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A Historical Discourse of the Philippine Claim over Sabah

By Amando Respicio Boncales, B.A., M.S.Ed., M.A.
Northern Illinois University
arboncales.niu.edu
The Philippine-Malaysian dispute over the State of Sabah remains a
contentious diplomatic issue. There is a very limited amount of literature
available that discusses this complex issue. The works of Teodoro Agoncillo
and Renato Constantino, nationalist historians, discuss the issue. The
objective of this study is to shed light on the historical background of the
Philippine claim over Sabah by examining how various authors in the field
presented the issue.
In 1878, the Sulu sultan entered into a deed of pajak with Austrian
Gustavus Baron de Overbeck and Englishman Alfred Dent, who were
representatives of a British company. The deed was written in Arabic. In
1946, Professor Harold Conklin translated the term “pajak” as “lease.” The
1878 deed provided for an annual rental. This treaty constitutes the main
basis of the territorial dispute between the Philippines and Malaysia over
Sabah. The Philippines claims that the term “pajak” means “lease,” while
Malaysia claims that it means “cession.”1
The Philippine claim to Sabah was formally filed in 1961 at The United
Nations during the administration of President Diosdado Macapagal (19611 Senator Miriam Defensor-Santiago, “Sabah Issue In International Law,” News, Philippine Daily Inquirer, March
23, 2013, http://opinion.inquirer.net/49361/sabah-issue-in-international-law.

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1965) based on historical and legal claims. President Ferdinand Marcos
assumed presidency in 1965. His alleged Jabiddah plan, supposedly
proposing the invasion of Sabah, was publicly exposed, bringing the relations
of Malaysia and the Philippines into a state of mistrust.2
The first foreign scholar to have extensively analyzed the Philippine
claim to Sabah was Michael Leifer, author of the monograph The Philippine
Claim to Sabah. It was a major departure from the documents published by
the Philippines government because it was the first to put the Sabah issue in
its proper historical contest. The paper provides a good background of the
Philippine claim to Sabah, although it relies heavily on a two-volume set of
documents published by the Philippine government. Leifer also utilizes
newspaper articles and books to place the Sabah issue in the context of
Macapagal’s presidency.
The author asserts Macapagal envisioned this as a diplomatic gain
rather than a political gain. Macapagal pictured Mania as the center of
Southeast Asia, a Mecca where the other Asian countries to flock to on
pilgrimage. He saw this new role as a means to become accepted by the
mainstream Asian countries by its stand with Indonesia against United
Kingdom backed Malaysia. He hoped to gain a new respect for the voice of
the Philippines, who up until this time had been mostly overlooked, shunned
even because of its support of American positions. They saw their position
2 Erwin S. Fernandez, “Philippine-Malaysia Dispute Over Sabah.” Asia-Pacific Social Science Review, vol. 7, no. 1
(2007) : 53.

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as both the protagonist and mediator. Indonesia was perfectly willing to let
Philippines take that role.3
Leifer maintains that the Macapagal approach to the issue more was
unbalanced.4 Macapagal’s plan to use the Philippines to block Malaysia and
establish respect among Southeast Asia was flawed. The flaw was in his
inability to see the contradictions of his policy. Maphilindo, was meant as an
alternative to Malaysia and should have been an alliance among the states,
bonded over their fear of the Chinese and their desire to expand.
For Malaysia, however, the Chinese community is not an insignificant
numerical minority without domestic political import. Thus, to accept the
implications of Maphilindo was to invite alienation on the part of the
Malaysian Chinese.5
In 1969, the year after Leifer’s book was published, under the auspices
of the National Historical Commission, the Philippines organized a conference
on Sabah. The proceedings were published in a book titled Symposium on
Sabah. One of the important chapters within the book is that of Prof. Rolando
N. Quintos, who suggests alternatives for the solution of the Sabah dispute in
his chapter, “The Sabah Question: Prospects and Alternatives." Quintos offers
some provocative ideas and argues that the issue of Sabah should be seen in
3 Michael Leifer, The Philippine Claim to Sabah (Ag Zug: Inter Documentation Co., 1968), 48.
4 Ibid., 73.
5 Ibid., 73, 74.

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its two aspects: First, the legal issue in regard to the proprietary rights of the
heirs of the Sultanate; and second, the question of political jurisdiction over
Sabah. Quintos proposed a compromise deal, arguing further that "the
Philippines [shall] accept the justice of the Malaysian appeal to selfdetermination and accept as final the conclusion of the U.N. Secretary
General the United Nation of September 1963, provided that the Malaysians
are willing to submit the issue to the World Court or to a mutually acceptable
mediating body.”6
The work of a Malaysian, Mohammed bin Dato Othman Ariff, The
Philippine Claim to Sabah: Its Historical, Legal and Political Implications,
extensively discusses the legal issues surrounding the claim. The main thesis
of this book is to discredit the legal basis of the Philippine claim to Sabah.
The author emphasizes the legal foundation of the United Kingdom’s claim to
Sabah based on possession and consolidation through peaceful and
continuous display of State activities.
Furthermore, Ariff illuminates the basis for the integration of Sabah to
Malaysia through the principle of self-determination.7 On September 16, 1963
after a four-month referendum on Sabah and Sarawak, the Cobbold
Commision report was presented to the British government joining Malaya,
Singapore, Brunei, Sarawak and Sabah (North Borneo) to form Malaysia; this
6 Fernandez, “Philippine-Malaysia Dispute Over Sabah,” 683-84.
7 M. O. Ariff, The Philippines Claim to Sabah: Its Historical, Legal and Political Implications (Singapore: Oxford
Univ. Press., 1970), 64.

