Chapter 3 - Historical and Legal Basis of the Philippine Claim to Sabah
3.1 Historical Basis
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Chapter 3 - Historical and Legal Basis of the Philippine Claim to Sabah
3.1 Historical Basis
The Philippines and Sabah have had close historic links, dating as far back as the
beginning of history. Authoritative Western Scientists have traced the land bridges
which, during several geologic periods, connected Borneo with the Philippines. From
time immemorial, the Sulu Archipelago in the Philippines and Sabah had constituted a
single economic and cultural unit. Years of colonial rule and political isolation,
however, have created a gap between the two peoples.
According to Professor Tregonning, a historian of the faculty of the University of
Singapore, Sabah was ceded to the Sultan of Sulu by the Sultan of Brunei in 1704, in
return for help in suppressing a rebellion.40
Aware of this, the Austrian Consul-General at Hongkong, Baron von Overbeck,
entered into negotiations with the Sultan of Sulu for the lease of the territory of Sabah.
Accompanied by William H. Treacher, Acting British Consul-General at Labuan
Island in Borneo, Overbeck, in representation of an English merchant, Alfred Dent,
who had advanced 10,000 pounds for the venture, went to Sulu in January, 1878 to
negotiate the lease of the territory of North Borneo. Authentic documents in the
archives of Madrid show that at the time, the Spanish expeditionary forces under
40 Rutter, British North Borneo., p. 93.
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Captain-General Malcampo were closing in on the Sultan, and it was this
circumstances which Overbeck utilized to make the Sultan of Sulu, Jamalul Alam,
agree to the meager rental of 5,000 Malayan dollars a year (about 570 pounds or
1,600 US Dollars).
The contract dated January, 1878, and which was drafted by Overbeck as a result
of his negotiations with the Sultan of Sulu, was written in the Malayan language and
in Arabic script.41 Professor Harold Conklin of Yale University has translated this
contract and his translation shows that what was entered into was a contract of lease,
the word “padjak” used in the deed being the equivalent of the English word “lease.”
At any rate, there is little dispute on this point since British and contemporaneous
Spanish documents show that the deed of 1878 was nothing more than a lease. The
Spanish documents expressly use the term arrendamiento, which means lease.
After the 1878 document, Alfred Dent organized the “British North Borneo
Company,” and applied for a Royal Charter. The Statement and Application of Mr.
Dent dated December 2, 1878 submitted to the Marquis of Salisbury, K.G., Secretary
of State for Foreign Affairs, indicate the exact nature of the contract and the scope of
the powers of the British North Borneo Company. The Company was awarded the
charter. In answer to the Spanish and the Dutch protests to the awarding of the Royal
41 See Appendix IV for English translation of the contract.
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Charter, Lord Earl Granville, the then British Foreign Minister, disclaimed any
intention on the part of the British Crown to assume either dominion or sovereignty
over North Borneo, and categorically state that “sovereignty remains vested in the
Sultan.”42
In 1888, the Company purportedly entered into an agreement with the British
Government placing a so-called “State of North Borneo” under the protection of the
Crown. In 1903, the British North Borneo Company entered into a confirmatory deed
with the Sultan of Sulu, including new areas not covered under the original deed of
1878.
On March 22, 1915, the Sultan of Sulu signed the Carpenter Agreement whereby
he recognized the sovereignty over the territory of Sabah.43 This was pointed out by
Governor Frank Carpenter in a communication to the Director of Non-Christian
Tribes dated May 4, 1920:
The American Government recognized that “the Sultan of Sulu is the titular
spiritual head of the Mohammedan Church in the Sulu Archipelago with all the
Mohammedan rights and privileges which under government of the United States
of America may be exercised by such an ecclesiastical authority.” But it was
made “clearly of official record the fact that the termination of the temporal
42 M. F. Lindley. The Acquisition and Government of Backward Territory in International Law.
(London: Longmans, Green and Co., Ltd., 1926), p. 106.
