MLQ III: North Borneo (Sabah): An annotated timeline 1640s-present

http://www.quezon.ph/2013/03/01/north-borneo-sabah-an-annotated-timeline-1640s-present/

Kissinger on the Mutual Defense Treaty

With the Philippine population made nervous by Chinese claims and activity in the Spratlys, a year ago Foreign Secretary Alberto del Rosario issued a statement offering reassurance that the USA would honor its obligations under the Mutual Defense Treaty (MDT) signed in 1951. Perhaps significantly, none of the US statepersons he quoted mentioned the islands by name. One therefore wonders whether Washington still subscribes to the State Department view of 1975.

On June 9, 1975, US Secretary of State Henry Kissinger sent a lengthy telegram (hence the occasional absence of definite and indefinite articles in the following) to the Commander in Chief, Pacific Fleet, with a copy to the Manila Embassy, in which he stated that Washington’s “legal interpretation is that MDT commitments do not repeat not apply in event of attack on Spratlys or on GRP (Government of  the Philippines) forces stationed there.” Originally classified “secret” but declassified in July 2006, the communication has more recently been WikiLeaked.

Principally, the MDT covers the metropolitan territory of each party and “islands under its jurisdiction in the Pacific Ocean,” but Washington’s view was that the Spratlys were neither.

The US government, said Kissinger, “regards question of sovereignty over Spratlys (including ‘Freedomland’ or ‘Kalayaan’) as undetermined and we take no position on merits of claims of various disputants. We note that at time MDT signed, GRP had asserted no claim to any of Spratly Islands, and had protested neither Vietnamese nor Chinese claims, which had been reiterated at time of negotiation of 1951 Japanese peace treaty. USG (US Government) announced publicly at that time it considered sovereignty question undetermined.”

Moreover, the Spratlys were not included in the territory ceded by Spain to the USA in 1898, and they were also excluded from the “maps accompanying presentation of MDT.” The Spratlys did not qualify as “islands under its jurisdiction” because, says Kissinger, this formulation was intended “to cover other territory which a party administered by international agreement but was not sovereign over, e.g. UN trust territories and (at that time) Okinawa. We are not aware of any Philippine administered territory falling within this category.”
Even so, in theory the Philippines could expand the territory over which it was sovereign, although the US government did “not see legal basis at this time … for supporting the claim to Spratlys of one country over that of other claimants. Continuous, effective and uncontested occupation and administration of territory is a primary foundation for establishing sovereignty in the absence of international settlement, but Philippine occupation could hardly be termed uncontested in face of claims and protests of Chinese and Vietnamese.”

In view of the above, the State Department agreed with the view of the Manila Embassy, i.e. that the Philippine government was more likely to invoke a third category, which concerned an attack on “its armed forces, public vessels or aircraft in the Pacific.” Even here, Kissinger saw problems, as Washington did “not believe that this aspect of the treaty gives either party carte blanche to deploy forces anywhere in the Pacific with the assurance that the other party will be bound by the MDT in the event of attack on those forces.”

Due regard, said Kissinger, must be paid to the “overall purpose and provisions of MDT,” the preamble of which “sets forth collective defense purpose of MDT and reaffirms parties’ commitments to principles and purposes of UN Charter, while in Article I parties undertake to refrain from ‘threat or use of force in any manner inconsistent with UN Charter.’”

So in what circumstances could the MDT be invoked? “Under most foreseeable circumstances,” said Kissinger, “the treaty would apply if either party were attacked on high seas or in international air space” — or if the armed forces of either party were deployed in a third country in the Pacific, with that country’s consent and they came under an “external armed attack.”

Washington took the same view regarding its mutual defense treaty with Australia and New Zealand (the “Anzus” Treaty), which could be invoked in the event of an attack on US forces stationed in Japan or on Anzus forces “stationed in countries in Pacific to which they have security obligations.” Even here, however, Washington insisted that it must be consulted on deployments potentially affecting its treaty obligations and that it must have discretion on how it would act.

“On the other hand,” the telegram reads, “deployment of forces to a third country without its consent and without legitimate provocation would in most circumstances be contrary to Article I of MDT, and therefore would not, in our view, create obligations under Articles IV and V on the other party in event of attack on such forces.”

 A hypothetical attack on Philippine garrisons in the Spratlys would be a different case. Although the USA had not recognized the sovereignty of any country over the islands, a Philippine occupation would not be viewed as an illegal invasion of another state, but neither could the Philippine deployment be viewed as an “aspect of collective defense purpose of MDT. Rather, we view purpose of GRP garrison as establishing and enforcing a claim to sovereignty over openly disputed territory. MDT in our view does not obligate us to support this type of deployment in event of armed attack.”

This, concluded Kissinger, represented the legal rationale of Washington’s position.

“As a practical matter, we see precious little chance Congress or the American people would support US intervention in Spratly dispute.” Politically, he said, it was surely less harmful “to deny our obligations on legal grounds, than to leave unfulfilled an acknowledged commitment. Furthermore, contrary interpretation would also create difficulty for US if Philippines ever tried to invoke MDT with respect to Sabah…”

As we’ll see next week, two years earlier Ferdinand Marcos had hinted that he might do precisely that.

source:  Tribune by  Ken Fuller

The Philippines and Sabah in the 1970s — 4

As attempts to find a diplomatic solution to the problems between the Philippines and Malaysia were flagging, on Aug. 26, 1973 President Ferdinand Marcos told US Ambassador William Sullivan that the key to a peaceful solution in the Sulu archipelago lay with Sabah’s Chief Minister Tun Mustapha, and he was seeking a deal with him both directly and through the talks brokered by Indonesia.

Marcos said he had told Mustapha that if he stopped interfering in Sulu he would withdraw the Sabah claim — and if Mustapha wanted independence for Sabah (which, as we will see, he did from time to time espouse), he would, through the trilateral talks, support that. Marcos blamed the lack of progress of the talks after Hong Kong on Malaysia’s Ghazali, who he described as a “picador,” and the perceptive Sullivan expressed the view that Marcos’s offer of support for Sabah independence might be intended as a counter to the Malaysian’s “pics.”

But the search for a diplomatic solution seemed dead in the water, and by mid-September Indonesian Foreign Minister Adam Malik said that he had, due to the lack of progress, opted out of the role as intermediary. According to him, the best hope was for the Philippines and Malaysia to “keep quiet on the subject” of Sabah. A month later, he told US Ambassador Francis Galbraith that Marcos had agreed to “eliminate” the Philippine claim to Sabah but that Malaysian Prime Minister Razak had failed to respond and so there “is nothing more I can do.”

If the apparent absence of relevant cable traffic over the next few months is any guide, the Philippines and Malaysia did indeed “keep quiet on the subject,” but then on March 5, 1974 Marcos told Sullivan of “disturbing intelligence which tied Malaysia directly into training, supplying and organizing anti-government forces in Mindanao and Sulu.” Moreover, Marcos said he was convinced that Razak was involved. He praised the mediation efforts of Indonesia’s Suharto and Malik and suspected that Malaysia “had frustrated these efforts and is playing some larger game with Libya and the Arab states.”

Marcos’s fear was that Malaysia would attempt to rally the Arab oil-producers against the Philippines at the Islamic Conference due to convene in Kuala Lumpur in May, and so he was attempting through Suharto to arrange a meeting with Malaysian Prime Minister Razak and Tun Mustapha before that date. He was prepared to drop the Philippine claim to Sabah, but if Razak sought the detachment of the Sulus from the Philippines “or some larger scheme,” this could be “explosive.”

During the visit to Manila of Saudi Minister of State Omar Saqqaf just over a week later, Marcos wooed him on oil security and the Southern Philippines, advising him that “ancestral lands currently occupied by Muslims would be set aside for exclusive ownership of Muslim communities.” Malaysia attempted to counter these attempts, but Saqqaf refused to meet its ambassador. He vowed Saudi commitment to assisting the Philippines to reach a solution in the south and to the provision of substantial financial assistance after hostilities had ceased.

Sullivan thought that Marcos had probably “clinched the case by showing Saqqaf excerpts” from the document allegedly providing proof of Malaysian support of the Moro National Liberation Front (MNLF). The document, which was leaked to Associated Press correspondent Arnold Zeitlin, claimed to demonstrate that: since 1969 Malaysia had trained MNLF members, including chairman Nur Misuari, at various sites in Malaysia; since December 1972 there had been at least 58 landings during which the MNLF had received at least 200,000 rounds of ammunition and 5,407 weapons, the last shipment being delivered by two Malaysian naval vessels on Dec. 31, 1973; and that according to an intercepted letter, Tun Mustapha had provided P750,000 (then worth $112,500) to MNLF leaders.

This provoked the US Embassy in Kuala Lumpur to seek the Malaysian view of these allegations. Responding to such an advance, on March 21, Secretary-General Zaiton of the Ministry of Foreign Affairs made an extended presentation to the Ambassador in which he asserted that the Muslim problem in the Southern Philippines was deep-rooted and internal, and one which could only be solved by Filipinos. Neither the Malaysian government nor Sabah’s Tun Mustapha was involved. For both domestic and regional reasons, Malaysia wanted peace, because violence was disruptive.