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64.com. the so-called referendum in 1962-63 was actually only a sampling survey of less than four percent of the Sabah population.” March 8. Jayakumar.10 For the heirs of the Sultan of Sulu.freemalaysiatoday. S.my/latest/font-color-red-lahad-datu-font-historians-agree-sabah-rightfully-belongs-to-malaysia1. http://www. Another non-Filipino scholar. 5 .com.after just a month of Sabah’s gaining it’s independence. 9 FreeMalaysiaToday. also argues that the Philippine case is weak. Ariff argues that the peaceful settlement of the dispute would require the Philippines to drop the claim and concentrate all of its efforts in working closely and cooperating with Malaysia in the context of Association of Southeast Asian Nation ASEAN. which granted the British North Borneo Company a charter of corporate character. Jayakumar invokes the idea of effective occupation on the part of the United Kingdom in Sabah since 1878. Like Ariff.nst.” he said.com/category/nation/2013/03/08/there-was-no-sabah-referendum/. 2013. “There has never been a referendum on Sabah as stated by some academics.229872. “LAHAD DATU: Historians Agree Sabah Rightfully Belongs to Malaysia.8 United Borneo Front chairman Jeffrey Kitingan disputes the referendum in which Prime Minister Najib Tun Razak and other’s claim that Sabahans’ desire to be part of Malaysia. “There Was No Sabah Referendum.” March 6. News. In fact. 2013. who is from the University of Singapore. The author contends that the Philippine claim 8 BERNAMA. 10 Ariff. The Philippine Claim to Sabah.9 Finally. given their established proprietary rights in 1931 through the North Borneo Court. this kind of suggestion is unacceptable. https://www.

Germany and Great Britain requires Spain to renounce all claims of sovereignty over the territories of Borneo that 11 Nicholas Tarling. Jayakumar further argues that neither the Philippines nor the heirs of the Sultan have exercised sovereignty or been in effective occupation of Sabah since 1878. Nicholas Tarling. 6 . He acknowledges the 1878 agreement between the Sultan of Sulu and Baron Van Oberbeck was a lease rather than a cession. as the successor state. Sulu and Sabah: A study of British policy toward the Philippines and North Borneo (Kuala Lumpur: Oxford University Press. the author emphasizes the effective occupation of Sabah by the United Kingdom. Also like Ariff.11 Under the agreement known as “The Madrid Protocol of 1885” Spain is limited in its influence in the region including relinquishing all rights to Borneo.is abstract and vague. based only on historically derived rights of the heirs of the Sultan of Sulu. an 18th century historian postulates British policy going back as far as the 18th century and continuing until 1903 was the context for Sulu and Sabah. is now the legitimate sovereign of Sabah. 127. Tarling claims the 13 Protocol of 1885 did not necessarily inherit the Sulu Sultanate’s sovereignty over Sabah. 1978). This agreement between Spain. In direct opposition to Tregonning’s assertion. He does however agree with Quintos that a continuation of the lease in perpetuity could very well be the solution to the ongoing dispute. Like Ariff. In Sulu and Sabah: A study of British policy toward the Philippines and North Borneo (1978). Therefore. Malaysia. Jayakumar emphasizes the principle of self-determination.

”12 One of the scholars in political science who has done considerable work on the Sabah issue was Lela Garner Noble.” http://www.sabah.lawnet. and Malawali along with everything within three maritime leagues from the coast and the territories that formed the “British North Borneo Company. The author argues that the Philippine foreign policy on the Sabah issue during the time period from Macapagal through Marcos was evidence of Philippine’s desire to be seen as independent from outside forces.had belonged to the Sultan of Sulu. and none of them consider the issue in a historical way. Philippine Policy Toward Sabah: a Claim to Independence (monograph No 33) (Tucson.gov. It also renounced sovereignty that were made of up of the islands of Balambangan. Banguey. The authors mentioned above do not 12 “PROTOCOL OF 1885.pdf.”13 Like most scholars who examined the Sabah issue. most specifically the United States.my/Lawnet/SabahLaws/Treaties/Protocol(Madrid). he still saw it as largely a contemporary political angle. Although Leifer did provide considerable background material about the Sabah issue in his research. Ariz: Assn for Asian Studies Inc. 1977). 8. 13 Lela Gamer Noble. The claim to Sabah demonstrates an independent policy because the policy was “non-American in conception or direction. author of the book Philippine Policy Towards Sabah: Claim to Independence. Noble. They wanted to improve what many Filipinos felt was an embarrassing image as a puppet of the United States. and Leifer view the issue as a political question. Sussman. 7 .

discuss the historical background and instead concentrate on contemporary political issue only. Samad and Darussalam Abu Bakar in "Malaysia-Philippine Relations: The Issue of Sabah. Regarding the transfer of sovereignty from the British North Borneo Company to the British Crown of Sabah in the 1878 Deed of Lease.14 The Philippines has nothing to lose by preserving the status quo in Sabah. this non-resolution of a claim 14 Paridah Abd. and (d) the issue of Filipino refugees and illegal immigrants in Sabah from the Macapagal to the Aquino administrations. the transfer of sovereignty from the British Crown to the Federation of Malaysia of Sabah was unwarranted.” Asian Survey 32 (June 1992): 554. However. Though the price of the status quo is negligible. Paridah Abd. emphasized the bilateral relations between the two countries." Hence. 8 . Samad and Darussalam Abu Bakar in "Malaysia-Philippine Relations: The Issue of Sabah. (b) the overlapping of territorial boundaries. (c) Malaysian incursion into Philippine waters. The paper presented sub-themes such as (a) the political and security repercussions of the Sabah dispute with regard to the Moro secessionism in the south. both Ariff and Jayakumar disagree with the Philippine case.” published in 1992. the Philippine government takes the position that it was illegal and "an act of naked political aggrandizement. Malaysia stands to benefit from the treasures of Sabah and its waters. As one may recall. Their inactivity comes at a price of missed opportunities.

