The Jabidah project was part of the Marcos regime’s covert military mission to recover Sabah, the resource-rich North Borneo territory claimed by the Kiram family, heirs of the Sultan of Sulu. Their ancestor, they said, had acquired Sabah in 1704 as a reward for aiding the Sultan of Borneo suppress a rebellion started by his own brother. This fact is not disputed.
For this reason, the Philippine government considered Sabah as part of the republic, and on June 22, 1962 then President Diosdado Macapagal filed a formal claim. Malaysia, however, strongly opposed the Philippine position on the ground that the Sultan of Sulu had long ago sold his right to the territory.
Despite President Macapagal’s diplomatic ardor, all attempts to settle the Sabah issue during his term had been fruitless. Undaunted still, even at the tail end of his presidency in 1964, President Macapagal had asked Malaysia to settle the case in the World Court, the civilized way of resolving such dispute under international law. Malaysia rebuffed the offer.
Then came Ferdinand E. Marcos, Macapagal’s successor, who pursued the claim with suspicious vigor. Thus the 1968 Jabidah episode which caught fire among Muslim students in Manilla, and subsequently spawned the MNLF separatist movement in the Philippine south.
Apropos, when President Marcos declared martial law in 1972, one of the primary reasons offered for its imposition was the Muslim “secessionist movement” in Mindanao.
The established facts and arguments borne by the historical records are clear.
It appears that while Malaysia was part of the British Crown colony, Sultan Kiram entered into a contract with a British merchant named Alfred Dent and a certain Baron de Overbeck, who later assigned their rights to the British North Borneo Company. When Britain granted independence to the Federated State of Malaya, it ceded Sabah as part of the sovereign state of Malaysia. This was said to be the beginning of the trouble.
The Sabah question, which to this day remains unresolved and has been a perennial cause of diplomatic tension between the Philippines and Malaysia, centers on the Kiram-Overbeck contract and the crucial word “padjak,” a vague Malay terminology that could mean either “lease” or “sale.”
The Philippine position on the issue is that the Kirams merely leased out the disputed territory to Dent and Overbeck but Malaysia insists that Sabah was purchased by them by virtue of the “cession” (not lease) agreement.
Padjak: Lease or Sale?
Indeed, if there is one conclusive presumption in law which is applicable to the case, it is the rule that “you cannot question the title of your landlord.”
In his 1968 lecture before the Student Body of Yale University, Dr. Salvador H. Laurel, a Yale alumnus himself and a respected legal scholar and senator of the republic, posited the view that the contract entered into between the parties was “one of lease, not of sale.” The fact Overbeck and his successors-in-interest, argued Dr. Laurel, had been paying rentals to the Sultan of Sulu since the signing of the 1878 agreement, showed that they were leaseholders, not owners of the disputed territory. One who pays rental, as the elementary principle in law goes, does not own what it rents.
Evidence of this, Dr. Laurel added, was the opinion of Professor Harold Conklin of Yale, one of the foremost experts on the subject. The Yale professor, who was asked to translate the 1878 Kiram-Overbeck document, construed it as a contract of lease. The Malay term “padjak,” according to him, means lease, not sale.
On this basis, If it was a contract of lease, then the Sultan of Sulu retained ownership of Sabah and, therefore, only he could have effected any subsequent transfer ─ which he did later in favor of his own country, the Philippines.
The World Stage
There is no question that the best way to resolve the Sabah dispute is through bilateral negotiations between the contending parties. There is no question either that in the event of failure of all diplomatic avenues, the only remedy left short of war is judicial settlement or arbitration.
Now, how does judicial settlement come into play when the disputants are not individuals but sovereign states?
One of the methods of settling disputes under international law is through the auspices of the International Court of Justice (ICJ), the principal judicial organ of the United Nations (UN). Located in The Hague, or Den Haag, as the Dutch call this prominent city, the ICJ, like the Permanent International Court of Justice of the defunct League of Nations, operates in accordance with a statute. Ultimately, under the UN Charter, all member-states of the UN are considered ipso facto members of the ICJ.
The Legal Vacuity
But the fact still remains that although both parties, Malaysia and the Philippines, have been bona fide members of the U.N., the Sabah issue has never been submitted to the ICJ for adjudication.
The answer, however, can be gleaned from the ICJ Statute itself. Notably, the ICJ, in a plethora of cases, has consistently ruled ─ citing Article 36 of the Statute ─ that its jurisdiction is largely dependent upon the will of the parties, that is, their consent to submit to the Court’s jurisdiction.
As a rule, there is no way of compelling any member of the UN to accept the courtesy “jurisdiction” of the ICJ except by special agreement. Expectedly, the “optional jurisdiction clause,” which is the primary judicial mechanism under the Statute, has been widely criticized by “weak states” on the ground that it violates the time-honored international law principle of sovereign equality of states.
