Stop paying quit rent to Sultan of Sulu, it’s time to close the chapter

Safeguarding our territory: Malaysian troops moving into Tanduo village during an operation to flush out the armed intruders. — (Handout photo by Defence Ministry)

 

A major shift in Malaysia's position on the Philippine claim to Sabah is needed. 
 
THE Philippines Government officially announced their claim to North Borneo (now Sabah) on June 22, 1962. Despite numerous attempts to settle the issue, it still festers on, exemplified by the latest tragic events unfolding on the east coast of Sabah.

The Philippine claim is based on two documents dated Jan 22, 1878. By the first document, Sultan Muhammad Jamaluladzam granted (pajak) all his territorial possessions in Borneo (tanah besar Pulau Berunai) to Gustavus Baron de Overbeck and Alfred Dent Esquire as representatives of a British Company for a yearly payment/ quit rent (hasil pajakan) of five thousand dollars (Spanish dollars).

By the second document, the said Sultan appointed Overbeck as “Dato' Bendahara and Rajah of Sandakan” with the fullest powers of a “supreme ruler” (penghulu pemerintah atas kerajaan yang tersebut itu).

Descendants of Sultan Muhammad Jamaluladzam (the number cannot be ascertained, but is large), represented by the Kiram Corporation and the Philippine Government, have always claimed that this 1878 grant was a lease (pajakan) and not a cession as claimed by Malaysia. The continuous annual payment of the quit rent or cession monies of five thousand dollars (now RM5,300) to these descendants is cited as further proof of this contention. Based on these grounds, they claim, Sabah belongs to the Philippines/ the Sultan of Sulu's descendants.

Before discussing how Malaysia has been responding to this assertion and how it should alter its position drastically, a little bit of historical narrative is in order.

Without going too far back in time, it is suffice to say historical documents confirm that both the Sultanate of Brunei and the Sultanate of Sulu exercised political control over parts of present-day Sabah (there was no State or Negeri Sabah at that time) in the late 19th century. Brunei had defacto jurisdiction on the west coast from Kimanis to Pandasan, while Sulu ruled the east coast from Marudu to the Sibuku River. The interior was largely independent under local indigenous suku chiefs.

Both Sultanates, however, claimed dejure jurisdiction from the Pandasan on the west coast to the Sibuku River on the east. Both Sultanates were also in a state of decline. Brunei was suffering from internal decay while large parts of its territories were being swallowed up by the new state of Sarawak under the Brookes.

In the Philippine region, the Spanish authorities in Manila had been trying to subjugate the independent and powerful kingdom of Sulu for three centuries without success. In 1871, the Spaniards launched another exerted campaign to conquer the stubborn kingdom.

It was in this kind of environment that a number of European and American speculators became interested in obtaining territorial concessions from the two weak Sultanates for speculative purposes. Among them were Lee Moses and Joseph Torrey of America; and Baron von Overbeck and Alfred Dent who had formed a company called the Overbeck-Dent Association on March 27, 1877 in London for the purpose of obtaining land concessions in Sabah and selling them for a profit.

Overbeck and Dent acquired Brunei's jurisdiction over its Sabah possessions in five documents dated Dec 29, 1877 from the Sultan of Brunei and his ministers. After this, Overbeck sailed to Jolo where he also obtained the rights of the Sultan of Sulu in Sabah through two agreements concluded on Jan 22, 1878.

Why was Sultan Muhammad Jamaluladzan prepared to lease/ grant/ pajak his territories in Sabah to Overbeck and Dent? Sulu was on the brink of capitulating to the Spaniards and as such Sultan Muhammad was hopeful of obtaining some assistance from the Overbeck-Dent Association and possibly even from Britain. Placed in such dire straits, he was therefore not adverse to giving Overbeck and Dent territorial concessions in Sabah with some hope of salvation.

In the event, no such aid came either from the Overbeck-Dent Association or the British Government. Six months after the Overbeck-Dent grants were concluded, Sulu was conquered by the Spanish authorities on July 2 1878. With the fall of Sulu, the said Sultanate ceased to be an independent entity as it was incorporated as part of the Spanish colonial administration of the Philippines.