.008 US) every year as part of the cession of the area leased to the British Company in the 19th century. In fact the descendants of the Sultan receives M$5. The various treaties signed by the Sulu Sultan since the 18th century followed a historical pattern of ceding and leasing certain portions of the sultanate’s dominion to outside powers.000 ($2. Philippine’s biggest ally had assumed a neutral position. Though the other ASEAN countries appeared to distance themselves from the issue so as not to take sides between two of their members. while the Philippines has literally no international support. Malaysia is fully supported by Great Britain and the Commonwealth of Nations in rejecting the claim. 566.by the Philippines would be a stumbling block to the intra-ASEAN cooperation. 554-67. except the proprietary rights of the heirs. privately acknowledged Malaysia’s rights to the territory.15 Malaysia asserts that it has honored its financial obligations and is prepared to negotiate directly with the Sulu heirs without Philippine intrusion. Azurin’s Beyond the Cult of Dissidence in Southern Philippines and Wartorn Zones in the Global Village (1996) devoted Part Two to the Sabah issue. 9 . 15 Ibid. They assert this matter is between them and the heirs of the Sultan of Sulu. Azurin argues in favor of dropping the Philippine claim.. 16 Ibid. Even the United States.16 Arnold M.

Beyond the Cult of Dissidence in Southern Philippines and Wartorn Zones in the Global Village (Quezon City: UP Center for Integrative and Development Studies and University of the Philippines Press. Because of the strong sense of connection and affiliation to Sabah among the people in Sulu. 2000). the influx of Filipino immigrants to Sabah further reinforces the connection. 19 Asiri Abubakar. Sabah and Sulus' quest for Peace and Autonomy in Southern Philippines” (2000). 18 Ibid. 1996). and affiliation of the Sulu people with Sabah is through the defunct Sulu Sultanate.” 17 Malacanang should have thought in the 1960s that to claim ownership of a piece of land through Torrens Title is one thing. 19 17 Arnold Molina Azurin. The author asserts that there exists a continuing sense of identification and affiliation among the Sulu people with Sabah.18 Another work that has a fresh interpretation of the issue is Asiri Abubukar’s “Bangsa Sug. 113. “Unfortunately. 248. connection. 10 .. The identification. Sabah and Sulus’ Quest for Peace and Autonomy in Southern Philippines (Quezon City: University of the Philippines. while claiming dominion or sovereignty over a vast territory is another. those contending parties had in mind to transform the 'franchise' into a lasting colonial dominion. particularly in the quest for autonomy by the Sulu people. 107.depending on the rise and ebb of its own fortunes and powers relative to that of the contracting parties. Bangsa Sug. Abubakar argues that settling the Sabah issue is vital to peace process in the southern Philippines.

11 . Tregonning. Tarling maintains that the “territory was held by the Company under a lease agreement. Malaysia. and this the British Government should admit. His recommendation is the continuation of the lease in perpetuity. he believes that the Philippine government cannot “inherit the sultanate’s sovereignty over North Borneo” under the protocol of 1885. 22 Ibid. Indonesia. For the most part of the Sabah issue. 349.20 He postulates that resolving the Sabah issue would indeed move Southern Philippines closer to a lasting peace. it is the 1878 deed that causes the most contention among various academics.22 A History of modern Sabah: 1881-1963 (1960).”21 However.Another factor that Abubakar pointed out is that the strategic location for trade of the Sulu-Sabah area since the height of the Sulu Sultanate will continue to be significant as part of the Brunei. Sulu and Sabah. analyzes the Sabah issue that the agreement in 1878 between the Sulu Sultans and Baron Van Overbeck was one of a cession not 20 Ibid... 265. The author believes the Sabah issue is intertwined with the Moro problem in Mindanao. G. 21 Tarling. Philippines-East Asian Growth Area (BIMP-EAGA). 349. written by historian K.

he recognizes that the predecessors of the British North Borneo Company (BNBC) were private lessees of the Sultan of Sulu. 12 . both Malaysia and the Philippines should maintain and promote healthy relations to ensure the security of the region. However. The adaption of this “formula” would require the Philippines to drop its claim and concentrate all of its efforts on working closely with Malaysia. and in effect cannot acquired dominion over a territory through a contract. 26 Leifer. 24 Ariff. furthermore. 25 Ibid.G. 34. The BNBC was barred from acquiring sovereignty by its private status and by the terms of its charter.”24 Instead. Tregonning. also known as Pajak of 1878. Legal and Political Implications has a strong pro-Malaysian sentiments and maintains that the agreement of 1878 was a “Deed of Cession.26 23 K. 1. The Philippine Claim to Sabah.23 Arrif’s The Philippine Claim to Sabah: Its Historical. A History of Modern Sabah: 1881-1963 (London: Her Majesty’s Stationary Office. 64. several treaties and international conventions have excluded North Borneo from the territory of the Philippines.. he recommends that given the close historical ties between the peoples of the Philippines and North Borneo.a lease. The Philippine Claim to Sabah. 68. 37. 1960).25 Leifer’s The Philippine Claim to Sabah clarifies that the focus of his study is the political and non-legal aspect of the presentation of the Philippine claim.

I observe that the Sabah issue is a post-colonial symptom that needs to be treated to achieve lasting peace in this part of Southeast Asia. “Sabah Issue In International Law. but a lease granted by the Sultan of Sulu to British subjects. Among the most important developments was the introduction of the sultanate (a developed political and at the same time religion institution) to the region. Historical Foundation The rise of Islam in Southeast Asia revolutionized specific social institutions in the region. I believe that the Philippine claim to Sabah is valid. 2013. Philippine Daily Inquirer. Once the territory is leased the sovereignty remains with the lessor and not under its jurisdiction which is granted to the lessee. like those of Tarling and Tregonning. with strong historical roots. The lease of the territory is usually given in exchange of an annual fee. March 23. Islam as a politico-religious institution had triggered the modification and introduction of social institutions that shaped present day Southeast Asia.” News. 13 . In this historiographical essay.net/49361/sabah-issue-in-international-law. For the purpose of this research. that the Deed of 1878 is not a transfer of sovereignty.27 After examining the existing literature regarding the Philippine claim. It is my opinion.International law provides for the lease of a territory in which a state grants another state the right to control at least part of the lessor’s territory. http://opinion.inquirer. an opinion shared with Azurin’s Beyond the Cult of Dissidence in Southern Philippines and Wartorn Zones in the Global Village. my study 27 Miriam Defensor-Santiago. a private venture.

