Amicable Solutions to Philippines’ Sovereignty Claim Over Malaysia’s Sabah

August 23, 2022/in ASEAN Notes/by syukron.subkhi

Written by: Arianne Joy Fabregas and Ahmad Amsyar Ahmad Effendy

Before colonial powers arrived in the Southeast Asian region, the Malay Sultanates ruled northern parts of Borneo, i.e., Sultanates of Sulu and Maguindanao (Norizan Kadir & Suffian Mansor, 2017). When the trade industry flourished in the region, Sir Alfred Dent was persuaded to sponsor a business in Sabah by Baron von Overbeck, the Austrian Consul-General in Hong Kong at the time. They both planned to sell their rights to any interested governments. Therefore, the Sultan of Sulu and von Overbeck signed an agreement on 22nd January 1878, under which the latter obtained three territorial grants, and the Sultan received a total annual tax money payment of 1600 US Dollars (Shaffa Aulia Yasmin, 2022).

Nonetheless, it is also alleged that the Sultanate of Sulu acceded (rather than leased) North Borneo (Sabah as it then was known) to the Overbeck and Dent Company (hereinafter referred to as “North Borneo Chartered Company” or “NBCC”) in conducting business and administering the territory from 1881 until the Japanese Empire invaded and ruled North Borneo since 1942. When Japan surrendered in 1945, the British Empire secured North Borneo as a colony. While the Federation of Malaya achieved independence from the British Empire in 1957, North Borneo remained under British colonial rule (Sabah Tourist Association, 2022). Only in 1963, did it attain self-government through the formation of Malaysia by virtue of the Malaysia Agreement 1963.

The agreement between the Sultan of Sulu and Von Overbeck that was signed in 1878 until the time of the establishment of the Federation of Malaysia with the inclusion of Sabah sparked objections from countries like Indonesia and the Philippines. However, it could be acknowledged that legal battles that happened during the advent of the Sabah claims have to arrive at amicable solutions for Malaysia, the Philippines, and ASEAN region as a whole. Firstly, from the early 19th century, the Sultan of Sulu consented to give up his authority over Sulu under the Carpenter Agreement of 1915, although the Sultan kept control of North Borneo and maintained his sovereignty. Meanwhile, to obtain the funds owed to them under the 1878 Grant, the heirs of Sultan Jamalul Kiram filed a lawsuit in the Borneo court in 1939. The question before the court was who the Sultan’s heirs were and who was entitled to receive money after his passing. They had the sole English translation from the original Malay version by Maxwell and Gibson through their solicitor (who translated the Grant of 1878 as cessation instead of the lease [Malay: “Pajak”] which is inaccurate) (Boncales & Jones, n.d.).

According to Naureen Nazar Soomro (2014), the Philippine government had made repeated attempts to request the International Court of Justice (ICJ) to hear the sovereignty claim over Sabah’s case, but Malaysia has not consented to such claim. Although there are many diplomatic and legal attempts to settle the dispute, nevertheless the issue is still affecting both countries’ bilateral relations. Hence, the ASEAN community should recognize the long-standing issue between the Philippines and Malaysia over Sabah could affect its political security sooner or later. Islands in the Sulu and Celebes Seas of the southern Philippines are involved in unofficial trade with Sabah. The Brunei-Indonesia-Malaysia-Philippines East Asean Growth Area, the ASEAN subregion economic cooperation pact, is affected by the unrest in this area in terms of trade development. To avoid further conflict from erupting in the ASEAN region, harmonious steps must be taken, as there are potential tensions there as well. Keeping in mind that the ASEAN Charter, a constitution whose existence further stresses the legal personality of ASEAN itself, has been ratified by the ASEAN member countries.

Furthermore, this issue would contradict the ASEAN Community Vision of 2025 on having a united, inclusive, and resilient community. According to ASEAN Secretariat (2015), the ASEAN community foresees to realize having a rule-based community that adheres to international law; has a comprehensive approach to security that enhances the capacity to address effectively; and a community of developing friendly and mutually beneficial relations strengthens engagement with other external parties, reaches out to potential partners, as well as responds collectively and constructively to global developments and issues of common concern.