On the other hand, many Sabahans had family and friendship ties in the Sulu archipelago and there was considerable popular sympathy for the plight of Filipino Muslims. Then again, the Philippine claim to Sabah caused “suspicion and antipathy,” and the Jabidah incident of 1968, when Marcos had been training a unit to be used in the taking of Sabah, was fresh in Malaysians’ memories. Even so, Malaysia, far from attempting to orchestrate Muslim state sanctions against the Philippines, had argued against Libyan “punitive proposals.”
Even now, Zaiton pointed out, the Philippines had made no official statement alleging Malaysian interference. Both governments had agreed to “let sleeping dogs lie,” and work through Asean for regional cooperation. The bottom line was that Malaysia would never accept the linking of the Sabah and Southern Philippines issues as this would imply that it was responsible for the problems of the latter.

The Ambassador was of the view that this was a “highly professional presentation, of clean hands and good intentions, and as far as it went, truthful.” He said, however, that the remarks on the sympathy of Sabah residents implied “that some people in private capacity might be providing tangible evidence of their sympathy, but that even if they were,” it did not add significantly to Manila’s problem.
Was this view naive? We’ll see next week.

source:  Tribune by  Ken Fuller

The Philippines and Sabah in the 1970s — 3

By May 1973, diplomatic efforts were underway within Asean to broker a deal whereby Ferdinand Marcos would drop the Philippine claim to Sabah in return for Malaysia stopping the flow of arms to the Moro National Liberation Front (MNLF), thought to be facilitated by Sabah Chief Minister Tun Mustapha.
However, little seems to have been achieved at the meeting between Malaysian Prime Minister Razak and Indonesia’s President Suharto in Palembang, South Sumatra on May 7. Razak even denied that they had discussed the possibility of a three-nation summit, saying that, although he would welcome it, he had received no offer of mediation by Indonesia. Those hoping for a solution to the problem probably took no comfort from the fact that Razak returned home in the private jet of Tun Mustapha, who welcomed him on his arrival.
It transpired, in fact, that the cause of Indonesian mediation had received a setback when, on May 1, Suharto aide Ali Murtopo had, without presidential approval, made what the US Embassy in Jakarta judged to be an “ill-advised statement” in which he had publicly urged the Philippines to drop its claim to Sabah, arguing that unless this was done, Indonesia might be subject to similar claims in the future. This, said the Embassy had “stunned and perplexed” Indonesia’s Foreign Department. A week later, Indonesian Foreign Minister Adam Malik denied to the press that Indonesia had asked the Philippines to drop its claim, dismissing the possibility of any future claim affecting Indonesia.

Despite his public denial two days earlier, on May 9 Malaysian Prime Minister Razak told the US Embassy in Kuala Lumpur that Indonesia was, in fact, “committed” to act as intermediary and that Foreign Minister Malik was planning a meeting, hopefully in the near future. There was, indeed, a meeting of sorts between Philippine and Malaysian representatives in Jakarta at this time, although it was obviously not a summit. At this stage, Malik was confident that Marcos would drop the Sabah claim, although he advised that, due to Murtopo’s unwise statement, there would be no decision for “some weeks.”

On May 11, secretary general Zaiton of Malaysia’s Ministry of Foreign Affairs confirmed that there would be a meeting in a “week or two.” He predicted — correctly — that the Philippines would not be pleased by the fact that Malaysia would be represented by Minister of Special Functions Ghazali Shafie, as in the past he had been the “principal contestor” of the Philippines’ claim to Sabah.
The tripartite meeting eventually took place in Hong Kong on June 1. The UK High Commission advised the US Embassy in Kuala Lumpur that the Malaysians were not optimistic because the Philippine delegation was composed of “Marcos politicians.” This pessimism was shared by the Indonesians, Malik’s chief of personal staff Alex Alatas telling US Ambassador Francis Galbraith that the Philippine position “seemed to have hardened,” and so he expected no breakthrough. He was right, although the Malaysians agreed to join with Indonesia in assisting the Philippines to resolve the problems in the south of that country, and a further meeting, at which an Indonesia formula would be agreed, was planned.

Thereafter, Malaysia changed its line and by July the Indonesians conceded that they were no longer “pushing hard” for a resumption of talks. Neither was Malaysia, for according to Razak’s foreign affairs adviser Zain Azraai the government no longer agreed that the issues of Sabah and the MNLF rebellion should be linked, as the Philippine claim on Sabah was “completely unjustified” and the latter was only soluble by unilateral Philippine action. Linking them, he said, would allow Marcos to use Malaysia as a “whipping boy” if the situation worsened. In any case, Malaysian distrust of Marcos (who, it was feared, could always revive the Sabah claim at a later date) was a “fundamental factor.”

According to the US’ Kuala Lumpur Embassy, Zain stated that “clear evidence of Marcos’s desire and ability to meet demands of Philippine Muslims” was more important to Malaysia than settlement of the Sabah claim. Embassy official Cheslaw commented that Zain’s remarks were “somewhat typical” of Malaysia’s attitude, and that “deeply pervasive distrust of Marcos … appears to be their principal inhibition in moving toward a solution.”

In Jakarta on Aug. 2, US Ambassador Galbraith asked Malik how his mediation efforts were going. Malik expressed “some impatience and irritation” with the Malaysians, who had departed from their Hong Kong undertaking by saying that they wanted no involvement in the Southern Philippines problem but that the Sabah claim should be dropped anyway, and that they feared that Muslims in Malaysia and elsewhere would blame them if they assisted Marcos. The Malaysians had asked Malik whether he trusted Marcos, and he had replied that he did, and that he would make no more effort if they were not prepared to support his formula.

It did indeed seem as if Malaysia was unprepared to become involved in seeking a solution to the problems of the Southern Philippines, although Prime Minister Razak told Ambassador Lydman on Aug. 25 that both Malaysia and Indonesia were prepared to offer assistance in the rehabilitation of Muslim areas affected by the war — but only after the Philippine government had ceased fighting and began to gain the confidence of Muslim leaders “for a meaningful program of social and economic rehabilitation.” The rebels, said Razak, were “desperate men who, knowing that they could not win against the government forces, nevertheless were forced into violence because of the hopelessness of their situation.”

Thus, the hopes of those who had foreseen a swift conclusion to the problem of Sabah and the amelioration of that in the Sulu archipelago were dashed. Slowly, and not particularly successfully, attempts to find a solution would continue.

source:  Tribune by  Ken Fuller

The Philippines and Sabah in the 1970s — 2

We saw last week that when, in March 1973, President Ferdinand Marcos told US Ambassador Henry Byroade that he was thinking of placing the issue of the arming of the Moro National Liberation Front (MNLF) by Malaysia before the Mutual Defense Board (created by the 1951 Mutual Defense Treaty between the Philippines and the USA), Byroade recommended to Washington that the possibility of Marcos invoking the MDT be headed off by a series of actions by other Association of Southeast Asian Nations (Asean) members.

Essentially, that is what happened, with Indonesia playing the major role. For the next few years, the agreement sought involved Marcos dropping the Philippine claim to Sabah in return for Malaysia ensuring that the flow of arms and ammunition from Sabah to the MNLF was stopped.

Just days after the Marcos-Byroade meeting, Indonesian foreign minister Adam Malik was assuring the US Embassy in Jakarta that he was trying to calm the Malaysians, and that Philippine Foreign Secretary Carlos P. Romulo had agreed with him (Malik) and Malaysian Prime Minister Abdul Razak Hussein (father of the current leader Najib Razak) that he would attempt to persuade Marcos to drop the Sabah claim; if this was successful Malik would mount an “all-out effort” to help defuse the Mindanao situation.

Malik was not particularly optimistic, however, feeling that the Kuala Lumpur government had little leverage over Sabah Chief Minister Tun Mustapha (who, with numerous friends and relations in Sulu, was thought to be behind the arms shipments). Meanwhile, Indonesian director-general for political affairs Didi Djajadiningrat asked the Embassy whether the US could also be of assistance, whereupon Ambassador  Francis Galbraith told him that Washington wanted to leave Asean relations to its members — a position that was maintained thereafter.

