Adolfo Paglinawan / Phil-BRICS Strategic Studies / July 26, 2020

I cannot but agree with the Daily Tribune that “the time is ripe for President Rodrigo Duterte to revive the government’s claim on the disputed territory of Sabah after the Malaysian government affirmed that it has stopped paying the yearly lease on the land under an agreement signed on 22 January 1878, between the then Sultan of Sulu, Jamal Al Alam and Baron de Overbeck and Alfred Dent of the British North Borneo Company.

Foreign Minister Datuk Seri Hishammuddin Hussein confirms “Malaysia has stopped paying the cession money of RM5,300 a year through lawyers representing the nine heirs of the Sulu Sultanate since 2013.”

Inclusion of the Sultanate of Sulu in the 1939 Great Renaissance of the Chinese Nation, observing the Treaty of Tributary Independent States signed by Sultan Paduka Batara with Emperor Yongle in 1405, confirmed by the former’s formal visit to Beijing in 1417. The sultan died on the return trip while traversing the Grand Canal along Shandong province. His heir, the Raja Muda, completed the journey back to Sulu to continue his lineage to the throne. Emperor Yong Le gave Sultan Batara an internment befitting a head-of-state and an imperial burial ground as big as eight-hectares in Shandong’s capital city of Dezhou.

Abraham Idjirani, Sultanate secretary general and spokesman, was quick to correct that Malaysia was paying cession money.  He said that long before the creation of Malaysia, the Sultanate has been receiving a yearly lease equivalent to 5,000 Malaysian ringgit (P57,900) which was also a recognition of Philippine ownership. The term used in the contract was “padjak” which in Tausug means rent, as even the concept of “cession” was not just foreign to their tongue but also culture.

When the Federation of Malaysia was formed in 1963, the new government has continued the rentals until 200 armed members of the Sultanate army in February 2013 laid siege on Lahad Datu that triggered a fierce gun battle between Malaysian Security forces and Tausug warriors.

“Malaysia has been attempting to suppress the sovereign rights of the heirs of the Sultanate. The decision of Malaysia to cut off the payment is anti-Islam,” Idjirani adds, “aggravated by blood being spilled by the heirs in their ancestral land to dramatize the Sultanate’s historical and legal claim.”

He said that when Sultan Jamalul Kiram II died childless in 1936, propriety claimants Dayang Dayang Hadji Piandao and eight other heirs filed a civil suit before High Court of North Borneo regarding the “cession money” payable to the heirs of Sultan of Sulu and the share entitlement of each claimant.

So long before Malaysia’s existence as a nation, no less than Chief Justice C.F.C Macaskie on October 11, 1939 issued a decision upholding the proprietary rights of the heirs of the Sultanate and appointed Datu Punjungan Kiram, who eventually became the 32nd Sultan of Sulu and North Borneo, as the administrator of the estate of North Borneo.

The empty chair

When Brigido “Jun” Simon was mayor of Quezon City, he went to Malaysia together with other heads of local governments and was surprised to learn that his host country was a monarchy, a constitutional monarchy at that!

The monarch of Malaysia is the Yang di-Pertuan Agong, literally “He who is made Lord” is commonly referred to as the Supreme King who acts as the head of state serving for a five-year term, and uniquely elected from among the country’s hereditary rulers, the nine Sultans of the Malay states.

Malaysia comprises 13 states and 3 federal territories.

The nine hereditary states are Perlis (ruled by the Raja), Negeri Sembilan (ruled by the Yang di-Pertuan Besar) and Kedah, Perak, Johor, Selangor, Pahang, Terengganu and Kelantan (ruled by Sultans), together with the head of state in the four states that do not have hereditary rulers, form what is called the Conference of Rulers.

 Those who do not have hereditary rulers are Melaka, Pulau Pinang, Sabah and Sarawak – are headed by a governor, Yang di-Pertuan Negeri, appointed for a four-year term by the Yang di-Pertuan Agong who also acts as head of Islam in their states and in what are called federal territories.

When Jun Simon asked why the rulers of Sabah and Sarawak are not considered hereditary states, the answer provided was that Melaka (Malacca) and Pinang (Penang) were before directly under the British control as crown colonies, and for Sabah and Sarawak (which is North Borneo), their sultan is not Malaysian.

True, it is in Malaysia that an extra seat is provided for among hereditary rulers, but the tenth has always remained vacant.

In confluence, the North Borneans know who their sultan is.

Road peppered with treachery

But the dissonance does not come only from the Malaysia.

On the news that President Ferdinand Marcos was dying, former senator Benigno “Ninoy” Aquino Jr. ventured to return to Manila under a Malaysian passport with the name Marcial Bonifacio.

Before landing in the Philippines to be shot in the tarmac of the Manila International Airport, he connected with then Malaysian prime minister Tun Dr Mahathir Mohamad that when he assumed power, promising the Philippines would drop its claim on Sabah in exchange for Malaysia’s support in the move to oust Marcos.

There were “no official records” of the 1983 meeting but Hermes Dorado, former national territory division head of the Department of Foreign Affairs, revealed in a forum at the University of the Philippines that he became privy to this bit of intelligence from Ambassador Rafael Ileto, the retired general assigned to tail Aquino on his journey back to Manila.