Nevertheless, both national governments still respect each other’s rights and claim to prevent any further conflict. This can be seen when the latest Constitution of the Republic of Philippines 1987 describes national territory without specific reference to include Sabah as a part of the country as follows:

“Article I National Territory

“The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, …”

On the other hand, Article 1(2) of the Federal Constitution of Malaysia 1957 clearly provided that Sabah is one of the States of Malaysia as stipulated below:

“Name, States and territories of the Federation

1.(2) The States of the Federation shall be Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Sabah, Sarawak, Selangor and Terengganu.”

Notwithstanding the provisions in both countries’ constitutions as quoted above, it is arguable that if the Sulu Sultanate did not cede or lease its territory in the northern part of Borneo to NBCC before, the present Philippine sovereignty claim over Sabah might not happen and it will be included as one of the Philippine territories today. The 1878 Grant played a crucial role in determining the actual sovereignty status of Sabah in the post-colonial era, and as discussed above, the issue here stemmed from the translation and interpretation of the Malay word “Pajak” (English: “lease”) in the original Grant document which was written in Malay.

Nevertheless, an additional grant entitled “Confirmation by Sultan of Sulu of Cession of Certain Islands dated 22nd April 1903” (hereinafter referred to as “1903 Grant”) manifested the Sulu Sultanate’s intention to cede certain islands surrounding Northeast Sabah and, subsequently, it could also be considered as affirming the legal status of Sabah that has been ceded to NBCC at that point time. Therefore, this issue might have been resolved earlier, even since 1878, if both Sulu Sultanate and NBCC rectified the English translation version by Maxwell and Gibson before acknowledging it to ensure the accuracy of translation of the word “Pajak” to its actual English translated word “lease.” This further step is extremely important to avoid confusion, as happened nowadays when the English-translated version of the 1878 Grant did not reflect the actual meaning of “Pajak” in the original Malay version of the similar Grant.

In conclusion, it is firmly suggested that Malaysia and the Philippines should discuss this matter diplomatically as soon as possible with careful consideration of Sabah’s status quo under Malaysia’s sovereignty and ongoing claim by the Philippines. In addition, the researchers also agree with the recommendations of foreign diplomatic experts and international legal scholars. Wherein they recommend the following: a) to amend the ASEAN Charter of 2007 and provide a provision for the resolution of the Sabah claim to adhere to the international laws; b) provide slick diplomacy with a rigorous attempt to consider Sabah as an independent state for the claim of Sultanate of Sulu prosper and; c) provide unique settings for the three claimants that would eventually resolve the claims.

About Writers:

Arianne Joy Fabregas graduated with a bachelor’s degree in Broadcast Communications from the Polytechnic University of the Philippines. She is currently taking her Juris Doctor degree at Arellano University School of Law, where she is the former Treasurer of the Arellano Law Forensic Guild, the official debating society of the law school, and has joined several debate competitions in her tenure. Moreover, she held the position of Deputy Director for Legal Affairs of GoodGovPH, an organization advocating for good governance and human rights in the Philippines. Aside from leadership positions she has conducted several local and international legal research.
Contact Information: arjoyfabregas@gmail.com
Ahmad Amsyar Ahmad Effendy is a Pupil-in-Chambers who graduated with a Bachelor of Laws (Hons.) degree from The National University of Malaysia (UKM) and a youth activist based in Negeri Sembilan, Malaysia. He is currently serving as the International Affairs Vice President at the National Union of Malaysian Muslim Students (PKPIM), a prominent local student NGO. He has a keen interest in advocating national unity and global issues among Malaysian students and youths. He also occasionally pens his analysis and thoughts on contemporary legal issues relating to criminal justice, fundamental liberties, constitutional law, and international law.
Contact Information: amsyarahmed@gmail.com

