‘An anthology on the Philippine claim to North Borneo’ (2)

THE NORTH BORNEO AGREEMENT

In 1945, after the end of World War II in the Pacific, the British North Borneo Company lost interest in operating in North Borneo. Thus, on 26 June 1946, the British North Borneo Company executed the so-called NORTH BORNEO AGREEMENT whereby it illegally ceded North Borneo to the British government. On 10 July 1946, the United Kingdom annexed North Borneo and declared the natives there as British subjects.

The British purchase and subsequent annexation of North Borneo is devoid of validity because North Borneo was never ceded by the Sultan of Sulu to the British North Borneo Company. Evidently, the British North Borneo Company has nothing to cede to the British government in the first place. One cannot sell what one does not own.

It is worth mentioning that in 1946, Professor Harold Conklin, a noted

American anthropologist specializing in Philippine studies, translated the term

pajak, as used in the deed of pajak executed by the Sultan of Sulu and the British North Borneo Company in 1878, as a lease. His basis for doing so was that the deed of pajak explicitly provided for the payment of an annual rental for North Borneo.

Malaysians dispute the translation provided by Professor Conklin and contend that pajak meant the surrender of territory. They are, however, conveniently silent on the matter of rental payments, which is an indication of a lease.

Naturally, the illegal taking of North Borneo by the United Kingdom did not sit well with the government of the newly-independent Republic of the Philippines.

In 1950, Philippine congressmen led by Representatives Diosdado Macapagal (who became President of the Philippines in December 1961), Arturo Tolentino, Arsenio Lacson and Hadji Gulamu Rasul (grandfather of the current Wazir Amroussi Rasul) filed a resolution calling on the national government to press the Philippine claim to North Borneo.

TURN-OVER TO THE PHILIPPINES

On 29 August 1962, Sultan Muhammad Esmail Kiram, who was then the reigning Sultan of Sulu, turned over North Borneo to the Republic of the Philippines by way of an official document called “Recognition and Authority in favor of the Republic of the Philippines.” Then President Diosdado Macapagal signed the agreement on behalf of the Philippine government.

By virtue of this turn-over agreement, Manila took over the responsibility of pressing the Philippine claim to North Borneo.

The agreement has a caveat, though — the Kiram family can take back full ownership of sovereignty over North Borneo if the Philippine government does not keep its part of the deal regarding the claim.

Soon after he signed the agreement with the Sultan of Sulu, President Macapagal revived the Philippine claim to North Borneo, thereby continuing what he began advocating in 1950.

The agreement has a caveat, though — the Kiram family can take back full ownership of sovereignty over North Borneo if the Philippine government does not keep its part of the deal regarding the claim.

Upon Macapagal’s instructions, the Department of Foreign Affairs created the Office of North Borneo Affairs. Vice President Emmanuel Pelaez was concurrently the Secretary of Foreign Affairs.

In the later part of 1962, Pelaez addressed the United Nations General Assembly and sought help in arriving as a peaceful resolution to the issue regarding North Borneo. The historical record suggests that the world assembly did nothing of consequence about the matter.

THE COBBOLD COMMISSION

By the early 1960s, the British colony in South East Asia known as Malaya was negotiating its independence. Another nearby British colony, Singapore, was also seeking independence. Eventually, London agreed to eventually let go of its colonies south west of the Philippines any time soon.

The original plan was that upon independence, Malaya will be called the Federation of Malaya, and that Singapore will remain a British colony. Upon further negotiations, London agreed to include Singapore in the independence equation, and so the new independent country was to be called the Federation of Malaysia, which is actually Malaya but with the letters “S” and “I” added to represent Singapore.

Before the United Kingdom paved the way for the independence of Malaya, London created two commissions to assess the situation in, among others, North Borneo.

More particularly, the commissions were to ascertain the sentiment of the residents of North Borneo regarding their place in the anticipated merger of North Borneo and neighboring Sarawak with Singapore.