The methodology of the study will be thematical not chronological. With protection of the crown guaranteed over the lease territory. Instead of being conscious of the timeline. the study will concentrate on the major themes that shaped the sultanate’s Sabah dominion. The Arabs. 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. 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. The objective of this study is to trace the historical and legal basis of the Philippine claim over the State of Sabah.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). who had settled in Malacca in 1400. The words “North Borneo. Eventually. Sabah was included in the federation of Malaysia.” “British Borneo” or “Sabah” are used interchangeably in the study. later became the foundation British annexation and colonization. These words are used to that portion of the North Borneo Island to which the sultan of Sulu once ruled. did not extended political control over the two sultanates 14 . lease and agreements with western world and the present claim of the Philippines to the Sabah State.

3-86. Palawan. Saleeby. Iss.28 During its supremacy. aside from the Sulu archipelago. 125. nearly one and a half century before the arrival of the Spaniards in the Philippines. the sultanate extended its control as far as the Visayas and Luzon until controlled by the Spanish conquistadores in the Philippines. 15 . 1964). For a brief period. the sultanate was to remain a problem by the Spanish and American colonial government (viewed as pirates and buccaneers). The Chinese did the same who frequented the areas held by the two sultanates to trade with the natives. extending its influence in Zamboanga. 16. Mosque and Moros: A Study of Muslim in the Philippines (Manila: Philippine Federation of Christian Churches. the two sultanates were bounded together by religious ties with the spread of Islam in the Malay world.” Philippine Social Science and Humanities Review. “The Shri-Vijayan and Madjapahit Empire. it became a tributary of the Majapahit Empire. Hassell.other than spreading the teaching of Islam. the sultanate exercise nominal control over the whole northwestern and eastern coast of the island. March 1953. Related by its common Malay origin. The sultanate possessed an efficient political organization. For many years to come. 30 Elizabeth C. 29 Peter Gowing. Trade 28 Najeeb M. The sultanate of Sulu was founded in 1380. 30 Before the British entry in to the region.29 The Sultanate of Brunei. 1. The History of Sulu (Manila: Filipiniana Book Guild. on the other hand. was founded in the 15th century. Vol. 122-23. 1963). as the colonial government consolidated it territory. Basilan.

were the earliest among the westerners to arrive in the East Indies and establish themselves in Malacca early in the 16th century. The Balambanagn settlement was abandoned in 1775 until a second attempt was made in 1803. 31 W. hence preventing the development of the enterprise. to occupy Balambangan and made use of the ceded territory. 1891). evidence seems to suggest that the territories ceded by the Sulu failed to interest the British government further. 5. Stable Url http://archive. 16 . which again was abandoned in 1805. Under the Act of 1858. in January 1761.31 The head of this particular project was Alexander Dalrymple. British interest in the Sulu-Borneo area stemmed primarily from the East Indian Company’s desire to establish a factory. Sarawak. But the company appeared unable to take advantage of this concession.org/stream/yonderyo00gavarich/yonderyo00gavarich_djvu.txt. Borneo and the Western World The Portuguese and the Spaniards. H. The agreement was confirmed by another treaty in February 1763 reiterating the major provision. and North Borneo (Singapore: Govt. negotiated a Treaty of Friendship and Commerce with the Sultan of Sulu. who. in search of spice. Labuan. dept.between their respective subjects served to reinforce this relationship even more. disease and strained relations with the Sultan of Sulu erupted that led to open war. print. the East Indian Company was dissolved and its interests were transferred to the crown. emphasizing defense alliance. in 1769. British Borneo: Sketches of Brunai. When it finally decided. However. Treacher.

” January 1876.D (29 April 1803 – 11 June 1868) was a British statesman. “The Earl of Derby to Lord Odo Russell.”34 32 Official Gazette of the Republic of the Philippines. 33 The Rajah of Sarawak. England.Lord Canning. by his mistress Harriott Teasdale. and North Borneo with the cooperation of the British Navy. but those claims were never admitted by Great Britain. an Englishman named James Brooke33 visited Sarawak. a suburb of Benares. BUT those treaties must be considered as having lapsed. 182. The involvement of Brooke made him “the supreme ruler of Sarawak or the White Rajah. 34 Steven Runciman. and shortly after was offered by the Sultan of Brunei the governorship of Sarawak in exchange for aid in the face of continuing rebellion. Brunei. ancient treaties. http://www. India. his mother Anna Maria was born in Hertfordshire. James Brooke was born in Secrore. 1960). His father Thomas Brooke was English. he succeeded in minimizing piracy in Sarawak. Great Britain also had rights under Treaties with Sulu. LL. KCB. 1764.gov. 73. and alleged occupations. Later in 1841. 9th Lord Blantyre. The Earl of Derby. Sir James Brooke. . 17 . . dated 1761.ph/1876/01/17/philippine-claim-to-north-borneo-vol-i-the-earl-of-derby-to-lord-odo-russell/. Brooke was proclaimed Rajah and in subsequent years. as the first viceroy to British India. . and 1769. The White Rajahs: a History of Sarawak from 1841 to 1946 (Cambridge: Cambridge University Press.32(Emphasis added) Almost two decade before the dissolution of the East Indian Company. the daughter of Scottish peer Colonel William Stuart. repudiated the “doctrine of lapse” and was further enunciated by his predecessor (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.

