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A Point-by-Point Reply to Senator Sumulong's Speech on the Philippines' North Borneo (Sabah) Claim

Full text of Radio-TV speech delivered on March 30,1963, published in TheManila Times, issues of March 31, April 1-2,1963.
When this speech was delivered in March 1963 by way of rebuttal to the speech of Senator Lorenzo Sumulong berating the Philippine claim to North Borneo (Sabah), which had been filed by President Diosdado Macapagal on June 22,1962,followed by the London negotiations of January 1963, British high officials were still debating among themselves what to do with the claim. I was with the team of Vice President Emmanuel Pelaez who headed the London negotiations on behalf of our government. The charge of "British imperialism" must have weighed heavily in their minds. After the delivery of this speech, the British organized the Federation of Malaysia in September 1963 and assigned their rights to said Federation. As foreseen in my speech in answer to Seriator Sumulong, there would be fundamental disagreements, particularly with Singapore, within the socalled Federation, In the meantime, Indonesia, under Sukarno, carried out a policy of confrontation with Malaysia, then under the Tungku (A bdul Rahman). Largely through the efforts of President Dibsdado Macapagal, MaphHindo was bom, composed of Malaysia, the Philippines and Indonesia. How to settle the Sabah claim of the Philippines through peaceful means was one of the items in the TokyoMaphilindo Summit of June 1964, which I attended as Legal Adviser to President Macapagal. It was agreed that the Sabah claim would be settled by peaceful means, but the "verbal understanding" between the Tungku and Macapagal regarding the elevation of the case to the International Court of Justice, was denied later by Malaysia. Meantime, Singapore, one of the component states of the Federation of Malaysia, was advised to leave the Federation. On August 9,1965, this island state suddenly found itself independent, under Prime Minister Lee Kuan Yew. The Sabah claim subsists up to this day.

A few days ago, Senator Lorenzo Sumulong spoke on the floor of the Senate to air his views on the Philippine claim to North Borneo. My first reaction was to keep my peace and observe this shocking spectacle insilence, particularly in the light of the request of the British panel during the London Conference that the documents and the records of the proceedings be considered confidential, until they could be declassified in the normal course of diplomatic procedure. In part, my reaction was dictated by the belief, so aptly expressed elsewhere, that the best way to answer a bad argument is to let it go on and that silence is the "unbearable repartee." But silence could be tortured out of context and construed by others, not familiar with the facts, as an implied admission of the weakness of the Philippine stand. And so, I decided to make this reply, fully aware that in an exchange such as this, considering that our claim is still pending and each side is feeling out the other's legal position, none but our British friends and their successors may well profit. The good Senator, whose patriotism I do not propose to impugn, has had access to the confidential records and documents of the Department of Foreign Affairs. By his own admission, he attended closed-door hearings of the Senate Committees on Foreign Relations and National Defense, where crucial matters of national survival and security were taken up. He knows the classified, confidential nature of the records and documents bearing on the Philippine claim. Senator Sumulong has now found it proper and imperative, if we take him literally, to ventilate his views berating the merit and validity of the Republic's claim, accusing his own Government of gross ignorance and holding in unbelievable disdain the Philippine position on the British-sponsored Malaysia plan. He has chosen to assault the Philippine position at a time when his own Government, by virtue of the British request, may be said to be somewhat helpless in making, right in our own country, an adequate, fully-documented defense of the Philippine stand. I trust our British friends, here and across the seas, will understand if, in defense of our position, we come pretty close to the area of

danger. The good Senator tells us that in view of the "importance and magnitude" of the subject, he decided to wait "until all the relevant facts and information" were in, that he had made his own "studies and researches," which on the basis of the press releases issued by his office, must have been quite massive. The morning papers last Monday (March 25) quoted the Senator as having bewailed, in advance of his privilege speech, that "only one side of the problem has been presented so far," (meaning the Philippine side) seemingly unaware, despite the depth and range of his studies, that in the world press, only the British side has been given the benefit of full and favorable publicity and that the Philippine side has been summarily dismissed, just as the Senator dismisses it now with apparent contempt, as "shadowy", "dubious" and "flimsy." It may interest the good Senator to know that his statements, particularly on the eve of the talks in London, consistently derogatory of the Philippine