The Establishment of the Philippine Charges D’Affairs in Sabah has long been overdue

The North Borneo Cession Order of 1946 laid the basis for the transfer of sovereignty and dominion from British North Borneo Company to the British Crown which stated that “with effect from the fifteenth day of July 1946, to the extend that the Crown should, as from that day full sovereign rights over, and title to, the territory of the State of North Borneo and that said territory should hereupon become part of her Majesty’s Dominions.”

Mohd Jefri Radius

Why did the Malaysian Government still hold back the series of proposals to set up a Philippines Consulate Office in Kota Kinabalu to look after the welfares of the Filipinos in Sabah since the dawn of independence?

The precise and simple answer : “Our government is still giving careful consideration to the proposal for certain reasons, which constitutes inter alia Manila continuing insistence to claim its right on Sabah is delaying the process of setting up a Philippine Consulate in the State”.

With reference to a number of published literature and thesis compiled by several researchers, historians including Filipino scholars that the Philippines formally claimed Sabah based on the Sultanate of Sulu heirs’ historical sovereignty of the territory, which was granted as a token of appreciation by the Sultan of Brunei for helping the latter to fight against piracy infesting within the Northern Borneo territory.

The scholars have come up with a number of arguments, collectively gathered as a result of their research works conducted over the decades, documented and published as sources of academic and legal references and journals worldwide. The free encyclopedia from Wikipedia provides a detailed summary of the North Borneo dispute including the Philippines’ Claim on Sabah.

By virtue of the research notes compiled by Erwin S Fernandez, Department of Filipino and Philippines Literature, University of the Philippines, Diliman, published by The Asia – Pacific Social Science Review : Volume 7 Number 1 , December 2007 with the topic “Philippine – Malaysia Dispute over Sabah : A Bibliographical Survey”, descriptively elaborated lengthy details about the topics which include
a) Macapagal : Establishing the Philippines Claim, whereby President Diosdado Macapagal “was forced to initiate the filing of the claim of Sabah in 1962″ because Sabah was being considered as a member of the proposed concept of Malaysia broached by Prime Minister Tengku Abdul Rahman on May 27, 1961 in Singapore.

After the London Talks, the United Kingdom agreed to relinquish its sovereignty and jurisdiction over Singapore, Sarawak and North Borneo in favour of the creation of the Federation of Malaysia.

After the conduct and results of the United Nations Malaysia Mission were known, The Federation of Malaysia was established on Sept 16, 1963 instead of the scheduled August 31, 1963. Macapagal expressed reservation on the results of UN Mission and refused to recognise the government of Malaysia in the belief that it would prejudice the Philippines’ claim to North Borneo.

b) Marcos : Fomenting and Managing a crisis – When President Ferdinand Marcos assumed the reins of government; relations with Malaysia was still unstable and unsecure. It was only in June 1966 that both governments decided to raise their own consulates to embassies and issued a communiqué. In March 1968, the Marcos Administration faced a critical point of the Philippines’ Claim and the possible breakdown of Philippines-Malaysia relations when the “Jabidah Massacre” controversy was exposed whereby Moros had been recruited for a plan to stage a rebellion and eventual occupation of Sabah under the code name Project Merdeka , which led to the Bangkok Talks from June 17 – July 15, 1968 between representatives of both countries in question.

However, the talks ended in failure and further worsened diplomatic relations between the two countries, when the Philippines Congress passed a law in Sept 1968 known as Republic Act No: 5446, which categorically stated that “this act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo over which the Republic of the Philippines has acquired dominion and sovereignty (Noble, 1977 p.181). Diplomatic ties between the two countries were severed and only a year later in Dec 1969 did the Philippines and Malaysia resume diplomatic relations.

c) Contesting Legal Claims – Two non-Filipinos namely Malaysian Mohammed bin Dato Ariff, the author of “The Philippines Claim to Sabah, its Historical, Legal and Political Implications” (1970) discussed extensively the legal issues surrounding the claims whereby the author provided the basis for the integration of Sabah to Malaysia and cited the principle of self-determination. The Sabahans having already expressed their desire to remain in the Federation while S. Jayaratnam the vice dean of the Faculty of Law, University of Singapore, was of the opinion that the Philippines case “is weak and tenuous ….” (25 Nov 1969 : 10).

Following the study of Mohammed bin Dato Ariff, Jayakumar also invoked the idea of effective occupation on the part of Great Britain of Sabah since 1878 which granted the British North Borneo Company a charter of corporate character. The author contended that “the Philippines Claim is at most an abstract or inchoate one based on historically derivatives rights of the heirs of the Sultan of Sulu (Ibid). Neither the Philippines nor the heir of the Sultan have exercised sovereignty or been in effective occupation of Sabah since 1878.