On March 13, after a palace luncheon, Marcos asked Byroade for a discussion on Mindanao, during which Byroade noted that in recent diplomatic discussions the Philippine claim on Sabah was always mentioned. Marcos told him of the meeting Romulo had held with Razak in Kuala Lumpur a month earlier, where Razak had promised that if the claim was dropped he would travel to Manila to discuss how he might help to defuse the Mindanao situation. Marcos, however, told Byroade that it would have to be the other way round: if Malaysia restored the situation in the Sulu archipelago “to what it was prior to the outbreak of this new crisis,” he would go to Kuala Lumpur “and hold talks on the broader picture, including Sabah…”

 “I gained the impression,” Byroade reported, “that Sabah was not all that important to Marcos’ future scheme of things, but it was not likely that he could agree to drop the claim under existing circumstances.”
In Jakarta, Ambassador Galbraith suggested that the best hope for securing Malaysian cooperation in reducing foreign support for the MNLF “might be some kind of prearranged meeting between Marcos and Razak in which it would have to be agreed that Marcos would give his personal, oral assurance that he would work to further downplay the Philippine claim to Sabah and authorizing Razak to inform Tun Mustapha that in return for hands off Mindanao and Malaysian influence to discourage Mindanao rebels, Marcos would continue to neglect Ph claim to Sabah with objective finally dropping it when it could be done without showing weakness.”

In Kuala Lumpur, Tan Sri Zaiton Ibrahim Ahmad, secretary general at the Ministry of Foreign Affairs, called in US Ambassador Jack Lydman to advise him that only a deal on Sabah could persuade his government to call off Tun Mustapha. Zaiton said that Malaysia did not expect Marcos to “publicly bow his head in defeat on the Sabah issue.” At the same time, he warned that there was no guarantee that any action by Malaysia would resolve the situation in the Southern Philippines, which was deep-rooted, although “there was at least a fair chance” that it could be helpful.

Zaiton told Lydman that Prime Minister Razak had advised Romulo in February that Malaysia was not encouraging the MNLF, although Tun Mustapha probably was, and that Razak was “unable to control these activities.” This was contradicted a few days later when Senate speaker Ong Yoke Lin told the Embassy that Razak would welcome an abandonment of the Philippine claim to Sabah so that he could then “clamp down on Mustapha…”
So was Mustapha controllable or not? The failure of Razak to act against him lends credence to the claim made by Singapore’s Lee Kuan Yew during a private conversation in Washington that the Malaysia-Philippine problems were “mostly Malaysia’s fault,” although even he acknowledged that a deal on Sabah would not resolve the problem of the Southern Philippines as it was “basically internal.”

Indonesia, about to act as intermediary, had its own reasons for adopting this role. Foreign Minister Malik told an Embassy official at a Jakarta social gathering that he had warned Tun Mustapha that if he brought about a situation in Sulu that could be exploited by Philippine Maoists, “he should realize what Indonesia would have to do” — a veiled warning, said the official, “of Indonesia’s determination to crush all forms of communism in or near its borders.” For his part, Mustapha told Malik that he was not involved in promoting conflict but that, having been born in Sulu, he often received requests for assistance from friends and relatives.

By April 30, 1973, Malik was sounding more optimistic than previously, telling the US charge d’affaires that it was likely that “something will be worked out.” The issue had received a thorough airing at the Asean meeting in Pattaya, where it was suggested that Indonesia act as intermediary, and Malik had therefore arranged a confidential meeting between Philippine and Malaysian envoys for May 7 and was confident of success.

But Malik was, as we will see next week, to be disappointed.

source:  Tribune by  Ken Fuller  (Feedback to: outsiders.view@yahoo.com)

The Philippines and Sabah in the 1970s

This is the first installment in a series on this subject. All columns in the series are based on US diplomatic cables declassified in 2005 and 2006 and  now available in WikLeaks’ Public Library of US Diplomacy at wikileaks.org/plusd.

Last week, we saw that in 1975 US Secretary of State Henry Kissinger said that any attempt by the Philippines to invoke the provisions of the Mutual Defense Treaty (MDT) over Sabah would “create difficulty” for the USA, but the Marcos government had come close to doing that just two years earlier.
As a result of the events earlier this year, the Philippine claim to Sabah is now widely-known, the argument being that the Sultan of Brunei ceded territory in North Borneo to the Sultan of Sulu in the mid-17th or early 18th century (depending on which version one reads), whose descendent in 1877 to 1878 leased (or, in the opposing view, ceded) that territory to the British North Borneo Company. In 1963, Sabah became part of the Federation of Malaysia.

It was claimed that in 1968 President Ferdinand Marcos had trained a Muslim force called Jabidah on Corregidor with the intention of using this to regain Sabah for the Philippines. According to some sources, this came to grief when the trainees rebelled and, in the most widely-circulated account, were massacred as a result. This latter has been disputed recently, but in any case the operation was aborted.

Nevertheless, there were two serious and inter-related consequences. It is widely accepted that the Jabidah massacre was a crucial factor leading to the formation of the Moro National Liberation Force (MNLF) led by Nur Misuari; secondly, Marcos would claim that from 1969 onwards Malaysia had trained MNLF rebels, including Misuari, at Pulao Panghor, an island twelve hours’ drive from Kuala Lumpur, with other training exercises being held at Lahad Datu and Banguey Island, Sabah, and that arms and ammunition were being provided by Tun Mustapha, Sabah’s Chief Minister.

Ferdinand Marcos would sometimes surprise the Americans by his nuanced view of the Muslim conflict. US Ambassador William Sullivan reported that in a meeting on Aug. 26, 1973 Marcos made a clear distinction between the situation in the Sulu archipelago and that on Mindanao itself. While he saw the former as arising from “outside agitation from Sabah,” with regard to the latter he “showed a surprising sympathy for the rebels and a caustic criticism of his fellow Christians. He placed the basic blame for the current situation on Christian greed for Moslem lands and the insensitivity of Christian governors, military leaders, and Constabulary. He felt the Mindanao situation was more “fundamentally significant than the Sulus…”

Earlier that same year, the Armed Forces of the Philippines (AFP) appeared to be on the defensive in many areas of Mindanao and the Sulu archipelago, and on March 5 Marcos related his deepening concern to Sullivan’s predecessor as US Ambassador, Henry Byroade, stressing the need for military equipment and inferring  that the MNLF had the initiative. Rather more ominously, he stated that the Philippine government would probably discuss the “deteriorating situation” with the Mutual Defense Board (MDB), which administered the 1951 MDT. When Marcos asked him what he thought of that proposal, Byroade guardedly replied that the US members would be able to merely listen, as decisions would be made elsewhere.

Mention of the MDB, of course, raised the question of the treaty itself, under which either party could in certain circumstances call upon the support of the other in the event of attack by a third party in the Pacific area. Byroade was far from happy at this turn of events, advising Washington that in such “deteriorating circumstances” a Philippine attempt to “engage our bilateral mechanisms” would “pose some problems” for the US government. “It would therefore be in our interests,” he said, “to head off such moves while we deal with military supply matter in most appropriate fashion.”

Byroade therefore recommended a “series of demarches” (courses of action or maneuvers) “on Malacañang by Asean members Indonesia, Thailand and Singapore and also Australia as well as ourselves” in order to persuade the Malaysian government “to restrain role of Sabah and Tun Mustapha…” Direct approaches by the Philippines to Malaysia had been unsuccessful due to the “Sabah claim issue” and so “it is clear greater pressure needs to be exerted on Malaysians.” It would also be useful, he continued, for the UK and Australia (fellow-members with Malaysia in the British Commonwealth) to indicate to Malaysia “how unwise and unrealistic it is to seek abandonment of Philippine Sabah claim under pressure of these circumstances.”
It is clear from this that the Americans did not seriously doubt that the MNLF was receiving arms from Sabah, if not from Malaysia itself, and this would become clearer still over the next few years.

In March 1975, for example, French military attaché Col. Loussouarn, resident in Jakarta, made a brief visit to Manila during which he was shown some French 81-mm mortar rounds recently captured by Philippine troops in Cotabato, where in recent months over a hundred had been fired at the AFP’s regional headquarters. Loussouarn had the serial numbers checked and reported that they came from a batch recently sold to Malaysia. According to Ambassador Sullivan, the Filipinos had previously assumed that such weapons had been coming from Libya.

A few days later, the US Embassy in Kuala Lumpur reported that a non-resident American businessman, active in Malaysia and Asia for nearly a quarter of a century, had told Embassy officials than a former British civil servant, now a private businessman based in Singapore, was “involved in the arms trade with Sabah with ultimate objective of supplying weapons to Filipino Muslims.”
In succeeding weeks, we’ll examine the progress of those “demarches” recommended by Byroade.

source:  Tribune by  Ken Fuller

$3-B slush account for Sabah exposed

SECRET FUND: While Malaysia keeps offering 5,300 ringgits (P72,000) a year to continue renting Sabah from the Sulu sultanate, that disputed corner of North Borneo earns $200 billion annually.

This was disclosed yesterday by Pastor “Boy” Saycon, an adviser of the Sulu Sultanate which is pressing the full recovery of their patrimony taken over by the United Kingdom and lumped into the Malaysian federation in 1963.

The sultanate terminated the lease in 1989, after Malaysia unilaterally modified the mode of payment, shifting from Mexican dollars to Malaysian ringgits.

Saycon said a big slice of the revenues of Sabah goes into a secret fund, now estimated at $3 billion, devoted to quelling unrest in the territory and fending off the Philippine claim.

