These government functionaries do not know the culture of these people. These people are warriors, who are ready to die with dignity to defend their property.
Marginalized for so long, the heirs of the Sultan of Sulu took matters into their hands last Feb. 14 by crossing the Sulu Sea and setting up camp in Sabah’s eastern town of Lahad Datu.
Like Julius Caesar’s army’s crossing the Rubicon, the Sultan of Sulu’s Royal Army had reached the point of no return. Instead of facing each other before the International Court of Justice to settle their Sabah land dispute, the Philippines and Malaysia might yet face each other before the International Criminal Court if it is shown that the Malaysian authorities used excessive force in killing the ten Filipinos.
The members of the Royal Army were really placed between the devil and the deep blue sea. If they return to the Philippines, they face arrest. In so doing, they may survive, but they will lose their land. But if they stay put, they would be killed by trigger-happy Malaysian policemen. But they would be happy to die in their own homeland, like Jose Rizal. And the ICC will have to determine, who is the guilty party or parties for the carnage.
PNOY SHOULD CREATE ‘SPECIAL AGREEMENT’ WITH MALAYSIA
If President Noynoy Aquino were only fully briefed with the culture of the Tausogs, maybe he would have ordered at once a creation of a commission that will form a “Special Agreement” with Malaysia to initiate the revival Sabah dispute that would be brought to the ICJ as an incentive for the Royal Army to return to Sulu.
If it is true that the Royal Army had surrendered, it behooves President Aquino to still go ahead with the Sabah claim as other heirs who did not go to Sabah do not lose their right to pursue the claim. Otherwise, the Royal Army could always regroup and return to Sabah.
The heirs of the Sultan of Sulu were happy when President Marcos tried to help them reclaim Sabah. But instead of endorsing the Sabah Claim to Philippine Congress, Marcos kept the matter to himself. So, when Marcos was gone, so was the Sabah claim.
When Indonesia and Malaysia had conflicting claims over two small islands of Sabah – Ligitan and Sipadan – in 1969, they came up with a joint letter in Kuala Lumpur on May 31, 1997, entering into a Special Agreement elevating their claim to the International Court of Justice in The Netherlands.
After Macapagal and Marcos, no other President warmed up to the Sabah claim and left it dormant.
If Mr. Aquino does not pursue the claim because of his personal and cordial relations with Malaysian Prime Minister Najib Razak, why was Indonesia able to pursue its claim against Malaysia and still remain friends? If Mr. Aquino would still put the claim on the backburner, the Philippine Congress should pass a veto-proof law that will pursue the claim or wait out for the next 2016 President.
SILVER LINING IN PH SABAH CLAIM
Although, the Philippines’ intervention in the Indonesia-Malaysia claim to Ligitan and Sipadan was rejected by the ICJ after ruling that the islands were not part of the property of the Sultan of Sulu and awarded the two islands to Malaysia by “effectivities,” there was a silver lining in the 128-page French and English language ruling in paragraph 124 that says, “[T]he Court concludes that it cannot accept Malaysia’s contention that there is an uninterrupted series, of transfers of title from the alleged original title holder, the Sultan of Sulu, to Malaysia, as the present one. It has not been established with certainty that Ligitan and Sipadan belonged to the possessions of the Sultan of Sulu nor that any of the alleged subsequent title holders had a treaty-based title to these two islands. The Court can, therefore, not find that Malaysia has inherited a treaty-based title from its predecessor, the UK of Great Britain and Northern Ireland.”
In other words, the Philippines has as good if not better chance than Malaysia in securing a favorable ruling from the ICJ if the Philippines can prove that the agreement between the Sultan of Sulu and Alfred Dent, Esquire, and Baron von Overbeck, Austrian Consul General of Hongkong, has the word “pajak” written in Malayan language in Arabic character to mean “lease” and not “cession” or “grant.”
If it is lease, then, it can now be rescinded under an accepted legal principle in international and ordinary commercial law, called rebus sic stantidbus, that justifies the extinguishment of an obligation created by treaty or contract. Quoting the Philippine Supreme court, Atty. Mel Sta. Maria, a professor at the Ateneo School of Law, said in PNCC vs. CA ( G.R. No. 116896, May 5, 1997), “under this theory, the parties stipulate in the light of certain prevailing conditions, and once these conditions cease to exists, the contract also ceases to exist.” In international law, this rule posits that if there is a fundamental change in circumstances, the treaty must be rendered ineffective.
LEASE AMOUNT BE PEGGED TO INFLATION
So many absolutely exceptional and fundamental changes have transpired since 1878 up to the present that require extinguishing the 1878 contract. For one, the rental after more than a hundred years has become so ridiculous. In other words, the annual $5,000 Malaysian rental should have been pegged to the current inflation. The cost $5000 in 1878 would cost $117,254.71 in 2012.
Also, the involved-sovereignties have unquestionably and irretrievably changed. In those times, the Republic of the Philippines and the Federation of Malaysia did not exist. Unlike in 1878, the economies of the different countries of the world are now so much global, sophisticated and intertwined. Even questions of security, alliances and national defense, whether local, regional or international, have been altered. Indeed, there are so many substantial changes that, legally, the 1878 agreement must be considered functus officio (had run out of its usefulness).
In its Ligitan-Sipadan claim, Malaysia anchored its claim to Sabah from an alleged “grant” of the Sultan of Brunei in 1877 to Mr. Alfred Dent and Baron von Overbeck, Austria Consul General of Hongkong, for a large area of North Borneo. But the grant included a portion of a territory along the north coast of Borneo that was also claimed by the Sultan of Sulu.
On Jan. 22, 1878, the Sultan of Sulu agreed to “grant and cede” to Dent and Overbeck as representatives of a British company for an annual lease of $5,000 Malaysian.
If the Philippines can convince the ICJ that the agreement between the Sultan and Dent and Overbeck was mere “lease,” then, the Philippines can have an option to rescind the agreement or peg the annual rental to current inflation plus back payment and interests.