Bibliography

ASEAN Secretariat. (2015). ASEAN Community Vision 2025. Retrieved from https://asean.org/wp-content/uploads/images/2015/November/aec-page/ASEAN-Community-Vision-2025.pdf
Boncales, A. R. & Jones, E. (n.d.). The Philippine Claim Over Sabah: Legal and Historical Bases. Retrieved from https://tubagbohol.mikeligalig.com/talk/the-philippine-claim-over-sabah-legal-and-historical-bases/
Carpenter Agreement 1915. Retrieved from https://www.officialgazette.gov.ph/1915/03/22/memorandum-carpenter-agreement-march-22-1915/
Confirmation by Sultan of Sulu of Cession of certain Islands 1903. Retrieved from https://sagc.sabah.gov.my/?q=en/content/confirmation-sultan-sulu-cession-certain-islands-dated-22nd-april-1903
Federal Constitution of Malaysia 1957. Retrieved from https://lom.agc.gov.my/federal-constitution.php
Grant by Sultan of Sulu of Territories and Lands on the Mainland of the Island of Borneo 1878. Retrieved from https://sagc.sabah.gov.my/sites/default/files/law/GrantBySultanOfSuluOfTerritoriesAndLandsOnTheMainlandOfTheIslandOfBorneo.pdf
Jayakumar, S. (1968). The Philippine Claim to Sabah and International Law. Malaya Law Review, 10(2), 306–335. Retrieved from http://www.jstor.org/stable/24862568.
Naureen Nazar Soomro. (2014). Malaysia-Philippines Bilateral Relations: The Issue of Sabah Island. Asia Pacific – Annual Research Journal of Far East & South East Asia 31, 16-29. Retrieved from https://sujo-old.usindh.edu.pk/index.php/ASIA-PACIFIC/article/view/5066
Norizan Kadir & Suffian Mansor. (2017). Reviving the Sultanate of Sulu Through its Claim over Sabah, 1962-1986.Akademika 87(3), 125-138. Retrieved from http://journalarticle.ukm.my/11270/1/16225-61636-1-PB.pdf
Sabah Tourist Association. (2022). History of Sabah. Retrieved from http://www.sta.my/sabah_history.cfm
Shaffa Aulia Yasmin. (2022). Clarity of the Sabah Area in The Dispute of Malaysia and The Sulu Sultans Based on International Law. Researchgate. Retrieved from https://www.researchgate.net/profile/Shaffa-Yasmin/publication/357648763_Clarity_of_the_Sabah_Area_in_The_Dispute_of_Malaysia_and_The_Sulu_Sultans_Based_on_International_Law/links/61d7f938d450060816936112/Clarity-of-the-Sabah-Area-in-The-Dispute-of-Malaysia-and-The-Sulu-Sultans-Based-on-International-Law.pdf
The Constitution of the Republic of the Philippines 1987. Retrieved from https://www.officialgazette.gov.ph/constitutions/1987-constitution/

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RELIGION: BOON OR BANE FOR DEMOCRACY?December 20, 2023 - 12:32 am
In December 2022, the Indonesian government passed a law that penalizes sex outside marriage. This is only one of the many changes in the criminal code that observers warn of the increasing conservatism in the country.

Indonesia houses the largest Muslim population in the world and is also a republic whose democratic experiences and milestones have been widely studied by scholars within and beyond the region. This makes Indonesia a compelling case for reflection on the nexus and tensions between religion and democracy. Is religion compatible with democracy? What opportunities and challenges does the “Islamic Renaissance” entail in the country? Democracy on Religion

Liberal democracy espouses secularism, the separation of church and state, and freedom of religion. In an “ideal” democratic system, the state must not endorse nor support any specific religion while guaranteeing the free exercise of religion among citizens. This is essential in a democracy for many reasons. Religious freedom is a crucial civil right that enhances citizens’ individuality and relations with others. It stops one religion from dominating society, hence promoting diversity and co-existence. At the same time, it prevents policies from being framed according to religious beliefs, which may result in discrimination and repression of fundamental human rights.