43 Ibid., pp. 127-128.
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sovereignty of the Sultanate of Sulu within American territory is understood to
be wholly without prejudice or effect as to the temporal sovereignty and
ecclesiastical authority of the Sultanate beyond the territorial jurisdiction of the
United State Government especially with reference to that portion of the Island
of Borneo which as a dependency of the Sultanate of Sulu is understood to be
held under lease by the chartered company which is known as the ‘British North
Borneo Government’.”44
The Macaskie Judgment which arose out of the interpleader suit filed by the
Dayang Dayang Hadji Piandao and the other heirs before the High Court of North
Borneo (Sabah) in order to determine who was entitled to receive the money coming
from the British North Borneo Company was handed down in December 18, 1939. In
his decision, Judge Macaskie adjudged the right of the heirs to receive the yearly
“cession money.” At the same time, however, Judge Macaskie went on to make a clear
distinction between private heirs and successors in sovereignty. He said that in his
view “the successors in sovereignty of the Sultan are the Government of the
Philippines and the private heirs the plaintiffs” in the case before him.45
On June 26, 1946, the British North Borneo Company entered into an agreement
for the transfer of the Borneo Sovereign Rights and Assets from the company to the
44 Ibid., p. 126.
45 Republic of the Philippines. The Macaskie Judgment. (Department of Foreign Affairs: Borneo Records, 1939), p. 11.
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British Crown.46 The latter transferred to the Crown all its rights “to the intent that
the Crown shall, as from the day of transfer, have full sovereign rights over, and title,
to the territory of the State of North Borneo and that the said territory shall thereupon
become part of His Majesty’s dominions.”47
Accordingly, on July 10, 1946, North Borneo was formally annexed as a colony
by the British Crown effective July 15, 1946, by virtue of the North Borneo Cession
Order in Council dated July 10, 1946.48
In a letter dated February 27, 1947, former American Governor General Francis
B. Harrison, then Special Adviser to the Philippine Government on Foreign Affairs,
underscored in strong language the effect of the Cession Order upon the vital interests
of the Philippines and described it as a unilateral act in violation of legal rights.49
In 1950, after a careful study of the Philippine claim, Macapagal, then a
congressman together with other colleagues filed a resolution for the pursuance of the
claim to Sabah. A year later, the Philippine Congress enacted a statute, ex abundante
cautela,50 that the establishment of a consulate in Singapore should not be viewed as
a waiver to the Philippine claim.51
46 Republic of the Philippines. Philippine Claim to North Borneo (Vol. 1), p. 129.
47 Republic of the Philippines. Philippine Claim to North Borneo (Vol. 1). (Manila: Bureau of Printing, 1964), pp. 22-24.
48 Ibid., pp. 141-143.
49 Republic of the Philippines. Letter of Governor Harrison to Vice President Quirino dated February 27, 1947. (Department of Foreign Affairs: Borneo Records, 1947), p. 6.
50 Latin phrase used in legal texts, which means out of excessive caution.
51 Republic of the Philippines. Philippine Claim to North Borneo (Vol. 1), p. 14.
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On January 22, 1958, Muhammad Esmail Kiram, the Sultan of Sulu, in behalf of
the heirs of Sultan Mohammad Jamalul Alam and with the consent of the Ruma
Bechara, the Sulu ruling oligarchy, issued a proclamation terminating the agreement
of permanent lease in favor of Gustavus Baron de Overbeck and Alfred Dent. Copies
of the document were sent the British North Borneo Company, the British Embassy in
the Manila, the Ministry of Foreign Affairs in London, and the United Nations
Assembly in New York.52
On April 24, 1962, by virtue of the Ramos Resolution, the Congress of the
Philippines unanimously pronounced the Philippine claim to North Borneo as being
valid, and urged the President of the Philippines "to take the necessary steps
consistent with international law and procedure for its recovery.53
On May 25, 1962, the British Foreign Office transmitted an aide-memoire to the
Secretary of Foreign Affairs of the Philippines which says in part:
Her Majesty’s Government have noted with appreciation that the
Government of the Philippine have not associated themselves publicly with the
efforts being made on behalf of certain of the heirs of the Sultan of Sulu to
dispute British sovereignty over North Borneo. Her Majesty's Government are
convinced that the British Crown is entitled to and enjoys sovereignty over North