In 1898, Spain lost the Philippines to the United States by the Peace of Paris (Dec 10, 1898), which ended the Spanish-American War. The US ruled the Philippines till 1946 when independence was granted.

The sultanate ended when Sultan Jamalul Kiram II signed the Carpenter Agreement on March 22, 1915, in which he ceded all political power to the United States.

 

Carpenter, Governor of the Department of Mindanao and Sulu, Philippine Islands,  from 1913-1920, with the Sultan of Sulu, Jamalul Kiram II.

Meanwhile, in 1936, the US colonial administration of the Philippines abolished the Sulu Sultanate upon the death of Sultan Jamalul Kiram II (1894-1936) in the same year in an attempt to create a unitary State of the Philippines. Jamalul Kiram III is a self- appointed “Sultan” with a dubious legal status.

Now, coming back to the question of Malaysia's ongoing treatment of the claim, and why and how it should completely alter this position. Since the official announcement of the claim by the Philippine Government on June 22, 1962, Malaysia has been pursuing an ambivalent policy. On the one hand, it has persistently rejected the Philippines claim, but on the other it has compromised Malaysia's sovereignty by agreeing to settle the “dispute” by peaceful means (such as the Manila Agreement, Aug 3, 1963) and a number of other mutual agreements between the two countries.

Most damaging of all is Malaysia's willingness to honour the clause in the 1878 Sulu grant pertaining to the payment of the annual quit rent or cession monies as Malaysia says, of RM5,300, to the descendants of the former Sulu Sultanate. To this day, Malaysia is still paying this quit rent, lending credence to the claimants' argument that the 1878 grant was a lease and not a cession and therefore it still belongs to them.

If Malaysia continues to follow this policy, there will be no end to this problem except to buy out the rights of the descendents of the Sultan of Sulu. But this course is fraught with danger as it will lead to further legal complications with the Philippines and even endless litigation with the descendants.

My proposal is that Malaysia should go by the laws of “effectivities”, as in the case of the International Court of Justice's (ICJ) judgement pertaining to the issue of sovereignty over the Sipadan and Ligitan islands, and the law of acts of a'titre de souverain as in the case of Pulau Batu Puteh. No title, however strong, is valid once the original owner fails to exercise acts consistent with the position of a'titre de souverain. The opposite is true, that is, the holder of the lease may not have original title but he ultimately gains permanent possession of the lease by virtue of continuous state “effectivities”.

In this case, the Sultan of Sulu and its successors including the Philippine government have failed to conduct any acts of a'titre de souverain since 1882, and so they have legally lost their title.

On the other hand, the successors of the Overbeck-Dent Association, that is the British North Borneo Company (1882-1946); the British Colonial Administration (1946-1963); and Malaysia, (from 1963) have been exercising continuous acts of a'titre de souverain for a period of 131 years.

Since we have all this evidence on our side, Malaysia should now take a new stand by totally rejecting the validity of the 1878 grants on the grounds of “effectivitie” and a'titre de souverain. It should also immediately stop paying the so-called annual quit rent or cession monies. This payment has always brought huge embarrassment to Malaysia and has in fact compromised its sovereignty.

We should also never agree to go to the International Court of Justice not because our case is weak (it is very strong), but because we don't want to trade the fate of sovereign territories and people through the judgment of any court, even the ICJ.

There's one more point that should be pondered upon. No country or state or nation which has obtained independence has ever paid ownership monies to its former masters. The 13 Colonies of America did not do so, India did not do so, the Federation of Malaya did not do so.

Sabah became an independent state on Aug 31, 1963 and decided to form the Federation of Malaysia with three other partners on Sept 16, 1963. It is strange indeed, if not preposterous, that a sovereign state is paying ownership or cession monies to certain people based on a colonial, pre-independence treaty that is 131 years old!

Comment by EMERITUS PROF DR D.S RANJIT SINGH

Emeritus Prof D. S. Ranjit Singh is Visiting Professor at the College of Law, Government and International Studies, Universiti Utara Malaysia (ranjit@uum.edu.my). 

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Carpenter, Governor of the Department of Mindanao and Sulu, Philippine Islands,  from 1913-1920, with the Sultan of Sulu, Jamalul Kiram II.

