North Borneo dispute
The North Borneo dispute, also known as the Sabah dispute, is the territorial dispute between Malaysia and the Philippines over much of the eastern part of the state of Sabah. Sabah was previously known as British North Borneo prior to the formation of the Malaysian federation.
The Philippines, presenting itself as the successor state of the Sultanate of Sulu, retains a "dormant claim" on Eastern Sabah on the basis that the territory was only leased to the British North Borneo Company in 1878, and the sovereignty of the sultanate over the territory was never relinquished. However, Malaysia considers this dispute a "non-issue", as it interprets the 1878 agreement as that of cession, and it deems that the residents of Sabah exercised their right to self-determination when they joined to form the Malaysian federation in 1963.
1878 Agreement
The keyword in the agreement is the ambiguous term pajakkan, a Malay term which was translated by Spanish linguists in 1878 and by American anthropologists H. Otley Beyer and Harold Conklin in 1946 as "arrendamiento" or "to lease". However, the British used the interpretation of historian Najeeb Mitry Saleeby in 1908 and William George Maxwell and William Summer Gibson in 1924, which translated pajakkan as "to grant and cede".It can be said however, that pajakan means "to mortgage" or "pawn" or even "wholesale", as per the contemporary meaning of pajakan in Tausug and Malay, which essentially means that the land is pawned in perpetuity for the annual cession money, and the sultanate would need to repay the entire value of the loan to redeem it back. Furthermore, the term selama-lama, which means "forever" or "in perpetuity", indicates a binding effect beyond the lifetime of the then-sultan.
Another contentious translation is in the exclusive authority of the said territory. In the original Jawi text and the British translation, Her Britannic Majesty holds exclusive power on the transfer of the said territory and any arbitration will solely be decided by the Britannic Majesty’s Consul-General for Borneo, but this translation is replaced as "Their Majesties Government" in the Tausug translation.
This ambiguity led to different interpretations of the original Malay text, specifically the language concerning leasing or ceding of the land.
Throughout the British administration of North Borneo, the British government continued to make the annual "cession money" payment to the sultan and his heirs, and these payments were expressly shown in the receipts as "cession money". In a 1961 conference in London, during which a Philippine and British panel met to discuss the Philippine claim to North Borneo, the British panel informed the Philippine congressman Jovito Salonga that the wording of the receipts had not been challenged by the sultan or his heirs.
During a meeting of Maphilindo between the Philippine, Malayan and Indonesian governments in 1963, the Philippine government said the sultan of Sulu wanted the payment of 5,000 from the Malaysian government. The Malaysian prime minister at the time, Tunku Abdul Rahman, said he would go back to Kuala Lumpur and get on the request. Malaysia considers the amount an annual "cession" payment for the land, while the sultan's descendants consider it "rent".
1878 Appointment as Datu Bandahara and Rajah of Sandakan
In addition to the grant by the Sultan of Sulu of territories on the mainland of Borneo, another agreement signed on the same day commissioned Baron de Overbeck as the supreme and independent ruler of the territories with the title of Datu Bandahara and Rajah of Sandakan, with absolute power over the inhabitants and property of the land.In the original treaty written in Malay, the term "anugerahi dan serahkan" was used, which is translated as grant and ceded.
While the Sulu claim rests on the treaty signed by Sultan Jamalul Alam of Sulu appointing Baron de Overbeck as Dato Bendahara and Raja Sandakan on 22 January 1878, a further, earlier treaty signed by Sultan Abdul Momin of Brunei appointed Baron de Overbeck as the Maharaja Sabah, Rajah Gaya and Sandakan. This was signed on 29 December 1877, and granted the territories of Paitan as far as the Sibuco River, which overlaps the Sulu Sultanate's claim of their dominion in Sabah.
1885 Madrid Protocol
As attested to by the International Court of Justice in 2002, the Sultan of Sulu relinquished the sovereign rights over all his possessions in favour of Spain, based on the "Bases of Peace and Capitulation" signed by the Sultan of Sulu and the crown of Spain in Jolo on 22 July 1878. The Sultan declared beyond discussion the sovereignty of Spain over all the Archipelago of Sulu and the dependencies thereof.In 1885, the United Kingdom, Germany and Spain signed the Madrid Protocol to cement Spanish influence over the islands of the Philippines. In the same agreement, Spain relinquished all claims to North Borneo which had belonged to the sultanate in the past in favour of the United Kingdom.
