The Sabah Question Revisited

Editor’s Note: The author requested that Blog Watch feature his article on Sabah.

By Christopher Diaz Bonoan

“And all other territories over which the Philippines has sovereignty and jurisdiction…” ? Article 1, National Territory of the 1987 Constitution

Some time ago, I was privileged to attend an interesting lecture for law students on Public International Law and one of the topics for that day was about the age-old Sabah dispute between the Philippines and Malaysia. The lecture was a mélange of polemical provisions under the 1987 Constitution and relevant principles of international law. Some of my classmates were dumbfounded and clueless for the esteemed lecturer did not touch on the historical antecedents of the Sabah question. Right off the bat he discussed the topic hastily without the benefit of a sneak preview of the factual milieu of the disputed territory. Luckily, I had a slight familiarity on the topic due to my earlier readings on foreign relations long before I entered the halls of law school.

In a nutshell, let me share my belated thoughts on the Sabah question from the context of history and some of the legal questions involved. Taking the historical route, I believe, is the easiest way to look and understand the issue. For it is, in my opinion, the most effective way to capture the panoramic sight of the Philippine position – a brave stand that our forefathers had fought in the spirit of nationalism and devotion for the rule of law.

Precis

Culled from verified sources representing the Philippine claim, the salient facts are as follows:

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 then on, Sabah became part of the Sultanate of Sulu. Through the years various European countries including Spain, Britain and Netherlands acknowledged the sovereign personality of the Sultan of Sulu as evidenced by a series of treaties concluded between them.

The fateful year was 1878 when 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 by the name of Baron von Overbeck, an Austrian consul-general in Hongkong, 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 seized this opportunity 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 and couched in Malaysian language and in Arabic characters. Overbeck in turn sold his rights under the lease contract in favor of Alfred Dent. After eleven (11) months or so, Dent organized The British North Borneo Company and thereby assigned all his rights and obligations under the 1878 lease contract in favor of said Company. In the following year, the Company was able to secure a Royal Charter from the British government.

Spain and Holland were quick to protest the grant claiming that the British government had already assumed dominion over Sabah by virtue of the Royal Charter. But the British Crown, as represented by the British Prime Minister denied the charge and clarified that the Sultan of Sulu retained sovereignty over Sabah and that the Company was merely exercising “administrative control” in line with the 1878 contract.

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 and formally announced that it is 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.

A Question of Foreign Policy

In 1950, then Congressman Diosadado Macapagal together with Congressmen Lacson and Tolentino sponsored a resolution calling the Philippine government to formally lodge a claim to Sabah. Protracted studies were undertaken to support the claim. These tedious efforts led to the passing of a unanimous House resolution urging then newly-elected Philippine President Diosdado Macapagal to legally reclaim Sabah. The claim was primarily based on legal and historical right. 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.

One of sterling qualities of President Diosdado Macapagal is the fact that he was a seasoned diplomat even before he became the fifth President of the Third Republic of the Philippines. His experience in the arena of foreign affairs was extensive and beyond reproach. Thus, during his term he introduced a new dimension in foreign policy for the Philippines ? the “90-degree shift” toward Asia. Similar to his predecessor’s nationalistic position on security and trade issues, President Macapagal likewise made a bold step away from the traditional Philippine foreign policy of dependence on the United States. He envisioned a truly independent foreign policy, one that is founded on goal diversification towards stronger regional relations with neighboring Asian countries. Corollary to this aspect is the issue of settlement of disputes affecting the Asian region. President Macapagal knew too 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. Under this setting the Philippines, confident of her position, might persuade Malaysia to submit the question before the World Court or in any other arbitration body agreed by the parties.

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 confidence, the Prime Minister agreed to settle the dispute amicably. Before they parted, as told by President Macapagal, they decided to elevate the question before the International Court of Justice (ICJ for brevity).

Despite the difficulty of reconciling the political differences between Prime Minister Tunku Abdul Rahman of Malaysia and President Sukarno of Indonesia, President Macapagal prevailed in bringing them together for the second Summit Meeting in Tokyo on June of 1964. During this conference there was an attempt to create an Afro-Asian conciliation commission, an independent body tasked to settle disputes among the member-states. This proposal, however, fizzled because of the continuing rift between Malaysia and Indonesia. Nonetheless, the neighboring countries eventually agreed to settle any disputes that may arise between them by using any other possible means short of war. As a result, and acting pursuant to the earlier Cambodia meeting, the Philippine delegation made a formal announcement during the Tokyo Summit recognizing the Malaysia claim along with the agreement to submit the Philippine claim to Sabah before the World Court otherwise known as the International Court of Justice.