Are special operations financed and selected key individuals in the Philippines being paid from this slush fund? Saycon just smiled, declining to answer the question.

Does the sultanate continue to receive rentals after it had revoked the contract? The sultanate still accepts the Malaysian checks, he said, but does not encash them. The checks are kept as evidence, not as payment.

The Malaysian embassy issues the checks “pay to” the sultanate as represented by nine heirs recognized in 1939 by the High Court of North Borneo presided over by Justice Mackaskie.

*   *   *

‘PADJAK’ CONTRACT: Official documents on the subject continue to be unearthed. One such paper, uploaded in the Official Gazette, is a letter dated Feb. 27, 1947, sent by Francis B. Harrison to then Vice President and Foreign Affairs Secretary  Elpidio Quirino.

Harrison was a former Governor-General when the Philippines was still a United States colony. He served as special foreign affairs adviser to then President Manuel A. Roxas. Part of his letter said (edited for brevity):

“In a memorandum dated Sept. 26, 1946, I advised the Philippine government to protest to the government of Great Britain against the latter’s announcement of July 16, 1946, that the State of North Borneo had become a Crown Colony of the British Monarchy. This annexation took place just 12 days after the inauguration of the Republic of the Philippines, and was done in derogation of the rights of the Sultanate of Sulu.

“Further important evidence has come from the Philippine Embassy in Washington, where Mr. Eduardo Quintero, searching in the National Archives, found a photostatic copy of the document dated Jan. 22, 1878, upon which the British government bases their claim to all the lands tributary to the Sultanate of Sulu.

“This was obtained in 1940 by the US Department of State from the British government, and is hereto annexed. The second copy had been held by the Sultan of Sulu, and, as is alleged, was stolen from him during a visit he made to Singapore many years ago. This story is to be found in the article in the Chicago Daily Tribune of Oct. 14, 1945, written by Mr. Aleko Lilius.

“The copy, furnished by the British government, has been translated at my request by Mr. Harold Conklin, assistant to Prof. H. Otley Beyer in the University of the Philippines. Mr. Conklin is a qualified scholar in the Malay language and in the Arabic script in which language and writing this document was written. This translation follows:

“Grant by the Sultan of Sulu of a permanent lease covering his lands and territories on the Island of Borneo:
“We, Sri Paduka Maulana Al Sultan Mohammed Jamalul Alam, Son of Sri Paduka Marhum Al Sultan Muhammed Pulalun, Sultan of Sulu and all dependencies thereof, on behalf of ourselves and for our heirs and successors, and with the expressed desire of all Datus in common agreement, do hereby desire to lease (padjak), of our own free will and satisfaction, to Gustavus Baron de Overbeck of Hongkong, and to Alfred Dent, Esquire, of London, who act as representatives of a British Company, together with their heirs, associates, successors, and assigns, forever and until the end of time, all rights and powers which we possess over all territories and lands tributary to us on the mainland of the Island of Borneo, commencing from the Pandassan River on the west, and thence along the whole east coast as far as the Sibuku River on the south, and including all territories, on the Pandassan River and in the coastal area, known as Paitan, Sugut, Banggai, Labuk, Sandakan, China-batangan, Mumiang, and all other territories and coastal lands to the south, bordering on Darvel Bay, and as far as the Sibuku River, together with all the islands which lie within nine miles from the coast.

“In consideration of this (territorial) lease, the honorable Gustavus Baron de Overbeck and Alfred Dent, Esquire, promise to pay to His Highness Maulana Sultan Mohammed Jamalul Alam, and to his heirs and successors, the sum of five thousand dollars annually, to be paid each and every year.

“The above-mentioned territories are from today truly leased to Mr. Gustavus Baron de Overbeck and to Alfred Dent, Esquire, together with their heirs, their associates (company), and their successors or assigns, for as long as they choose or desire to use them; but the rights and powers hereby leased shall not be transferred to another nation, or a company of other nationality, without the consent of Their Majesties’ Government.

“Should there be any dispute, or reviving of old grievances of any kind, between us, and our heirs and successors, with Mr. Gustavus Baron de Overbeck or his Company, then the matter will be brought for consideration or judgment to their Majesties’ Consul-General in Brunei.

* * *

“This treaty is written in Sulu, at the Palace of the Sultan Mohammed Jamalul Alam, on the 19th day of the month of Muharam, A.H. 1295; that is on the 22nd day of the month of January, year 1878.”

“(Seal of the Sultan Jamalul Alam)

“Witness to seal and signature: (Sgd.) W.H. Treacher, H. B. M. Acting Consul General in Borneo”

source:  Philippine star Column of POSTSCRIPT By Federico D. Pascual Jr. 

A seven-point framework for Sabah

The Sabah issue is not hopeless. It is not irreversible. It can be settled amicably. Representatives of the Malaysian and Philippine governments and the heirs of the Sultanate of Sulu and North Borneo should negotiate and come up with an agreement on the basis of a proposed framework.

If one side has to settle amicably with the other side, one has to give up something, or vice versa. Conflict management requires plenty of big and small sacrifices to reach a common ground. The pursuit of economic diplomacy is implicit in the proposed framework.

Malaysia can’t play hard ball. A hardline stand does not make sense. On the contrary, it has to take advantage while a “friendly” Filipino president sits in Malacañang. After three years, it could be a totally different story if ever an unfriendly president takes over.

Meanwhile, a secessionist movement looms in Sabah, which is 1,000 kilometers away from the Malay peninsula. Kuala Lumpur has to prevent alliance between the heirs and the secessionist movement. Malaysia will have to face this nightmare if the Sabah question remains an unfinished business.

The proposed framework:

First point: A $3-billion settlement package payable within ten years to the heirs. This should be paid without any interest in equal annual installments. The proposed settlement package comes from ex-Sabah Chief Minister Tan Sri Harris Salleh, who suggested to Home Minister Datuk Seri Hishamuddin Tan Hussein for a lump sum payment of 200 million ringgits, or P2.6 billion, to the heirs.

In his letter published by a Malaysian newspaper a week after self-styled Sultan Jamalul Kiram III’s forces landed in Lahad Datu, Salleh argued it would be for Malaysia’s “best interest” to remain friendly with its neighbors, particularly Malay stock nations. Moreover, Sabah’s coastline of over 1,000 kilometers is difficult to guard, he said. Without saying that Malaysia does not hold any proprietary rights over Sabah, Salleh proposed that Kuala Lumpur talk directly with the heirs.

Observers note that $3 billion is small since Sabah is rich in timber, mineral ores, and oil. But others say that Malaysia may not be prepared to have $3-billion liability to be settled in ten years. But official data show that Malaysian gross domestic product reaches over $30 billion annually, of which at least $3 billion, or ten percent, comes from Sabah.

Hence, Malaysia will be paying ten percent of ten percent of its GDP, or barely one percent to settle a lingering dispute with its neighbor. This is better than to buy arms and fleets of vessels to guard its coastline and earn the enmity of its neighbor.

Second point: The division of the settlement package among the heirs. As basis, the 1939 decision of North Bornean Chief Justice C. F. C. McCaskie should be used. It has identified the nine heirs and their respective shares.

Third Point: The creation of the Philippine Government – Sultanate of Sulu and North Borneo committee, which will meet its Malaysian counterpart to discuss the nuts and bolts of the settlement agreement. The various factions among the heirs should unify to name their representatives to the committee.

The committee should take into consideration the decision on how the entire settlement package will be divided between the heirs and the Philippine government. As the heirs earlier said, a bigger part should go to the Philippine government for use in the economic development of Muslim Mindanao. It goes without saying that the heirs will receive less than half of the settlement package.

Fourth Point: No part of the settlement package will be used to buy firearms. The entire $3 billion will be used exclusively for productive purposes.

Fifth Point: The settlement accord will include a provision for the unconditional and absolute renunciation of the Philippine claim over Sabah. This is intended to settle the issue in clear and unequivocal terms and avoid all doubts at all times.

Sixth Point: As a confidence-building measure, Malaysia should come out with an economic and livelihood program for the displaced Filipinos in Sabah, or the “halaw,” which reach nearly a million.

Seventh Point: A three-nation Asean committee composed of Indonesia, Thailand, and Vietnam should be convened to monitor compliance to the settlement pact.

Hence, a tripartite consultative committee composed of the representatives of the Malaysia and Philippine governments, and the Sultanate of Sulu and North Borneo should be formed to discuss and decide on the settlement pact. The sooner they meet, the better for all parties.

source:  Manila Standard Today's Philip M. Lustre Jr.