''1903 confirmation of cession of certain islands''
On 22 April 1903, the successor of Sultan Jamalul Alam, Sultan Jamalul Kiram II, signed a document known as the "Confirmation of cession of certain islands", under which he grant and ceded additional islands, in addition to the land agreed upon in 1878, in the vicinity of the mainland of North Borneo from Banggi Island to Sibuku Bay to the British North Borneo Company.In the 1903 agreement, the ambiguous term pajakkan was no longer used, but instead the phrase kita telah keredhai menyerahkan kepada pemerintah British North Borneo, which literally means "we have willingly surrendered to the Government of British North Borneo", was used in the agreement, asserting the understanding of the Sulu Sultanate of that time of the meaning of the earlier agreement in 1878.
The confirmatory deed of 1903 makes it known and understood between the two parties that the islands mentioned were included in the cession of the districts and islands mentioned on 22 January 1878 agreement. The originally agreed 5,000 dollars increased to 5,300 dollars per year payable annually.
1939 Macaskie decision
In 1939, claimants Dayang Dayang Hadji Piandao and eight other heirs filed a civil suit regarding the "cession money" payable to the heirs of the sultan of Suluthe then-incumbent Jamalul Kiram II having died childless in June 1936. Chief Justice Charles Frederick Cunningham Macaskie of the High Court of North Borneo ruled on the share entitlement of each claimant.This ruling has often been quoted by proponents of the Sulu Sultanate's claim as proof of North Borneo's acknowledgment of the sultan's ownership of the territory, although it was made solely to determine who as heir was entitled to the "cession money" of 5,300 Malaysian ringgit per year.
Philippine claim
The Sultanate of Sulu was granted the north-eastern part of the territory as a prize for helping the Sultan of Brunei against his enemies in 1704. However, on 22 July 1878, the sultan of Sulu relinquished sovereign rights over all his possessions in favour of Spain, based on the "Bases of Peace and Capitulation" signed by the sultan of Sulu and representatives of the Spanish government in Jolo. The Spanish then claimed the area in northern Borneo, but ended their claim under the Madrid Protocol of 1885, after the United Kingdom and Germany recognised its presence in the Philippine archipelago in return for the Spanish stopping their interference with British affairs in northern Borneo. Once the protocol had been ratified, the British North Borneo Chartered Company administered North Borneo, and in 1888, North Borneo became a British protectorate.On 15 July 1946, the North Borneo Cession Order in Council, 1946, declared the State of North Borneo annexed to the British Crown, hence a British colony. In September 1946, F. B. Harrison, a former American governor-general of the Philippines, urged the Philippine government to protest this proclamation. The United States posited the claim on the premise that Spain had never acquired sovereignty over North Borneo, and thus did not have the right to transfer claims of sovereignty over North Borneo to the United Kingdom in the Madrid Protocol of 1885. This argument however, contradicts the treaty made between Spain and the Sultanate of Sulu in 1878, which expressly states that all of the territory of the Sultanate of Sulu is relinquished to Spain. Furthermore, the American view may be based on an erroneous interpretation of that part of the 1878 and the earlier 1836 treaties, that excluded North Borneo from the Sulu transfer to Spanish sovereignty. The United States–based government also refused to intervene in the dispute, officially maintaining a neutral stance on the matter and continuing to recognise Sabah as part of Malaysia.
On 12 September 1962, during President Diosdado Macapagal's administration, a distant cousin of the Sulu Sultan, the Philippine government claimed the territory of North Borneo, and full sovereignty, title and dominion over it were "ceded" by the heirs of the sultan of Sulu, Muhammad Esmail E. Kiram I, to the Philippines. The Philippines broke off diplomatic relations with Malaysia after the federation was formed with Sabah in 1963, but probably resumed relations unofficially through the Manila Accord, in which the Philippines made it clear that its position on the inclusion of North Borneo in the Federation of Malaysia was subject to the outcome of the Philippine claim to North Borneo. The representatives of Indonesia and the Federation of Malaya seconded that the inclusion of North Borneo into the aforementioned Federation "would not prejudice either the claim or any right thereunder". It was revealed later in 1968 that President Ferdinand Marcos was training a team of militants on Corregidor known as Operation Merdeka for infiltration into Sabah. The plan failed as a result of the Jabidah massacre.
Republic Act No. 5446 of the Philippines, passed by the legislature on 26 August 1968 and signed by Marcos on 18 September, regards Sabah as a territory "over which the Republic of the Philippines has acquired dominion and sovereignty". The Malaysian government responded by suspending diplomatic relations and ceasing cooperation regarding smuggling. Perceived British support for Malaysia led to the British Embassy in Manila being broken into by a crowd. Philippine Foreign Secretary Narciso Ramos gave a speech at the UN General Assembly on 15 October, calling for the dispute to be settled in international courts.
On 16 July 2011, the Philippine Supreme Court ruled that the Philippine claim over Sabah is retained and may be pursued in the future.