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Sabah claim: A tale of two versionsThe great controversy with the Sulu Sultanate is whether the contract involving territories including Sabah was for a lease or

cession.

Sulu Sultan Jamalul Kiram IIIs defiance against calls for his army in Lahad Datu to surrender despite having lost his soldiers in a shootout w

Malaysian security forces and his mens decision to die in Lahad Datu has stoked the curiosityof Sabahans.

His daring modus operandi in claiming Sabah as his rightful homeland has awakened the curiosity of many here who are in the dark or have o

a vague knowledge about the historical background of Jamaluls Sabah claim.

Why did Jamalul make his move now? In his own words he can no longer trust the Philippine government to justly pursue his claim on Sabah

The fact is the Philippine government has been inconsistent in its claim and on its recognition of the Sulu sultanate.

Many parties in the Philippines, including the pretenders who claim the throne of Sulu, have been speaking up more out of political expedien

than of historical realities.

And it is obvious that Malacaang Palace the seat of the Philippine government itself has been making decisions on these issues based

changing political climates and pressures, blowing hot and cold to fit its own needs at the material time in violation of past treaties a

agreements, even its own declarations.

Lets take a quick look at the history of the Philippines changing position on Sabah claims.

Two versions of contract

In 1658 the Sultan of Brunei gave away the north and eastern part of what is now Sabah (not the whole of Sabah) to the Sultan of Sulu after th

latter helped the Sultan of Brunei quell a rebellion in Brunei.

The most critical turning point in the whole issue of the Sabah claim began on June 22, 1878 when a contract was signed between Sri Padu

Maulana Al Sultan Mohammad Jamalul Alam representing the sultanate as owner and sovereign of Sabah and Gustavus Baron

Overbeck and Alfred Dent, representing the British East India Company (later named the North Borneo Company) as the lessee of No

Borneo.

The great controversy here is whether the signing of the contract was for a lease or a cession.

How history came up with two conflicting versions of this contract is difficult to understand.

The British version of the treaty says that hereby grant and cede all the territories and lands being tributary to us on the mainland of t

island of Borneo from the Pandassan River on the north -west coast and extending along the whole east coast as far as the Sibuco River in t

south and comprising, amongst other, the States of Paitan, Sugut, Bangaya, Labuk, Sandakan, Kina Batangan, Mumiang, and all the oth

territories and states to the southward thereof bordering on Darvel Bay and as far as the Sibuco river with all the islands within three mari

leagues of the coast.

The Sulu version says, do hereby lease of our own freewill forever and until the end of time, all rights and powers which we possess over

territories and lands tributary to us on the mainland of the Island of Borneo, commencing from the Pandassan River on the west coast

Maludu Bay, and extending along the whole east coast as far as Sibuco River on the south, and all the other territories and states to t

southward thereof bordering on Darvel Bay and as far as the Sibuco River

If you lease something forever and until the end of time, can you reclaim it? Now the question is which version is real?

Madrid Protocol

On July 22, 1878 one month later the Bases of Peace and Capitulation was signed by the Sultan of Sulu and Spain in Jolo in which t

Sultan of Sulu relinquished the sovereign rights over all his possessions to Spain.

This means thereafter the sultanate no longer had the right to claim North Borneo of Sabah.

But Filipino writers argue that North Borneo was not mentioned, therefore not included in the possessions.

But what did all his possessions mean if it didnt include everything he owned?

In 1881, North Borneo had its first government under the British North Borneo Company which was given royal charter by Britain.

On March 7, 1885, the famous Madrid Protocol was signed by Spain, Britain and Germany.

The purpose of the protocol was to recognise the sovereignty of Spain in the Sulu Archipelago and also for Spain to relinquish all claims it mig

have had over North Borneo.

Article III of the protocol states: The Spanish government renounces, as far as regards the British Government, all claims o f sovereignty ov

the territories of the continent of Borneo, which belong, or which have belonged in the past to the Sultan of Sulu which for m part of t

territories administered by British North Borneo Company.