the sultan found difficulty in extending control to many of his datus throughout the domain. Great Britain and Brunei the concluded a Treaty of Friendship and Commerce. comprising most of what is now Sabah State. a treaty was signed for the United States advantages for the most favored nation. Borneo-Sulu area became increasing attractive in terms of commerce for its strategic location in the region. The murder of the 12th Sultan of Brunei. Although wealthy. rebellion and strife was frequent in the sultanate. Brunei’s Cession of Sabah to Sulu. especially maritime traffic. And in the following year. was ceded to the neighboring sultanate as the prize for military assistance. In 1850. Badarud-din was unable to 18 . It was under this circumstances that the territory. a relative of both and the reigning Sultan of Sulu. Consequently. The perpetrator claimed the throne but was contested by Pengeran Bongso. Muhammad Ali. The United States became similarly attracted to Borneo. a nephew and son-in-law of the deceased sultan. by Bendehara Abdul Mubin resulted to civil war. eager of obtaining the favors that had been secured by other western powers. the Sultan of Brunei had a court that was corrupt and ridden with intrigues.In 1846. Both contestants to the throne asked the support of Badarud-din. the British flag was raised on Labuan Island off the cost the east coast of Sabah. at the same time that Labuan was ceded in perpetuity to the crown. and later an American consul was appointed to Brunei.

This early connection between the two sultanates cemented the familial relationship. but supported Pengeran Bongso (who took the name Sultan Muaddin).35 The sultanate’s connection with Northern Borneo goes back as early as 1521. “Sketch of Borneo. the mercantilist policies adapted by the colonial powers deprived the Sultanate of Brunei and Sulu of their own profitable commercial activity.” The Expedition to Borneo of HMS Dido.solve the crisis. in the straits of Macassar. II (London: Chappan and Hall. as far as the written record is concerned. 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. This political marriage developed into a politico-military allegiance. the Raja of Borneo Proper ceded to the Sultan of Solo all that portion of Borneo then belonging to him. Thus driven into piracy and smuggling. 1846). the Sulus and the Bruneis continually menaced western trade. when a Brunei Sultan was married to a Sulu princess. as trade flourished in the region. 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.. from Kimanis in latitude 5° 30’ north to Tapean-durian. which include the whole north of Borneo. when his Raja was obliged to call in the aid of the Solos to defend him against an insurrection of the Maruts and Chinese. Hunt Esq. xxiii. 19 . 35 J. Vol. Meanwhile. In consideration of this important aid. or Pulo Kalamantan. presenting a problem that was to persist for many years.

38 36 K. Harrison was a former United States Governor-General of the Philippine Islands.Territorial Grant from Brunei Baron von Overbeck. the baron sailed to Brunei. 13-14. Roxas. however. the sultan entered into agreement with von Overbeck. convinced Dent in supporting a venture in Sabah and together they planned to sell their rights to any interested government. 000 Malayan Dollars. He served as Special Adviser on Foreign Affairs to President Manuel A. 1965). He succeeded in persuading the Sultan.. 1947. Harrison to Vice President and Secretary of Foreign Affairs Elpidio Quirino. 37 The Baron.36 With the money he received from Dent to conduct negotiations. 14. Brunei chiefs refused to recognize the Sultan of Brunei’s rights to cede the territory. Tregonning.” February 27. 38 Ibid. http://www.gov. 37 Official Gazette of the Republic of the Philippines. A History of Modern Sabah. in which the latter gained three territorial “grant” and for which the sultan received a total annual payment of 12. “Letter of Francis B. In addition the sultan appointed von Overbeck “supreme ruler” with the title of “Maharajah of Sabah and Rajah of Gaya and Sandakan. 1881-1963 (Kuala Lumpur: University of Malaya Press. Mr. 1877.G. 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.” with delegated powers to govern the territory. On December 29. Moreover.ph/1947/02/27/letter-of-francis-b-harrisonto-vice-president-and-secretary-of-foreign-affairs-elpidio-quirino/. Austrian Consul-General at Hongkong at that time. evidently realized that several factors tended to depreciate the value of the grants he had obtained. 20 . who presumably could not resist the tempting compensation offered.

Von Overbeck. went to Sulu in January 1878.” 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. 21 . Joseph W. A History of Modern Sabah. Fly. From Labuan. and William Clark Cowie sailed to Jolo on board the steamer. and that the Sultan of Brunei 39 Tregonning. was drafted by Overbeck himself and was written in Malayan language with Arabic character. already hard-press by an ongoing campaign in Sulu. contributed his own persuasive influence after having been led to believed that von Overbeck would reward him. Treacher. was hardly in a position to refuse. Territorial Lease from Sulu. America. Von Overbeck and his companion were shrewd negotiators and their combined effort brought to bear on the sultan.39 Treacher. found it necessary to entered into negotiation with the sultan for the lease of the territory. Baron von Overbeck. 16. arriving at their destination on January 16. said that Overbeck represented “a bona fide British company. The contract dated January 22. Torrey. having sailed separately on the British Warship. the Acting British Consul-General at Labuan Island in Borneo. whom the sultan consulted. 1878. Consul Treacher also reached Jolo on the same day. whom the sultan had great confidence as a gunsmuggling partner. Overbeck and William W. aware of the Sultan of Sulu’s dominion in North Borneo. During the bargaining. Cowie.