claim, were seized upon by the English press with great delight, as if to show to the Philippine panel how well-informed the Senator was. It is, of course, not the fault of the Senator that the British, in an admirable show of unity, enjoyed and were immensely fascinated by his press releases and statements. But before I take up the Senator's arguments in detail, it may be well to set our frame of reference by restating the position of the Philippine Government on the North Borneo claim. Thousands of years ago, what is now known as the Philippines and what is known today as Borneo used to constitute a single historical, cultural, economic unit. Authoritative Western scientists have traced the land bridges that connected these two places. The inhabitants of the Philippines and Borneo come from the same racial stock, they have the same color, they have or used to have similar customs and traditions. Borneo is only 18 miles away from us today. North Borneo, formerly known as Sabah, was originally ruled by the Sultan of Brunei. In 1704, in gratitude for help extended to him by the Sultan of Sulu in suppressing a revolt, the Sultan of Brunei ceded North Borneo to the Sulu Sultan. Here, our claim really begins. Over the years, the various European countries, including Britain, Spain and the Netherlands acknowledged the Sultan of Sulu as the sovereign ruler of North Borneo. They entered into various treaty arrangements with him. In 1878, a keen Austrian adventurer, by the name of Baron de Overbeck, having known that the Sultan of Sulu was facing a life-and-death struggle with the Spanish forces in the Sulu Archipelago, went to Sulu, took advantage of the situation and persuaded the Sultan of Sulu to lease to him, in consideration of a yearly rental of Malayan $ 5,000 (roughly equivalent to a meager US $ 1,600), the territory now in question. The contract of lease and I call it so on the basis of British documents and records that cannot be disputed here or abroad contains a technical description of the territory in terms of natural boundaries, thus: "...all the territories and lands being tributary to us on the mainland of the island of Borneo commencing from the Pandassan River on the NW coast and extending along the whole east coast as far as the Sibuco River in the South and comprising among others the States of Peitan, Sugut, Bangaya, Labuk, Sandakan, Kinabatangan, Muniang and all the other territories and states to the southward thereof bordering on Darvel Bay and as far as the Sibuco River with all the islands within 3 marine leagues of the coast." Overbeck later sold out all his rights under the contract to Alfred Dent, an English merchant, who established a provisional association and later a Company, known as the British North Borneo Company, which assumed all the rights and obligations under the 1878 contract. This Company was awarded a Royal Charter in 1881. A protest against the grant of the charter was lodged by the Spanish and the Dutch Governments and in reply, the British Government clarified its position and stated in

unmistakable language that "sovereignty remains with the Sultan of Sulu" and that the Company was merely an administering authority. In 1946, the British North Borneo Company transferred all its rights and obligations to the British Crown. The Crown, on July 10,1946 just six days after Philippine independence asserted full sovereign rights over North Borneo, as of that date. Shortly thereafter former American Governor General Harrison, then Special Adviser to the Philippine Government on Foreign Affairs, denounced the Cession Order as a unilateral act in violation of legal rights. In 1950, Congressman Macapagal along with Congressmen Arsenio Lacson and Arturo Tolentino sponsored a resolution urging the formal institution of the claim to North Borneo. Prolonged studies were in the meanwhile undertaken and in 1962 the House of Representatives, in rare unanimity, passed a resolution urging the President of the Philippines to recover North Borneo consistent with international law and procedure. Acting on this unanimous resolution and having acquired all the rights and interests of the Sultanate of Sulu, the Republic of the Philippines, through the President, filed the claim to North Borneo. Our claim is mainly based on the following propositions: that Overbeck and Dent, not being sovereign entities nor representing sovereign entities, could not and did not acquire dominion and sovereignty over North Borneo; that on the basis of authoritative British and Spanish documents, the British North Borneo Company, a private trading concern to whom Dent transferred his rights, did not and could not acquire dominion and sovereignty over North Borneo; that their rights were as those indicated in the basic contract, namely, that of a lessee and a mere delegate; that in accordance with established precedents in International Law, the assertion of sovereign rights by the British Crown in 1946, in complete disregard of the contract of 1878 and their solemn commitments, did not and cannot produce legal results in the form of a new tide. I shall not, for the moment, take issue with the Senator as to his statement of the problem sought to be solved either through the Malaysia plan or the Greater Malayan Confederation. Our commitments under the United