The first commission was the Cobbold Commission, created in 1962 and named after Lord Cameron Cobbold, the British nobleman who headed it. Two other individuals, one each from the United Kingdom and Malaya, completed the commission’s composition.

According to the Cobbold Commission, the residents of North Borneo were divided on Malayan independence, with some even favoring a continuation of British dominion over the territory. It appears, however, that unlike in Singapore, no referendum was held by the Commission in North Borneo and Sarawak.

Records indicate that the Cobbold Commission published its report on 1 August 1962.

The Philippines and Indonesia rejected the report of the Cobbold Commission mainly because no actual referenda were held in North Borneo and in Sarawak to warrant the findings made by the Commission.

Soon thereafter, British and Filipino diplomats met in London to thresh out concerns over North Borneo. The British government invoked estoppel against the Philippines, i.e., the Philippines lost whatever right it has over North Borneo because Section 1, Article I of the 1935

CONSTITUTION of the Philippines, the charter then in force in the country, does not include North Borneo in its description and inventory of what constitutes Philippine territory

British diplomats also argued that the 1935 CONSTITUTION does not say anything about the Philippines acquiring any additional territory after 1935.

Philippine diplomats, however, did not buy the estoppel argument raised by the British.

THE MANILA ACCORD

In 1963, President Diosdado Macapagal of the Philippines, Malayan leader Tunku Abdul Rahman, and Indonesia’s President Sukarno met in Manila for further negotiations regarding North Borneo.

Analysts say that if the Philippines and Indonesia rejected the report of the Cobbold Commission mainly because no actual referenda were held in North Borneo and in Sarawak to warrant the findings made by the Commission, then the new commission created by the United Nations should have conducted the referenda which Manila and Jakarta were looking for.

That meeting culminated in the MANILA ACCORD of 31 July 1963, which explicitly stipulated that the incorporation of North Borneo into the Federation of Malaysia is subject to the Philippine claim on the said territory. It was further stipulated in the

MANILA ACCORD that the parties will ask the United Nations to send another commission of enquiry over North Borneo and Sarawak, and that the Philippines and Indonesia will withdraw their objections to the formation of the Federation of Malaysia if the new commission finds popular opinion in favor of the formation.

Thereafter, the United Nations created a commission composed of representatives from Argentina, Brazil, Ceylon, Czechoslovakia, Ghana, Pakistan, Japan and Jordan to carry out the agreement embodied in the MANILA ACCORD.

That United Nations mission eventually reported that based on a “referendum,” a sizeable majority of the people in North Borneo and Sarawak were in favor of joining the Federation of Malaysia. That “referendum” did not cover the voting populations of North Borneo and Sarawak, but was done only through consultations with certain representatives of the people.

The mission justified the procedure it followed, saying that “there was no reference to a referendum or plebiscite in the request” filed with the United Nations, and that the mission “arranged for consultations with the population through elected representatives of the people, leaders of political parties and other groups and organizations, and with all persons who were willing to express their views.”

United Nations Secretary-General General U Thant of Burma prepared the report.

The Philippines and Indonesia rejected the U Thant report because the “referendum” did not involve the entire population of North Borneo and Sarawak at that time, which was what the mission was expected to do in the first place. Another reason invoked for the rejection was that so-called “representative consultations” were marred by many instances of violence and irregularities.

Analysts say that if the Philippines and Indonesia rejected the report of the Cobbold Commission mainly because no actual referenda were held in North Borneo and in Sarawak to warrant the findings made by the Commission, then the new commission created by the United Nations should have conducted the referenda which Manila and Jakarta were looking for.

Undoubtedly, therefore, the excuse offered by the commission created by the United Nations — that “there was no reference to a referendum or plebiscite in the request” made by Manila and Jakarta — is very flimsy.

On 9 July 1963, the United Kingdom turned over North Borneo to their soon-to-be independent colony, which was to be called the Federation of Malaysia.

To be continued