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. and assigns forever and until the end of time. “Friendly Letter from Our Brother the Paduca Majarasi Maulana Sultan Mujamad Dehamalul Alam Addressed to His Brother His Excellency the Governor Captain-General of the Philippines. by affixing the participation of his government in the agreement. 1878. of London. and thence along the whole east coast as far as Sibuku on the South. successors. Sugut. to Gustavus Baron de Overbeck of Hong Kong. together with all the lands which lie within nine miles from the coast. together with their heirs. known as Paitan. and with the expressed desire of all Datus in common agreement. and to Alfred Dent.” July 4. on behalf of ourselves and for our heirs and successors. do hereby desire to lease of our own free will and satisfaction. China-Batangan.ph/1878/07/04/philippine-claim-to-north-borneo-vol-i-friendly-letter-from-our-brother-thepaduca-majarasi-maulana-sultan-mujamad-dehamalul-alam-addressed-to-his-brother-his-excellency-the-governorcaptain-genera/. Esquire. Banggai. who act as representatives of a British company. son of Sari Paduka Marhum Al Sultan Mohammad Pulalum.000 Malayan dollars.had recently ceded to them the territory and was already to take possession of it anyway. 40 Evidently a lease of the sultan’s possession in Sabah. and including all territories.gov. its pertinent provisions read thus: We Sri Paduka Maulana Al Sultan Mohammad Jamalul A’lam. 22 . associate. on the Pandasan River and in the coastal area. http://www. by affixing his signature as 40 Mujamad Dehamalul Alam. It should be noted that Consul Treacher succeeded in formalizing the participation of his government in the agreement. bordering on Darvel Bay and as far as the Sibuku River. Sandakan. Sultan of Sulu and of all dependencies thereof. Murniang and all other territories and coastal lands to the south. Labuk. all rights and powers which we possess over all the territories and lands tributary from the Pandasan River on the east.

advocated filing a claim at the United Nations. They claim sovereignty. jurisdiction and proprietary ownership of North Borneo. Unlike in the Brunei grants of the previous year. However. the sultan also appointed von Overbeck as “supreme and independent ruler” with the title of “Datu Bandahara and Rajah of Sandakan. The filing took place on June 22.” delegating him as a vassal power with which to administer the territory. Together with the Territorial Agreement. characterized the contract as a lease and referred to the money payment as annual rentals. The Philippines claim they have the legal and historical rights to North Borneo as the successor-in-interest of the Sultan of Sulu. 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. who served in the Department of Foreign Affairs in 1946 and later became President of the Philippines. and not a transfer of ownership or sovereignty. Diosdado Macapagal. 23 .41 The Philippines Claim over Sabah and its Arguments. 41 Ibid. who was present at the signing of the contract and as witness. the sultan made it clear that Oberbeck made the title not him. Treacher. It is the thesis of the Philippine government that the contract of 1878 was a lease.a sole witness to the transaction. 1962.

http://www. At this time (1960’s). the sultan of Sulu granted certain concessions and privileges to Baron de Overbeck. Dent later bought out Overbeck. Abu Sayyaf and Al-Quedah. an Austrian national who was at the time the Austrian Consul-General at Hongkong. “II. a British national.gov.42 Philippine anxiety on the communist threat has subsided. and Alfred Dent. From the dynamics of the Muslim separatist movement in the south. 1878.000 Malayan dollars.ph/1963/01/28/philippine-claim-to-north-borneo-vol-i-iistatement-at-the-opening-meeting-of-the-british-philippine-talks/. In it. The British North Borneo Company based its rights from the grant signed in January.” January 28. communism in the region was in its height and Philippines were anxious that Malaya would succumb to the potent communist threat from mainland Southeast Asia. Statement at the Opening Meeting of the BritishPhilippine Talks. creating a scenario in which a communist territory would be immediately at the southern frontier of the Philippines. 1963. but another form of menace developed.In the early part of the 1960s it became an imperative for the Philippines. in consideration of an annual rent or tribute of 5. aside from the strong historical and legal rights that North Borneo is important to Philippine territory and vital to its security. 24 . The Sabah state of present Malaysia harbored some of the kidnappers. there evolved a more terrifying threat. state wide terror and their vision of establishing independent states. provoking international concern through widespread violence. and transferred his rights to the 42 Official Gazette of the Republic of the Philippines.

”44 The Philippine government. Overbeck and Dent were private citizens of their respective countries who did not represent any sovereign entities. the Dutch government also protested in the same way. according to international law. The Philippine government argues that Overdeck and Dent (the leasors) did not acquire sovereignty or dominion over North Borneo. government to government agreement) or to individuals acting for sovereign entities (agreement between leaders of nations).British North Borneo Company. It was not the Spanish crown which made the protest alone.g. and that the “British Government assumed no sovereign rights whatever in Borneo. Lord Granville maintained in his letter to the Dutch that the British North Borneo Company was a mere administrator.43 The above letter was written by the British Foreign Minister to explain and respond to the Spanish protest regarding the grant of Royal Charter to the British North Borneo Company. Obviously. Philippine Foreign Policy on the North Borneo Question (Pittsburg: University of Pittsburgh Press. strongly argues that the transfer of 43 Nestor M. The Company was granted a Royal Charter on November 1. 134. acquire sovereignty or dominion. neither of them did not. 44 Ibid. This is because. Nisperos. therefore. but instead acted as mere businessmen who only acquired grant of lease from the Sultan of Sulu. Again. and could not. Hence. sovereignty can be ceded only to sovereign entities (e. 1881. 1969). 25 .

a transferee (British Crown) cannot acquire more rights than the transferor (British North Borneo Company). In the International Law. In other words. particularly in reference to North Borneo. semi-autonomous government of the Philippines under American sovereignty which preceded the independent republic) “had decided not to recognize the continued existence of the Sultanate of Sulu. when the British North Borneo Company did not exercise nor assume sovereignty over North Borneo? In other words. since the power to give and terminate recognition during the Commonwealth Philippines was vested only in the Congress of the United States of America (being the colonial power). how can the British Crown exercise sovereign rights in the form of protectorate in 1946. Quezon of the Commonwealth of the Philippines (the transitional. This pronouncement was against the Organic Law of the Philippine Commonwealth. Aside from the political technicality. powers and interest by the British North Borneo Company to the British Crown was not possible. how can the British North Borneo Company transfer sovereignty to the British Crown.rights. which the company did not have in the first place? It has been said that President Manuel L.” The Philippine Department of Foreign Affairs was not able to find a written record of this statement. North Borneo Cession Order of 1946 took place just six days immediately after the Philippines was declared independent by the United States. International Law dictates that any withdrawal or termination of 26 .