For latest update on RA 9646: Real Estate Service Act of 2009 and information on Philippine Real Estate Industry today, visit www.ra9646.com.ph

Peaceful ways to settle Sabah dispute

Both our Constitution and the United Nations Charter prohibit war and the use of force in settling disputes. Article 33 (not 51, as I wrote two weeks ago; thanks to eagle-eyed reader Zara Mari Dy of the College of Law, Silliman University) of the UN Charter obligates its members, including the Philippines and Malaysia, to “first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”
Judicial settlement. Of these peaceful methods, the hands-down favorite of many Filipinos is judicial settlement in the International Court of Justice (ICJ), the “principal judicial organ of the United Nations.” The ICJ is composed of 15 “independent” judges (they are not called “justices”) elected by “absolute majority of votes in the General Assembly and in the Security Council,” voting separately, for a term of nine years. They may be reelected.

ICJ judges are required to be “of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or jurisconsults of recognized competence in international law.”

The present head of the ICJ is Peter Tomka of Slovakia. (His official title is president, not chief justice.) Its current members or judges are from Brazil, China, France, India, Italy, Japan, Mexico, Morocco, New Zealand, Russia, Somalia, the United Kingdom, the United States and Uganda. Only one Filipino has ever sat in the ICJ—Chief Justice Cesar Bengzon (now deceased). A few years ago, Sen. Miriam Defensor Santiago ran for an ICJ seat but unfortunately lost.

(Parenthetically, the ICJ should be distinguished from the International Criminal Court, or ICC, to which Senator Santiago was elected on Dec. 12, 2011. The ICC was born on July 1, 2002, when the treaty creating it, called the Rome Statute, took effect. Unlike the ICJ, the ICC is not an organ of the UN, but like the ICJ, the ICC is headquartered in The Hague, Netherlands)

Consented jurisdiction. Only states may be parties in “contentious cases” in the ICJ. Since the Sultanate of Sulu is not a state, it cannot sue or be sued there. On the other hand, the Philippines—being a sovereign state—may file suit. The jurisdiction of the court over contentious cases depends on the consent of the parties. Hence, if Malaysia refuses to be a party, then the ICJ cannot acquire jurisdiction and cannot hear the Sabah dispute, much less render judgment thereon.

An ICJ decision has no binding force except as between the parties. Once a state agrees to sue or be sued, it effectively obligates itself to obey the judgment. If the defeated party does not, the winning party may ask for sanctions in the UN Security Council, which in turn is obligated to find ways to enforce it, including the use of peacekeepers.

Unlike Philippine courts, the ICJ may render “advisory opinions” when requested by a UN organ (like the General Assembly or Security Council) or a specialized UN agency (like the International Labor Organization), if authorized by the General Assembly. While advisory opinions are not binding, they enjoy great persuasive effect and respect.

However, the ICJ may refuse to render an advisory opinion if the question asked relates to a pending dispute between two states, or if it needs more facts and information that cannot be obtained without hearing the concerned parties in a formal suit.

Security Council and referendum. UN members may bring directly to the Security Council or the General Assembly any dispute that threatens international peace and security. This referral becomes obligatory when the parties fail to settle their disputes by any of the peaceful methods listed in Article 33 of the UN Charter, and when such failure may result in the rupture of international peace and security.

In dealing with such referral, the Security Council may “call upon” the parties to continue their peaceful methods of settlement, or recommend recourse to the ICJ, or in the extreme, work out directly the terms and conditions of settlement.

Another peaceful method is recourse to regional agencies or organizations, like the Association of Southeast Asian Nations (Asean) in which both the Philippines and Malaysia are members. But again, patience and diplomacy are necessary because regional (and international) bodies are always respectful of the sovereign equality of states and are cautious about imposing their will on them.

Despite this limitation, regional organizations, like the Organization of American States and the African Union, have been successful in settling disputes among their members.

Finally, there is the very political solution of self-determination, meaning a referendum or plebiscite to determine the will of the people of Sabah. Again, this depends on the agreement of Malaysia, which exercises actual (at least, de facto) sovereignty over Sabah. Note that Malaysia is of the position that a referendum was conducted in 1963 in which the Sabahans allegedly opted to be under Malaysian sovereignty.

A plebiscite or referendum includes the possibility that the Sabahans might vote for independence, instead of being under the tutelage of Malaysia or the Philippines. A fair, open and free plebiscite under the auspices of an independent body like the United Nations or even of Asean may be the most feasible and lasting solution to this festering problem.

source:  Philippine Daily Inquirer'sWith Due Respect Column of Former Chief Justice Artemio V. Panganiban

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Sabah heirs also in ‘standoff’

DOZENS of heirs of Sultan Esmail Kiram I are claiming their own share of the Sabah island believed to be worth US$1 billion, three of them  saying they are the 35th Sultan of Sulu.

Historical records showed that Sultan Kiram I was the 33rd Sultan of Sulu-Sabah whose only brother, Datu Punjungan, now also deceased, fled to Borneo shortly after the strongman Ferdinand Marcos declared Martial Law in 1972.

While Datu Punjungan was in Sabah, a son of Sultan Kiram 1 named Mahakuttah had himself crowned as the 34th Sultan of Sulu but later abdicated his throne in favor of his uncle, Datu Punjungan when the latter returned to the country after Martial Law ended.

Datu-turned Sultan Punjungan have three sons, namely, Sultan Jamalul III, Datu Ismael II and Rajah Mudah Agbimuddin Kiram, the Crown Prince of the  Sultanate of Sulu.

The three have two cousins who  also crowned themselves as Sultan of Sulu. They are Sultan Muedzul Lail Kuan and Sultan Muhammad Fuad.

Thus, there are three 35th Sultans of Sulu at present: Sultan Muedzul Lail  Tan Kiram, Sultan Jamalul III and Sultan Muhammad Fuad.

In the case of Sultan Jamalul Kiram III, he is said to be gravely ill and his brother Datu Ismael II is the one actually running their affairs in Sulu. Agbimuddin Kiram holds the rank Rajah Mudah which literally means Crown Prince. He is the one leading armed members of the Royal Sulu Forces in Sabah.

A top security official last week told the Journal Group they expect more claimants to Sabah due to the prospect of becoming instant billionaires. On Thursday, a man claiming to be a Muslim royal named Prince Hadji Rodinood Sultan Julaspi Kiram claimed he is the rightful owner of Sabah, being the 29th Sultan of Sulu and North Borneo and the direct descendant of the late Sultan of Sulu and North Borneo.

The Sabah “standoff” involved the entry into the island of RSF members under the command of Sultan Jamalul Kiram III, one of the claimants of the title Sultan of Sulu and their subsequent occupation of areas within the territory, thus reviving discussions on the relatively dormant yet delicate issue of the Philippines claim to Sabah.

Officials said that sometime in 2012, a group of Datu Muedzul Lal Tan Kiram attempted to enter Sabah with the intent of occupying certain areas. Sources said  Malaysian authorities acknowledged Datu Muedzul’s claim to the title Sultan of Sulu because he is the son of Sultan Mahakuttah Kiram, the last recognized Sultan who reigned from 1974 to 1986.

Sultan Jamalul is the son of Datu Punjungan Kiram who was stripped of his title Crown Prince in favor of Sultan Mahakuttah. When Sultan Jamalul received news of Datu Muedzul’s attempt, he decided to issue in October last year a decree authorizing the occupation of portions of Sabah in order to strengthen their bid to reclaim the territory.

source:  Journal Online

checkmate Sabah and Sarawak

The Sabah situation vis-avis the Philippines is more than the Sultan of Sulu’s armed men occupying a town in the state. It is that and Malaysian politics at work. Sabah and Sarawak are the outlying states of the Federation of Malaysian
states. They are in the island of Borneo, the largest island in the world, the source of rich natural resources emerging from forest and marine areas. For a long time, these areas were remote, unfamiliar to peninsular Malaysia, and living a life of their own with ethnic tribes, Chinese immigrants and eventually Filipino and Indonesian elements who came in for the opportunities to earn a living in an underpopulated area.

The discovery of gas and oil, the timber reserves put to use, plantation crops and other agriculture products have made both states big contributors to Malaysian government coffers. Yet there is a clear division between the Peninsular Malaysians and the Sabah and Sarawak states. So much so that in Sabah, the prime minister or head of state is an opposition politician to the Kuala Lumpur government.

I went to Sabah many years ago when Philippine Air Lines still had a direct flight to Kota Kinabalu. KK as it is known was a charming urbanizing area along the sea with new buildings under construction, seafood resaturants galore and a stunning Shangrila Hotel with its own golf course and Mount Kinabalu in the horizon. We went to the “Filipino” market where we expected to see and talk to Filipinos in Tagalog or Ilonggo, but if they were Filipino at one time, they were now Malaysians or from any of the ethnic tribes that predominate in Borneo. And they were speaking something else. The Filipino market specialized in pearls, because traditionally these came from nearby Sulu across the waters. It must have been in the last few decades when the peace and order situation deteriorated in Mindanao that an influx of Filipinos added to the long-term immigrants in the area.

On to Kuching in Sarawak on Malaysian Airlines, we were charmed by the city for its provincial, laid-back air along the river with an esplanade to walk by as well as antique shops selling hand-carved furniture. There was also a street where gold was sold by weight as an investment rather than a fashion accessory. Meaning that the designs were all the same, the weights were different. They also had a thriving silk industry and sold silk batik fashions. And there was a Cat Museum, a world-class repository of the history of cats which as a cat person I thoroughly enjoyed.