Dr. Laurel had occasion to touch on this issue in one of his lectures.
The World Court, however, is powerless, unless both disputants submit to its jurisdiction. International justice, unlike national justice, is optional, and because it is optional, aggrieved states are constrained at times to resort to self-help measure.
The refusal of some disputants to go to court is unfortunate but understandable. Naturally, only parties confident of their claims are willing to go to court. Those with weak cases, or who expect to lose, will certainly avoid judgment.
The total dependence of the World Court on the consent of the disputing parties is deplorable. It runs counter to the principle of ubi jus remedium. If there is a right, there must be a remedy. If a man is robbed or a woman is raped, must they first secure the consent of the robber before they can get justice? This is not so in national law. It should not be so in international law.
There have been many instances ─ and the Sabah dispute may yet be one of them ─ where the World Court was rendered impotent because of the refusal of one of the parties to submit to its jurisdiction. Such instances have invariably resulted in unnecessary wars.
There is thus a more realistic, impartial approach to the question of jurisdiction of the World Court. This is how Dr. Laurel viewed the matter: “The World Court must be strengthened if world peace is to be achieved. This is a categorical imperative of world peace. But this is possible only if nations accept its jurisdiction before disputes actually occur.”
Such consistency was equally clear in his steadfast devotion to the rule of law, especially the inequality of justice when it comes to the underdog. True to his creed, Dr. Laurel further emphasized: “The laws that men devise ─ if they are to be just ─ must apply to both the weak and the strong. And they must provide for the effective enforcement of those laws. Otherwise, they are meaningless.”
In the concluding portion of his 1968 Yale lecture on the Sabah question, Dr. Laurel, ever the sober, nascent Filipino statesman, appealed for sobriety and called on his Malaysian brothers to join hands with Filipinos in removing this unpleasant irritant in Philippine-Malaysian relations. He closed his lecture with these words:
And so I say to our brother Malaysians…Let us end this quarrel by submitting it [the Sabah issue] to the World Court. If you are sure of your grounds ─ as you say you are ─ you should be confident of the outcome of the case. For our part, we are sure of our grounds and we are confident the Court will rule in our favor. But if the World Court should rule otherwise and say that Sabah is yours, not ours, we are also ready to accept such judgment. So let us go to court and keep our peace.
Needless to say, if Malaysia firmly believes that the Philippine claim is baseless, then it should have no fear to take the case to the prestigious World Court. Oftener than not, observed one renowned journalist, those who reject World Court adjudication are afraid of their weak legal position.
Beyond Judicial Settlement
Dr. Salvador H. Laurel went on to become Vice President of the Philippines from 1986-1992, and as the concurrent Foreign Minister of the fledgling Cory Aquino government, he began to initiate talks with then Malaysian Prime Minister Mahatir Mohamad on the Sabah conflict. In his final book entitled, “After 100 Years ─ What Next?” (2010) Dr. Laurel vividly recounted the highlights of his quiescent efforts:
To me, however, the best approach is still a negotiated settlement. In line with this approach, I met with Prime Minister Mahatir Mohamad on May 1, 1986 to resolve and settle the Sabah issue at the earliest possible time. We agreed to designate our respective representatives who would quietly discuss the details. Prime Minister Mahatir agreed to settle the proprietary claim of the heirs of the Sultan of Sulu and designated Secretary-General Tan Sri Ghazali as his negotiator. For my part, I designated the late Dr. Jose D. Ingles, then Senior Undersecretary of Foreign Affairs as the counterpart.
The two gentlemen were silently working on “sequential scenario” when I resigned as Secretary of Foreign Affairs in September 1987.
Unless Malaysia agrees to accept the courtesy jurisdiction of the ICJ, a World Court settlement on the Sabah issue seems to be out of the question. “The restoration of linkage,” wrote Dr. Laurel shortly after his term had ended as Chairman of the Philippine Centennial Commission in 1999, “between the proprietary and the sovereign claims seems to be the only recourse available at the moment.”
To this day, more than 50 years from the time the Philippine government filed its official claim in 1962, it is apparent that our quest to end the Sabah conflict is still a distant aspiration. Be that as it may. But what has escaped many is that the Philippine claim to Sabah, as fought and defended by our forefathers, rests on solid grounds ─ not just historical but legal and documentary. The burden now falls mainly on our present leaders who are expected to pursue the claim anew and presumably explore other foreign policy options to further our nation’s interests. As Dr. Salvador H. Laurel so emphatically asserted: Philippine foreign policy should be unabashed prescription of what best serves the political, social and economic interests of the Filipino people. Whatever is best for the Filipino people ─ that should be the Philippine foreign policy.”
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