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The sultanate was not involved in this protocol because despite the cession or lease to Overbeck and Dent on June 22, 1878, he had on July 2

1878 surrendered all his possessions (by understanding including North Borneo) to Spain!

Didnt cession to Spain therefore nullify the claim that the June 22 treaty was a lease?

To confirm his surrender of North Borneo, Sultan Jamalul Kiram II signed a document on April 22, 1903 known as Confirmation of cession

certain islands, under which he either granted or ceded to British North Borneo Company additional islands in the neighbourhood of t

mainland of North Borneo from Banggi Island to Sibuku Bay, which were not mentioned in the treaty of 1878.

Note that the documents title says cession, not lease and that by the understanding of the Madrid P rotocol he should no longer

authorised to cede any part of North Borneo.

Wrong translation of term

By 1915, the status of Sulu entirely changed because the Sultan had by then been stripped off all temporal power and retained only the emp

title of Sultan.

Because the United States of America was not interested in the territory of North Borneo, the then powerless Sultan of Sulu was understood

continue keeping his sovereignty rights over North Borneo.

But remember, he had surrendered these in 1878 (if it was a cession) and in 1903 under the Confirmation of cession of certain islands.

Then in 1935, the Philippine Constitution was promulgated. It stated (in defiance of all contracts, treaties and the Madrid Protocol) that t

national territory of the Philippines included, among other things, all other areas which belong to the Philippines on the basis of historical righ

or legal claims.

But strangely, a letter to the Governor of North Borneo dated July 28, 1936 from His Britannic Majestys Consul General in Manila indicated th

the Philippine government decided not to recognise the continued existence of the Sulu Sultanate.

By this year, therefore, the Sulu sultanate had come to an end.

But it is understood that the abolition of the Sulu Sultanate did not abolish the Sultan nor his line of succession, which can be interpreted as th

sultan continuing to be sultan in a sultanate that no longer existed.

On Dec 18, 1939 the historic judgment of Chief Justice CFC Macaskie was made in the High Court of North Borneo in the civil suit filed by ni

heirs of the Sultan of Sulu, including Sultan Jamalul Kiram II.

Macaskie ruled that the Grant of 1878 was a cession or sale, and that the money to be paid to the heirs was cession money and had noth

more to do with territorial property.

However, it is argued by the Philippines that Macaskie was relying on a wrong translation of the 1878 document (which was written in Malay

Jawi).

The Philippines claimed that the later translation said it was a lease, based on the meaning of pajak or padjak, which had been transla tboth as cession or lease (or rental).

Philippines recognises Sulu

Then in 1950, Congressman Diosadado Macapagal, together with Congressmen Lacson and Tolentino, sponsored a resolution calling t

Philippine government to formally lodge a claim to Sabah.

Protracted studies were undertaken to support the claim.

These determined efforts led to the passing of a unanimous House resolution urging then President Diosdado Macapagal to legally recla

Sabah.

Macapagal won the presidency partly by using the Sabah claim as an issue in his campaign.

In 1957 (according to Jovita Salonga), the heirs of the Sultan of Sulu issued a proclamation declaring the termination of the 1878 contra

effective Jan 22, 1958.

The declaration was served on the British government for the return of the territory, but it was totally ignored.

The question here is: Did the heirs have any power to unilaterally withdraw the 80-year-old contract when the sultanate was no longer

existence?

In 1962, Sultan Esmail Kiram I handed over a Letter of Attorney to Macapagal to give the Manila government the right to claim the territory

North Borneo and the full sovereignty, title and dominion are hereby ceded on the sultanates behalf.

By accepting this handover of rights, the Philippine government again had officially recognised the continued existence of the Sulu sultanate a

the office of Sultan of Sulu.

Jabidah massacre

Subsequently, the Philippines Department of Foreign Affairs notified the British government of her claim of sovereignty, jur isdiction a

proprietary ownership over Sabah as successor-in-interest to the Sultan of Sulu.

