Understanding the Sabah dispute

Artemio V. Panganiban Philippine Daily Inquirer 11:58 PM | Saturday, March 2nd, 2013

To understand (1) the claim of the Sultan of Sulu over Sabah, (2) the standoff in Lahad Datu town in Sabah, (3) the stand-down admonition of President Aquino directing the followers of Sultan Jamalul Kiram III led by his brother Datu Raja Muda Agbimuddin Kiram to withdraw and return peacefully to the Philippines, and (4) the enforcement actions of the Malaysian authorities that sadly resulted in death and injury, I think it is best to begin by discussing the concepts of sovereignty and ownership.

Sovereignty is the perpetual and absolute power of a state (not of an individual) to command obedience within its territory. This power is manifested through the state’s constitution and laws, and is enforced by governmental agencies and officials. When needed, the state’s military and police forces can be called to back this enforcement.

Sovereignty has external and internal aspects, external being the state’s ability to act without foreign intervention. It is often equated with independence. Internal sovereignty refers to the power of the state to rule within its borders and to govern both citizens (at home and abroad) and aliens staying in its territory. In the exercise of internal sovereignty, it maintains peace and order, fixes the relationships of people, and governs the rights to own properties situated within its borders.

Ownership, on the other hand, has a limited scope. It generally refers to the right to control a thing (including land), especially its possession, use, disposition and recovery. Ownership rights, especially over land and natural resources, are controlled and regulated by the state.

Sultan’s claim. In brief, the Sultan of Sulu claims ownership, not sovereignty, over a huge tract of land called Sabah. He alleges that his forebears leased the property to the British North Borneo Company, which in turn ceded its leasehold rights to Malaysia. Up to now, rentals for the property are paid the sultan.

In 1963, after an alleged referendum showing that the residents did not want to be part of the Philippines or of the Sultanate of Sulu, Malaysia incorporated Sabah as part of its national territory. Since that time, Malaysia has exercised sovereignty over the area, keeping peace and order, regulating the relations among the people, and governing the ownership, possession and enjoyment of property rights.

Obviously, then, the sultan’s claim is subject to the sovereign power of Malaysia and Malaysian laws. The stealthy entry of the sultan’s followers into Sabah violated Malaysian immigration and other laws; hence, they could be held accountable by Malaysian authorities. Even assuming that as proof of ownership, rentals are being paid in perpetuity, the sultan, as lessor, cannot deprive Malaysia, as lessee, of its possessory rights by force and illegal entry.

Since the sultan and his followers are Filipino citizens, the Philippines started diplomatic initiatives with Malaysia to secure their safety and wellbeing, and to enable them to leave Sabah voluntarily and peacefully.

However, as such citizens, they may be held answerable, after the observance of due process, for violations of Philippine laws. The Department of Justice is reportedly poised to investigate them for “inciting to war, or giving motives for reprisals; illegal possession of firearms; illegal assembly” and other crimes.

If, say, a Malaysian sultan is granted ownership rights by a past colonizer of the Philippines (like Spain) over a vast tract of land in Mindanao, the armed followers of that Malaysian sultan cannot just cross Philippine borders and occupy such property without the permission of the Philippines, regardless of whether Malaysia or the sultan has pending claims of sovereignty or ownership. By parity of reasoning, the Philippine government, in the exercise of its sovereignty, can take immigration, ejectment and other enforcement actions.

Philippine claim. During the term of President Diosdado Macapagal—in the 1960s, at about the same time that Malaysia took over Sabah—the Philippines asserted a sovereign claim over the property, then known as North Borneo. Since then, however, the claim has largely remained dormant.

The Philippine Constitution “renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.”

Moreover, the United Nations Charter (Art. 51) obligates its members, including the Philippines, to settle international disputes only by peaceful means—that is, by negotiation, good offices, enquiry, mediation, conciliation, arbitration, judicial settlement in the International Court of Justice, resort to regional agencies or arrangements, and other peaceful methods. The Philippines cannot employ war or other nonpeaceful ways to resolve the dispute.

To conclude, I believe the Philippines should continue pressing its sovereign claim via the peaceful methods I mentioned. Meanwhile, the Sultanate of Sulu should abandon nonlegal methods and respect the actual and existing sovereignty of Malaysia. If the sultan so desires, he may avail himself of the internal legal processes there to validate his ownership claims.

Should the Philippines succeed in its peaceful quest, then the sultan may continue his ownership claims in the Philippines pursuant to Philippine laws. This, I think, is the peaceful and legal way of settling the dispute.

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