52 Ibid., pp. 147-148.
53 Ibid., p. 149.
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Borneo and that no valid claim to such sovereignty could lie from any other
quarter, whether by inheritance of the rights of the Sultan of Sulu (the only right
being to continue to receive their shares of the cession money) or by virtue of
former Spanish and American sovereignty over the Sulu Archipelago in the
Philippine Islands. In the interests of the people of British North Borneo, no less
than because of their undoubted legal rights, Her Majesty’s Government would
be bound to resist any claim to part of North Borneo, whether advanced by the
Philipine Government or by private persons in the Philippines.54
On June 22, 1962, the Philippine Department of Foreign Affairs transmitted a
note to the British Ambassador in Manila which formally requested the holding of
meetings to clarify the matter of sovereignty, jurisdiction and proprietary ownership
over Sabah.55
A Philippine Delegation under the leadership of Mr. Emmanuel Pelaez, Vice
President and Foreign Secretary, visited London from January 24, 1963 to February 1,
1963, for talks with British Delegation under the leadership of the Earl of Home,
Foreign Secretary. Mr. Pelaez was accompanied by Mr. Macario Peralta, Jr.,
Secretary of National Defense, Mr. Salvador P. Lopez, Undersecretary of Foreign
Affairs, Congressman Jovito R. Salonga, and Ambassador Eduardo Quintero. The
54 Ibid., pp. 150-151.
55 Ibid., pp. 151-153.
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British Delegation included Mr. Peter Thoneycroft, Minister of Defense, Mr. Peter
Thomas, Parliamentary Undersecretary of State for Foreign Affairs, Sir Robert Scott,
Permanent Secretary of the Ministry of Defense, Lt. Gen. D.S.S. O’Connor, Deputy
Chief of the Defense Staff. The Marquess of Landsdowne, Minister of State for
Colonial Affairs, also took part in the meetings.56 In this meeting, the Philippine
panel outlined the historical and legal foundation of the Philippine claim vis-à-vis the
arguments presented by the British delegation. While both sides presented their
arguments on the dispute, the claim was not resolved.
On January 28, 1963, Philippine President Diosdado Macapagal stated in his
State of the Union Address to the Congress of the Philippines that the filing of the
Philippine claim to Sabah "was not a precipitate action," but the result of prolonged
study over a period of years. He further stated that the situation is that the Philippines
not only has a valid and historic claim to North Borneo but that its presentation was
demanded by national interest.57
President Macapagal was urged to pursue the claim because Sabah was being
placed under the planned concept of Federation of Malaysia proposed by Prime
Minister Tunku Abdul Rahman on May 27, 1961 in Singapore.
56 Ibid., pp. 3-10.
57 Ibid., pp. 5-7.
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On July 31, 1963, the Conference of Ministers of Malaya, Indonesia, and the
Philippines which was held in Manila adopted the Manila Accord which, among other
things, states:
The Philippines made it clear that its position on the inclusion of North
Borneo in the Federation of Malaysia is subject to the final outcome of the
Philippine claim to North Borneo. The Ministers took note of the Philippine
claim and the right of the Philippines to continue to pursue it in accordance with
international law and the principle of pacific settlement of disputes. They agreed
that the inclusion of North Borneo in the Federation of Malaysia would not
prejudice either the claim or any right thereunder.58
On August 5, 1963, to carry out the report and recommendations mentioned in
the Manila Accord, the three countries adopted a Joint Statement, where they agreed,
among other things, on the following:
In accordance with paragraph 12 of the Manila Accord the three Heads of
Government decided to seek a just and expeditious solution to the dispute
between the British Government and the Philippine Government concerning
Sabah (North Borneo) by means of negotiation, conciliation and arbitration,
judicial settlement, or other peaceful means of the parties' own choice in
58 Republic of the Philippines. Philippine Claim to North Borneo (Vol. 2). (Manila: Bureau of Printing, 1967), pp. 97-100.