Nations Charter, the Bandung Conference Declaration and the 1960 decolonization resolution of the General Assembly are matters of record and there is no quarrel about them. Let us deal now with Senator Sumulong's analysis of the "relevant facts". He begins by saying that "since the organization of the United Nations in 1945, Britain in accordance with the obligations imposed by the Charter has declared herself to be the colonial power administering North Borneo as a British colony". There is something misleading in this naked assertion. The good Senator could have informed the people, having proclaimed knowledge of all the relevant facts, that the British Crown never considered North Borneo as British territory, nor the North Borneans as British subjects, until July 10,1946 six days after the Philippines became independent. He may well have asked himself, "Why July 10,1946?" and thereafter report to the Senate and to the people he loves so well the results of his new inquiry. Then, with the air of a magistrate delivering a stinging rebuke, he asks: "Why was the Philippine claim of sovereignty to North Borneo so tardily presented in the United Nations?" Yet, in the next breath, the good Senator reassures everyone that "lam and have been in favor of our government giving every possible support to the proprietary claims of the heirs of the late Sultan Jamalul Kiram." Now, let us examine these interesting assertions a little more closely. (1) If the Senator believes that the claim of sovereignty was so tardily presented", how could the proprietary claim of dominion or ownership which is the main element of sovereignty regardless of whether it is the Philippine Government or not that institutes the claim be considered still seasonable and appropriate? (2) If the Senator suggests now that the proprietary claim is not yet tardy and that the Government should merely support, "the heirs of the Sultan" in this aspect of the claim, how can he turn around and

say that it is late if it is the Government that is instituting the claim? Be it noted that the Philippine claim includes sovereignty and dominion over North Borneo. (3) But what arouses my curiosity is the bald statement of the Senator that he is and has always been in favor of supporting the proprietary claims of the "heirs of the Sultan of Sulu." Well, that must have been quite a long time! The Senator cannot therefore blame us, since he has invited and provoked the inquiry, if we now file a bill of particulars. Did he really support the proprietary aspect of the claim since he first became a member of the House of Representatives and assumed the Chairmanship of the House Committee on Foreign Affairs? Probably he did not give much thought to it then. But certainly he must have heard of the Macapagal-Lacson-Tolentino resolution of 1950. Did he give it in the Senate active and real support, even in its proprietary aspects? He has been a member of that distinguished body for more than 12 years when, how and in what form, (even through a proposed amendment so as to fit his thinking) did be give that support? The cold, lifeless records of Congress yield no evidence of what he now eloquently professes. The distinguished Senator makes a most interesting suggestion. He tells his colleagues in the Senate and the Filipino people that "the heirs of the Sultan of Sulu" should have gone to the United Nations, presumably to the International Court of Justice, so that if the said heirs lose their case, "there would be no loss of honor or prestige for the Republic of the Philippines." I would commend to the good Senator a closer reading of the Statute of the International Court of Justice, in relation to Chapter 14 of the United Nations Charter. Undoubtedly, he must have known that "the heirs of the Sultan" could not possibly litigate before the International Court of Justice for the simple reason that they have no international legal personality. They do not constitute a State, as that term isunderstood in law. Chapter 2, Article 34, paragraph 1 of the Statute clearly provides: "Only States may be parties in cases before the Court." The same thing may well be said of his suggestion that the heirs file a reservation or a petition before the United Nations. And were we to follow the logic of the good Senator, we might conclude that America, Britain, France, the Netherlands and other countries have no more prestige and honor to keep since they have, as a matter of cold fact, lost quite a number of cases before international bodies and tribunals. But, of course, the conclusion is wrong. For respect for the rule of law has never meant and should never mean loss of honor and prestige. Then, the good Senator tells us that "contrary to the impression created in the minds of our people, the claim of sovereignty put forward by our Government as transferee of the Sultan of Sulu does not cover the entire area of North Borneo but only a portion thereof." I do not know who created this impression, or whether the Senator has had a hand in it, through his own statements. However, the scope of our claim is clear: we are claiming these portions of North Borneo which were leased, as clearly defined and described in the contract of 1878 and which are still under the de facto control and administration of the British Crown. But the good Senator