To whom does Sabah belong?

Vidal Yudin Weil

If there really was an incursion, how come I do not see our Foreign Minister flying off to the Philippines or their Foreign Secretary here in Sabah to negotiate the retreat?

I was asked to pen my views on the alleged ongoing standoff between the Malaysian armed forces and the so-called Sulu intruders at a Lahad Datu village in Sabah.

I will touch on the history of Sabah followed by my arrival to the conclusion on the probability of the incident actually happening in reality.

North Borneo

It was written that on Jan 23, 1878, the Ruler of Sulu, Sultan Jamalul Alam leased Sabah (formerly known as North Borneo) to Gustavus Von Overbeck for an annual rent of equivalent 5,000 dollars through Von Overbeck’s trading partner Alfred Dent. It was also recorded that this amount of money (USD1,500 per year) is still being paid to the heirs of the Sulu Sultan by the Malaysian Embassy in the Philippines until today.

The keyword in the written agreement was “Pajak” which if translated literally means “Lease”. It was also explicitly written that the rights to Sabah cannot be transferred to any other nation or anyone else without the Sulu Sultan’s express consent.

The Spaniards in Manila eventually took control of the entire Sulu Sultanate; and in 1885, Great Britain, Germany, and Spain signed the Madrid Protocol confirming Spanish influence over everything in the Philippines except Sabah which belongs to the Sultanate.

Great Britain was reminded by America in official black and white in 1906 and 1920 that Sabah does not belong to Great Britain; and was and is at all material times legally and legitimately part and parcel of the Sulu Sultanate.

The British government, however as we all know, arrogantly and unilaterally did turn Sabah into a Crown-leased Colony on July 10, 1946 even though there was a declaration by Chief Justice CFC Makaskie of the High Court of North Borneo on Dec 19, 1939 in a civil suit filed by Dayang Dayang Hadji Piandao and 8 other heirs of the Sulu Sultan including Putlih Tarhata Kiram that the successor of the Sulu Sultan in the territory of Sabah was Punjungan Kiram and not Great Britain!

Earlier on in 1941 the Constitution of the Philippines states specifically that the national territory of the Philippines includes “all other areas which belong to the Philippines on the basis of historical rights or legal claims” which means that the Philippines have never relinquished their claim on Sabah.

Even before Sabah joined Malaya, Sarawak, and Singapore to form Malaysia on Sept 16, 1963, numerous delegations were sent by the Philippines to London reminding the British government that Sabah belongs to the Philippines.

On Sept 12, 1962, the territory of Sabah and the full sovereignty, title and dominion over the territory were ceded by the then reigning Sulu Ruler, Sultan Muhammad Esmail E. Kiram 1 to the Republic of the Philippines during the Presidency of Diosdado Macapagal.

The cession effectively gave the Philippines government full authority to pursue their claim in the International Court of Justice at The Hague. But until today, Malaysia continues to consistently reject the Philippines’s calls to refer the matter to the ICJ.

Immediately preceding the formation of Malaysia, two commissions of enquiry visited Sabah and Sarawak in order to establish the state of public opinion regarding merger with Malaya and Singapore. However, the commissions were never mandated to address the legal status of Sabah nor were they referendums in the proper sense.

The first commission known as the Cobbold Commission was established by the Malayan and British governments and was headed by Lord Cobbold, along with two representatives from Malaya and Britain – but none from the territories under investigation.

The Commission found that about one third of the population of each territory i.e. Sabah and Sarawak strongly favours early realisation of Malaysia without too much concern over terms and conditions. Another third, many of them favourable to the Malaysia project, ask, with varying degrees of emphasis, for conditions and safeguards. The remaining third is divided between those who insist upon independence before Malaysia is considered and those who would strongly prefer to see British rule continue for some years to come.

Indonesia and the Philippines rejected the findings of the Cobbold Commission and in 1963, a tripartite meeting was held in Manila between Indonesian President Soekarno, Philippines President Diosdado Macapagal and Malayan Prime Minister Tunku Abdul Rahman. The meeting agreed to petition the UN to send another commission of enquiry and the Philippines and Indonesia agreed to drop their objection to the formation of Malaysia if the new commission found popular opinion in the territories in favour.

The UN Mission to Borneo found “a sizeable majority of the people” dubiously in favour of joining Malaysia and as expected Indonesia and the Philippines subsequently rejected the report’s findings and Indonesia continued its semi-military policy of “konfrontasi” towards Malaysia – the disputed report in effect sealed the creation of Malaysia.

The whole situation in a nutshell

To give the ordinary layman on the street an easier picture to digest, the following analogy best describes the whole situation:

A landlord called Jamalul leased a piece of land to a tenant called Overbeck for a yearly rent of $5,000. The written agreement stated that Overbeck cannot sub-let the land or sell the lease without Jamalul’s permission.