recognition does not imply the dissolution of the entity affected by the withdrawal. nor does it purport to grant to the Company any powers of government thereover.gov. who was granted a Royal Charter in the form of British North Borneo Company by the British government. it is to be observed that the territories granted to the Company have been for generations under the government of the Sultan of Sulu and Brunei. was not authorized to acquire sovereignty or dominion.45 The Philippine government believes that Dent.ph/1882/01/07/philippine-claim-to-north-borneo-vol-i-earl-granville-to-mr-morier/. to which the British Crown derived its claim of sovereignty. in the fact that the Crown in the present case assumes no dominion or sovereignty over the territories occupied by the company. in his letter to the British Minister in Madrid dated January 7.46 [Emphasis Added] 45 Ibid. 46 Official Gazette of the Republic of the Philippines. it merely confer upon the persons associated the status and incidents of a body corporate. 1882. the New Zealand Company. British Foreign Minister at the time. Evidence to this was the official correspondence of Lord Earl Granville. “Earl Granville to Mr. 1882. with whom Great Britain has had Treaties of Peace and Commerce. and other Associations of that character. 27 . the Hudson’s Bay Company. http://www. explaining the character of the Charter Grant of the British North Borneo Company. and recognizes the grants of territory and the powers of government made and delegated by the sultan in whom the sovereignty remains vested…As regards the general feature of the undertaking.” January 7. as follows: The British Charter therefore differs essentially from the previous Charters granted by the Crown to the East India company. Morier.

and interest by the British North Borneo Company to the British Crown. when the British North Borneo Company did not exercise nor assume sovereignty over North Borneo? Again. how can the British Crown acquire sovereign rights (in the form of protectorate in 1946). &c. http://www. was not possible.gov.”47 The Philippine government. known as North Borneo Cession Order of 1946 (that took place six days immediately after the Philippines was declared independent by the United States). also the Dutch government protested. a transferee (British Crown) cannot acquire more rights than the transferor (British North Borneo Company). G. since Overbeck and Dent did not acquire rights of sovereignty or dominion over North Borneo their transferee (British North Borneo Company). by the Undersigned. K. 28 . &c. that the British North Borneo Company was a mere administrator.The British Foreign Minister writes this letter to explain and respond to the Spanish protest regarding the grant of Royal Charter to the British North Borneo Company. In other words.” December 2.ph/1878/12/02/philippine-claim-to-north-borneo-vol-istatement-and-application-addressed-to-the-marquis-of-salisbury-k-g-secretary-of-state-for-foreign-affairs-c-c-c-bythe-undersigned-on-behalf-o/. also. Secretary of State for Foreign Affairs. on Behalf of Themselves and Their Associates. &c. 47 Official Gazette of the Republic of the Philippines. It was not the Spanish crown who made the protest alone. strongly argues that the transfer of rights.. In the International Law. therefore. and that “British Government assumed no sovereign rights whatever in Borneo. 1878.. “Statement and Application Addressed to the Marquis of Salisbury. in his letter to the Dutch.. did not acquire rights of sovereignty or dominion.. powers. Again Lord Granville maintains.

gov. 29 .”48 It is in the context of this statement that the 1930 Convention between the United States and Great Britain defined their respective boundaries. as follows: It is necessary however that there be clearly (sic) of official record the fact that the termination of the temporal 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 States 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 Company. By this act of defining 48 Official Gazette of the Republic of the Philippines. http://www. 1947. “Letter of Francis B. As Governor Carpenter clarified in this communication to the director of the Non-Christian tribe on May 4. 1920.” February 27. Harrison made it more clear that: “It is true Governor Carpenter’s contract or treaty with the Sultan of Sulu of 1915 deprived the Sultan of his temporal sovereignty in the Philippine archipelago but did not interfere with the Sultan’s status of sovereignty over British North Borneo lands. The United States did not intend to claim North Borneo.The 1930 Convention between the United States and Great Britain and its implication to the Philippine Sabah Claim Under the Carpenter Agreement of 1915. the Sultan of Sulu agreed to relinquish its temporal power over Sulu but retained his sovereignty over North Borneo. ” The American Governor General of the Philippine Island Francis B. Harrison to Vice President and Secretary of Foreign Affairs Elpidio Quirino.ph/1947/02/27/letter-of-francis-bharrison-to-vice-president-and-secretary-of-foreign-affairs-elpidio-quirino/.

Second. the term “pretension” to sovereignty over North Borneo was used. the United States did not cede or waive anything to the British Crown. The British government did not recognize the Spanish claim. A History of Modern Sabah: 1881-1963. 22. it was merely a pretension). In a Protocol of Peace between Spain. The fact is North Borneo was not included in the former treaty. Germany and Great Britain signed March 7.” had no mention on the inclusion of the sultan’s territory in North Borneo. It is important to first clarify that Spain never acquired sovereignty over North Borneo. “Jolo and its dependencies” was a geopolitical unit different and distinct from the North Borneo possession.the respective boundaries. To give 49 Tregonning. Submission of the Sultan of Sulu of the Sovereignty of Spain 1851 and Protocol of 1885 Spain’s claim to North Borneo is based on the fact the sultanate “admitted herself a vassal of Spain on the basis of this treaty Spain was claiming all the possessions of Sulu and North Borneo. hence Spain did not transfer sovereignty to Great Britain (a sovereignty Spain never had. In the protocol signed. this is not necessarily as it seems.” However. recognizing Spanish sovereignty over “Jolo and its dependencies.49 The document signed by the sultan in 1878. 30 . 1885 Spain gave up its claims of sovereignty over North Borneo to Great Britain leading to British claim of sovereignty since then.

