Feb 25, 2013

Sabah issue: A transaction gone awry

IT is a case of a real-estate transaction that has gone awry. Malaysia, the supposed lessee, has been paying the same rent since 1878 for its occupation of the North Bornean state of Sabah. The supposed owner, the Sultanate of Sulu and North Borneo, which is represented by the Kiram family, its heirs, is left to receive a pittance in what appears to be a “betrayal of Islam.”

The owner wants to kick out the lessee out of Sabah to claim what it defines as its rightful piece of real-estate property, but Malaysia would not move an inch.

As Malaysia earns billions of dollars from what the heirs define as its “illegal occupation” of Sabah, the Philippines, which is supposed to represent the heirs after the Sultanate has ceded its sovereignty over Sabah in 1962, has been lukewarm to pursue its claim of sovereignty over the North Bornean state.

MalacaƱang’s timidity over the last five decades—as shown by the failure of the administrations of Ferdinand Marcos, Corazon Aquino, Fidel Ramos, Joseph Estrada, Gloria Macapagal-Arroyo and, now, Benigno Aquino III to raise before the appropriate forum—has been so disturbing and frustrating for the heirs and many Filipinos, who think that the Philippines is on the right track of history to pursue its claim of sovereignty over Sabah.

Meanwhile, the heirs have made it known that the issue of sovereignty over Sabah is for Manila and Kuala Lumpur to discuss and settle. All they want is to receive their rightful share of the bounty, which Malaysia enjoys since 1963, when the British government has ceded to the Malaysian Federation the sovereignty over Sabah.

In brief, the reported standoff between 100 fully armed Filipinos, who said they represent the Sultanate, and the Sabahan authorities in the remote village of Lahad Datu in Sabah could have been avoided. Had the two governments sat and tried to settle it, the heirs and their followers could have taken diplomacy as the road to settle the controversy.

But it is something that is not meant to be settled over the negotiating table. Malaysia is bent on ignoring the Sabah claim; the Philippines, to keep it dormant. The let-the-old-dog-lie attitude of Manila is tantamount to jettisoning the claim of sovereignty over Sabah, which Kuala Lumpur may perceive as virtual abandonment.

Bone of contention

THE country’s claim of sovereignty over Sabah is based on historic rights. In 1658 the then-Sultan of Brunei gave as “gifts” the territories of Sabah and Palawan to the Sultan of Sulu for the latter’s effort to quell a civil war in Borneo against the Sultanate of Brunei.

But the bone of contention is the lease agreement, which then-Sultan of Sulu Jamalul Kiram I entered into in 1878 with a British company of Gustavus Baron de Overbeck and Alfred Dent. The lease accord allows the British firm to use Sabah, but prohibits its transfer to another nation or company without the consent of the Sultanate of Sulu.

Great Britain’s transfer of Sabah to Malaysia, a former colony that gained its independence in 1963, has been described as a violation of the lease agreement. The Sultanate of Sulu and North Borneo was never consulted.

Then-President Diosdado Macapagal had lodged the official Philippine claim of sovereignty over Sabah and suggested its litigation and resolution before an international forum like the International Court of Justice. Kuala Lumpur has been ignoring the Sabah claim.

The heirs of the Sultanate of Sulu had claimed that Great Britain used to pay rent equivalent to $1,500 annually since 1878. Malaysia has continued this practice of paying the same rent since 1963, indicating Malaysia’s unstated acknowledgment of the Sultanate’s ownership—and proprietary rights—over Sabah.

Malaysia has never denied it has been paying the $1,500 annual rent, but it has described it as “cession money,” a questionable phrase because of the lease pact used the term padjak, or rent. This has sparked controversy, too.

On September 12, 1962, the Sultanate of Sulu, represented by Sultan Muhammad Esmail Kiram, had officially ceded to the Philippine government its sovereignty over Sabah, enabling Manila to lodge its claim. The cession document does not include any surrender of the heirs’ proprietary right or ownership of Sabah.

The heirs said through a spokesman that they did not in any way favor any invasion or violence to pursue the claim over Sabah, but said they were open for the renegotiation of the 1878 lease accord to enable the heirs and Manila to get what he described as a “fair share” of what Malaysia has been earning from Sabah.


THEN-PRESIDENT Ferdinand Marcos attempted to continue the Sabah claim, which his predecessor did, but then-Sen. Benigno Aquino Jr.’s disclosure of the Jabidah massacre compromised his efforts, leading to an indefinite suspension of the claim. This raised some complications over the issue, which could have been settled by the exercise of soft diplomacy, or negotiations.