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conformity with the Charter of the United Nations. The three Heads of
Government take cognizance of the position regarding the Philippine claim to
Sabah (North Borneo) after the establishment of the Federation of Malaysia as
provided under paragraph 12 of the Manila Accord, that is, that the inclusion of
Sabah (North Borneo) in the Federation of Malaysia does not prejudice either the
claim or any right thereunder.59
After the London talks, the United Kingdom agreed to surrender its sovereignty
and jurisdiction over Singapore, Sarawak and North Borneo in favor of the creation of
the Federation of Malaysia. North Borneo changed its name to Sabah. On September
16, 1963, instead of the scheduled August 31, 1963, after the conduct and results of
the United Nations Malaysia Mission60 were known, the Federation of Malaysia was
established. Macapagal, with expressed reservation on the result of the UN Mission,
refused to recognize the government of Malaysia in the belief that it would prejudice
the Philippine claim to Sabah and recalled the Philippine Ambassador in Kuala
Lumpur. The Philippines asked Malaysia to agree to judicial settlement of her claim to
North Borneo. The Philippines said that Malaysian failure to reply to this proposal
earlier was the reason why Philippine recognition of Malaysia was withheld.61 Only
59 Ibid., pp. 101-103.
60 See Appendix III.
61 New York Times, September 16, 1963, p. 1.
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in August 1964 were the consular relations between the two countries reestablished
after Macapagal met Prime Minister Tunku Abdul Rahman in Phnom Penh.
When Marcos assumed the presidency, relations with Malaysia were still
unstable and hostile. It was only in June 1966 that both governments, with the plan of
raising their own consulates to embassies, issued a communiqué. Only later would the
Marcos administration face the critical point of the Philippine claim and the possible
breakdown of Philippine-Malaysia relations when the Jabidah Massacre 62
controversy in March 1968 was exposed. This led to the Bangkok Talks from June
17-July 15, 1968 between the representatives of the Philippines and Malaysia, in an
effort to settle the dispute. However, the talks ended in failure and further worsened
the diplomatic relations between the two countries. In September 1968, the Philippine
Congress passed a law known as Republic Act No. 5446, which categorically stated
that “this act is without prejudice to the delineation of the baselines of the territorial
sea around the territory of Sabah, situated in North Borneo over which the Republic
of the Philippines has acquired dominion and sovereignty”.63 In November of the
same year, diplomatic ties between the two countries were severed over the Sabah
issue. In March 1968, the Jabidah Massacre exposed that a special force of Muslim
62 Jabidah Massacre of March 1968, Moros had been recruited for a plan to stage a rebellion and eventual occupation of Sabah under the codename Project Merdeka.
63 Lela Garner Noble. Philippine Policy toward Sabah: Claim to Independence. (Tucson: University of Arizona Press, 1977), p. 181.
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recruits of the Philippines were supposedly being trained to infiltrate Sabah. Only a
year later in December did the Philippines and Malaysia resume diplomatic
relations.64
In a radio-television interview on July 21, 1968, a transcript of which was
published as Our stand on North Borneo issue, Marcos, one day after the withdrawal
of Philippine diplomatic corps in Kuala Lumpur, reiterated the Philippine government
pacific policy in its efforts to pursue the claim and advocated the recourse to filing the
case at the International Court of Justice (ICJ).65 In another television interview on
September 22, 1968, Marcos issued another policy statement published as Pursue
Sabah claim by peaceful means, in which he maintained his stand on the legality of
the Philippine claim and that his administration will pursue it peacefully.66