Unfortunately, and much to the dismay of President Macapagal, Prime Minister Rahman neither confirmed nor denied that they both agreed to settle the Sabah question in the World Court. Subsequent efforts on the part of President Macapagal to remind Prime Minister Rahman of their agreement ensued but to no avail. Apparently the Prime Minister changed his mind due to political pressures back home. Consequently, with the breakdown of the Sabah talks, the relationship between the Philippines and Malaysia soon became cold and tensed. All these, including the “konfrontasi” between Indonesia and Malaysia, largely contributed to the failure and untimely demise of Maphilindo. 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.

In the 1965 presidential election, President Macapagal run for re-election but lost to a much popular Nacionalista candidate Ferdinand Marcos. Signaling the entry of a new administration in power was President Marcos’ foreign policy on the Sabah dispute. Albeit the new President continued the shift away from an American centered foreign policy by strengthening ties with Asian and African states he nonetheless had a different view regarding the Sabah claim. With the creation of much stronger and viable regional Asian organization known as Association of Southeast Asian Nations (ASEAN) in 1967, President Marcos opted not to pursue the claim and focused his attention toward preservation of ASEAN unity. In his 1977 speech at the ASEAN SUMMIT held at Kuala Lumpur, President Marcos formally announced the withdrawal of the Philippine claim to Sabah, viz;

Before ASEAN can look to the outside world for equity, for justice and fairness we must establish order, fairness and justice among ourselves…I wish to announce that the Government of the Republic of the Philippines is therefore taking definite steps to eliminate one of the burdens of ASEAN? the claim of the Philippine Republic to Sabah. It is our hope that this will be permanent contribution to unity, the strength, and prosperity of all of ASEAN.

Ultimately, President Marcos caused the formal withdrawal (not abandonment) of the previous claim on Sabah put forth by the Macapagal administration. As chief architect of foreign policy, President Marcos deemed it wiser not to offend Malaysia or to cause any tension in the Asian region.

The Legal Cobwebs

There is no question that the best way to resolve the dispute is through bilateral negotiations between the contending states. There is no question either, that in the event of failure to settle the dispute through diplomatic channels, 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?

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 answer may be gleaned in the provision of the Statute itself. As observed by Fr. Joaquin G. Bernas, “Being party to the Statute, however, does not mean acceptance of the jurisdiction of the Court. It simply means that the state may accept the jurisdiction of the court.” This view is consistent with Article 36 of the Statute, the pertinent provision governing the jurisdiction of the ICJ. Verily, according to Fr. Bernas, there are three ways under the Statute through which states may accept jurisdiction of the court: (a) on an adhoc basis; (b) by adhering to a treaty which accepts the jurisdiction of the court on matters of interpretation or application of a treaty; (c) by a unilateral declaration that recognition of jurisdiction in relation to any other state accepting the same jurisdiction in all legal disputes. The last creates the optional system of submitting to the jurisdiction of the court. The principle still adhered by most states is that no state can be compelled to litigate against its will. The basis of the jurisdiction of the Court, therefore, is the consent of the parties, given either in advance, or ad hoc and upon the occurrence of the dispute. Following the “optional jurisdiction clause” inscribed in the Statute, the jurisdiction of the ICJ is not compulsory but dependent of the agreement of the parties. The disputants must expressly consent or agree to submit the case otherwise the Court has no power whatsoever to hear and decide the controversy. The ICJ in a number of cases has said that its jurisdiction is primarily based upon the will of the parties, that is, 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 principle of sovereign equality of states. This too renders the ICJ as a toothless tiger, completely powerless to settle international disputes. In his 1968 lecture before the Student Body of Yale University, Dr. Salvador H. Laurel had this to say:

The total dependence of the World Court on the consent of the disputing parties is deplorable. It runs counter to the principle of ubi jus remedium. If there is a right, there must be a remedy. If a man is robbed or a woman is raped, must they first secure the consent of the robber before they can get justice? This is not so in national law. It should not be so in international law.

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? Malaysia 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.

