The Sabah Question

Posted by BongV on Feb 27, 2013

The timing of the media focus on Kiram’s actions in Sabah comes at a rather opportune time. After all, with or without the Sultan’s men calling attention to themselves, Sabah was already an issue, albeit, a dormant one.

The question therefore is why is the Philippine media focusing on it only now? The records of the historical validity of the Sabah claim is there for everyone to review.

As far as I can recall, the following can be ascertained:

1. Sabah is a property of the Sultan of Sulu

2. In 1761, Alexander Dalrymple, an officer of the British East India Company, concluded an agreement with the Sultan of Sulu to allow him to set up a trading post in the region, although it proved to be a failure.

3. UK rented the property from the Sultan of Sulu

4. In 1885, the United Kingdom, Spain, and Germany signed the Madrid Protocol of 1885, which recognised the sovereignty of Spain in the Sulu Archipelago in return for the relinquishment of all Spanish claims over North Borneo.

5. In 1888 North Borneo became a protectorate of the United Kingdom.

6. From 1942 to 1945, Japanese forces occupied North Borneo, along with most of the island.

7. The war ended on 10 September 1945. After the surrender, North Borneo was administered by the British Military Administration and in 1946 it became a British Crown Colony

8. On 31 August 1963 North Borneo attained self-government.

9. On 16 September 1963 North Borneo, as Sabah, was united with Malaya, Sarawak and Singapore, to form the independent Federation of Malaysia.

10. 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 was thus established, comprising members of the UN Secretariat from Argentina, Brazil, Ceylon, Czechoslovakia, Ghana, Pakistan, Japan and Jordan. The Mission’s report, authored by UN Secretary-General U Thant found ‘a sizeable majority of the people’ in favour of joining Malaysia.

***

From the Max Planck Institute for Comparative Public Law
and International Law

The point of law is quite simple, but ultimately basic to the international rule of law. It is this: historic title, no matter how persuasively claimed on the basis of old legal instruments and exercises of authority, cannot – except in the most extraordinary circumstances – prevail in law over the rights of non-self-governing people to claim independence and establish their sovereignty through the exercise of bona fide self-determination.
13. The independence of North Borneo was brought about as the result of the expressed wish of the majority of the people of the territory in a 1963 election. The Secretary-General of the United Nations was entrusted under the Manila Accord of 31 July 1963 with the task of ascertaining the wishes of the people of North Borneo, and reported that the majority of the peoples of North Borneo had given serious and thoughtful consideration to their future and:
“[had] concluded that they wish to bring their dependent status to an end and to realize their independence through freely chosen association with other peoples in their region with whom they feel ties of ethnic association, heritage, language, religion, culture, economic relationship, and ideals and objectives.” (Quoted by the Representative of Malaysia to the General Assembly, 1219th meeting, 27 September 1963, Official Records of the General Assembly, 18th Session, UN Doc. No. A/PV.1219.)
14. In 1963, Britain filed its last report to the United Nations on North Borneo as an Article 73 (e) Non-Self-Governing Territory (Note by the Secretary-General, Political and Constitutional Information on Asian Territories under United Kingdom Administration, UN Doc. No. A/5402/Add.4 (4 April 1963)). Thereafter, the United Nations removed North Borneo from the list of colonial territories under its decolonization jurisdiction (see Yearbook of the United Nations, 1964, pp. 411-435, which omits North Borneo from the Committee’s list of territories), thereby accepting that the process of decolonization had been completed by a valid exercise of self-determination.
15. Accordingly, in light of the clear exercise by the people of North Borneo of their right to self-determination, it cannot matter whether this Court, in any interpretation it might give to any historic instrument or efficacy, sustains or not the Philippines claim to historic title. Modern international law does not recognize the survival of a right of sovereignty based solely on historic title; not, in any event, after an exercise of self-determination conducted in accordance with the requisites of international law, the bona fides of which has received international recognition by the political organs of the United Nations. Against this, historic claims and feudal pre-colonial titles are mere relics of another international legal era, one that ended with the setting of the sun on the age of colonial imperium.
16. The lands and people claimed by the Philippines formerly constituted most of an integral British dependency. In accordance with the law pertaining to decolonization, its population exercised their right of self-determination. What remains is no mere boundary dispute. It is an attempt to keep alive a right to reverse the free and fair decision taken almost 40 years ago by the people of North Borneo in the exercise of their legal right to self-determination. The Court cannot be a witting party to that.

