The Philippine Claim over Sabah: Legal and Historical Bases

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The Philippine Claim over Sabah: Legal and Historical Bases

By Amando Respicio Boncales

Introduction The rise of Islam in Southeast Asia revolutionized specific social institutions in the region. Islam as a politico-religious institution had triggered the modification and introduction of social institutions that shaped present day Southeast Asia. Among the most important developments was the introduction of the sultanate (a developed political and at the same time religion institution) to the region. For the purpose of this research, my study will focused on the development of the Sulu sultanate as part of the greater Malayan world and the eventual claim of the Philippines to Sabah (as the political successor at sovereignty of the Sulu Sultanate). The objective of this study is to trace the historical and legal basis of the Philippine claim over the State of Sabah. The methodology of the study will be thematical not chronological. Instead of being conscious of the timeline, the study will concentrate on the major themes that shaped the sultanate’s Sabah dominion, lease and agreements with western world and the present claim of the Philippines to the Sabah State. The words “North Borneo,” “British Borneo” or “Sabah” are used interchangeably in the study. These words are used to that portion of the North Borneo Island to which the sultan of Sulu once ruled. Available historical records seem to indicate that the dispute territory was a possession of the Sultan of Sulu which evidently was leased to the founders of a British chartered company. With protection of the crown guaranteed over the lease territory, later became the foundation British annexation and colonization. Eventually, Sabah was included in the federation of Malaysia. The foundation of the Sultanate of Brunei and Sulu The sultanates of Sulu and Borneo were well established political entity in the malay world during the late 15th and 16th century. The Arabs, who had settled in Malacca in 1400, did not extended political control over the two sultanates other than spreading the teaching of Islam. The Chinese did the same who frequented the areas held by the two sultanates to trade with the natives. The sultanate of Sulu was founded in 1380, nearly one and a half century before the arrival of the Spaniards in the Philippines. The sultanate possessed an efficient political organization, extending its influence in Zamboanga, Basilan, Palawan, aside from the Sulu archipelago. During its supremacy, the sultanate extended its control as far as the Visayas and Luzon until controlled by the Spanish conquistadores in the Philippines. For many years to come, as the colonial government consolidated it territory, the sultanate was to remain a problem by the Spanish and American colonial government (viewed as pirates and buccaneers). The Sultanate of Brunei, on the other hand, was founded in the 15th century. For a brief period, it became a tributary of the Majapahit Empire. Before the British entry in to the region, the sultanate exercise nominal control over the whole northwestern and eastern coast of the island. Related by its common Malay origin, the two sultanates were bounded together by religious ties with the spread of Islam in the Malay world. Trade between their respective subjects served to reinforce this relationship even more. Borneo and the Western World The Portuguese and the Spaniards, in search of spice, were the earliest among the westerners to arrive in the East Indies and establish themselves in Malacca early in the 16th century. British interest in the Sulu-Borneo area stemmed primarily from the East Indian Company’s desire to establish a factory. The head of this particular project was Alexander Dalrymple, who, in January 1761, negotiated a Treaty of Friendship and Commerce with the Sultan of Sulu. The agreement was confirmed by another treaty in February 1763 reiterating the major provision, emphasizing defense alliance. But the company appeared unable to take advantage of this concession. When