More recently, I have been traveling back to Kuching for indigenous Asean textile conferences and have noted a few things. One arrives to Kuching either via Kuala Lumpur or Singapore. I was surprised when flying in from Kuala Lumpur, having passed Malaysian Immigration there, that when I arrived in Kuching, I had to show my passport all over again to their separate Immigration. I found out that Sarawak and probably Sabah have begun to resent the peninsular Malaysians for being what they deem exploitative and opportunistic. Possibly because the revenues from natural resources give the lion’s share to the peninsular government. So much so, that Sarawak in effect controls the entry of peninsular Malaysians. So, as a peninsular Malaysian arriving in Sarawak, one has to show that he is either on a limited vacation in the area or has a job waiting for which the state has allowed the employer to recruit someone from outside the area. No job hunters allowed.

Meanwhile, Malaysian politics has reached some kind of turmoil with the heavy-handed behavior of the government toward the opposition for which demonstrations, riots even and the on-going saga of Anwar Ibrahim’s seeming persecution is part of the scenario. It seems that the opposition has grown and is shown alarming strength with elections imminent.

Worse, with the opposition leader in Sabah (I am not too familiar with Sarawak politics), having distributed so-called identity cards (IC’s) to immigrants, most of them Filipinos and Indonesians, which allows them to vote, there is very real fear in the ruling party that they may lose the elections altogether or come distressingly close to it

The issue of the IC’s has been brewing for some time. They could define the election by having new opposition elements voting. The ruling party considers the issuance of IC’s as indiscriminate and illegal for the most part. They have instituted a Royal Court of Inquiry into the matter. Demographic conditions indicate that IC holders as new immigrants would vote for the government that allowed them in. The original Sabah population is less than two million and the IC holders are close to that (1.7 million).

So, the entry of the Sulu sultanate armed men which has resulted in wholesale eviction, arrest, maltreatment of undocumented immigrants and including Identity Card holders, particularly Filipinos, may be the perfect excuse to eliminate the electoral menace of the latter from their midst.

The merits of the sultan of Sulu’s actions I will not judge. But the effects in Sabah are becoming clear. Politics is at work, not just territorial defense, which makes the picture larger than it appeared earlier.

source:  Manila Times' Column of  Ma. Isabel Ongpin

Malaysia’s crimes against humanity?

It’s increasingly becoming clear that Malaysian authorities have no regard whatsoever for their duty under international human rights law to protect and promote the right to life of the Filipinos in Sabah, and their right to a judicial determination of guilt before the imposition of the death penalty. To date, the death toll has reached 63, while the number of individuals who have been apprehended on mere suspicions that they are sympathizers of the Sultanate of Sulu has reached almost 100. And yet, there does not appear to be any sign that Malaysian authorities will even slow down in their resolve to crack down on the historical owners of Sabah.

The little good news that we have is at long last, the Philippine government has sent a diplomatic note to Kuala Lampur asking Malaysian authorities to “clarify” reports about human rights violations. Media has been reporting wide- scale violations of human rights violations against Filipino nationals in Sabah including resort to pre-trial detentions, torture, and inhumane treatment. Even without dwelling on the Philippine title to Sabah, the Philippines should never abdicate its obligations to its nationals when reports of wide-scale violation of their rights become rampant. Hence it was correct for our authorities to send this note verbale.

But Malaysia appears hell bent on clamping down on the rights of all Filipinos in Sabah, whether or not they are involved in the current standoff. Even before this latest Sabah incursion, Malaysia has been afflicted with extreme paranoia that Filipinos may physically constitute a majority of the population in Sabah. This has led to regular mass deportations of Filipinos from Sabah, almost all of which have been characterized as inhumane. One incident stands out in terms of barbarity. In 2002, when Malaysia deported no less than 62,000 Filipinos from Sabah, the country was shocked to know that in addition to the inhumane nature of the deportations, a Malaysian guard added salt to open wounds by raping a 13-year-old girl in one of the Malaysian immigration facilities. That incident has all been forgotten.

But Malaysia better think twice before it proceeds to commit further criminal acts under international law. While there is still a dispute on whether the current stand-off is now governed by international humanitarian law—the 200 individuals sent by the sultanate of Sulu to reclaim Sabah are not state agents — international law still penalizes acts which are systematic or widespread attacks against civilians. This is known as crimes against humanity. Unlike war crimes, crimes against humanity do not require a nexus with armed conflicts. It suffices that the inhumane acts, be it deportation, arrest, or inhumane treatment, be widespread or systematic.

While murder remains the most frequent manner by which this crime may be committed, it is by no means the only way to commit it. Under international law, it may also be committed, among others, through extermination, enslavement, deportation or forcible transfer of population, imprisonment, torture, rape, persecution against an identifiable group on national (against Filipinos, for instance) or other inhumane acts of a similar character intentionally causing great suffering or serious bodily or mental injury. The list appears tailor made for the inhumane acts that Malaysian authorities have been committing against our countrymen in Sabah.

The beauty of international criminal law is that unlike human rights law, it utilizes penology as a means of enforcement.  This means that while the enforcement of human rights is through a shaming machinery where countries in breach of their human rights obligations are shamed into compliance either through the periodic reviews of the UN Human Rights Council or the treaty monitoring bodies, international criminal law actually provides for imprisonment for those who will breach the law. And unlike domestic legal systems, these international crimes are not subject to prescription, may be tried by any court regardless of where they may have been committed, and does not recognize sovereign immunity as a defense. Simply put, Malaysian authorities who committed these crimes against our nationals will end up in jail. If not in Malaysia, then in the Philippines, at the Hague, or in the territory of any state that is duty-bound to prosecute them for their acts.

Interestingly enough, no less than Malaysian Prime Minister Najib Razak may incur liability for these crimes if it is proven that he knew or should have known about these crimes being committed and he did nothing to prevent them or to investigate, prosecute and punish the perpetrators of these crimes. This is known as Superior Responsibility. It may not be today, it may not be in Malaysia, but surely sometime in the future and somewhere in this planet, he will be held responsible for these crimes on the basis of superior responsibility.

This was the lesson that the Nazis learned in Nuremberg. This too was the lesson learned by Saddam Hussein, Slobodan Milosevic, Charles Taylor and Tomoyuki Yamashita.

Najib should stop these crimes lest he join the roster of the infamous.

source:  Manila Standard Today's Column of Atty. Harry Roque, Jr.

For latest update on RA 9646: Real Estate Service Act of 2009 and information on Philippine Real Estate Industry today, visit www.ra9646.com.ph

Martabat

TODAY let me step back from historical and legal analysis of the Sabah crisis and share with you a more personal take on the matter. It has to do with the Asian concept of "loss of face" and "martabat." At the end of the day, the personal stakes may be what is driving the crisis.

What is "martabat?" Martabat is a Malay term that one hears often used by the Moro peoples of Mindanao -- the Tausug, Sama, Yakan, Maguindanao, Maranao, Iranun. Among the Moro, it means honor and dignity. For the Tausugs of Sulu, these values define us. No matter if we are poor or powerless, we have been taught from childhood to value our martabat. One’s rank in the community is tied to honor.

It is the duty of each member of the clan not to bring dishonor or shame to himself/herself as this also dishonors his or her family and clan. Dishonor can be due to rape, murder, wrongful accusations of dishonesty, theft, and duplicity -- acts that reduces the public perception of the individual (and therefore his or her clan). If the individual is indeed guilty, then the family must bear the shame. If not, honor must be reclaimed. Shame can also be due to a very public loss -- such as surrender in battle.

"Rido" or clan wars are waged over the loss of martabat and the need to "save face." If shame or dishonor tarnishes the clan’s reputation or standing in the community, it must be avenged to recover martabat. Bloody rido have been waged between clans for several generations over the loss of martabat. A hundred years ago, if I was wrongfully and publicly shamed, perhaps accused of dishonesty and fraud, my family would be honor-bound to seek out those who had besmirched our reputation and avenge the dishonor brought on the Rasul name. (Today, we who follow the rule of law have other avenues to reclaim honor. Unfortunately, in Muslim Mindanao, the many who do not believe there is justice in the implementation of the rule of law turn to rido.)

The whole world is paying attention to the siege in Lahad Datu where the superior armed forces of Malaysia have cornered the men of the Sulu Royal Army (SRA), the latter armed with vintage firearms and knives. The SRA is led by Raja Muda Agbimuddin Kiram, who is the younger brother and Crown Prince of Sulu Sultan Jamalul III. Sultan Jamalul has stated that the Raja Muda, against his advice, crossed over to Sabah to return to his "homeland" and reclaim Sabah. To convince the Raja Muda and the SRA to withdraw and return to the Philippines, the Sultan wanted assurance from the Philippine government that the historic and legal claim of the Sultanate over Sabah would be pursued. He wanted a dialogue with no less than President Benigno Simeon Aquino III.

