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Initially, we could not make heads or tails over media reports that
around 300 armed men from the Philippines had landed in Sabah. In fact,
it took a number of days before we realized that the men were calling
attention anew to the “elephant in the room” in the precarious bilateral
relations between Malaysia and the Philippines.
When I discussed the Sabah issue in a conference in Kuala Lumpur
last December presided over by former Malaysian Prime Minister Abdullah
Badawi, a Malaysian career diplomat turned red and assailed me for
resurrecting what he claims to be “a long-settled issue.” According to
this Malaysian diplomat, he was present when the dictator Ferdinand E.
Marcos unequivocally declared in 1977 that the Philippines “had
abandoned its claim to Sabah.” Arturo Tolentino, then minister of
foreign affairs, allegedly reiterated this position.
It was not a surprise then that in the 1990s, Malaysia vehemently
objected to the Philippines’ attempt to intervene in a case with the
International Court of Justice (ICJ) on the issue of conflicting claims
to territory on Pulau Sipadan and Pulau Ligitan between Malaysia and
Indonesia. There, the counsel for Malaysia, Sir Elihu Lauterpacht, my
own mentor in international law, argued that while we claim a legal
interest in some of the primary documents to be presented in the case to
prove our title to Sabah, the reality is that there is no pending
Philippine claim to Sabah, citing anew the Marcos and Tolentino
declarations.
The Sabah issue would hence be relegated to the back of our
consciousness. In the words of a senior Filipino diplomat, the Sabah
claim “remains unsettled but had been relegated to the back burner given
the importance of our bilateral relationship with Malaysia.” The latter
has, after all, taken on the sensitive role of facilitator in the
ongoing peace talks in Mindanao. Ironically, the same Filipino diplomat
deplored Malaysia’s role in the peace talks, saying it is not a
disinterested party precisely because of the unresolved Sabah claim.
Many believe that the claim to Sabah, together with the notorious 1968 Jabidah massacre, or the killing of soldiers who were then being trained
in Corregidor for a planned military invasion of Sabah, has prompted
Malaysia to stoke the embers of the insurgency groups in Mindanao. Some
have even claimed that even recently, Malaysian submarines were utilized
to deliver arms to armed insurgents in Mindanao.
There is not much dispute on what the Sabah claim is other than
for one word: “pajak.” It is undisputed, for instance, that the
Sultanate of Brunei ceded a big chunk of Sabah to the Sultanate of Sulu
as a token of its gratitude for the latter’s role in quelling an armed
rebellion in Brunei. It is also undisputed that in 1878, the Kiram
family of Sulu, with Gustavo von de Overbeck of the British North Borneo Co., entered into a contract for pajak. English and, later, Malaysian
authorities would construe pajak as a contract of “sale.” The
Philippines maintains it is one of “lease.”
It is also undisputed that “estoppel” is a recognized mode of
losing title to territory. This was the ruling of the ICJ in the “Temple
case of Preah Villar,” then being disputed between Cambodia and
Thailand. The ICJ ruled that because Thailand signed a 1933 map
indicating the temple to be in Cambodian territory, Thailand was
estopped from claiming title to the temple. Our dilemma now is while the Malaysians insist that we are
estopped from asserting a claim to Sabah because of the Marcos and
Tolentino declarations, what happens to the rights of the Sultanate of
Sulu? Malaysia itself admits the execution and authenticity of this
contract entered into by the Sultanate of Sulu with Overbeck as in fact;
it used the same as its basis of title over Sabah in the case decided
upon by the ICJ. The issue now is: What exactly is this contract of
pajak and what should be done now that its rightful owners want Sabah
back?
In any case, even the Malaysians themselves
have questioned whether the Marcos and Tolentino declarations will
suffice to extinguish our claim to Sabah. They have demanded that in
addition to the declarations, the renunciation should be done through a
constitutional amendment. The rationale for this is that Sabah is
included in the definition of our national territory in both the 1935
and the 1987 Constitutions. The proceedings of both Constitutions will
show that the intent of the drafters was to include Sabah as part of
“territory over which the Philippines has sovereignty or jurisdiction.”
The arrival of the armed men in Sabah sends
the message that the Sultanate of Sulu wants its property back. This
would mean that while we may not assert a superior claim to the
territory during the pendency of the Sabah lease, our nationals,
claiming to be its owners, now want their property back. It is incumbent on President Aquino’s
administration to espouse the claims of the sultanate. Certainly,
Article 1 of the 1987 Constitution on the National Territory mandates
this.
Harry Roque is the director of the UP Law Center’s Institute of International Legal Studies.
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