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However, this power of attorney was withdrawn in 1989 when Jamalalul Kiram III felt the Manila government had neglected, or failed,

claiming Sabah.

On March 30, 1963 Senator Jovita Salonga said in a speech in the House of Representatives that our claim is mainly based on the follow

propositions: that Overbeck and Dent, not being sovereign entities nor representing sovereign entities, could not and did not acquire domin

and sovereignty over North Borneo; that on the basis of authoritative British and Spanish documents, the Britis h North Borneo Company

not and could not acquire dominion and sovereignty over North Borneo; that their rights were as those indicated in the basic contract, name

that of a lessee and a mere delegate

Interestingly in 1966, President Ferdinand Marcos declared his recognition of Malaysia soon after he came to power in the Philippin

Recognition of Malaysia here, by clear implication, meant recognition of Sabah being part of Malaysia, not part of the Philippines. In t

following year, Marcos confirmed this stance when he made it known that he opted not to pursue the claim and focused his attention on t

preservation of Asean unity.

But diplomatic ties which Marcos tried to build with Malaysia faced a possible breakdown when the Jabidah Massacre (of the Corregid

Incident) was exposed, whereby Moros had been recruited for a plan to stage a rebellion and eventual occupation of Sabah under the co

name Project Merdeka.

As if to withdraw its recognition of Malaysia, and disregarding diplomatic sensitivities, the Philippines Republic Act 5446, took effect Sept

1968 to regard Sabah as a territory over which the Republic of the Philippines has acquired dominion and sovereignty.

On May 24, 1974 the Manila government again recognised the sultanate when Datu Moh. Mahakuttah A Kiram, the eldest son of Sultan Mo

Esmail E. Kiram, was crowned in the public coronation as Sultan of Sulu.

This crowning was after the issuance of the Presidential Memorandum Order 427 by Marcos, then President of the Philippines, which state

Whereas, the Government has always recognised the Sultanate of Sulu as the legitimate claimant to the historical territories of the Republic

Philippines.Jamalul rescinds decision

But three years later, in 1977, in a speech at the Asean Summit held at Kuala Lumpur, Marcos formally announced the withdrawal of t

Philippine claim to Sabah.

He said: Before Asean can look to the outside world for equity, for justice and fairness we must establish order, fairness a nd justice amo

ourselves I wish to announce that the Government of the Republic of the Philippines is therefore taking definite steps to el iminate one of t

burdens of Aseanthe claim of the Philippine Republic to Sabah.

Two years later, in 1989, the Philippine government had cooled down its claim in the interest of resuming cordial economic and secur

relations with Kuala Lumpur. On Feb 12, 1989 Sultan Jamalul Kiram III revoked his power of attorney to the Philippine government to cla

Sabah.

In a press conference on Sept 4 at the Sulo hotel, the Sultan reiterated the revocation of the Philippine governments authority to claim Sab

on Sulus behalf.

His lawyer, Firdausi Ismail Abbas, said: We actually consider the authorisation nullified as far back as 1963, w hen Sabah became a part of t

Malaysian federation.

Last year, Onn Ariffin, the Sabahan adviser to Sultan Kiram III, published a statement which, among others, said: This actio n [revoking t

Sultanates power of attorney], therefore, reinstates the power to claim Sabah to the Sultanate, and no longer within the authority a

jurisdiction of the Philippines central government.

Therefore any claim on Sabah made by Manila today is illegitimate because the sole authority to make or to drop the claim is Sultan Kiram III

On May 24, 2008, at the Second MNLF Peace Summit held in Davao City, Nur Misuari, before the presence of the Sultan of Sulu and No

Borneo, Muhammad Fuad A Kiram I, held a sword and vowed to work for the return of Sabah to the Royal Su ltanate of Sulu by peaceful mea

On July 16, 2011 the Supreme Court of the Philippines ruled that the Philippines claim over Sabah is retained and may be pur sued in the futur