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By K. G. Tregonning
JMBRAS Vol 43 P.1 1970, pp.161-170
K.G. Tregonning, formerly Raffles Professor of History at the University of Singapore, wrote the article for the JMBRAS in 1970. This was at a time when the Philippines resurrected its claim to Sabah. Tregonning is an undisputed authority on the history of Sabah, having published a book on the subject entitled A History of Modern Sabah: 1881-1963 (UM Press, 1965) and an earlier article which dealt with American activities during the time when the treaty was secured with both the Sultans of Brunei and Sulu (“American Activities in North Borneo: 1865-1881”, The Pacific Historical Review, UC Berkeley, 1955). The following are the key arguments made by Tregonning in support of the Malaysian position.
- Sabah before joining Malaysia in 1963 was a dependency of Britain, which first established a Protectorate and later a Crown Colony over the area. When Western traders began to take an interest in it, Sabah was largely uninhabited swamp and virgin jungle.
- In 1865, Charles Moses, an American, secured from the Sultan of Brunei a ten-year lease of the rivers north of Brunei, with rights and powers similar to those granted to James Brooke in the south. Brooke had, in 1841, succeeded in securing full sovereign rights in perpetuity to the Sarawak River from the Sultan of Brunei.
- In late 1865, Moses’ cession was taken over by two American merchants, Joseph Torrey and Thomas Harris. An unprofitable venture on the Kimanis led Torrey to sell the right to lease to Baron von Overbeck, an Austrian businessman in Hong Kong. By January 1875 when Overbeck had purchased all of Torrey’s rights, the cession had lapsed by this time.
- In December 1877, Overbeck secured a renewal of the lease from the the Sultan of Brunei who ceded to the former with all the powers of sovereignty four grants of territories, from Gaya Bay on the west coast to Sibuco River on the east.
- At the end of the negotiations in Brunei, Overbeck sailed for Sulu. He had learnt in Brunei that although the Brunei Sultan claimed the east coast of Borneo, the Sultan of Sulu was in actual possession of the territory. At the insistence of W.H. Treacher, the British Governor of Labuan, Overbeck also secured an identical cession deed from the Sultan of Sulu in January 1878.
- The rivers which the Sultan of Sulu ceded in this agreement were all, except for one small stream, located on the east coast of Borneo. Subsequent negotiations between Britain and Brunei involved a considerable number of west coast streams, a process which did not involve the Sulu Sultanate.
- Sabah as it is today does not only consists of the rivers on the east coast of Borneo which were the subjects of the 1878 agreement with Sulu. Likewise, the negotiations between Britain and Brunei over the west coast of Sabah proved that Brunei’s control over the area was never disputed. Therefore it is unreasonable for the Philippines to press its claim over the entire state of Sabah.
- In 1888, treaties with Sarawak, Brunei and North Borneo (Sabah) established a Protectorate over them: they were left free to govern themselves internally but Britain took over all their foreign affairs. These Protectorate Agreements which recognized the boundaries of these three territories were never challenged by any other party or foreign power. These Agreements were the basis of affairs,
constituting the clear position in international law, until 1945.
- The Second World War devastated these protectorates and lacking the capacity to rebuild, Britain stepped in in 1946 and made Sabah and Sarawak Crown Colonies.
- Under the Madrid Convention of 1885 between Spain, Germany and Britain, Spain had agreed to renounce all its claims to the former Sulu possessions on the North Borneo mainland.In the Treaty of Paris (1898) whereby the Spanish surrendered their territory to the United States, the boundary was stipulated (as it had been in the Madrid Convention 1885) to be nine miles off the coast of North Borneo.The Boundary Convention (1930) established the boundary
of the Philippines to be nine miles out from the Borneo coast.
- The claim for Sabah, based on the 1878 Sulu Agreement, was built up in the Philippines by an irresponsible Press and fostered by ignorant politicians. It was focussed almost entirely upon one word – padjak. But it is important to seek out the Sultan’s intent when he signed the agreement and it appeared that he saw his Agreement as a cession.
- When the Philippines abolished the political powers of the Sultanate of Sulu on March 22 1915, it did not eliminate the Sultan or his line of succession. The Philippine government is not the successor of the sultanate. It is only the successor of the Sultan who is entitled to lay claim on any land “leased” by his ancestor. However the original line of descent from the 1877 Sultan has become exceedingly complex and confused. No unobjectionable title to it has been established. Since the 1936 court case in Kota Kinabalu,
the Sulu heirs have not made it clear to the world who the real successor of the Sultan really is.
- The British government throughout honoured all financial responsibilites entered into by Overbeck with the Sultan of Sulu. Every year, the Budget of the State included the identical item: “cession money”. The agreement also stipulates that the cession was “in perpetuity”, therefore strengthening the current status quo.
- Two facts of life weaken even further the Philippines’ scarcely tenable position. “Possession is nine tenths of the law”, as the old legal maxim goes. Firstly with the British and then as part of independent Malaysia from 1963 onwards, Sabah has developed without being possessed by the Philippines for more than a hundred years.
- The second fact refers to the United Nations (UN) Mission which it sent in 1963 to conduct a state-wide referendum on whether the inhabitants wanted to join the newly-established State of Malaysia. The UN Mission was requested by both Indonesia and the Philippines. The Mission was clear: a majority of the people of North Borneo have strongly supported the proposed Federation of Malaysia. It was clear that nobody in Sabah had any desire to join the Philippines: the whole concept was
- It would be wise to lift our eyes from this barren dispute over whether in 1878 it was “cede” or “lease” and look at the world today. It would be farcical if Malaysia entertained the Philippines’ claim. It might equally wisely return Kedah to Thailand. There are no countries in Southeast Asia that has territories another could not claim or boundaries that are the same a hundred years ago. It would be childish to entertain such claims. It would be better to accept boundaries that were defined and accepted by the rest of the world when the Southeast
Asian states of today joined the United Nations.
- It would be equally disturbing if the Philippines continues to press its claims in the face of historical facts and international repercussions. It is likely that the Philippines will isolate itself completely from the region and from its European and American allies. No support from any quarter has reached it while discouraging comments are aplenty; such opposition will undoubtedly continue. One thing clear, however,
is that the Philippines has no claim over Sabah.
Conclusion: Sabah’s status as a state in the Malaysian federation rests on the 1963 referendum conducted by the UN at the behest of both Indonesia and the Philippines. The Sulu Sultanate did not object or make a stand on the matter. The Sulu claim rests on dynastic patrimony, against all international law conventions.