The Philippine formally presented its claim only in 1962. United Kindom was the state which had effective occupation until 16 Sept 1963 when Sabah became part of Malaysia in accordance with the wishes of the people (as determined by the UN Secretary General) “Malaysia, for purposes of International Law, is now the State in effective occupation” and exercising sovereignty over Sabah (Ibid).

d) The Claim and its relation to foreign policy

e) Outsiders’ view (or mainly the British side of the question) – A bibliography and compilations and a series of reference etc. The foot note of this journal reads “The Deed of 1878 refers to the agreement dated January 22 between the Sultan of Sulu Jamalul Azam and Baron Gustavus Von Overbeck leasing the Sultan’s dominions in North Borneo in exchange of five thousand Malaysian Dollars as annual rent with William Treacher, British Governor of Labuan as witness. This was Cesar Adib Majul’s estimate in his book “Muslim in the Philippines (1999) in contrast to the 1704 date proposed by K.G Tregonning in his book “Under Chartered Company Rule (1958) later published in 1975 as “A History of Modern Sabah 1881 – 1946.

The North Borneo Cession Order of 1946 laid the basis for the transfer of sovereignty and dominion from British North Borneo Company to the British Crown which stated that “with effect from the fifteenth day of July 1946, to the extent that the Crown should, as from that day full sovereign rights over, and title to, the territory of the State of North Borneo and that said territory should hereupon become part of her Majesty’s Dominions.”

The partial list of the documents` are as follows :
1 ) Letter of Earl of Derby to Lord Odo Russell denying Spanish claim of sovereignty over Sulu January 17, 1876.

2) Potocol of Sulu 1877

3) Letter of Acing Consul General Treacher to the Earl of Derby dated January 2, 1878

4) Contrato de Arrendo de Sandacan en Borneo con el Baron de Overbeck January 4, 1878

5) Interpretation of the Moro Language of Mindanao translation of the previous communication in Arabic Transcripts of the contract which His Eminence the Sultan of Jolo executed with Baron de Oberback January 1878

6) Translation by Professor Conklin of the Deed of 1878 in Arabic Characters found by Mr Quintero in Washington D.C January 22, 1878

7) Commission from the Sultan of Sulu appointing Baron de Overback Datu Bandahara and Rajah of Sandakan obtained by Mr Quintero in Washington, January 22, 1878

8) Report of Acting Consul General W.H. Treacher to the Earl of Derby January 12, 1878

9) Letter dated July 4, 1878 from the Sultan of Sulu to the Governor Caption General of the Philippines denying that Sandakan was ceded to Overbeck.

10) Letter dated July 22, 1878 from the Sultan of Sulu to the Governor of Sulu stating that he will cancel the lease of Sandakan and 23 more documents.

K.G. Tregonning, former Raffles Professor of History in the University of Singapore, the author of “A History of Modern Sabah 1881 – 1963” (1965) first published as Under Chartered Company Rule (1958). The position of the Author regarding the Philippines on Sabah can be summarised as follows :

1) The agreement between the Sulu Sultan and Dent and Overbeck was one of a cession and not a lease.

2) Several treaties and International Conventions had excluded North Borneo from the territory of the Philippines either during the Spanish or American period. “The question of whether it was a cession or perpetual lease (whatever that is) seemed a stupid word game (1965 : 245). The Manila Convention of 1885, The Treaty of Paris of 1998 and the US – UK Boundary Convention of 1930 and at the same time noted the acquiescence to these of the Philippines Constitution.

The full text of the conclusion reads “It may be that the Philippines has been flogging a dead horse and Malaysia has been hesitant to bury the carcass, while Sabah has had to bear the stench. Since the grant is one in perpetuity, it can either continue in force or as the real alternative, the annual payment of 5,300 could be compounded and paid in a lump sum.

A settlement of this nature should be done confidentially by diplomacy and mutual trust. Once the compounded sum is agreed upon by all parties concerned, a joint statement could be made, the Sulu Sultan‘s heirs duly compensated and the Philippines and Malaysia could move on to more natural political, social, economic and cultural cooperation“ 1972 : 25.

Another interesting Thesis written by Filipino Scholar Ruben G. Domingo, for his Master of Science in Resource Planning and Management for International Defence Degree at Philippine Military Academy entitled “The Muslim Secessionist Movement in The Philippines issues and prospects” (1995) reads “The Sultan of Brunei who originally ruled Sabah ceded it to the Sultan of Sulu in 1704 as a reward for helping suppress an uprising in his domain. In 1878, the Sultan’s successor, Jamalul Azam, leased the territory to William Cowie and Baron von Overbeck for 5,000 Malaysian Dollars.

Overbeck was then the Austrian consul at Hong Kong and former local manager of the British opium firm of Dent and Company. Whether the terms of the deal were that Sabah was ceded or leased would become the bone of contention between Malaysia and the Philippines. Soon after the agreement, the British North Borneo was formed and awarded a royal charter.

