanao at the expense of the Sabah claim rests on a sound foreign policy?

The concluded Bangsamoro peace pact between the Philippines and MILF (the initial step that gave breath to the infamous BBL), with Malaysia acting as a third-party negotiator in the peace talks, could certainly compromise the Philippine position on Sabah. In fact, the Palace has just downgraded our position by calling our claim as simply “valid but dormant,” a statement more sounding in brass than a solid declaration.

But despite these developments, there are sovereign reasons we must press the Sabah issue because that progressive enclave in North Borneo belongs to us─ historically and legally.

Historical precis

Sabah, formerly known as North Borneo, was originally owned by the Sultan of Brunei.

In 1704, the Sultan of Brunei ceded Sabah to the Sultan of Sulu as a token of gratitude for his aid in suppressing an insurrection. From thence, Sabah became part of the Sultanate of Sulu.

Things changed when in 1878 a British merchant by the name of Alfred Dent offered to lease Sabah from the Sultan of Sulu. Thereafter, Dent sought the help of his friend Baron von Overbeck to negotiate the lease. At that time, the Sultan was under heavy attack from the Spanish forces in the Sulu archipelago thus, the need of funds to sustain the resistance.

Overbeck then grabbed this opportunity by the forelock and convinced the Sultan of Sulu of the lease in consideration of a stingy annual rental in the amount of 5,000 Malaysian dollars or equivalent to $1,000 in American dollars. The terms and conditions of the lease agreement were reduced in writing.

In turn, Overbeck sold his rights under the lease contract in favour of Alfred Dent.

After eleven (11) months or so, Dent organized the British North Borneo Company, also known as the North Borneo Chartered Company, and thereby assigned all his rights and obligations under the 1878 lease contract in favor of the said company. In the following year, the company was able to secure a Royal Charter from the British government.
A protest ensued claiming that the grant would mean that the British had already assumed dominion over Sabah by virtue of the Royal Charter. But the British Crown denied the charge and clarified that the Sultan of Sulu retained sovereignty over Sabah.
Over the years, the Sultan of Sulu was the duly recognized sovereign ruler of Sabah.

But on July 10, 1946 exactly six days after the declaration of Philippine Independence, the British government made a sudden turn and claimed that it purchased Sabah from the British North Borneo Company. (Source: Jovito Salonga, A Point-by-Point Reply, THE INTANGIBLES THAT MAKES A NATION GREAT 2006)

For the first time, the British government formally announced unequivocally that Sabah was now a part of the British dominions.
Later on, the British government turned over the annexed territory to one of its colonies─ Malaysia.

This was the beginning of the end.

The seminal claim

It was in 1950 when Congressmen Diosdado Macapagal, Arsenio Lacson, and Arturo Tolentino sponsored a resolution urging the Philippine government to formally lodge a claim to Sabah.

After 12 years of protracted study, with Macapagal now as President, Congress authorized the Philippine government to file a national claim over Sabah.

On June 22, 1962, the Philippines, through the Department of Foreign Affairs, notified the British government of her claim of sovereignty, jurisdiction and proprietary ownership over Sabah as successor-in-interest to the Sultan of Sulu.
A question of foreign policy

One of sterling qualities of President Diosdado Macapagal is the fact that he was a seasoned diplomat even before he became President.
Experience taught Macapagal well that the best way to handle delicate problems such as territorial disputes in the region would have to be resolved amicably by Asian countries themselves. Subsequently, President Macapagal conceived the idea of organizing a consultative body which would foster national interest while at the same time temper any diplomatic friction with our Asian neighbors.

Following the Tripartite Manila Summit held in July and August of 1963 between Malaysia, Philippines and Indonesia, MAPHILINDO was born.

The diplomatic strategy of President Macapagal to recover Sabah was obvious: through the advent of Maphilindo, the Philippine government could at least advance its position in a non-confrontational approach and hopefully push Malaysia to the bargaining table.

President Macapagal’s optimism initially succeeded.

On February of 1964 while in Phnom Penh Cambodia, President Macapagal had a private meeting with Prime Minister Rahman of Malaysia. In subterranean whispers, both agreed to settle the dispute amicably. Before they parted, as told by President Macapagal in his memoirs, they decided to elevate the question before the International Court of Justice (ICJ).

Unfortunately later, due to political pressure back home, PM Rahman kept mum of the fact he and Macapagal agreed to settle the Sabah question in the World Court.

Consequently, with the breakdown of the Sabah talks, the relationship between the Philippines and Malaysia soon became cold and tensed. Suffice it to say that MAPHILINDO died of a natural death as the term of President Macapagal came to a close. And so was the Philippine claim to Sabah.

The Marcos withdrawal

Signaling the nascent of a new administration in power was President Marcos’ foreign policy on the Sabah dispute.

With the creation of the Association of Southeast Asian Nations (ASEAN) in 1967, President Marcos opted not to pursue the claim and focused his attention toward the preservation of ASEAN unity.

