KOTA KINABALU: The persistent attempts by the Philippines to resurrect its claim on Sabah is baseless and fails to recognise the state as an integral part of Malaysia, says Sabah’s legal fraternity.
The Sabah Law Society said it was very clear that the people of Sabah had exercised their right to self-determination to be part of Malaysia way back in 1963.
The claims were without merit as Sabah was recognised as part of Malaysia by the United Nations and the international community, said Brenndon Keith Soh, co-chairman of the society’s sub-committee on Constitutional Law and the Malaysia Agreement 1963.
“The people of Sabah have already exercised their right to self-determination through Malaysia as found by the Cobbold Commission of Inquiry in 1962, subsequently verified by the United Nations Mission on Malaysia in 1963, ” he said when responding to Manila’s insistence that the Sabah claim was still on.
Soh added that it must be recorded that the Malaysian case over Sabah was derived from the United Kingdom’s former title as was stated in the Malaysia Agreement 1963 (MA63).
MA63 explicitly states that “the Colonies of North Borneo (Sabah) and Sarawak and the State of Singapore shall be federated with the existing States of the
Federation of Malaya....”
He said it was clear that British government's stand was that it had territorial sovereignty over North Borneo at the time of the signing of MA63.
“It is indisputable that the British Crown had territorial sovereignty over North Borneo by virtue of nearly 90 years of continuous administration and occupation by British interests, ” he added.
Soh said Manila could not meet the requirements under international law to lay claim on Sabah.
“Manila’s claim is only as strong as was the claim of the Sultan of Sulu, as it relies on the succession rights of the sultanate.
“In 1878, the Sultan of Sulu entered into an agreement granting certain concessions over Sabah with Baron de Overbeck and Alfred Dent, who later transferred this interest to the British North Borneo Company.
“It is submitted that this document ceding territorial rights over Sabah is in the form of a ‘grant of cession’ as opposed to a ‘lease’. Fortifying this position is the fact that there was a lack of protest by the sultanate against continuous British rule subsequent to 1878, ” he added.
Secondly, Soh said, the Philippine government relied on the assignment of the sultanate's rights of sovereignty over Sabah in 1962.
However, Sultan Jamalul Kiram passed away in 1936 with no obvious heir.
It was therefore dubious whether the sultanate survived long enough for whatever rights he held over Sabah to be effectively bequeathed to the Republic of the Philippines by means of a cession in 1962 signed by the heirs of the Sultan, he said.
“In fact, the 1939 decision of the Supreme Court of North Borneo by Macaskie CJ held that the Philippine government allowed Sultan Jamalul Kiram to enjoy the cession monies as a private person since 1901; they have made no claim on his death and by a judgment of a Philippines court, recognised the right of the private heirs of the Sultan to receive the cession money.”
For the Philippines’ claim over Sabah to be consistent, it should have made a claim to the cession monies in the name of the government, as opposed to allowing the same to be claimed by the late Sultan's heirs, Soh said in a statement.
Thirdly, the Philippine government’s own conduct did not lend weight to its claim over Sabah, he argued.
“There are a number of recorded occasions since 1946 when it remained silent when it should have spoken if it wanted to prevent the development of a prescriptive title by the United Kingdom.
“Examples of this include when the United Kingdom annexed North Borneo on July 15,1946 by virtue of the North Borneo Cession Order.
“Additionally, as late as 1961, a Philippine law was passed delineating the baselines of its territorial sea, which made no mention of any extension of Philippine sovereignty to North Borneo.
“The timing of the reaffirmation of the Philippines' claim was unfortunately highly provocative, inappropriate and insensitive in view of the imminent Malaysia Day celebrations on Sept 16, ” said Soh.
He added that it would be more constructive for Manila to withdraw its claim over Sabah in view of the vast potential for mutual cooperation and benefit between the two neighbours.
“Specifically, these include the areas of commerce, tourism, manufacturing, trade and security.
“In so doing, we would be building upon the spirit of cooperation as partners in the existing platform of Asean and other regional organisations, ” Soh added.