According to Dorado, the clearest proof of Ninoy’s commitment to Malaysia is found in the 1987 Constitution, which was written during the presidency of his widow Corazon Aquino.

In the 1973 Constitution, the National Territory of Philippines is described in Article 1, Section 1 as “the national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all the other territories belonging to the Philippines by historic or legal title, including the territorial sea, the air space, the subsoil, the seabed, the insular shelves, and the submarine areas over which the Philippines has sovereignty or jurisdiction. The waters around, between, and connecting the islands of the archipelago, irrespective of their breadth and dimensions, form part of the internal waters of the Philippines”.

The 1987 Constitution amended the first article of the 1973 Constitution and removed the italicized phrase, “and all other territories belonging to the Philippines by historic right or legal title”, that rightfully belongs to the Sultanate of Sulu.

Assignment of Sovereignty

The Sultanate never surrendered to the Spanish colonials but had two Treaties with the Americans, the Kiram-Bates and the Kiran-Carpenter agreements.

But it would not be a Spanish or American that will cast our Muslim brothers so severe that they were virtually marginalized from the governance with the establishment of the Philippine Commonwealth. Policy toward Philippine Muslims shifted significantly. The Bureau of Non-Christian Tribes was abolished in 1936 and with it the presumption that Muslims should be governed any differently, or afforded more protections, than any other citizens of the Commonwealth.

Worse, by fiat of a mere administrative order, President Manuel L. Quezon denied recognition to any further succession to the Sultan of Sulu upon the death of Sultan Jamalul Kiram II, assuming such will abolish the Sultanate.

This change in attitude was accompanied by a new policy outlook – the economic development of Mindanao is to serve the nation as a whole. Not yet satisfied, he began ordering Christian migration into traditionally Muslim regions, without the benefit of what we now call social preparation.

This is one aspect where Quezon failed miserably. They never stopped the Sultanate line, assemblying the Ruma Bechara, or Council of Elders, each time a vacancy occurred electing the rightful replacement.

The animosity between Imperial Manila and the Muslim population would however turned 180 degrees into a glorious moment on September 11, 1962.

On that day, President Diosdado Macapagal formally accepted the assignment of sovereignty of the Philippines over territory of North Borneo, specifically Sabah, from His Highness Sultan Esmail Kiram, acting with the advice and authority given by the Ruma Bechara in a Resolution dated August 29, 1962 fully authorizing the government of the Philippines to recover Sabah on tha basis of its legal and historic rights.

Macapagal delegated the signing of the historic document to his vice president and secretary of foreign Affairs, Emmanuel Pelaez.

The diplomatic road arrived at its logical conclusion in the Manila Accord, signed jointly by Presidents Diosdado Macapagal, President Soekarno of Indonesia and Prime Minister Tungku Adul Rahman on July 31, 1963.

The Manila Accord with the Joint Statement, and the Agreement relating to the implementation of the Manila Accord were registered and published after their entry into force had been transmitted to the Secretary-General of the United Nations by the Government of the Republic of the Philippines on December 30, 1965 and October 24, 1967, respectively.

Such compliance with Article 80 of the Vienna Convention on the Law of Treaties (1969) puts the matter under the jurisdiction of the International Court of Justice for decision, unless the parties by common consent could agree to submit the dispute to arbitration.

Prognosis forward

The Sultanate of Sulu, is therefore appealing to President Rodrigo Roa Duterte  to enforce our claim to Sabah in accordance with our submissions to the United Nations.

If the Republic of the Philippines will not endeavor to do so, the Sultanate of Sulu, being a de facto state, can pursue a second wave of the homecoming action of the Royal Security Force of the Sultanate, that was first implemented by the late Sultan Jamalul Kiram III leading to a standoff at Lahad Datu, Sabah On February 11, 2013.

The Sultanate has it security force at bay but if fully aware that may have violent implications and may distract international support,

On my advice to the its Secretary-General Abraham Idjirani, the Sultanate can instead proceed to a peaceful route enforcing its own sovereignty by invoking its protectorate status with China, based on a Treaty of Independent Tributary States which the Sultan Paduka Batara signed with Emperor Yongle in 1405, confirmed by the Sultan’s formal visit to Beijing in 1417.

But this could mean dismemberment of our Republic as we now know it, unless the Philippine goes into a federal form of government, since this avenue would in effect include more than just a symbolic claim to self-determination as its reunion of with North Borneo will engender a sustainable economy for the Sultanate.

This probability is imminent because in 1939, the Sultanate of Sulu and North Borneo was already included in a map showing The Great Renaissance of the Chinese Nation, here reproduced for the benefit of the global public.

Thus to prevent any complications, the President of the Philippines must now act with dispatch and deliberateness to seek justice not just for our Muslim brethren but for the entire nation.

The Sultanate has executed a special power of attorney to the Philippine government to pursue the claim before the International Court of Justice.

The next move belongs to President Duterte, who promised the electorate in May 2016, that he will pursue the Philippine claim to Sabah.