Religion and its Tensions with Democracy: The Case of Indonesia

This is particularly important for Indonesia. While the country is predominantly Muslim, Indonesia also has many ethnolinguistic groups with different cultures and practices. It is a challenge in itself to build one nation with an immensely heterogeneous society. The diversity in the country resulted in years of ethnic conflict and violence. Even a religious minority, the Ahmadiyya, faces intimidation and oppression in the exercise of their faith. Indonesia’s dilemma points to the longstanding debate in human rights discourse and practice – are human rights universal, or are they relative to culture and local customs? While I am more inclined to support the former, it is important to be aware and carefully consider the context of a country when designing human rights advocacy and interventions.

However imperfect, the democratization process in Indonesia has assisted in facilitating efforts for reconciliation and balancing competing interests in the country. Recently, the President stunned the world when he acknowledged past grave human rights abuses in the country, including an anti-communist purge in the ’60s and the arrest of democracy activists during the Suharto presidency.

Indonesia sits in between secularism and theocracy. The country’s fundamental law espouses Pancasila, which is the foundational political theory of Indonesia. Through its five principles, Indonesian society believes in one God and aspires to create a just and civilized humanity, unity, democracy, and social justice for all. This tells us that, by principle, Indonesia gives importance to pluralism and citizenship. Scholars and practitioners of the law also adopt legal pluralism and believe that different legal systems are complementary rather than contradictory. For example, community practices and customs are considered along with national and local regulations in settling disputes and conflicts at the village level.

However, in recent years, Indonesia has seen the expanding role of Islam in the country’s social and political life. Aside from Islam being a “source of ethical and cultural guidance”, many Islamic organizations have secured formal power, which allows them to easily introduce measures within the state apparatus that cement their own interests. Hardliner Islamic groups have also proliferated, and fundamentalist thought and practices are becoming more and more widespread. Islamic identity politics have also been evident since Widodo coalesced with conservative Islamic factions and appointed Amin, an influential Islamic figure, as his vice president. The new penal code tends to be more religious than secular. This has implications for Indonesia’s supposed secularism and diversity. How can the Indonesian government best represent the interests and aspirations of all?

As Indonesia continues to modernize and extend its economic and political ascendancy in the region, rapid changes in its social relations and dynamics are also expected. This demands a more careful look at the kind of laws and “social controls” that the government enforces. Suppose conservative forces are forwarding laws in the name of protecting tradition and keeping Indonesian values in check. In that case, it should not be at the expense of fundamental civil and political liberties, nor should it be to repress vulnerable groups even further, such as women, LGBT+, and ethnic communities. Admittedly, this is easier said than done. Hence, political representation must reflect the diversity and vibrance of Indonesian society. If only one group dominates political and policy discourse, it ultimately jeopardizes the general will.

When religion becomes the yardstick for crafting rules and policies, it creates biases, whether intended or not. Propositions that are credible and necessary but “contradictory” to a certain religion may be rejected simply because they do not fit the personal convictions of decision-makers. Integrating religion into politics usually leads to oppressive and harmful policymaking. Religion is also a form of heuristics or cognitive shortcut that devalues deliberation and discussion. Instead of scrutinizing issues, people may resort to using their religion as the sole basis for their position on a particular matter. Democracies ought to be deliberative and pluralistic.

Human rights activists and organizations in Indonesia have sounded the alarm on many changes in the criminal code that could stifle individual freedoms and lead to setbacks in the country’s democratic progress. Aside from banning sex outside marriage, the government also reinstated laws that criminalize insulting the President and other state officials and institutions. They also increased the punishment for blasphemy. These laws can be disproportionately used against individuals and groups with legitimate criticisms and concerns about the government. It may also render already marginalized communities even more vulnerable. Religion, Populism, and Repression

This trend is not only unique to Indonesia. Much of the world has seen the rise of “nationalist” movements, often within the pretext of religion and safeguarding culture. India’s Modi has exhibited Hindu nationalist tendencies, which have meant greater intolerance against the Muslim minority in the country. Myanmar’s Tatmadaw has weaponized Buddhism to rally support from the public and account for its atrocities.

The use of religion to justify repressive and oppressive regimes is apparent. Religion is an effective tool to unify a group of people and subject them to a specific set of beliefs and values, which may be highly prejudiced and absurd. Religion acts as a moral compass that defines what is right and what is wrong. Because religion is subjective, it can easily be manipulated to serve political objectives. Populists and autocrats can bastardize religion to create a public enemy, instill an “us vs them” mentality, and sow further polarization.

