If there really was an
incursion, how come I do not see our Foreign Minister flying off to the
Philippines or their Foreign Secretary here in Sabah to negotiate the
retreat?
COMMENT
I was asked to pen my views on the alleged ongoing
standoff between the Malaysian armed forces and the so-called Sulu
intruders at a Lahad Datu village in Sabah.
I will touch on the history of Sabah followed by my
arrival to the conclusion on the probability of the incident actually
happening in reality.
It was written that on Jan 23, 1878, the Ruler of Sulu,
Sultan Jamalul Alam leased Sabah (formerly known as North Borneo) to
Gustavus Von Overbeck for an annual rent of equivalent 5,000 dollars
through Von Overbeck’s trading partner Alfred Dent. It was also recorded
that this amount of money (USD1,500 per year) is still being paid to the
heirs of the Sulu Sultan by the Malaysian Embassy in the Philippines
until today.
The keyword in the written agreement was “Pajak” which if
translated literally means “Lease”. It was also explicitly written that
the rights to Sabah cannot be transferred to any other nation or anyone
else without the Sulu Sultan’s express consent.
The Spaniards in Manila eventually took control of the entire Sulu
Sultanate; and in 1885, Great Britain, Germany, and Spain signed the
Madrid Protocol confirming Spanish influence over everything in the
Philippines except Sabah which belongs to the Sultanate.
Great Britain was reminded by America in official black
and white in 1906 and 1920 that Sabah does not belong to Great Britain;
and was and is at all material times legally and legitimately part and
parcel of the Sulu Sultanate.
The British government, however as we all know,
arrogantly and unilaterally did turn Sabah into a Crown-leased Colony on
July 10, 1946 even though there was a declaration by Chief Justice CFC
Makaskie of the High Court of North Borneo on Dec 19, 1939 in a civil
suit filed by Dayang Dayang Hadji Piandao and 8 other heirs of the Sulu
Sultan including Putlih Tarhata Kiram that the successor of the Sulu
Sultan in the territory of Sabah was Punjungan Kiram and not Great
Britain!
Earlier on in 1941 the Constitution of the Philippines states
specifically that the national territory of the Philippines includes “all
other areas which belong to the Philippines on the basis of historical
rights or legal claims” which means that the Philippines have never
relinquished their claim on Sabah.
Even before Sabah joined Malaya, Sarawak, and Singapore
to form Malaysia on Sept 16, 1963, numerous delegations were sent by the
Philippines to London reminding the British government that Sabah belongs
to the Philippines.
On Sept 12, 1962, the territory of Sabah and the full sovereignty,
title and dominion over the territory were ceded by the then reigning
Sulu Ruler, Sultan Muhammad Esmail E. Kiram 1 to the Republic of the
Philippines during the Presidency of Diosdado Macapagal.
The cession effectively gave the Philippines government
full authority to pursue their claim in the International Court of
Justice at The Hague. But until today, Malaysia continues to consistently
reject the Philippines’s calls to refer the matter to the ICJ.
Immediately preceding the formation of Malaysia, two
commissions of enquiry visited Sabah and Sarawak in order to establish
the state of public opinion regarding merger with Malaya and Singapore.
However, the commissions were never mandated to address the legal status
of Sabah nor were they referendums in the proper sense.
The first commission known as the Cobbold Commission was
established by the Malayan and British governments and was headed by Lord
Cobbold, along with two representatives from Malaya and Britain – but
none from the territories under investigation.
The Commission found that about one third of the
population of each territory I.e. Sabah and Sarawak strongly favours
early realisation of Malaysia without too much concern over terms and
conditions. Another third, many of them favorable to the Malaysia project,
ask, with varying degrees of emphasis, for conditions and safeguards. The
remaining third is divided between those who insist upon independence
before Malaysia is considered and those who would strongly prefer to see
British rule continue for some years to come.
Indonesia and the Philippines rejected the findings of the Cobbold
Commission and 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 found “a sizeable majority of
the people” dubiously in favour of joining Malaysia and as expected
Indonesia and the Philippines subsequently rejected the report’s findings
and Indonesia continued its semi-military policy of “konfrontasi” towards
Malaysia – the disputed report in effect sealed the creation of Malaysia.
To give the ordinary layman on the street an easier picture
to digest, the following analogy best describes the whole situation:
A landlord called Jamalul leased a piece of land to a
tenant called Overbeck for a yearly rent of $5,000. The written agreement
stated that Overbeck cannot sub-let the land or sell the lease without
Jamalul’s permission.
But the tenant despite the prohibition illegally sold the
lease to a sub-tenant called Great Britain who later also illegally sold
the lease to a sub-sub-tenant called Malaysia.
And in between all the illegal transactions perpetrated by
Overbeck, Great Britain and Malaysia, Jamalul transferred all his rights
and interests to a new landlord called the Philippines. The new landlord
now wants back the land but the sub-sub-tenant Malaysia refuses to leave.