As of today, 70 have been killed -- most of them members and supporters of the SRA. Over four weeks have passed and the situation has progressed from a low-level threat to a community into an international incident, which has required the intervention of the United Nations Secretary-General. Sec-Gen Ban Ki Moon last week called for a ceasefire. Jamalul Kiram III has accepted the call but Malaysia refuses.

What is at stake?

The Philippine government would want this crisis resolved expeditiously as it impacts negatively on the peace process with the Moro Islamic Liberation Front, successfully facilitated by Malaysia. Further, votes for the administration candidates in the May elections are at stake. In Muslim Mindanao, the anti-Muslim charges against DILG Secretary Mar Roxas and LP Campaign Manager Frank Drilon have resurfaced, particularly after statements given by Secretary Roxas perceived to be critical of the Tausugs ("hard-headed") and the Philippine claim on Sabah ("hopeless cause"). Even non-Muslim Filipinos have become critical of the government’s handling of the situation. The opposition candidates, seizing the opportunity, have had a field day demanding that government protect the rights and lives of its citizens. This may have negative consequences on the administration’s senatorial candidates.

Wisely, the Department of Foreign Affairs has finally come out with a statement on March 10, expressing "grave concern" on the "alleged rounding up of community members of Suluk/Tausug descent in Sabah and the "alleged violations of human rights", calling on the Malaysian Government to "give humane treatment to the Filipinos under their custody."

As for the Autonomous Region in Muslim Mindanao, media reports have focused on the misery of residents of Tawi-Tawi due to the impact of the Sabah blockade which has prevented the entry of cheap Malaysian goods (smuggled gas, rice and other food items). The influx of refugees and deportees now unable to provide remittances to their families has also added to the tribulations faced by Tawi-Tawi residents, thousands of mouths to feed when supplies are running low.

For Malaysia, the publicized intrusion of poorly armed men into Lahad Datu is a threat to their internal security, protected by a powerfully armed force and the implementation of their Security Offences (Special Measures) Act of 2012 or SOSMA. (SOSMA replaced the Internal Security Act of 1960, criticized for violating human rights. Unfortunately, SOSMA has been also criticized for its lack of protection of fundamental human rights.) The Malaysian government similarly would not want to prolong this crisis for multiple reasons -- economic, security, political. The government, led by the Barisan Nasional, needs to save face, especially as their elections loom. Before the crisis, Malaysian political analysts had noted that the BN was losing popularity. The crisis could tip the balance in favor of the opposition, resulting to BN losing its control over government after 50 years in power.

For the Sultanate of Sulu and Sultan Jamalul Kiram III, the lives of his brother and over a hundred men are at stake as well as the Sultanate’s claim on Sabah.

What about the personal stakes? Here we have three macho leaders, each with a strong sense of martabat, which, if tarnished, would have dire consequences on their standing, followers and communities.

Malaysian Prime Minister Najib Razak probably believes that he and his party, the Barisan Nasional/United Malay Nationalist Organization (UMNO) will lose face if he shows weakness in dealing with this situation. That loss of martabat will have impact in the forthcoming Malaysian elections. President Benigno Simeon Aquino III loses credibility and popularity, if the siege is not ended on his terms. The loss of credibility will also translate to loss of votes for his candidates in the elections this May. For Sultan Jamalul Kiram III, apart from the lives of his kin and followers, his leadership as Sultan is at stake. Martabat dictates that when we are oppressed, we wage war to the last man standing -- unless an honorable way out is found. Of the three leaders, Sultan Jamalul has the most to lose personally. The Tausugs, who are now captivated by and supportive of his actions, will be unforgiving of an act of unconditional surrender.

So how do we get out of this quagmire, surrounded by all kinds of political land mines? The most likely scenario is for the total defeat of the SRA. However, this situation has the direst consequences. The best scenario is to have a ceasefire and to dialogue. Unfortunately, that seems to be most unlikely as of today.

The total annihilation/defeat of the forces would be a temporary victory for Malaysia (but unfortunately not a victory for the Philippine government). Its consequences will be felt in the near future, with drastic impact to the region’s stability and security. The Malaysian and Philippine governments should take a long-term view and prevent dousing the fire with gasoline, allowing radicalization to spread in a state unused to armed conflict.

Years ago, there was already a threat -- although a weak one -- of an Islamic state to be created in the region. There is a real possibility that present germ of Sabah autonomy/independence movement could be nurtured and mushroom overnight into a rebellion, as what happened in Muslim Mindanao after martial law was implemented in the ’70s. Sabah might be the nucleus of an independent Islamic state, even if that possibility is not supported by majority of Sabahans.

Even with a complete blockade of Sabah, the possibility of MNLF, MILF, ASG and other armed troops entering Sabah is possible through Indonesia and then overland to Sabah.

The ceasefire scenario is what most people outside Malaysia would want to see. However, it is the least likely of the possible scenarios. Malaysia has disregarded and rejected UN Sec-Gen Ban Ki Moon’s call for ceasefire and is adamant that ceasefire would only happen if the SRA forces surrender unconditionally. According to the news, the Philippine government, in a statement given by the Department of Foreign Affairs, stressed: "Our aim has not changed. We will explore all possibilities to save lives and avoid bloodshed. The suggestion of a unilateral ceasefire (appears) to be one of the options."

The Tausugs led by Raja Muda Agbimuddin will not surrender unconditionally, as "surrender" is not part of their culture.

However, an "honorable" surrender by the SRA might be possible if Malaysia would soften their stance and agree to a ceasefire.

source:  Businessworld 

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Jabidah recruits plotted standoff

TAWI-TAWI, Philippines – They were part of a covert military operation to seize Sabah from Malaysian control in the late 1960s. This time around, they are part of an overt plan to claim it again.

Two of the members of the Royal Sultanate Army – or the Royal Sultanate Force (RSF), as they're commonly known here – who trooped to Sabah on Feb 14, 2013 were among the recruits of the Jabidah commando unit under the secret plot Oplan Merdeka 4 decades ago. (Read: Sabah, Merdeka and Aquino)

Oplan Merdeka (freedom in Bahasa Melayu) was hatched by the Marcos military to send Muslim recruits to invade Sabah in 1968. The exposed plot soured relations between Manila and Kuala Lumpur, prompting the latter to train and provide sanctuary to rebels belonging to the Moro National Liberation Front.
It is also here, in this picturesque Simunul town lulled by clear waters and white sand, where the Jabidah unit's chief recruiter and trainor, then Army Maj Eduardo Martelino, held initial training for his recruits. He set up a training camp here called Sophia, named after a beautiful Simunul lass he later married.

Two of Martelino's recruits, Musa Abdulla and Ernesto Sambas, were among at least 13 Simunul residents who boarded two ships to Lahad Datu, along with about 200 of their comrades, last February 14.
The two were able to escape from Corregidor Island in 1968 before the military shot dead their fellow recruits in what is now known as the Jabidah massacre, that lit the Muslim rebellion in Mindanao.
Today, Musa and Sambas are said to have cut off communication with their families in Simunul. Did they survive the Malaysian military offensive in Lahad Datu? Or were they among the reported 60 casualties in the Sabah standoff? No one here knows.

Although they share a common past, Abdullah and Sambas have different stories to tell.
Musa is the known military strategist of the gunmen in Sabah.

On the other hand, Sambas is a frustrated soldier who had tried in vain to return to service. He was the first Jabidah recruit from Simunul to be commissioned by the military as an officer with the rank of 2nd lieutenant, according to the book "Under the Crescent Moon: Rebellion in Mindanao" by Marites Dañguilan Vitug and Glenda M. Gloria that was first published in 1999.

The strategist
While Raja Muda Agbimuddin Kiram, an heir of the Sultan of Sulu, is the known leader of the armed Filipinos now on the run in Sabah, it was really Musa who mapped out the plan behind the Sabah standoff, Simunul residents told Rappler. (Read: Raja Muda escapes arrest)
Now in his 60s, Musa is the deputy chief of staff of the RSF, a rank below Raja Muda, they


After the botched Merdeka plan, Musa retired from the military. It's unclear what he did for a living in the succeeding years. Somewhere in between, he became the deputy chief of staff of the RSF.
Simunul Mayor Nazif Ahmad Abdurahman said Musa lived a retiree’s life. He would farm every now and then and was often seen buying fish from the port on early mornings. Musa’s wife, Aurelia, is the principal of Simunul Elementary School.
Musa’s home, a tattered wooden abode with a run-down car parked in a makeshift garage, is located by the side of the RSF camp in Simunul. From his house, he would have a good view of the entire camp, especially the meeting area where RSF members held regular meetings before the standoff.
Ibnohasim Akmad, an RSF member from Sulu, said Musa is their more visible leader, not Raja Muda.
Akmad, who was left behind when the group went to Sabah, said that during his one-month stay before the Sabah standoff, Raja Muda – who lives in Barangay Tubig Indangan, a kilometer away from the camp -- only visited their camp "sometimes."
It was Musa, Akmad said, who taught them about “military rules.”
“He just taught us certain formation then we were briefed about rules and regulations about the military, how to do it as military, how to follow military laws,” Akmad said.
Akmad refused to provide details of their “trainings," but denied these included firing guns.
He said goodbye
Musa’s wife, Aurelia, said he told her about their plan before the group left for Sabah.
“The truth is, he said goodbye. Even if I didn’t want him to go, I can’t do anything about it,” she said in Filipino over the phone.