3. As shown in the list of “Espana Oceanica. The Island and archipelago of Jolo. 2. University of the Philippines Law Center. conformably with existing treaties with the Sultan of Sulu. The portion of Northeast cost of Borneo that forms part of the dominion of the Sultan.a more vivid example for this argument. 287. let us try to examine Spanish geopolitical units in its Asian positions. 31 . the regulations were clear about that. In 50 University of the Philippines. Another thing to consider was the Spanish Geopolitical division in “Espana Oceanica. Other territories which now belong or which may belong in the future to Spain. North Borneo was not considered a dependency of Jolo. It is clear that the sultan did not include his territory and dominion in North Borneo in signing the treaty recognizing the Spanish sovereignty. 51 Ibid. Philippines: Institute of International Legal Studies.” In the Spanish geo-political law. 2003). The Marianas Islands. 4. The Philippine Claim to a Portion of North Borneo: Materials and Documents (Diliman.51 The signing of the sultan in 1885 recognizing Spanish sovereignty over “Jolo and its dependencies” did not transfer sovereignty to Great Britain. and 5. Quezon City. known as “Espana Oceanica:”50 1.” North Borneo was a geo-political unit different and distinct from the Archipelago of Jolo. The Philippine Archipelago proper.

the protocol of peace between Germany. Great Britain. Macaskie. 1958 and 1959. “Papers of Charles Frederick C. http://www.” Source: Frederick C. Severino. it did not result in transfer of sovereignty from Spain to Great Britain. Where in the World Is the Philippines? Debating Its National Territory (Singapore: Institute of Southeast Asian Studies. 2012). Charles Frederick Cunningham Macaskie was the presiding chief justice52 The ruling was made on the shares entitled by each claimant. 1n 1946 he married D. He held the position of Acting British Judge.html.ox. New Hebrides in 1955. Cole-Adams. it was clearly stated that the Spanish claim of sovereignty was worded in the text as “pretension. Nine heirs of the Sultan of Sulu won the award in the Macaskie Judgment. the contention that Spain’s renunciation of sovereignty over its North Borneo territory in favor of Great Britain that resulted in transfer of sovereignty from the Sulu Sultanate to Great Britain is incorrect. Brigadier and Chief Civil Affairs Officer. Borneo Territories. daughter of W.bodley. February 28. Macaskie” (University of Oxford: Bodleian Library of Commonwealth & African Studies at Rhodes House. He was Chief Justice and Deputy Governor. 53 Rodolfo C. North Borneo.ac. Legg. They were awarded a “cession of right” by the High Court of North Borneo. 1934-1945. Therefore. 62. 19451946 and Commissioner for War Damage Claims. British North Borneo. 53 52 “Charles Frederick Cunningham Macaskie (1888-1969) was called to the bar through Gray's Inn. Macaskie Dictum of 1939 In a 1939 case the heirs of Sultan Jamalul Kiram claimed money was owed to them under the 1878 grant.” By this. entered North Borneo in 1910 and served in the First World War in the Royal West Kent Regiment. 2011). 1947-1951.uk/dept/scwmss/wmss/online/blcas/macaskie-cfc. 32 . and Spain.H.

the Grant of 1878 was viewed as a permanent cession or sale. According to the result of the translation. and paraphrased in the complaint filed by the attorney for the heirs of the Sultan. Years after the Macaskie dictum was made (which translated the Grant as cession instead of lease). he had no original copy of the Grant. the Philippine government had the copy translated into English. 33 . Under this circumstance. that the Grant in 1878 is in Arabic script and is worded in the Malayan language.ph/1947/02/27/letter-of-francis-b-harrisonto-vice-president-and-secretary-of-foreign-affairs-elpidio-quirino/. In the judgment. the Philippine Government could not accept the dictum of Judge Macaskie.gov. “Letter of Francis B.”54 The former United States Governor General of the Philippine Islands. they had the only an English translation by Maxwell and Gibson. 1947. The erroneous Maxwell-Gibson translation was the one used. and that the money that was to be paid to the heirs is “cession money. the Grant of 1878 was a Lease Agreement. Through their attorney. A later translation made it clear that this was an incorrect translation. Harrison to Vice President and Secretary of Foreign Affairs Elpidio Quirino. It should be recalled. “Upon 54 Official Gazette of the Republic of the Philippines. When the lawyer of the heirs filed the case.The issue before the court was the identity of the heirs of the sultan who were entitled to receive payments after his death. quoted.” February 27. http://www. Francis Harrison repudiated the Macaskie judgment stating. a translation of the Grant of 1878 that incorrectly characterized this as a cession instead of a lease.

examination of our own translation of the original document (in photostat) it will be seen that Maxwell and Gibson.56 To conclude. 34 .”55 In a letter addressed to Vice President and Secretary of Foreign Affairs Elpidio Quirino. dated February 27. I do not find myself able to give full faith and credit to the opinion of Mr. 56 Ibid. just twelve days after the inauguration of the Republic of the Philippines. a step taken by the British Government unilaterally. the Malaysian claim to Sabah. 1947. In view of this vital divergence from the original text. and without any special notice to the Sultanate of Sulu. have changed the language so as to make the document a grant cession instead of lease. one must come to the conclusion that the action of the British Government in announcing on the sixteenth of July [the annexation of North Borneo to the British Crown]. Harrison explained that: In reviewing the subject of the claims of the Sultanate of Sulu to their ancient patrimony in North Borneo. Justice Mackaskie in the famous case in 1939 in Sandakan. was an act of political aggression which should promptly be repudiated by the Government of the Republic of the Philippines. the English authors on whose text the decision of Mr. The territory was only leased as the 55 Ibid. and as the word “padjak” in the original really means. based on the British claim. Justice Mackaskie was based. is not sustainable. as it really was. nor consideration of their legal rights.

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bikoy.net/archives/2002/08/ (accessed December 21. August 29. 2006). 2002. http://bikoy. Appendix 40 .net.Villanueva. Victor.

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42 .