In 1977, President Marcos formally announced the withdrawal (not abandonment) of the Philippine claim to Sabah.

The legal cobwebs

There is no question that the best way to resolve the dispute is through diplomatic negotiations among contending states. There is no question either, that in the event of failure to settle the dispute through diplomatic channels, the last resort should be by way of judicial settlement. Now, how does judicial settlement works when the parties in the controversy are not individuals but sovereign states?

Judicial settlement

One of the methods of settling disputes under international law is through the International Court of Justice, the judicial organ of the United Nations. Member states of the UN, like the Philippines and Malaysia, are deemed ipso facto parties to the Statute of the International Court of Justice (Statute for brevity).

But why has the Sabah conflict remained unresolved up to this day given the fact that the disputants are indeed parties to the Statute?

The legal vacuity

The ICJ in a number of cases has said that its jurisdiction is primarily based upon the will of the parties, i.e., their consent to submit to its jurisdiction. This judicial mechanism has been widely criticized- mostly coming from weak states─ as inconsistent to the time-honored rule of international law on sovereign equality of states. This too renders the ICJ as a toothless tiger, completely powerless to settle international disputes.

Malaysia’s continued refusal to submit the case to the ICJ is expected. Clearly, only parties confident of their positions are willing to settle much less go to court. It is inconceivable that Malaysia for the longest time remains silent on the issue. Is she avoiding adverse judgment if the case is elevated once and for all to the World Court? Representatives of the Malaysian government bragged that they are absolutely sure of their grounds, if so, then why evade judicial settlement by an impartial body? It’s hard to speculate but an ounce of logic and a bit of common sense might help.

Landowner versus tenant

It is elementary principle in law that one who pays the rentals does not own what it rents.

In a word, how could have the British government bought Sabah from the British North Borneo Company when the latter did not own it? It must be remembered that pursuant to the 1878 contract, the company as successor-in-interest of the original lesee Dent, merely had leasehold rights, not ownership over Sabah. And what possible legal justification could they give of the fact that the company had continue to pay annual rentals until 1946, and the British government its successor-in-interest, until 1963? These acts certainly do not speak of attributes that of an owner, as the British government would like us to believe. Clearly, the right of purchase as claimed by the British government has no adequate legal basis to support it for “it is given with her feet planted in mid-air” so to speak.

The Philippine position boils down to this conclusion: since the British did not possess the rights of sovereignty and dominion over North Borneo, neither did Malaysia acquire such rights when the British Crown transferred Sabah to her.

The Sabah Claim and the 1987 Constitution

Foreign policy goals and actions of a state, as pundits would always say, are often relative to the administration in power. Nonetheless, the Philippines has always been consistent with her position regarding the Sabah dispute. While she withdrew her claim on Sabah during the Marcos years, it does not mean, however, she abandoned it. In legal parlance, abandonment signifies permanency while withdrawal is transitory in nature.

The Philippine position on the Sabah issue is articulated in the provision on National Territory of the 1987 Constitution:

The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction…
The case of Sabah clearly falls within the category of territories “over which the Philippines has sovereignty and jurisdiction.”

The intention for including such clause in the 1987 Constitution is traceable to the 1935 and 1973 Constitutions. During the deliberation of the 1986 Constitutional Commission, there was intense debate on what to do with the Sabah claim. Some Con-Com delegates chose to retain the 1973 phraseology that says, “all other territories belonging to the Philippines by historic right or legal title.” Others, however, proposed a new phraseology “all other territories over which the Philippines has sovereignty or jurisdiction.” The latter proposal prevailed.

It must be noted that in essence, the change in phraseology is just a matter of semantics. If we recall, the phraseology used under the 1973 Constitution irritated Malaysia which understood the phrase as an outright assertion of Philippine claim over Sabah. As presently worded, the restyled phraseology merely tempered the previous language used in the 1973 Constitution.

But the intent is clear: the Philippines is neither abandoning nor foreclosing any claim to Sabah.

It is my view however, that the implied inclusion of Sabah as part of the national territory in the Constitution is apropos. It shows our consistency as a nation. It reflects our devotion to the rule of law in the Asean region and in the whole of international community.

Sabah belongs to the "Filipinos" and to the generation yet unborn and the presumptive lasting peace in Mindanao is definitely not worth abandoning a place where a part of our history as a nation and race rests. After all, the 1987 Constitution is not just an ordinary document but an expression and articulation of the sovereign will of the Filipino people.

And President PNoy, no matter how fallible or weak his foreign policy is, cannot negotiate much more compromise our claim over something we own in the first place. To many, this may seem far-fetched, almost beyond belief. But I am tempted to think that if the proposed Bangsamoro entity turns out to be an independent Muslim state in the future, Sabah undoubtedly will be a part of it. Henceforth, Malaysia—the third party negotiator of BBL— could now seal her dubious ownership over Sabah even without going to the International Court of Justice for judicial settlement. And now, that's the real score.

Photo credit: The Pinoy Pulse