The new landlord wants to take the matter to the International Court of
Justice at The Hague but the sub-sub-tenant Malaysia also refuses to go
there.
Can the sub-sub-tenant Malaysia claim to be an innocent
victim when she took over the lease from the sub-tenant Great Britain?
In my humble opinion: the law be it either international or of any
civilized country is that if a purchaser acquires a property with prior
knowledge that the property in question is in fact stolen or that the
seller does not have a legal or legitimate title to the property at the
time of transaction is equally guilty of the crime of theft. Such
transaction is not only null and void and of no effect, the title to the
property in question is still vested with the original owner.
The ICJ only handles cases between states and nations which must
agree to come voluntarily to be adjudged and be bound by its decisions; I
strongly believe that Malaysia dares not go to the International Court of
Justice to face the Philippines because the former foresee the high
possibility of losing.
For centuries Great Britain was the cause of a lot of
world problems today, history will tell you the sufferings of people in
the Middle East, Africa, Indian Sub-Continent, Argentine Falklands and
many more. Even within the United Kingdom, the Scottish, Welsh, and Irish
people are really pissed with England.
Hong Kong was fortunate when the late Deng Xiao Ping told Margaret
Thatcher in private that if Great Britain does not leave Hong Kong after
squatting there for more than 150 years, the Chinese Army will overrun
Hong Kong in one day. She was eventually returned to China on July 1,
1997 and now enjoyed autonomy.
What about the voices of the population during the times
of the first tenant Overbeck and sub-tenant Great Britain who agree to
let the sub-sub-tenant Malaysia take over?
Let me give another analogy: I am the registered legal and
legitimate owner of a bus. One day someone leased the bus from me and
drove around town picking up and dropping off passengers along the way
for profit. Let us say that the passengers love his driving so much that
they want to patronize him for life. Does that in any way mean he can
sell my bus or treat the same as his property?
To answer my earlier question: the passengers can choose to ride
whichever bus they want to, but the sovereignty of Sabah is vested in the
Philippines. And this also means that even if the people of Sabah today
might still want to stay on with Malaysia, Sabah is still the legal and
legitimate territory of the Philippines under international law if the
same principles are applied as per the Judgments of the International
Court of Justice with regards to the cases of Sipadan and Ligitan
Islands, and Pulau Batu Puteh or Pedra Branca.
The Sultanate of Sulu had ceased to exist when every inch
of its territory was ceded on Sept 12, 1962 to the government of the
Philippines and as the successor-in-title of the defunct sultanate, it is
entitled to reclaim Sabah which is at all material times rightfully
theirs.
Article IV of the Malaysia Agreement of 1963* reads as follows:
The Government of the United Kingdom will take such steps
as may be appropriate and available to them to secure the enactment by
the Parliament of the United Kingdom of an Act providing for the
relinquishment, as from Malaysia Day, of Her Britannic Majesty’s
sovereignty and jurisdiction in respect of North Borneo, Sarawak and
Singapore so that the said sovereignty and jurisdiction shall on such
relinquishment vest in accordance with this Agreement and the
constitutional instruments annexed to this Agreement.
Because it was stated that one part of Sabah** belonged
to the Brunei Sultanate and the other part to the Sulu Sultanate, and
while Brunei had ceded her part of Sabah’s sovereignty, Sulu (now part of
the Philippines) only leased her part of Sabah, does Her Britannic
Majesty had sovereignty over the whole or only one part of Sabah?
It is obvious that the answer is only one part of Sabah,
therefore Article IV is null and void thereby rendering the entire
Malaysia Agreement of 1963 illegal and of no effect…!
There is a legal maxim “nemodat quod non habet” which
means “you cannot give what you do not have”.
Legitimate and legal independence or autonomy for that
one part of Sabah that was leased from the Sulu Sultanate can only come
from the Philippines.
It is now more than two weeks since the alleged intrusion
took place and not even one piece of credible picture taken of the
invaders was shown to the public.
Common sense tells me that if the occurrence was real,
the only reason our security forces dare not open fire on the raiders is
either our boys are outnumbered or their guns outsized.
If there really was an incursion, how come I do not see
our Foreign Minister flying off to the Philippines or their Foreign
Secretary here in Sabah to negotiate the retreat?
Like the May 13 bogeyman that was used to frighten the Chinese
voters of Peninsular, this could well be another “sandiwara” to scare the
voters of Sabah and show us that only the Barisan Nasional will be able
to protect us from foreign invasion.
Malaysia Agreement 1963
http://treaties.un.org/doc/Publication/UNTS/Volume%20750/volume-750-I-10760-English.pdf
http://en.wikipedia.org/wiki/North_Borneo_dispute
http://en.wikipedia.org/wiki/History_of_Sabah
The writer is a former member of Sabah’s faded tourism
industry; loves food and speed; and blogs at http://legalandprudent.blogspot.com/
giving no quarters. While the views and findings contained in the above
article belong to him, he wishes to encourage intelligent individuals to
find and form their own answers and judgments in comparison with his.
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