Let us have a glimpse of the legal bases of the Philippine claim. I shall cite the opinion of the esteemed former Senator Jovito Salonga, foremost advocate of the claim and a noted authority in the field of international law,viz;

Our claim is mainly based on the following propositions: that Overbeck and Dent, not being sovereign entities nor representing sovereign entities, could not and did not acquire dominion over North Borneo; that on the basis of authoritative British and Spanish documents, the British North Borneo Company, a private trading concern to whom Dent transferred his rights, did not and could not acquire dominion and sovereignty over North Borneo; that their rights were those indicated in the basic contract, namely, that of a lesee and a mere delegate; that in accordance with established precedents in International Law, the assertion of sovereign rights by the British Crown in 1946, in complete disregard of the contract of 1878 and their solemn commitments, did not and cannot produce results in the form of a new title.

The above-quoted opinion says it all. In a word, how could 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. Nemo dat qued non habet. No one can give what he does not have. 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 midair” so to speak. Again, let me quote the opinion of Dr. Laurel, viz;

The British North Borneo Company never owned Sabah and could never have sold it to the British government. The British government knew this all along. She, herself, had officially acknowledged the sovereignty of the Sultan of Sulu. Thus, if she really wanted to acquire Sabah legally, she should have acquired it from the real owner. Instead, she chose to acquire it from the Company. Necessarily, all she could acquire were leasehold rights which were all the Company had.

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. To my mind, abandonment signifies permanency while withdrawal is transitory in nature. At best, the claim is dormant waiting to be revived any time.

The Philippine position on the Sabah issue is articulated in the provision on National Territory of the 1987 Constitution. The relevant portion states;

“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…”

Under the 1987 Constitution, national territory does not only mean the uncontested “archipelago” but also includes other territories outside of it “over which the Philippines has sovereignty and jurisdiction. The second category is intended as a catch-all phrase covering any other territory which the Philippines has a claim or might acquire in the future through settled modes of acquisition under international law. The case of Sabah clearly falls in this category, being a territory outside of the undisturbed areas in the archipelago over which the Philippines had filed a formal claim.

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 an intense debate on what to do with the Sabah claim. Some members of the commission 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. 

At any rate, we must understand that a constitution is a domestic law. Whatever we say of the metes and bounds of our territory does not bind other states unless supported by some recognized principle of international law. “But for purposes of actual exercise of sovereignty,” wrote Fr.Bernas, “it is important for the sovereign state to know the extent of the territory over which it can legitimately exercise jurisdiction.” In simpler terms, if the Philippine Republic is dead serious of her claim over Sabah, she may recover it under settled principles of international law and procedure. 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. 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 just maybe, now is the time for the Filipino people to claim once more a land alienated by twisted history and tangled legal issues.

References from my library:

 

1.) Perfecto Isidro, FOREIGN POLICY DIGEST 1972-1983, 5 (1983)

2.) Ateneo de Manila University: Department of Political Science, POLITICS AND GOVERNANCE: Theory and Practice 235 (1999 ed.)

3.) C.P. Serrano, BEATING THE ODDS: The Life, the Times and the Politics of Diosdado P. Macapagal, 64 (2005),

4.) Jovito Salonga, A JOURNEY OF STRUGGLE AND HOPE, 203 (2001)

5.)JOAQUIN.G. BERNAS , AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW 331 (1st ed., 2002)

6.) J. COQUIA and M. DEFENSOR-SANTIAGO, INTERNATIONAL LAW AND WORLD ORGANIZATION, 429 (2005 ed.)

7.) Perfecto Isidro, FOREIGN POLICY DIGEST 1972-1983, 5 (1983)

8.) Ateneo de Manila University: Department of Political Science, POLITICS AND GOVERNANCE: Theory and Practice 235 (1999 ed.)

10.) C.P. Serrano, BEATING THE ODDS: The Life, the Times and the Politics of Diosdado P. Macapagal, 64 (2005),

11.) Jovito Salonga, A JOURNEY OF STRUGGLE AND HOPE, 203 (2001)

12.) JOAQUIN.G. BERNAS , AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW 331 (1st ed., 2002)

13.) J. COQUIA and M. DEFENSOR-SANTIAGO, INTERNATIONAL LAW AND WORLD ORGANIZATIONS, 429 (2005 ed.)

14.) JOAQUIN G. BERNAS, FOREIGN RELATIONS IN CONSTITUTIONAL LAW, (1995 ed.)

15.) Salvador H. Laurel, The Sabah Question, SWORN TO SERVE (1990)

16.) Jovito Salonga, A Point-by-Point Reply, THE INTANGIBLES THAT MAKES A NATION GREAT (2006)

17.) Blacks Law Dictionary (1990 ed.)

 

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