The facts of Sabah's status by Bunn Nagara

Bunn Nagara

Besides weapons and tactics, Sabah’s defence requires sound knowledge of the pertinent facts and issues.

THE Lahad Datu siege has, over the past six weeks, exposed the lack of readily available information on the incident and its history.

The problem was further compounded by confusion and misunderstanding spread by ignorant or mischievous pundits online.

Carefully sifting through the facts of history would help. Unfortunately, few if any texts offer a reliable and complete account of Sabah’s past and present status along with the claims made upon it.

One basic fact is that the Philippines, both as the Commonwealth of the Philippines from 1935 and as today’s fully independent Republic of the Philippines from 1946, never had a claim of its own on Sabah, the former North Borneo.

When Sultan Jamalul Kiram II died in 1936 without a successor, both the US military administration and President Manuel Quezon of the Commonwealth of the Philippines declared the end of the Sultanate. The British government then annexed North Borneo 10 years later.

Although descendants of the Kiram family still tried to claim their royal lineage, titles, prerogative and territory, those claims after 1936 had always been dubious. They had no international recognition or status, particularly since Sabah had long ceased to be administered as a sultanate.

At that point, various individuals claimed to be the legitimate heir to the sultanate, including one “recognised” by the occupying Japanese forces during the Pacific War.

The inconsistency of the Philippine government made things messier: President Marcos appointed one such candidate sultan, then declared the end of the sultanate with the death of another in 1986.

Meanwhile, each candidate bore children to produce even more claimants to the throne. None of them, including Lahad Datu siege mastermind Jamalul Kiram III, is recognised as Sulu Sultan by the Philippines.

Jamalul Kiram III is also not directly related to Jamalul Kiram II. Thus, even the name itself is more assigned or assumed, like a presumed title, rather than the individual’s personal name.

Another fundamental fact is that since the Sulu Sultanate no longer exists, no sovereignty claim can be valid either. Any claims filed can only be made on a personal basis as private individuals.

Yet in 1962, then “Sultan” Esmail E. Kiram I “granted” the Philippine government the power of attorney to reclaim Sabah. This led to a protracted (intermittent) claim by Manila through the 1960s and 1970s, although the Philippines had reportedly started easing off on the claim from 1968.

Claimants argue that North Borneo had only been rented out to the British North Borneo Chartered Company in 1878 and never ceded. Endless debates ensued over the actual words “rent”, “lease” and “cede” or “cession” to prove Sabah’s status one way or another.

Many Philippine commentators, however, see little distinction between these terms, whatever their position on the claim. The Official Gazette of the Republic of the Philippines itself refers to the 1878 agreement and its 1903 amendment as being based on a cession.

Former Philippine Chief Justice Artemio Panganiban distinguishes between sovereignty and ownership claims by arguing that only recognised states can exercise sovereignty, while private individuals (like the Kiram clan) may claim ownership. It follows that rent, from ownership, is being claimed rather than cession money deriving from sovereignty.

However, all these claims on Sabah are or have been based on the former sultan’s authority arising from the sovereignty of the sultanate that was. Private property claims cannot derive directly and automatically from sovereign claims upon the expiry of sovereignty.

Besides, private property claims require proof by way of a land title, which the Kirams do not have. Furthermore, a sovereign nation like the Philippines may not be empowered to pursue the private property claims of some citizens over territory already administered by and incorporated into another sovereign nation.

The US had acquired California from Mexico through annexation of the territory. Would Mexico now pursue the property claims of displaced Mexican landowners in Washington, and how would the US government respond should such claims arise?

Filipino claimants also cite the 1878 agreement’s condition that North Borneo may not thereafter be passed to another country. That is selective reading, since the paragraph continues with the proviso that the territory may be included in another country with the consent of the British government.

Since Britain was instrumental to Sabah’s inclusion in Malaysia, it had provided more than just procedural consent. And despite the arguments of some Filipino nationalists, Malaysia’s case over Sabah in international institutions is watertight.

Prior to the 2002 judgment on the status of Sipadan and Ligitan islands by the International Court of Justice (ICJ), the Philippines tried to intervene in respect of its pending claim to adjoining Sabah. The ICJ rebuffed that intervention by observing that the court does not entertain historical claims.

The Philippines would do well to heed that finding and make the best of it. Should it pursue the Sulu claim on Sabah, which is entirely a historical claim, it would only energise China’s claim to the disputed Spratly Islands, which is also based on historical antecedents.

Philippine Cabinet Secretary Jose Almendras has reportedly quipped that Manila would pursue the Sabah claim in international courts after a review, since time and money had already been spent on studying the case. However, Manila understandably appears to be concerned over the issue because an election is due in May, and a review is never a guarantee of legal action.

Malaysia should not be too eager to prove its case at the ICJ, however favourable a judgment is likely to be. Doing so could open up a vexatious Pandora’s Box of endless litigation.

There are about a dozen claimants to the Sulu “throne”, and each may wish to try his luck in turn. The objective may not even be to “win” Sabah, but just to gain publicity and hopes of getting higher annual payments or compensation.

Any kind of appeasement or compromise by Malaysia may encourage more of such problems. This country’s peace, security and stability cannot be at the mercy of these random groups and individuals.

The other question for Malaysia is whether to continue with annual payments to the Sulu sultan’s descendants. Instead of grateful acknowledgement, claimants are using the payments as “proof” that Sabah should not be part of Malaysia.

Payments made since 1963 need not prove anything about Sabah’s status. Neither do they obligate Malaysia to make continued payments, because the sultanate no longer exists.

And since the Kirams as supposedly representing the defunct sultanate have unilaterally violated the terms of the 1878 agreement, Malaysia is fully entitled to stop the payments. The bloodshed in Lahad Datu is as good an occasion as any to terminate the payments