***

A point was raised by a fellow blogger by the name of Anne de Bretagne:

Sabah which was a separate entity that was under direct British colonial control received independence from their British colonialists on 31st August 1963 and for FIFTEEN DAYS was technically truly INDEPENDENT. However on 16 September 1963, it was annexed by Malaysia.
The proviso in the NEW Malaysia Constitution left no room for doubt that the new Federation of Malaysia held on the basis of the union of FOUR independent states namely MALAYA (old Malaya union or old federation of Malaya states/sultanates), SARAWAK, SINGAPORE, and finally, SABAH.
when Singapore exited on 9th August 1965 from the newly formed “Malaysia Federation” whose newly framed Constitution specified that the Federation held based on the provision that the new Malaysia Federation held IF all 4 states were together, Singapore’s expulsion rendered the existence of the new federation null and void.
In this context, it is only common sense that the continuing annexation of Sabah to a federation that does not constitutionally hold even by the new Malaysia Federation standard cannot be legal. In essence, the continuing annexation of Sabah by today’s Peninsular Malaysia is not only illegal, it is also morally wrong. To validate the federation, a NEW REFERENDUM must be held. But Kuala Lumpur has not done it. We can only wonder why.
So why is Malaysia continuing to illegally annex Sabah? If Malaysia wants to legalise their hold on Sabah, it is only fair that a new referendum to ask the people of Sabah must be held. But Malaysia cannot continue to use underhanded tactics, and make the world think that their fantasmagorical historical fantasies are real!

What can we establish from this?

1. After World War II, Sabah was independent – for 15 days.

2. Sabah’s inclusion in Malaysia is questionable due to exclusion of Singapore which renders the new constitution of Malaysia inoperative. But that is an internal question which should be settled among Malaysians.

3. While Sabah’s annexation to Malaysia is questionable – it’s annexation to the Philippines is also questionable because the feudal historic title has been superseded when the people of North Borneo exercised their right to self determination in 1963. For short, the people of Sabah have declared independence from the Sultan of Sulu – and by extension, the Philippines.

4. Whether the people of Sabah want another referendum is for the people of Sabah to determine.

5. The matter is about the Sultan of Sulu exercising his property rights in the state of Sabah and has got nothing to do about Philippine territorial claims to Sabah.

There’s more to renewed focus on Sabah than meets the eye

The Philippine government knows exactly where it stands on this matter – and that’s the reason why it has not pursued the dormant Sabah claim.

However, the Sabah issue has not been decisively laid to rest by the Philippine government – for political purposes.

Personally, I understand the Sultan’s displeasure. It is no different from the displeasure of Filipino landowners whose lands have been distributed by land reform. The Filipino landowners were subjected to Philippines law, while the Sultan’s claim has been reviewed under the lens of modern international law. While the feudal historic titles have been consigned to the dustbin of history by the acts of self-determination during the era of decolonization, the conflicts that arise from it continue to haunt the post-feudal world order.

This renewed focus on Sabah, has the footprint of a playbook wherein an incumbent who is failing in domestic policy uses an external bogeyman to rally citizens and distract people from issues closer to home – JOBLESSNESS, POVERTY, WIDESPREAD CORRUPTION, CRONY CAPITALISM, and a FAILED ELECTORAL PROCESS.

This is a playbook which is being executed at the expense of the Sultan of Sulu – and the Filipinos. Keep your eyes on the ball folks – PNoy’s “Team Patay” gonna get you.

http://antipinoy.com/the-sabah-question/