 
THE Sultanate of Sulu was a traditional Islamic monarchy of the Tausug people that covered the Philippine provinces of Basilan, Palawan, Sulu and Tawi-Tawi in the Autonomous Region of Muslim Mindanao (ARMM) and the eastern part of Sabah.

It was founded in 1457 by religious scholar and explorer Sharif Abu Bakar, who assumed the title Sultan Shariful Hashim after his marriage to Paramisuli, a local princess.

He promulgated the first Sulu Code of Laws (Diwan) that were based on the Quran, and introduced an Islamic political institution and the consolidation of Islam as a state religion.

In 1675, the throne of what is now Brunei was disputed and the Sultan of Sulu was asked to settle the conflict, after which he was rewarded with North Borneo (now eastern Sabah).

In 1878, the Sulu Sultan leased North Borneo to the Europeans. The agreement stated that the lease was of their own free will and was valid until the end of time.

The sultanate received an annual cession payment that was equivalent to 5,000 Malayan dollars, which was increased to 5,300 Malayan dollars in 1903.

North Borneo was a British protectorate from the late 19th century until it became a crown colony.

It gained a brief period of independence before becoming part of Malaysia in 1963. From then, Malaysia paid RM5,300 as cession payment each year to the sultanate.

The former Sultan’s descendants did not retake the territory, instead, agreeing to accept the cession payment under the previous arra­ngement. This lasted until a few weeks ago.

The Sulu sultanate was also under the control of Spain, but the Spaniards in 1885 signed the Madrid Protocol with Britain and Germany, relinquishing any claim to North Borneo.

The sultanate ended when Sultan Jamalul Kiram II signed the Carpenter Agreement on March 22, 1915, in which he ceded all political power to the United States.

The Philippines, however, continued to recognise the sultanate as a sovereign entity until the demise of Sultan Mohd Mahakuttah A. Kiram in 1986.

There are now at least 11 claimants to the title Sultan of Sulu, including Sultan Jamalul Kiram III.

MNLF elements among invaders

PETALING JAYA: The Sulu invaders are not officially recognised by any group other than the self-styled Sulu Sultanate and its supporters, said Universiti Pertahanan Nasional Malaysia Professor Dr Aruna Gopinath.

“This is just a name this group has decided to create and call themselves by so that they can come and attack us.

“The bigger threat is if other militants join this group under the banner of the south Philippines and try to attack us as well,” said Aruna, an expert on Philippine history, politics and security.

Some of the Sulu fighters were possibly trained by the Moro National Liberation Front (MNLF) led by Nur Misuari before they broke away from the group.

She explained that many of the armed militants in southern Philippines used to be members of the MNLF, from which many breakaway groups later emerged with most of them belonging to the Suluk or Tausug ethnic group, which the MNLF once represented.

“Some among the so-called Sulu army could have had combat experience during their previous stint in the MNLF before they broke away. They do have some degree of skill and are not mere marauders as there appears to be some quite capable people on the ground,” said Aruna.

She said that when Misuari became MNLF head he clamoured for secession but the Philippine Government insisted on autonomy as the only option.

While Misuari accepted, another leader Hashim Selamat did not and broke away with his supporters to form the Moro Islamic Liberation Front (MILF).

When the MILF later realised that secession was not the answer it agreed to negotiate for greater autonomy with the Philippines, a process Malaysia is helping to broker.

The MILF, said Aruna, is currently the biggest armed group in the southern Philippines with a standing army of more than 200,000.

She said the MNLF no longer has a large army because apart from the MILF breakaway, other splinter groups also emerged later including the Abu Sayyaf and the Rajah Sulayman militant group.

Aruna said many youths in the troubled region join armed groups due to endemic poverty.

“Parts of the south do not even have piped water and proper roads and the MNLF and MILF soldiers I've interviewed said they basically joined because they were hungry, so poverty is a driving factor.”

Universiti Utara Malaysia Emeritus Professor Dr Ranjit Singh said that aside from the sultan's supporters, some among the Sulu terrorists could also be followers of the many local warlords in the region.

“However, since there is no Sultanate of Sulu at present, and with so many claimants to the throne, an officially recognised army does not exist,” he said.

Sources: The Star/Asian News Network

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