it finally decided, in 1769, to occupy Balambangan and made use of the ceded territory, disease and strained relations with the Sultan of Sulu erupted that led to open war; hence, prevented the development of the enterprise. The Balambanagn settlement was abandoned in 1775 until a second attempt was made in 1803, which again abandoned in 1805. Under the Act of 1858, the East Indian Company was dissolved and their interests were transferred to the crown. However, evidence seems to suggest that the territires ceded by the Sulu failed to interest the British government further. Lord Canning, as the first viceroy to British India, repudiated the “doctrine of lapse” and was further enunciated by his predecessor (the Earl of Derby). The Earl of Derby, in explaining to the British Ambassador in Germany the nature of Spanish claim to North Borneo: “It should be mentioned that previously to 1836 Spain claimed the island on the ground of first discovery, ancient treaties, and alleged occupations; but those claims were never admitted by Great Britain…Great Britain also had rights under Treaties with Sulu, dated 1761, 1764, and 1769, BUT those treaties must be considered as having lapse…” (Emphasis provided) Almost two decade before the dissolution of the East Indian Company, an Englishman named James Brooke visited Sarawak, and shortly after was offered by the Sultan of Brunei the governorship of Sarawak in exchange for aid in the face of continuing rebellion. Later in 1841, Brooke was proclaimed Rajah and in subsequent years, he succeeded in minimizing piracy in Sarawak, brunei, and North Borneo with the cooperation of the British Navy. The involvement of Brooke made him “the supreme ruler of Sarawak or the White Rajah.” In 1846, the British flag was raised on Labuan Island off the cost the east coast of Sabah. And in the following year, Great Britain and Brunei the concluded a Treaty of Friendship and Commerce, at the same time that Labuan was ceded in perpetuity to the crown. The United States became similarly attracted to Borneo, eager of obtaining the favors that had been secured by other western powers. In 1850, a treaty was signed for the United States advantages for the most favored nation, and later an American consul was appointed to Brunei. Borneo-Sulu area became increasing attractive in terms of commerce for its strategic location in the region, especially maritime traffic. Brunei’s Cession of Sabah to Sulu. Although considerable wealthy, the Sultan of Brunei had a court that was corrupt and ridden with intrigues. Consequently, the sultan found difficulty in extending control to many of his datus throughout the domain, rebellion and strife was frequent in the sultanate. It was under this circumstances that the territory, comprising most of what is now Sabah State, was ceded to the neighboring sultanate as the prize for military assistance. The murder of the 12th Sultan of Brunei, Muhammad Ali, by Bendehara Abdul Mubin resulted to civil war. The perpetrator claimed the throne but was contested by Pengeran Bongso, a nephew and son-in-law of the deceased sultan. Both contestants to the throne asked the support of Badarud-din, a relative of both and the reigning Sultan of Sulu. Badarud-din was unable to solve the crisis, but supported Pengeran Bongso (who took the name Sultan Muaddin). Sultan Muaddin emerged victorious and the large territorial land known today as “the State of Sabah” was ceded to the Sultanate of Sulu in exchange of the military help and support. The observation of the contemporary British officer will give us more insight of the territory ceded: “The first material alteration in the sovereignty of the territorial possession took place in the kingdom of Borneo Proper, when his Raja was obliged to call in the aid of the Solos to defend him against an insurrection of the Maruts and Chinese. In consideration of this important aid, the Raja of Borneo Proper ceded to the Sultan of Solo all that portion of Borneo then belonging to him, from Kimanis in latitude 5° 30’ north to Tapean-durian, in the straits of Macassar, which include the whole north of Borneo.”