But the tenant despite the prohibition illegally sold the lease to a sub-tenant called Great Britain who later also illegally sold the lease to a sub-sub-tenant called Malaysia.

And in between all the illegal transactions perpetrated by Overbeck, Great Britain and Malaysia, Jamalul transferred all his rights and interests to a new landlord called the Philippines. The new landlord now wants back the land but the sub-sub-tenant Malaysia refuses to leave. The new landlord wants to take the matter to the International Court of Justice at The Hague but the sub-sub-tenant Malaysia also refuses to go there.

Can the sub-sub-tenant Malaysia claim to be an innocent victim when she took over the lease from the sub-tenant Great Britain?

In my humble opinion: the law be it either international or of any civilized country is that if a purchaser acquires a property with prior knowledge that the property in question is in fact stolen or that the seller does not have a legal or legitimate title to the property at the time of transaction is equally guilty of the crime of theft. Such transaction is not only null and void and of no effect, the title to the property in question is still vested with the original owner.

The ICJ only handles cases between states and nations which must agree to come voluntarily to be adjudged and be bound by its decisions; I strongly believe that Malaysia dares not go to the International Court of Justice to face the Philippines because the former foresee the high possibility of losing.

For centuries Great Britain was the cause of a lot of world problems today, history will tell you the sufferings of people in the Middle East, Africa, Indian Sub-Continent, Argentine Falklands and many more. Even within the United Kingdom, the Scottish, Welsh, and Irish people are really pissed with England.

Hong Kong was fortunate when the late Deng Xiao Ping told Margaret Thatcher in private that if Great Britain does not leave Hong Kong after squatting there for more than 150 years, the Chinese Army will overrun Hong Kong in one day. She was eventually returned to China on July 1, 1997 and now enjoyed autonomy.

What about the voices of the population during the times of the first tenant Overbeck and sub-tenant Great Britain who agree to let the sub-sub-tenant Malaysia take over?

Let me give another analogy: I am the registered legal and legitimate owner of a bus. One day someone leased the bus from me and drove around town picking up and dropping off passengers along the way for profit. Let us say that the passengers love his driving so much that they want to patronize him for life. Does that in any way mean he can sell my bus or treat the same as his property?

To answer my earlier question: the passengers can choose to ride whichever bus they want to, but the sovereignty of Sabah is vested in the Philippines. And this also means that even if the people of Sabah today might still want to stay on with Malaysia, Sabah is still the legal and legitimate territory of the Philippines under international law if the same principles are applied as per the Judgments of the International Court of Justice with regards to the cases of Sipadan and Ligitan Islands, and Pulau Batu Puteh or Pedra Branca.

The Sultanate of Sulu had ceased to exist when every inch of its territory was ceded on Sept 12, 1962 to the government of the Philippines and as the successor-in-title of the defunct sultanate, it is entitled to reclaim Sabah which is at all material times rightfully theirs.

Article IV of the Malaysia Agreement of 1963* reads as follows:

The Government of the United Kingdom will take such steps as may be appropriate and available to them to secure the enactment by the Parliament of the United Kingdom of an Act providing for the relinquishment, as from Malaysia Day, of Her Britannic Majesty’s sovereignty and jurisdiction in respect of North Borneo, Sarawak and Singapore so that the said sovereignty and jurisdiction shall on such relinquishment vest in accordance with this Agreement and the constitutional instruments annexed to this Agreement.

Because it was stated that one part of Sabah** belonged to the Brunei Sultanate and the other part to the Sulu Sultanate, and while Brunei had ceded her part of Sabah’s sovereignty, Sulu (now part of the Philippines) only leased her part of Sabah, does Her Britannic Majesty had sovereignty over the whole or only one part of Sabah?

It is obvious that the answer is only one part of Sabah, therefore Article IV is null and void thereby rendering the entire Malaysia Agreement of 1963 illegal and of no effect…!

There is a legal maxim “nemodat quod non habet” which means “you cannot give what you do not have”.

Legitimate and legal independence or autonomy for that one part of Sabah that was leased from the Sulu Sultanate can only come from the Philippines.

Lahad Datu

It is now more than two weeks since the alleged intrusion took place and not even one piece of credible picture taken of the invaders was shown to the public.

Common sense tells me that if the occurrence was real, the only reason our security forces dare not open fire on the raiders is either our boys are outnumbered or their guns outsized.

If there really was an incursion, how come I do not see our Foreign Minister flying off to the Philippines or their Foreign Secretary here in Sabah to negotiate the retreat?

Like the May 13 bogeyman that was used to frighten the Chinese voters of Peninsular, this could well be another “sandiwara” to scare the voters of Sabah and show us that only the Barisan Nasional will be able to protect us from foreign invasion.