would like to know what are the "exact metes and bounds" and gloats over the seeming inability of the people in the Foreign Affairs Department to tell him what are the exact boundaries. International law, it may be well to remind our good Senator, does not require exact, rigid definition of a territory by metes and bounds. In the language of international law authorities of the highest repute, "rigidly fixed boundaries are not indispensable and boundaries of a territory may be indicated by natural signs, such as rivers, mountains, deserts, forests and the like." (See, for example the decision of the German-Polish Mixed Arbitral Tribunal, August 1,1929). Up to now, ancient nations, such as India and China, are still quarreling about their boundaries. In other words, Senator Sumulong is exacting of his own government more than what International Law requires of us. But no matter. The lease contract of 1878 tells us in specific terms the natural boundaries and I do not think Senator Sumulong can improve on it. Nor can the British, if we consider as correct the conclusions of reputable writers abroad that the

dividing boundary lines between the Borneo territories are neither fully-surveyed nor well-defined (See, for example, North Borneo, Brunei and Sarawak, Country Survey Series, New Haven, 1956). It may be well for us, on such a delicate matter as this, to refrain from accusing our own Government of ignorance, partly out of simple discretion and partly because the real difference between most of us is that we are ignorant on different subjects it may be the best thing indeed not to talk about each other's ignorance. Incidentally, the good Senator cites Professor Tregonning of the University of Singapore, who wrote a book on the subject, "Under Chartered Company Rule" to support his own not Tregonning's conclusion that Overbeck and Dent the two adventurers whose exploits the good Senator carefully avoided mentioning "evaluated the rights acquired from the Sultan of Brunei to be 3 times greater than the rights acquired from the Sultan of Sulu, the yearly payment to the former being Malayan $ 15,000 and to the latter Malayan $ 5,000." His conclusion is not supported by the authority he cites. Let me quote from Tregonning himself: "This meager rental (of Malayan $ 15,000 paid to the Sultan of Brunei) reflects the state of affairs. The territory had long ceased to be under Brunei control and failed to bring in any revenue. The Sultan received Malayan $ 15,000 for nothing and he was well pleased." (p. 14). Likewise, in reading Tregonning, the good Senator avoided telling the people that the history professor he cited characterized the yearly payment of Malayan $ 5,000 to the Sultan of Sulu as "annual rental" (p. 14), that the British Colonial Office objected strenuously to the grant of the Royal Charter to the British North Borneo Company, "considering that no private company should exercise sovereign rights" (p. 20) and that the highest British officials were reassuring one another that the Royal Charter awarded to the British North Borneo Company did not vest the sovereignty of the territory in the British Government (at pp. 27-29). Assuming that we fail to recover North Borneo, the good Senator insists that "we would appear as attempting to colonize North Borneo without any lawful or just cause." How can Senator Sumulong damn his own country as a colonizer when it is precisely submitting its claim, based on historic and legal considerations, in accordance with the peaceful procedures indicated in the United Nations Charter? How can he, on the other hand, have nothing but praise for Malaya which, without any claim at all and virtually a stranger in the region, desires to take over thanks to British support the Bornean territories? Like the isolationists of old, Senator Sumulong asks us: What is the gain of involving ourselves in North Borneo, if after all, even if we recover it, we are committed to the idea of letting the North Borneans determine what their eventual fate would be? It is like asking a man what is the use of working if after all he would eventually fade away and leave his properties to his kin. One of the rosiest chapters in our entire history as a people was written when we dispatched our young men to Korea to fight for the cause of freedom in that part of the world. I don't remember Senator Sumulong having raised the question, "What's the use of it all?" The good Senator seems to forget that what happens in North Borneo affects us with greater immediacy and impact because of its proximity to us, that the North Borneans come from the same racial stock, that years of political isolation and hostile propaganda have created a gap between our two peoples, that despite the proud assertion that British interests have administered North Borneo for many years, the British, by their own admission, have not prepared the Borneans for self-government, that the natives are backward, that they are under the economic, cultural and political domination of the Chinese and that according to the British-prepared Report (Cobbold) there exists in North Borneo "fertile material on which Communist infiltration could work in the same way as it is already working in Sarawak." The Communist danger, the Cobbold Report states, "cannot be excluded for the future." (p. 36).