The sultanate’s connection with Northern Borneo goes back as early as 1521, as far as the written record is concerned, when a Brunei Sultan was married to a Sulu princess. This early connection between the two sultanates cemented the familial relationship. This political marriage developed into a politico-military allegiance. Meanwhile, as trade flourished in the region, the mercantilist policies adapted by the colonial powers deprived the Sultanate of Bornei and Sulu of their own profitable commercial activity. Thus driven into piracy and smuggling, the Sulus and the Bruneis continually menaced western trade, presenting a problem that was to persist for many years. Territorial Grant from Brunei Baron von Overbeck, Austrian Consul-General at Hongkong at that time, convinced Dent in supporting a venture in Sabah and together they planned to sell their rights to any interested government. With the money he received from Dent to conduct negotiations, the baron sailed to Brunei. He succeeded in persuading the Sultan, who presumably could not resist the tempting compensation offered. On December 29, 1877, the sultan entered into agreement with von Overbeck, in which the latter gained three territorial “grant” and for which the sultan received a total annual payment of 12, 000 Malayan Dollar. Together with the above-mention grants, the sultan appointed von Overbeck “supreme ruler” with the title of “Maharajah of Sabah and Rajah of Gaya and Sandakan,” with delegated powers to govern the territory. The Baron, however, evidently realized that several factors tended to depreciate the value of the grants he had obtained. This is because; more than a century and a half earlier the territory had already been ceded to the Sultan of Sulu who was in actual possession. Moreover, Brunei chiefs refused to recognize the Sultan of Brunei’s rights to cede the territory. Von Overbeck, aware of the Sultan of Sulu’s dominion in North Borneo, found it necessary to entered into negotiation with the sultan for the lease of the territory. Overbeck and William W. Treacher (Acting British Consul-General at Labuan Island in Borneo), went to Sulu in January 1878. The contract dated January 22, 1878, was drafted by Overbeck himself and was written in Malayan language with Arabic character. Territorial Lease from Sulu. From Labuan, Baron von Overbeck, Joseph W. Torrey, and William Clark Cowie sailed to Jolo on board the steamer, America, arriving at their destination on January 16. Consul Treacher also reached Jolo on the same day, having sailed separately on the British Warship, Fly. Von Overbeck and his companion were shrewd negotiators and their combined effort brought to bear on the sultan, already hard-press by an ongoing campaign in Sulu, was hardly in a position to refuse. During the bargaining, Cowie, whom the sultan had great confidence as a gun-smuggling partner, contributed his own persuasive influence after having been led to believed that von Overbeck would reward him. Treacher, whom the sultan consulted, said that Overbeck represented “a bona fide British company,” and intimated to the Sultan that the Spanish Captain-General himself was at the head of the expedition already in Zamboanga poised and ready to destroy Jolo; and that the Sultan of Brunei had recently ceded to them the territory and was already to take possession of it anyway. Evidently a lease of the sultan’s possession in Sabah, its pertinent provisions read thus: “We Sri Paduka Maulana Al Sultan Mohammad Jamalul A’lam, son of Sari Paduka Marhum Al Sultan Mohammad Pulalum, Sultan of Sulu and of all dependencies thereof, on behalf of ourselves and for our heirs and successors, and with the expressed desire of all Datus in common agreement, do hereby desire to lease of our own free will and satisfaction, to Gustavus Baron de Overbeck of Hong Kong, and to Alfred Dent, Esquire, of London, who act as representatives of a British company, together with their heirs, associate, successors, and assigns forever and until the end of time, all rights and powers which we possess over all the territories and lands tributary from the Pandasan River on the east, and thence along the whole east coast as far as Sibuku on the South, and including all territories, on the Pandasan River and in the coastal area, known as Paitan, Sugut, Banggai, Labuk, Sandakan, China-Batangan, Murniang and all other territories and coastal lands to the south, bordering on Darvel Bay and as far as the Sibuku River, together with all the lands which lie within nine miles from the coast.” The cession (as the Malaysian prefer to interpret it) or lease (as the Sulu Sultanate maintain) of Sabah to the British began in the Treaty of 1878 between Baron de Overbeck and His Highness the Sultan Jamal Al-Alam was signed for an annual payment of 5,000 Malayan dollars. It should be noted that Consul Treacher succeeded in formalizing the participation of his government in the agreement, by affixing the participation of his government in the agreement, by affixing his signature as a sole witness to the transaction. Unlike in the Brunei grants of the previous year, Treacher’s recommendation were accepted by the Sulu Sultan, namely, that the “consent” of the British government would first be obtained before any transfer of territory and that its “consideration and judgment” shall be sought in event of any dispute. Together with the Territorial Agreement , the sultan also appointed von Overbeck as “supreme and independent ruler” with the title of “Datu Bandahara and Rajah of Sandakan,” delegating him as a vassal power with which to administer the territory. However, the sultan made it clear that Oberbeck made the title not him. Bibliography

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