LETTER | Revisiting Sabah-Sulu sultanate issue amid Russia-Ukraine conflict

LETTER | The Spanish news website La Informacion reported that Spanish arbitrator Gonzalo Stampa has ordered the payment of RM62.59 billion to the last heir of the Sulu sultan.

It was stated that this is due to the breach of the 1878 treaty signed by Sultan Jamal Al Alam, Baron de Overbeck and Alfred Dent belonging to the British North Borneo Company.

It was also reported that Malaysia stopped paying an annual separation fee of RM5,300 to the heirs of the sultan of Sulu since 2013 following the armed incursion in Lahad Datu.

The heirs started the case in Spain because the 1878 treaty was signed on Spanish soil. However, Malaysia was not present during the arbitration hearing. In fact, Malaysia has challenged the legitimacy of hearing the case in a criminal court.

In 1963, the birth of Malaysia was considered a diplomatic success as Great Britain was relinquishing its control of Singapore, Sabah and Sarawak, without any bloodshed.

The new federation was welcomed as an important partner of Asean, a regional grouping founded for the betterment of nations of South East Asia.

Considered a milestone in the political development in this part of the world, it quickly earned recognition and respect from member states of the United Nations, except for Indonesia and the Philippines.

Indonesia, under president Sukarno, refused to recognise this new entity. His foreign minister Subandrio declared, “Konfrontasi”, or confrontation against the setting up of a new federation called Malaysia.

It was a violent opposition as Indonesia landed some troops in parts of Malaysia. However, president Suharto who replaced Sukarno, ended this conflict to open a new chapter in the diplomatic relations between these two erstwhile neighbours.

On the other hand, the Philippines in 1962 raised the issue of Sabah being part of the Sulu sultanate, an integral part of the Philippines. It was president Diosdado Macapagal who raised the thorny issue of Sabah. This was the beginning of the dispute between Malaysia and the Philippines that has lasted till today.

The issue can be viewed, debated, discussed and addressed from the historical, legal and diplomatic aspects.

Historical aspect

Historically, the issue dates back to the rule of the Sultan of Brunei, who had control of Northern Borneo. In I655, a rebellion broke out in Brunei and Sultan Muaddin requested help from his cousin, the sultan of Sulu. The rebellion was put down successfully.

As a sign of good gesture, the Brunei sultan cedes North Borneo to the sultan of Sulu.

In 1878, Sulu Sultan Barradudin Kiram executed a deed over North Borneo in favour of two British commercial agents, namely Alfred Dent and Baron von Overbeck of the British North Borneo Company, in return for payment of 5,000 Malayan Dollars per year.

Careful attention should be given to the above historical event as this is the basis upon which the Philippine claim rests. The agreement was written in Jawi and signed by the parties involved.

The Jawi script uses the word pajak, which in the Malay language means ‘rent’. The English translation uses the term ‘cede’. Here is where the controversy begins. The Philippines claim that the sultan of Sulu did not cede North Borneo but merely took an annual rental payment from the two merchants. The British however stuck to their interpretation of the sultan having ceded the territory to the British North Borneo Company.

Principally, the entire dispute revolves or rests on this primacy. Therefore, heirs to the Sulu sultanate and the Philippines government, together need to come to an agreement to accept any solution in the foreseeable future.

On Malaysia’s part, it would be willing to accept a lasting solution so long as Sabah’s sovereignty as part of Malaysia is guaranteed.

Asean’s role

One entity that can and should play a pivotal role in finding a solution is Asean. This regional grouping has to take on a dynamic role in settling disputes among its members. Being founder members, both nations would give importance to Asean being an honest broker.

Asean also has to review its stated policy of non-interference in the internal affairs of member states. It cannot stick to rigid principles laid down in the 60s.

According to Kishore Mahbubani, a distinguished diplomat from Singapore, Asean is an economic success. It is time for Asean to prove its viability in the political arena by using its experience and stature to find a lasting solution to this long-running feud between Malaysia and the Philippines.

Furthermore, the heirs to the Sulu sultanate would better benefit if the annual token being paid to the heirs is increased proportionately in accordance with the times. An accepted sum can be worked out as Malaysia is in a position to reimburse the heirs, who are also of the Malay ancestry.

Goodwill and trust are essential here and Asean can use its influence to ensure both parties give peace a chance.

Before coming to a conclusion, it may be pertinent to survey the atmosphere and chain of events that has led to this deadlock.

Legal aspect

This is the tricky as well as the tough part when dealing with the issue of Sabah. All three parties involved, that is the Sulu sultanate, the Philippines government and Malaysia have stuck to their own interpretations. They are also influenced by their constituents.

The legality of the gift that the sultan of Brunei gave to the sultan of Sulu is not being queried or challenged by anyone. That is a done issue. It is the 1878 deal between the sultan of Sulu and the two merchants that has attracted controversy, interpretation and doubts resulting in the strained relations between these two neighbours.

The document (Appendix A), signed on the 22nd of January 1878, uses the Malay term pajak, which when translated to English means to lease. As such the intention of the sultan was to lease the territory to the two merchants for an annual token to be paid to the sultan of Sulu.

The heirs to the Sulu sultanate and politicians in the Philippines have hung on to this translation ever since. This is the sticking point that has eluded a normal relationship between the two erstwhile neighbours.

The crown on the other hand has relied on interpretation of the intent of the sultan of Sulu. Here, historically and legally the reliance has been on interpretation. The emphasis here has been the intent.

READ MORE: KINIGUIDE | 'Sulu sultan's heirs can seize M'sian assets in 167 countries'

Looking from the legal perspective, the emphasis was profoundly on the intention of the involved parties. The British stuck to their interpretation that it was the territory of North Borneo, which later came to be known as Sabah that was given (cession) by the Sulu sultan for an annual payment of 5,000 Malayan dollars from Malaysia. Tricky?

Relations between the Philippines and Malaysia has been rocky ever since. Different leaders at different times from both Malaysia and the Philippines have endeavored to cultivate good neighbourly relations, but the issue of Sabah crops up regularly when everyone feels bad times are over.

Asean, where Malaysia and the Philippines are founding members, has been unable to act as an honest mediator or to find an amicable solution.

The concept of the “Asean way”, where member countries had pledged not to interfere in the internal affairs of member nations has also inhibited the role of Asean as an honest broker.

Efforts have also been undertaken by the Philippines to take its claim to the International Court of Justice. However, Malaysia has declined as it considers Sabah an integral part of its territory, not to be questioned by any outside force or entity.

This being the case, it appears similar to a check mate in a territorial game of chess. Both sides are in no position to blink or give in as it is of paramount importance to legitimacy and sovereignty.

Conflict Resolution Theory

Johan Galtung, popularly regarded as the father of peace studies, had put forward his renowned Conflict Resolution Theory. He gives importance to peace and how countries can achieve peace through his theories.

He states that nations have several options to find peace to avoid conflicts. In the event where conflict breaks out he advocates the three foremost actions.

Firstly, negotiations, which could be directed through third-party intervention. Failing which, diplomacy, where international organisations or regional groupings can use their influence to coax involved parties to find an amicable solution. If the involved parties are reluctant to face each other, mediators can play a vital role to upkeep international relations.

The Russia/Ukraine conflict is a warning to others that prolonged mistrust between neighbours can lead to open conflict or war. It is in the best of interest for both Malaysia and the Philippines to find a lasting solution to this issue that has not only strained relations but also prevented both sides from fully cooperating for the benefit of the citizens of both countries.

We should give peace a chance.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.