Senator Sumulong is all praise for the success and the leadership of the Tungku of Malaya and from these coupled with "British military and economic aid", he jumps to the conclusion that "the enlarged Federation of Malaysia under the same leadership and with continued British military and economic aid will be able to meet and overcome any communist attempt to capture Singapore, Sarawak, Brunei and North Borneo." But anyone who has studied logic must surely see that that is a mighty, big jump. Since the Tungku succeeded in fighting Communism in his home base, the Senator is certain he will also succeed elsewhere even if the conditions are quite different. This must be a new brand of logic! For one thing, there is the simple matter of geography. The Tungku Government is a thousand miles away from the jungles of Borneo. For another, the Borneo peoples, particularly in North Borneo, are not quite prepared for self-government. And how can the distinguished Senator be so sure about "continued British military and economic aid", when Britain no longer requires a military outpost in this area as an essential link in her claim of defense, when the usefulness of fixed bases such as Singapore has been rendered obsolete by new developments in nuclear warfare and when England, beset by economic problems and stymied by many commitments, must of necessity launch a program of progressive withdrawal from Southeast Asia? The good Senator did not care to tell our people that the whole concept of Malaysia was designed to sterilize Singapore, that the whole plan was intended to redress Chinese dominance in Singapore and Malaya and that the Federation was not conceived out of a sense of oneness, or of racial or ethnic unity, or of a common heritage, but out of mutual fear and distrust. How can a Federation so conceived and designed endure, much less bring stability to a region where the countries immediately involved the Philippines and Indonesia have not even been consulted? The British may well be wrong here, just as they were proved wrong in their evaluation of Singapore on the eve of the Second World War (remember how the British thought it could "stand a long siege" and yet this "key base" fell in less than a week's time?) and just as they are now being proved wrong in Africa where the British-inspired Central African Federation is about ready to collapse. And if the Malaysia Federation should fail and become instead the focal center of Communist infection, what does the good Senator intend to do? Isn't it rather ironic that whereas in some responsible British quarters, including a sector of the British press, there has arisen a lurking doubt as to the feasibility of the Malaysia plan, the good Senator should be so certain about its success? The respected Senator tells us that he cannot say whether the Greater Confederation plan is a better substitute. I thought he had all the relevant facts. And if he did not have all the relevant facts, may it not have been the better part of prudence to give the higher officials of the Department of Foreign Affairs all the chance to explain the outlines of the plan? But as I said earlier, the good Senator had access to the Government's Confidential Report. He knows or should know that incisive studies have been made and completed since last year on the Greater Confederation Plan by an Ad Hoc Committee, composed of professors and scholars in the University of the Philippines. Surely, he does not expect his Government to spell out the Confederation Plan to the last detail at this time, before an agreement in principle is reached among the proposed members. Assuming that the Greater Confederation Plan does not convince the good Senator, after a careful reading of the studies that have been completed, can he not possibly render service to the Republic by suggesting positive, meaningful alternatives, having in mind his massive research and studies on the subject? Our distinguished Senator has but one suggestion. I quote him: "...the better course to follow is for our government to inform the United Nations in due time, i.e., when the Federation of Malaysia Plan is submitted for consideration in the United Nations, that we are voluntarily relinquishing what ever claims of sovereignty we may have to any portion of North Borneo in order to accelerate the changing of its status from a non-self-governing territory to that of a selfgoverning or independent State and that we favor holding a plebiscite under UN auspices to give the people of North Borneo the opportunity to freely express their will and wishes..."