A treaty signed in 1930 by the United States and the British Crown circumscribed the future territorial jurisdiction of the soon to be established Philippines Republic. This treaty DID NOT INCLUDE SABAH within the boundaries of Spanish, American or Philippines jurisdiction. Then, six days after the Philippines was granted independence, the British North Borneo Company turned all its rights and obligations to the British Government, which in turn asserted full sovereign rights over Sabah through the North Borneo Cession Order.

The first official Philippines act on Sabah issue was the adoption House Resolution No: 42 on April 28th, 1950. It states explicitly that North Borneo belong to the heirs of the Sultan of Sulu. It also authorised the President to conduct negotiations for the restoration of sovereignty jurisdiction over the territory.

In the negotiations, the British rejected the Philippines position in view of the overriding need to for the Federation of Malaysia. When the Philippines institutionalised its claim through the enactment of the Republic Act incorporating Sabah as part of the Philippines, the Malaysians suspended diplomatic ties, which was only restored on Dec 16, 1969 in time for the third ministerial conference of the Association of South Asian Nations.

In the forth coming East Asian Summit, to highlight a zone of friendship and freedom involving Asean countries and China, Russia and the United States of America, the Philippines Government plans to submit a proposal highlighting that the country would claim any asset or territory belonging to them and the disputed claim on Sabah be negotiated.

In addition, it is more likely that the Philippines would assert its sovereignty over specific maritime territories in line with the Republic Act 9522, signed three years ago by former President Gloria Arroyo Macapagal to reaffirm the republic‘s sovereignty over the more than 7,100 islands in its archipelago including part of Spratly Islands and Scarborough Shoal.

The Spratlys is believed to be rich in oil, gas and fish, comprising about 100 barren islets, reefs and atolls, sitting along important sea lanes in the South China Sea.

Vietnam, China, Taiwan, the Philippines, Malaysia and Brunei each claim all or part of the low-lying islands.

Foreign Affairs Minister Datuk Seri Anifah Aman, who was quoted as saying following his recent meeting in Manila that “the Sabah Claim issue is non negotiable. In fact, we are almost fed up with the Philippines problems in Sabah as they do not have a consulate here. I have clearly explained to the Philippines Government about our stand on their claim on Sabah, I said the issue is not our problem (but) actually their (Philippines) problem and believe that certain quarters among the Philippines officials are stoking the claim despite Malaysia’s firm stand on the issue”. (The Daily Express Sunday January 22, 2012)

We are proud to have an elected Sabah representative who is fully aware and understands his roles and responsibilities upon being appointed to lead the ministry in question comparable to his predecessors at the Federal level. This contribution is made specifically for the good of the State and Country especially as far as the Sabah Claim issue is concerned.

In summary, the final Green Light to set up the Philippines Consulate in the State would only be made feasibly once a bilateral understanding has been reached by the involving parties. The question now is how soon can we find the remedy or convincing solutions capable of burying the Sabah Claim issue once and for all?

How effective would the establishment of a Filipino diplomatic mission be in helping the Malaysian authorities solve the controversial long stand issue of illegal immigrants hailing from the Southern Philippines in particular, when a similar category of aliens are also found in massive numbers from other neighbouring country (Indonesia) despite the existence of its consulate in the State‘s capital?

A positive outcome has yet to be extensively gauged and justified when it comes to reality upon full scale implementation. If they cannot act as the catalyst to the current social stigma infesting the State but they help to soften the blow at the initial stage, it will suffice as an effective remedy that works in the long run.

Retrospectively, it is still fresh in the minds of every living Malaysian in Sabah to ponder upon the following significant occasions:

a) In Oct 1998, former Governor of the Autonomous Regions of Mindanao (ARMM) cum the Chairman of the Moro National Liberation Front (MNLF) Prof Nur Misuari visited Peninsular Malaysia and Sabah bringing the message on the status quo of the Southern Philippines, which according to Misuari “is more peaceful now”.

He planned to take back an estimated 300,000 Filipinos from Sabah as their resources would be required to rebuild the southern region. Paradoxically, Misuari’s noble intention did not materialise due to certain unknown reasons, otherwise his role would have helped to reduce our authorities’ burden 14 years ago, thus partly solving the alien problems growing in the State from accumulating to the present statistics estimated to be in the range of over a couple of millions.

b) Our Government’s previous effort to deport Filipinos illegal immigrants back to their country of origin was kept on hold to a stand still during the crux of President Gloria Arroyo Administration when she refused to accept them back with the excuse that they did not have documents to prove their national identities as Filipinos although it was very obvious that those illegal immigrants hailed from the Southern Philippines judging from the accent of their home native dialects, behaviours and characteristics etc.

The setting up of the Philippines Consulate in Sabah would therefore be necessary and would help a lot to solve cases of similar nature in the future. Hence, we leave it to the wisdom of our government and the relevant ministry in question to search and formulate a long term solution affecting the parties involved for the sake of Social, Economic and Political Cooperation within the Region of ASEAN member countries.