IN this column, I hope to turn the page for President Rodrigo Duterte in foreign affairs.
At the risk of raising some eyebrows within and outside his official circuit, I propose that the President momentarily shift his gaze away from his war on drugs, the South China/West Philippine Sea, China, Russia, Japan and the United States, etc. and revisit with some urgency the Sabah issue. I propose that he now initiate serious conversations with Malaysia on a possible friendly settlement of the territorial dispute between our two countries.
The time is now. I have it on good authority that Malaysia may now be ready and willing, where it has not been so previously, to agree that the matter be brought to the International Court of Justice at The Hague. What seemed unthinkable then seems doable now. Win or lose, DU30 has everything to gain from this initiative; it would enlarge his stature as a statesman in his country, the region and the world. Since I do not work for the government, the President does not have to take my word for it; but the least he can do is check, using his most competent and credible assets.
What is Sabah and why do we own it?
More than sufficient time has passed since Malaysia and the Philippines last talked of this dispute. Most Filipinos have heard about Sabah, but only a few are familiar with it. President Marcos and I went through it when Tun Abdul Razak died, and what I will always remember is its timber stand so thick you couldn’t find a space in which to land a helicopter. It covers 29,388 square miles of the northern part of the island of Borneo, Asia’s largest island and the world’s third largest. Bounded on the north by the Sulu Sea, on the east by the Celebes Sea, on the south by Kalimantan, Sarawak and Brunei, and on the west by the South China Sea, it was ceded by the Sultan of Brunei to the Sultan of Sulu in 1704 as a reward for his help in suppressing a rebellion.
In 1878, the Sultan of Sulu gave Gustavus Baron de Overbeck, the Austrian consul-general in Hong Kong, and the British merchant Alfred Dent the right to use the territory for an annual rental of 5,000 Malayan dollars (about $1,600). Dent later bought out Overbeck, then transferred his rights to the British North Borneo Company, which in turn transferred its rights to the British Crown, which ultimately transferred its “rights” to the Federation of Malaysia, upon its founding in 1963. But since the Sultan never lost his sovereignty, jurisdiction and proprietary rights over the territory, he ceded these to the Philippine government, hoping it would recover the territory, first from the British, and ultimately from Malaysia.
The launching of Malaysia was preceded by the filing with the United Kingdom on June 22, 1962 of the Philippine claim of sovereignty, jurisdiction and proprietary ownership over North Borneo, and the holding of ministerial talks in London between the Philippines and the UK on January 28 to February 1, 1963. In those talks, the Philippine delegation headed by Vice President and Foreign Secretary Emmanuel Pelaez appealed for a delay in the formation of Malaysia until a just solution to the Philippine claim shall have been found. The British turned this down, claiming that the lease granted by the Sultan of Sulu to Dent and Overbeck actually conferred sovereignty and ownership, which had now passed on to the British Crown, and which would now pass them on to the new Federation.
The Philippines met Malaysia’s launch with serious reservations while Indonesian President Sukarno met it with his policy of “confrontation.” Relations between Manila and Kuala Lumpur experienced a period of instability and rupture, which the leaders of both countries had to work on with great care. Upon the normalization of relations, President Ferdinand Marcos visited Malaysia in January 1968. In their joint communique, Marcos and Prime Minister Tunku Abdul Rahman agreed that “no problems between the two countries are incapable of peaceful solution, animated as their relations are by the spirit of good neighborliness and mutual accommodation.”
The Bangkok talks
On the Philippine claim to Sabah, they agreed that “talks on the level of officials shall be held as soon as feasible at a date to be mutually agreed upon by the two governments.” Accordingly, official talks were held in Bangkok between the two governments in July that same year.
The home panel was led by Home Minister Ghazalie bin Shafie, whom his peers called “King Gaz” and who went on to become foreign minister later, and the legendary Indian-born international lawyer, Radhakrishna Ramani, who later became Malaysia’s permanent representative to the United Nations, and one-time president of the UN Security Council. Heading the Philippine panel was the home-grown diplomat named Gautier Biznar, assisted by a number of able and hardworking diplomats who were, however, not as glib as the Malaysians.
I covered the talks for The Manila Daily Bulletin, my newspaper at the time. It was my first and last foreign writing assignment before I was transported to the Marcos Cabinet one year later as press secretary and presidential spokesman. The positions of the two sides were irreconcilable; it was obvious from the very start the talks would fail. It was only a matter of when (at what point?) and how. I could not see it going any other way, and I said so in my first dispatch. This did not endear me to the members of our delegation, who were all my friends. Eventually, I decided to cut short my coverage as the talks dragged on without any substantial developments.
