SABAH CLAIM IS NOT ‘PRIVATE’

Since 1675, North Borneo (Sabah to the Malaysians) has been owned by the Sultanate of Sulu.

In 1878, the sultanate leased North Borneo to the British North Borneo Company (BNBC), a British enterprise. North Borneo was strategic to British interests because it was near Malaya, a British colony, which became an independent country called the Federation of Malaysia in 1963.

The problem started in 1946 when the BNBC “sold” North Borneo to the British government. That “sale” is void because the BNBC never owned North Borneo to begin with.

Sadly, the problem got compounded in 1963 when the British “donated” North Borneo to the newly-independent Malaysia. That “donation” is also void because, as explained above, the earlier “sale” of North Borneo by the BNBC to the British government is void.

Truth to tell, the British acted in manifest bad faith when it “donated” North Borneo to Malaysia. That’s because on at least two occasions (1906 and 1920), the United States formally informed the British government that North Borneo belongs to the Sultanate of Sulu.

By 1962, the Sultanate of Sulu realized that the impending independence of Malaysia from the British will inevitably include the “donation” by the British government of North Borneo to Malaysia. Accordingly, the sultanate decided to seek the official help of the Philippine government, then headed by President Diosdado Macapagal.

That same year, the sultanate signed an agreement with the Philippine government. That agreement placed North Borneo (later called Sabah) under the sovereignty of the Republic of the Philippines.

Macapagal was already advocating that North Borneo is not British property back in the 1950s when he was still a member of Congress.

At any rate, the 1962 agreement stipulates that the Kiram family of the Sultanate of Sulu can take back sovereignty over North Borneo if the Philippine government does not press its claim to the said disputed territory.

During his term as president, Macapagal pressed the Philippine claim to Sabah through diplomatic outlets. Among the outspoken advocates of the Philippine claim were then Vice President Emmanuel Pelaez and then Senator Jovito Salonga.

President Ferdinand Marcos also pressed the Philippine claim to Sabah. In 1967, Marcos organized Project Merdeka, a military operation to destabilize the situation in North Borneo and to take it from Malaysia. That plan was destabilized by Senator Benigno Aquino Jr. who exposed it in a speech before the Senate.

At any rate, Republic Act 5446, enacted in 1968 under Marcos, declares that North Borneo is Philippine territory.

The 1973 Constitution categorically declared that Philippine territory includes all lands that belong to the country “by historic right and legal title.” This strengthened the Philippine claim to Sabah.

Last week, however, Abraham Idjirani, the secretarygeneral of the Sultanate of Sulu, said the Sabah claim is now a “private” matter. He said that on 12 February 1989, the sultanate came out with a resolution revoking the 1962 transfer of sovereignty over Sabah to the Philippines.

One reason for the revocation cited by Idjirani is the perceived failure of the 1987 Constitution, drafted by appointees of President Corazon Aquino, to include Sabah in its definition and delineation of the national territory of the Philippines.

That reason is legally untenable.

In Magallona vs Ermita (GR 187167, 16 August 2011), the Supreme Court ruled that notwithstanding the words used in the 1987 Constitution and existing laws, the Philippines has never abandoned its claim to Sabah.

It is likewise not advisable for the sultanate to insist that the Sabah claim has become a private pursuit.

Experts in international law believe that the Sabah issue will be far from over in the predictable future, and that Malaysia may have to eventually defend its crumbling claim to North Borneo before the International Court of Justice (ICJ).

That poses a problem for the sultanate because only recognized sovereign states and diplomatic organizations can be parties in cases filed before the ICJ.

PROBLEM GOT COMPOUNDED IN 1963 WHEN THE BRITISH ‘DONATED’ NORTH BORNEO TO THE NEWLYINDEPENDENT MALAYSIA.

ONLY RECOGNIZED SOVEREIGN STATES AND DIPLOMATIC ORGANIZATIONS CAN BE PARTIES IN CASES FILED BEFORE THE ICJ.