Failed democracies thrive out of fear, whether it is real or manufactured. Religion can be a potent force to ingrain this fear. This hysteria against change and modernization is easy to whip up when people already have preexisting beliefs. It is not too difficult to segregate people and label them as the “other”. When this distinction is entrenched, it is convenient to normalize discrimination and violence.

It is said that Indonesia is a model for “Moderate Islam” when compared to the Middle East; the “Indonesian way” can complement Western values and democracy. It also has the potential to correct Islamophobia and promote Islam as a religion of peace. On the other hand, if Indonesia cannot find its balance and condone fundamentalist and hardliner Islamic groups to flourish, Indonesia will certainly regress in its hard-won democratic gains.

Religion has inherent contradictions with democracy. Subscribing to a religion and structuring a supposedly diverse society using its tenets is monopolistic and can bring about intolerance. It is paramount for democracies to ensure that civil, political, and socioeconomic rights are not deprived based on religion and other forms of cleavages. The access and exercise of power should be as widely distributed as possible. Public office should not be limited to certain political clans or religious organizations. For instance, at the village level, cultural and socioeconomic elites must share power and administration with vulnerable and historically marginalized groups. There are more reasons and illustrative cases, present and past, to posit that religion is more of a bane than a boon to democracy. At the moment in world history when (dis)information is fast and instant, we must maintain vigilance in dealing with autocratic agendas in the guise of “respecting” values and tradition. It is easier to believe and conform than to reflect and deliberate. But democracy dies when we rely on shortcuts to define what is good for us. Democracy dies, slowly and deliberately, when we allow a few to sabotage our freedoms and liberties to increase their own. Demagogues and despots are usually cunning and do things “in the name of God”.

REFERENCES

Evans, M. S. (2014). Religion and political decision making. Journal for the Scientific Study of Religion, 53(1), 145–163. http://doi:10.1111/jssr.12088

Evans, T. (2012). Separation of Mosque and State in Indonesia. Policy, 27(4), 35–39.

Głodek, A., & Grzywacz, A. (2020). Indonesia – between religion and democracy, Warsaw: Boym Institute. Retrieved from https://instytutboyma.org/en/indonesia-between-religion-and-democracy

Jaffrey, S. (2020). Is Indonesia Becoming a Two-Tier Democracy?, Washington D.C.: Carnegie Endowment for International Peace.

Jamaluddin, M., Chen, H. & Watson, A. (2022). Indonesia bans sex outside marriage as parliament passes sweeping new criminal code, Jakarta: CNN.

Klinken, G. v. (2019). Living in a Sacred Cosmos: Indonesia and the Future of Islam. Journal of the Humanities and Social Sciences of Southeast Asia, 175(1), 81–135. http://doi:10.1111/jssr.12088

McWilliams, E. (2018). Democracy in Indonesia: A Progress Report, Washington D.C.: The Foreign Service Journal.

Nagda, A. (2020). The Diplomat. [Online] Available at: https://thediplomat.com/2020/03/the-islamization-of-indonesias-foreign-policy/

Omelicheva, M. & Ahmed, R. (2018). Religion and politics: examining the impact of faith on political participation. Religion, State, and Society, 46(1), 4–25.

The World Factbook. (2023). Indonesia, s.l.: Central Intelligence Agency.

Wieringa, S. E. (2006). Islamization in Indonesia: Women Activists’ Discourses. Signs: Journal of Women in Culture and Society, 32 (1), 40–27.

Short Biography:

Kay Conales is a student of the Asia Pacific-Master of Arts in Human Rights and Democratization of the Institute of Human Rights and Peace Studies (IHRP) of Mahidol University (Thailand). She also studied in the Faculty of Social and Political Sciences (FISIPOL) of APMA’s partner-university Universitas Gadjah Mada (Indonesia). She can be reached through e-mail at ksconales@gmail.com.

Amicable Solutions to Philippines’ Sovereignty Claim Over Malaysia’s Sabah

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