Like most Tawi-Tawi residents, it was not the first time that Musa had gone to Sabah. Aurelia said Musa had gone to Sabah twice this year to visit his siblings in Lahad Datu.
At the height of the second Malaysian assault on Lahad Datu on March 5, a police official told us: “Kapag si Musa ang nawala o nahuli, wala na, dun na mabubuwag iyan, (If Musa dies or is captured, that’s when the forces will be defeated)."
A few hours after, the Kiram family declared a ceasefire – an appeal that Malaysia rejected.
Musa’s wife said she has not talked to Musa since he left because Musa didn’t own a cell phone.
Frustrated soldier
Sambas has a slightly different narrative.
When news broke about the Jabidah massacre on Corregidor Island in 1968, Sambas’ father, a former barangay chairman for 20 years, quickly travelled from Tawi-Tawi to Manila to fetch his son from Fort Bonifacio.They returned to their home in Barangay Manuk Mangkaw on Simunul Island.
FAILED DREAMS. Ernesto Sambas rarely left his home after grudgingly leaving the military. Photo by Karlos Manlupig
“His father brought him home to show our neighbors that he is alive,” Sambas’ wife, Rubia said in Sinama, the language of the Sama.

After Sambas left Fort Bonifacio, he was never able to do what he has always aspired for – to become a soldier again.

A framed certificate that shows Sambas had completed his initial Jabidah military training course hangs on the wall of Sambas' house. Aurelia said his husband served as 2^nd lieutenant of the Jabidah commando unit.
"Under the Crescent Moon" tells Sambas' story as the first Jabidah recruit to be commissioned officer by the Army. "[Sambas] remembers that day in 1967 when he saw [then Maj Eduardo] Martelino's recruits jogging on the rugged streets of Simunul. 'They looked like they were having fun.' One morning, Martelino passed by Sambas' house, looking for the latter's father who was then a municipal official. Martelino ended up talking with Sambas who signified his interest in joining the troops he saw."

"It didn't take much on Martelino's part to lure Sambas into joining the Sabah mission. Sambas claimed they were told early on about this plan even while they were still in the training camp in Simunul. He was thrilled by the prospect of becoming a soldier and joining an elite mission at that. In August 1967, Sambas joined Martelino's men in their combat training at Camp Sophia, which overlooked the sea."
Sambas lived his post-Jabidah life hoping that he could one day return to the army.
Promises were made but none pulled through, including one by the late Brig. Gen. Eduardo Batalla, then commander of the Philippine Constabulary in Western Mindanao, whom Sambas’ wife said was his contemporary in the military.

Battalla had supposedly said he would help Sambas return to the military once he became a general. Batalla had reason to make such a promise; he, too, was one of the young officers assigned to train the Muslim recruits on Corregidor Island, according to the book.

But Batalla was slain in Zamboanga City in a 1989 botched operation against gang leader Rizal Ali.
“He became frustrated and disappointed. He suffered from low self-esteem,” Sambas' wife told us.
Sambas spent most of time at home and was never able to get a decent job. None of his 3 kids were able to finish schooling.

Failed dreams
At 64, Sambas still held on to his dream of going back to service, and his wife continues to question why none of those who said they would help him ever got back to them.
Unlike Musa, Sambas did not tell his wife that he was going to Sabah. Aurelia said Sambas quietly and hurriedly packed his things on the day of February 14.
“I asked him where he was going but we couldn’t talk to him. He wasn’t answering,” she said.

She only learned about the Sabah standoff after watching TV news, the main source of information for Simunul residents. The family was able to contact Sambas during the first two days of their stay in Sabah.
But they have not heard from him since.

Would Musa and Sambas repeat history and live to tell another Sabah story? - Rappler.com

Lutong makaw

I HAVE had three very long conversations on the Sabah issue with historian Samuel K. Tan (PhD from Syracuse), who taught at UP for 30 years and was at one point the chairman of the History Department. Tan is a very prolific writer with at least six books under his belt, including A History of the Philippines, The Muslim South and Beyond, Suratsog (annotated Bibliography of Jawi materials of the Muslim South), Selected Essays on the Filipino Muslims. His interest in the Sabah issue may be because he himself was born and raised in Sulu, but he is a treasure trove of information on the topic. And I’d like to share some of what I learned from him, as well as from his brother, lawyer Ancheta Tan.

First, the question of whether the transaction between the Sultan of Sulu (Jamalul Kiram I) and Gustave Baron Overbeck in 1878 was a cession (grant) or a lease. The contract was written in Tausog -- the sultan spoke no English -- and the controversy centers on the translation of the Tausog word "padjak." You have American, Dutch and Spanish linguists on one side (lease) and the British on the other (cede/grant).

Well, Tan is Tausog, and his Suratsog is an annotated translation of Tausog documents spanning the reign of Sultan Jamalul Kiram II. And he says "padjak" is unambiguous: it means lease. Aside from the fact that the $5,000 annual payment in perpetuity is consistent with a lease contract and not with a cession, there is one argument, this time forwarded by Chet Tan, that should convince anyone but the British government, and now the Malaysian government. In Tausog, there is a specific term for "sale" ("dagang"), and "buy" ("bi"). So if North Borneo was sold or bought, the term used would not have been "padjak." That British translation was clearly in bad faith, with malice aforethought.

I have elsewhere discussed another action in bad faith of the British government -- when it annexed North Borneo as a colony a mere six days after the Philippines became independent, and faced with humongous problems related to the aftermath of WW II. But Samuel K. Tan points out another: this time related to the so-called Cobbold Commission.

But first, a little background. The Federation of Malaya, composed of 11 states in the Malay Peninsula, won its independence from Great Britain in 1957. It seems that there was growing international pressure at that time on the latter, including pressure from the United States, to grant independence to its colonies (their unpreparedness being no excuse, per the UN resolution). Two of its largest colonies were Sarawak and Sabah (formerly North Borneo) in the island of Borneo. Whether it was Tungku Abdul Rahman of Malaya or the British government who first got the idea to enfold Sabah and Sarawak into the Federation of Malaya (and call it Malaysia) is immaterial -- but both countries certainly were enthusiastic about it. For the Federation, it would mean increasing their land area by two and a half times. For Great Britain, it would at least ensure that the former colonies would be "safe" from Indonesia and the Philippines.

And so the Cobbold Commission (CC) was created (Jan. 1962) formally known as "Commission of Enquiry," with the stated purpose of ascertaining the views of the peoples of North Borneo and Sarawak on the proposed merger.

The CC was composed of three British: Cobbold, former governor of the Bank of England, plus a former governor of Sarawak, and a former official of the Federation of Malaya; on the Malayan side, a former chief minister and the top official of the Foreign Affairs Ministry. Samuel Tan points out a glaring flaw: the citizens of Sabah and Sarawak had no representation in the CC.

Tan also points out another glaring shortcoming: that no referendum was actually held, in the sense of the people of Sabah and Sarawak casting a vote to be part of the proposed Malaysia. What instead happened was either that their "leaders" were consulted and/or "hearings" were conducted.

Understand, Reader, that Sabah and Sarawak together have a land area about two-thirds the size of the Philippines. And yet by June of 1962,or scarcely five months after the CC was formed, its report was submitted (in confidence) to their principals -- the prime ministers of Great Britain and the Malayan Federation respectively.

And guess what it said? That one-third of the people of Sabah and Sarawak were fully supportive; one-third were conditionally supportive (safeguards had to be included); and one third-wanted either that Sarawak and North Borneo gain independence first before thinking about a merger, or were totally against the merger.

That was June, right? And yet in August of the same year, the CC final report stated that more than 70% of the people of North Borneo and Sarawak were in favor. What kind of arithmetic did they use between June and August? Reportedly, the North Borneans were very surprised at the result.

What is not a surprise that the CC declared itself to be in firm support for a federated Malaysia.

In contemporary lingo, the whole process, although Samuel K. Tan was too polite to say it, was "lutong makaw."

There is more: Tan says that when it was proposed that the UN step in, in light of several objections raised internally and internationally, Great Britain gave notice that it would not be bound by the findings and recommendations of U Thant (UN Secretary General at the time) Can you imagine the effect that announcement would have on the UN’s report?

And as if to add insult to injury, Tan also recalls that observers sent by the Philippines and Indonesia were hampered by bureaucratic obstacles.

source: Businessworld's Winnie Monsod