Asserting our Sabah territorial claim

When and how the country will pursue the Sabah claim is dependent on the reality that we need to maintain good diplomatic relations with Malaysia to ensure peace and security in Mindanao.

August 9, 2022

The Philippine claim to Sabah is well-known and well-documented.

It began with the Sultanate of Brunei giving a portion of Sabah (formerly known as North Borneo) to the Sultanate of Sulu in the 1700s as a token of appreciation, after the latter assisted the Brunei kingdom quell an insurrection.

Legal definition of “pajak”

In 1878, then Sultan of Sulu Jamal Al Alam entered into a contract of “pajak” with British North Borneo Company, which stipulated a yearly rental of 5,000 Mexican dollars. In 2013, the rental payment to the Sultanate heirs ended. Then Malaysian Prime Minister Najib Razak ordered its stoppage, arguing that Malaysia has title over Sabah.

The controversy centers on the word “pajak.” The British and the Malaysians have maintained that it is a “contract of sale.” The Philippines, on the other hand, has maintained that it is a “contract of lease” because the payment of yearly rental since the 18th century is more consistent with rent rather than sale.

Early this year, the contention over the meaning of “pajak” was finally resolved when the Sultanate of Sulu won its arbitration case against Malaysia in a French arbitration tribunal. Pursuant to an arbitration clause ruling that “pajak” was a contract of lease and because Malaysia was in breach of its obligation to pay annual rent, it is in default of the contract.

As a consequence, the French court ordered the rescission of the contract, meaning it no longer subsists. It asked the Malaysian government to pay $15 billion to the Sulu heirs, not only in terms of unpaid rentals, but also representing all profits derived from the exploitation of Sabah’s natural resources.

Sulu’s cession of Sabah to the Republic

Since 1962, we have referred to Sabah as a Philippine claim rather than a private claim of the Sultanate of Sulu. That year, Sultan Mohammed Esmail Kiram assigned, unequivocally and without condition, the sovereign title over Sabah to the Philippine Republic. President Diosdado Macapagal formally accepted this cession or transfer of sovereignty.

I recall that the administration of President Fidel V. Ramos (bless his soul) sought at one point to settle the proprietary claims of the Sulu Sultanate. The problem was when FVR called the heirs to a meeting in Malacañang, both recognized and alleged descendants filled up the entire Rizal Hall in the Palace. Nothing happened to this initiative. Until the Sultanate heirs entered into a deal with British lawyers, backed by a funder, and resorted to arbitration decades later.

Unfortunately for the Philippines and the Sulu Sultanate, we lost our primary documents in a 2004 suspicious fire incident that razed the Office of North Borneo Affairs under the Department of Foreign Affairs. It happened a day after the Philippine and Malaysian foreign ministers met to discuss the Sabah issue.

Thus, 12 years ago, I visited the heirs of the Sultanate of Brunei to persuade them to arbitrate the matter. They possess all original documents, particularly a copy of the Sultanate of Brunei’s cession of Sabah to the Sultanate of Sulu. I also understand that these descendants continue to own the other half of Sabah. However, they do not come from the direct line of Sultan Hassanal Bolkiah. Their ancestors died without a male heir. This paved the way for the royal family of Bolkiah to become rulers of Brunei.

Geographically, the nation of Brunei is surrounded by Malaysia. Owing to the close relations between Brunei and Malaysia, the heirs have decided not to arbitrate.

PBBM and the Philippine claim

Recently, Press Secretary Trixie Cruz-Angeles said the Sabah claim is a private claim of the Sultanate of Sulu. I think this is erroneous because the language of the assignment of all sovereign titles over Sabah was unqualified and unconditional.

It is a Philippine claim. The arbitration decision bolsters and favors the Philippine position. For the first time, a court ruling interpreted “pajak” to mean rent.

The matter of Sabah is indeed more complicated than a treaty construction. But we must remember that Malaysia supported the establishment of secessionist movements in Mindanao in the aftermath of a botched military takeover of Sabah during the incumbency of President Ferdinand E. Marcos.

Given this historical fact and as a result of the arbitration, I doubt whether President Ferdinand “Bongbong” Marcos Jr. would consider the Sabah claim as a private claim of the Sulu heirs. As chief executive, as well as the son of a former president who consistently championed our territorial claim over Sabah, it is incumbent on PBBM to decide whether we should vigorously assert Philippine sovereignty over Sabah.

When and how the country will pursue the Sabah claim is dependent on the reality that we need to maintain good diplomatic relations with Malaysia to ensure peace and security in Mindanao.

The ultimate solution? Abangan!


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