In his 1969 privilege speech, Aquino revealed “Operation Jabidah,” an alleged secret 1968 plan “to infiltrate” Sabah with Filipino Muslim soldiers, who would foment chaos and disorder to hasten Manila’s takeover of Sabah. Aquino disclosed the alleged murder of Muslim soldiers, who were supposed to take part in the invasion.

The magnitude of Aquino’s revelation has forced Malaysia to adopt an elaborate national security plan that has identified the Philippines as a potential enemy and invader. Since then, Manila has hardly raised the Sabah claim. It was not exactly known what prompted Marcos to devise this alleged plot, although some latter-day historians were beginning to express doubt on its veracity.

Meanwhile, Kuala Lumpur has been successfully brandishing what it has dubbed as the “Asean [Association of Southeast Asian Nations] solidarity” card in easing Manila’s claim over timber-, minerals- and oil-rich Sabah, located about a thousand kilometers from the Malayan peninsula.

The solidarity of the 10-nation Asean should not be derailed or compromised by the Sabah claim. It is a card to which Manila has acquiesced over the decades.

Ironically, former President and now Pampanga Rep. Gloria Macapagal-Arroyo, whose father initiated the claim as a lawmaker and later as president, never raised it during her nine-year incumbency and even during her earlier stint in the Senate. The same thing happened with her predecessors, who avoided the issue like plague for no apparent reason.

The heirs were vocal enough to say that they were willing to give a huge part of the escalated rent to the national coffers.

Current Philippine President Aquino was being urged by lawmakers, including Sen. Antonio Trillanes IV and Quezon City Rep. Winston Castelo, to restate in clear and unequivocal terms the official state policy on the Philippine claim of sovereignty over Sabah. But judging from the recent historical antecedents and his actuations, this is essentially a long shot. Mr. Aquino even cavalierly described as “dormant” the Sabah claim.

In 2009 the Moro National Liberation Front (MNLF) has pledged loyalty and support to the Sultanate of Sulu and North Borneo, which, although it has become archaic as a political unit, continues to enjoy the support and respect among Filipino Muslims, especially the Tausog ethnic community in Mindanao.

The pledge of support provides the Sultanate with a military arm that could—and would—support its heirs’ claim over Sabah. The fully armed men in the recent Sabah standoff are reputedly MNLF members.

Further complications

THIS recent development does not jibe with the decision of the Aquino administration to pursue political settlement with the Moro Islamic Liberation Front (MILF), MNLF’s rival, in Kuala Lumpur. The peace talks between the two parties were held under Malaysia’s auspices, giving rise to further complications.

But Mr. Aquino is noted for taking hard decisions even to the consternation of other powerful parties. When pushed, he could navigate new grounds. But he is not likely to open a new front of conflict since the Philippines is still embroiled with China over the disputed territories in the South China Sea.

The MILF, for its part, has been saying that it did consult the Kiram family on the issue of its political settlement with the Philippine government. Since 2009, the Kirams, however, kept on opposing Kuala Lumpur’s choice as the venue of the peace talks, arguing that the Sabah claim should be considered a stumbling block to the bilateral relations of the two countries.

Magnitude of claim

GIVEN the magnitude of the heirs’ claim of proprietary right over Sabah, President Aquino has no choice but to revive the Sabah claim. But his tack should be to entice Malaysia to the negotiating table to talk about a new mode of rent, where the heirs would be properly compensated.

Malaysia has no choice but to negotiate, too, because of an emerging secessionist movement among Sabahans, who want independence for Sabah. If it refuses, it suffers the consequence of being ostracized in the community of nations. Even its allies among the Islamic nations would be unhappy if it refuses to listen to overtures of a peaceful settlement.

Mr. Aquino may also be left with no choice but to discuss and settle for a realistic rent for Sabah, of which a part should go to the heirs, who, although they live in poverty in Mindanao, have renounced violence and opted for renegotiations of the 1878 pact on Sabah lease, and a bigger part, to the Philippine government.

The new rent could be between $1 billion and $3 billion. This is very far from the token amount of $1,500 annually. Even the heirs have been open to the idea of using a big amount of the rent for Mindanao’s economic development.

Otherwise, the “symbolic occupation” of the North Bornean state or any of its variations will recur to the complete embarrassment of the Philippine and Malaysian governments. The heirs and their supporters have done it. There is no reason to believe it could not do it again—just to keep the issue alive and become a regional or global controversy. - source


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