Then, as now, our government took the position that the best way to resolve the dispute would be to submit it to the World Court, which both Malaysia and the Philippines support as UN members. This requires the mutual consent of the parties; but Malaysia rejected any legal basis for such joint initiative. Our panel tried to overwhelm the home panel with tons of documentary evidence, to no avail. Biznar insisted that the easiest way out of the long-drawn-out negotiation would be to submit the case to the World Court—“the W.C.” and nothing else, he said. (Or words to that effect.)
I had departed Bangkok then, and had to rely on my colleagues who had stayed behind, for the rest that follows.
The World Court or the Water Closet?
As soon as Ghazalie heard the initials, W.C., he suddenly became most welcoming and enthusiastic. Is that the Philippines’ final proposal–to bring this to the W.C.? he asked. (Or words to that effect.)
This is what we’ve been saying all along, Your Honor, the proponent said.
Then by all means, let’s bring it to the W.C., Ghazalie said.
Then the session adjourned for the next day.
Ghazalie was incredulous. I beg your pardon, Sir, we have no such agreement.
Oh, yes, we have, and the record will bear it. Here it is – agreed to take it to the W.C.
That’s not the World Court, your Honor. The World Court is the International Court of Justice or the ICJ. W.C. only stands for the water closet.
For all intents and purposes the talks had already collapsed. But the government needed to end them with some dignity and panache. For this purpose, the Foreign Office summoned Ambassador Leon Ma. Guerrero, the English translator of Rizal’s two novels and author of, among other things, “The First Filipino,” from the Philippine Embassy at the Court of St. James in London. He came to Bangkok in his casual Saville Row elegance and with his King’s English dealt the Malaysians a well-earned blow, prompting their spokesman Patrick Keith to lampoon him as a Marlon Brando come to recite Mark Anthony’s Shakespearean lines.
Marcos threatened to drop the claim but did not
That was nearly 50 years ago. In 1977, at the Association of Southeast Asian Nations (Asean) summit in Kuala Lumpur presided by Prime Minister Datuk Hussein On, Marcos unexpectedly announced his government was taking “definite steps to eliminate one of the burdens of Asean”—the Philippine Sabah claim. This prompted Singapore Prime Minister Lee Kuan Yew to say, “After that, all I have to do is tear up my speech. He’s already got the world headlines.” But Marcos never dropped the claim. On July 16, 2011, five years after Marcos had been ousted, the Supreme Court ruled that the claim remains in good standing and may be pursued in the future.
In saying that Malaysia may now be ready to go to the World Court with the Philippines on Sabah, diplomatic sources are saying Kuala Lumpur is sufficiently confident it could overcome any legal challenge to its hold on Sabah, despite the presence of close to a million Filipinos within the state. Malaysia’s adherence to the rule of law and the Charter of the United Nations has enabled it to accept the jurisdiction of the World Court over some of its territorial disputes with Singapore and Indonesia. In 1998, it agreed with Indonesia to submit their sovereignty dispute over Pulau Ligitan and Pulau Sipadan to the World Court. And in 2003, it agreed with Singapore to submit their sovereignty dispute over Pedra Branza/Puau Batu Puteh, Middle Rocks and South Ledge to the same forum. These have enhanced cooperation among and between neighbors.
A stronger DFA
Philippine pursuit of its Sabah claim will need strong and effective leadership and support from the Department of Foreign Affairs. In all my years as a newspaperman, prior to my entering the Cabinet, the Batasang Pambansa and subsequently the Senate, my work was almost entirely focused on international affairs. Even now, next to the presidency, these remain my principal passion and concern. I can say I know the Philippine career service well, and that our finest diplomats can hold their own beside their best foreign counterparts. But I must say I have not seen a weaker leadership at the Foreign Office.
It needs to be overhauled if it is to pursue the first possible major international trophy for DU30. A foreign secretary with zero experience who is at the same time suspected to be an American green card holder has to be replaced, but certainly not by an also-run politician with zero diplomatic experience, who is both a natural-born Filipino on his father’s side and a natural-born American on his mother’s side. This will be the death of DU30’s “independent foreign policy.” There must be more than enough qualified candidates from the career service. The North Borneo Division, which used to be a major feature of the DFA during the time of Foreign Secretaries Salvador P. Lopez, Mauro Mendez, Narciso Ramos and Carlos P. Romulo must be fully rehabilitated with vigor and strength. Regaining Sabah, or at least getting the World Court to decide, on the basis of international law and historical facts, who owns it, is a major, major undertaking; we must work hard for it and earn it.