In short, the good Senator would have us tell the world we are abandoning our claim, let Malaya take over North Borneo under the so-called Malaysia Federation, then ask for a referendum in North Borneo to ascertain what the North Borneans want. This, to my mind, is a proposal so naive it does not do justice to the reputation of the distinguished Senator or to the depth and range of his studies. In the first place, a Federation plan need not be approved by the United Nations. In the second place, a sophisticated study of the results of a plebiscite under the circumstances set forth by the distinguished Senator (and having in mind the plebiscites that have already been held, where there was indeed no choice but to say "yes" to what the British and Malayans wanted) forecloses the kind of result that will be achieved. For so long the North Borneans have been under British tutelage; the Malaysia plan is British-conceived, British-inspired and British-sponsored; Malaya is raring to take over a territory whose native inhabitants, according to the Cobbold Report, have a low level of education and political consciousness and who were ready to agree to the Malaysia proposals "although they were not fully understood." Now, what kind of free elections does the Senator expect to witness in North Borneo? In fine, the Senator would have the Republic launch a program of defeat born of fear and doubt and timidity. I cannot agree to such a plan of action. We have told the British that we agree that their interests in the region should be respected and that we welcome any practical arrangements to this end. But this should not take the form of colonialism in a different guise which, instead of being a factor of stability becomes the source of endless provocation. The Philippines is here in Southeast Asia to stay; Britain, saddled with various commitments, probably desires to play a lesser role in Southeast Asia and make a graceful exit; Malaya, a distant stranger to the region, desires a virtual annexation of the Bornean territories to sterilize and quarantine Singapore, the "key base", which is predominantly Chinese and, whose loyalties are not beneath suspicion. A professor in an Australian University, writing in the India Quarterly, makes a thorough analysis of the Malaysia Plan and sees great difficulties ahead. "Even in North Borneo and Sarawak the indigenous peoples are not happy about a federation. Their own racial problems are much simpler and their economic prosperity does not require any political integration with Malaya. In any case, Borneo territories are extremely jealous of their imminent independence which they are reluctant to submerge in a federation. "It is also unclear how the central (Tungku) government located in Kuala Lumpur would be able to exercise effective control over those territories, which are separated by South China sea from Malaya by varying distances, from about 500 miles to well over a thousand. Jesselton is nearer to Saigon or to Manila than to Kuala Lumpur. In area British Borneo is about the same as Malaya, but its 1400 mile long coast line is longer than the Federation's. Defence, in the event of a crisis, from Malaya would be difficult..." (Singhal, D.P., Imperial Defence, Communist Challenge and the Great Design). The good Senator realizes, of course, that if North Borneo should fall into hostile hands, it is the Philippines that will be immediately affected. And yet until we filed our claim to North Borneo and talks were conducted thereafter in London culminating in an official cognizance of our claim, there was no attempt at all to consult with us on matters that affect the very survival and security of this country. It is only now that Britain and Malaya have become ncreasingly appreciative of our stand and their willingness not to prejudice our claim despite Malaysia is certainly a great credit to the Administration. If between now and August 31,1963, the scheduled date of birth of the Malaysia Federation, these countries should stiffen in their attitude towards our claim, I must state in all candor that for all my respect for him and even assuming the nobility of his motives, the good Senator cannot fully escape the burden of responsibility, I am no apologist for the President of the Philippines, not even on the North Borneo question and will disagree with him whenever I think that his action is not well-advised. But I believe that on such a

fundamental question as this, it may be well for us to remember that political considerations, bitterness and endless quibbling should stop at the water's edge and that the claim to North Borneo is not the claim of the President, nor of the Liberal Party, nor of his Administration, but a claim of the entire Republic, based on respect for the rule of law, the sanctity of contractual obligations, the sacredness of facts and the relentless logic of our situation in this part of the world.