MANILA, MARCH 18, 2013 (PHILSTAR) (Xinhua) -- President Benigno Aquino III described on Sunday the Sabah claim as a "complicated issue", and needs careful evaluation of the facts.

Aquino criticized those who have "masterminded" the Sabah " invasion" which placed the lives of about 800,000 Filipinos at risk, in his speech during the commencement ceremony of the Philippine Military Academy (PMA) in Baguio City.

"Could any Malaysian Prime Minister so easily agree to let go of a land that, for so long, has been subject to their laws? Is there a Philippine President who would, without a second thought, give up our claim?" he said.

"I ask you to consider my position: whether or not the claims of those who went to Sabah are legitimate, how does one weigh actions against the lives and livelihoods that are put in danger, should an outright conflict begin?" Aquino said.

He said that the Sabah claim needs a careful and truthful evaluation of the facts, and a subsequent negotiation along those lines, to produce the right solution.

The President said the "masterminds" of the incursion, along with those who "provoked and aggravated the situation," were only pursuing their own personal interests without thinking of the consequences of their actions on the majority.

About 180 followers, some of them armed, of the Sulu Sultanate sailed from southern Philippine province of Tawi-Tawi to Lahad Datu in Sabah on Feb. 12 to assert their claim over the minerals- and oil-rich territory. After about two weeks of holing up in a Lahad Datu village, a clash occurred between the Malaysian forces and Kiram followers, leaving around 60 deaths.

Thousands of Filipinos have fled from Sabah and returned to southern Philippines since the encounter.

Analysis Philippines acts as Malaysia’s jailers of fleeing Filipinos By Amando Doronila Philippine Daily Inquirer 12:07 am | Monday, March 18th, 2013 3 11 5

Thirty-five followers of the sultan of Sulu, who were intercepted by the Philippine Navy in the Sulu Sea on Wednesday while fleeing the search and exterminate mopping-up operations of Malaysian security forces in Sabah, have fallen into the arms of Philippine authorities poised to charge them with criminal offenses.

If the fugitives felt they were in friendly territory after escaping the Malaysian roundup, they were sadly mistaken. They were detained in the naval ships which rescued them, and faced possible criminal prosecution for breaking Philippine laws—not Malaysian laws—for taking part in the landing of the sultan of Sulu’s “royal army” in Sabah on Feb. 9.

The action of the Philippine government on its returning Filipino Muslim nationals fleeing the bloodbath in the killing fields of Sabah was both puzzling and sending mixed signals, raising questions whether it is part of the government’s policy of appeasement of Malaysia.

Justice Secretary Leila de Lima said the 35 returnees, one of them a woman, would be taken to court for inquest on a raft of charges, including illegal possession of firearms. They surrendered their weapons to the Philippine Navy upon interception.

“The armed men violated several laws and proper charges will be filed against them,” said a source in the joint fact-finding team of the Department of Justice.

The Philippine National Police, the National Bureau of Investigation and the Department of the Interior and Local Government all threw the collective weight of the government’s law enforcement machinery behind the action.

The source said the charges of illegal possession of firearms and violation of the election gun ban would be brought against the followers of Jamalul Kiram III, the sultan of Sulu.

De Lima said, “There would be other charges, I’m sure,” adding that the sultan’s followers could also be charged “in relation to their activities while in Sabah.”

The government has been blowing hot and cold in its position over the incursion of the sultan’s armed expedition to Sabah as the Philippines and Malaysia moved closer to armed conflict, or rupture of diplomatic relations, in the face of mounting reports of atrocities committed by Malaysian security forces on remnants of the sultan’s followers fleeing into the jungles of Sabah, as well as on noncombatant Filipino Muslims from Sulu, who have been living there for several years.

Human rights violations

The detention of the armed men fleeing the carnage in Sabah came just a few days after the Philippine Department of Foreign Affairs (DFA) issued a stern statement saying that the government “views with grave concern the alleged rounding up of community members of Suluk/Tausug descent in Lahad Datu and other areas in Sabah and alleged violations of human rights reported in the media by some Filipinos who arrived in Sulu and Tawi-Tawi from Sabah.”

The statement said the DFA was coordinating with other government agencies “to document these reports so that appropriate actions could be taken.” It warned the Malaysian government “to take steps to clarify these incidents.”

The warnings indicated that the government was seriously preparing the ground for making a case of violations of human rights to an international tribunal, holding Malaysian leaders liable for the reported atrocities, including alleged wanton killings by Malaysian security forces in their air-ground assault to wipe out the retreating sultan’s forces, as well as brutalities on civilians suspected of aiding their invading kinsmen from Sulu.

That Malaysian authorities did not miss the point that the Philippine government meant business in its warnings against atrocities on Filipino nationals caught in the crossfire in Sabah was apparent from an official announcement from the Malaysian government.

Malaysian Attorney General Abdul Gani Petail announced on Saturday that an investigation of the reported abuses by Malaysian security forces in Sabah had started.

“If the investigation showed there had indeed been abuses, the persons involved will be charged accordingly,” the state-controlled Bernama news agency quoted Abdul Gani as saying in a statement.

Gani said the number of persons detained on suspicion of having links to the armed men from Sulu who occupied a village in Sabah last month in the name of the Sulu sultan had reached 216.

He said those complaining of such excesses would be assisted by the Malaysian Bar and Sabah Law Association. But he added that he had yet to meet anyone who could support reports in the Philippine press, particularly the Philippine Daily Inquirer, that Malaysian policemen had beaten up Filipinos or killed any of them outside of the fighting with Malaysian security forces.

Access to detainees denied

Philippine officials, including diplomats, have been denied access to the detained Filipinos and to eyewitnesses to the reported atrocities. Instead, Malaysia tightened security measures to seal the porous borders with the Sulu Archipelago.

Malaysian Prime Minister Najib Razak on Wednesday said the incursion by the sultan’s followers was a “wake-up call” that would lead to tighter security on the “notoriously porous” sea border with its southern neighbor.

What Razak meant was amplified by Adm. Mohamad Amdan Kurish, head of the Malaysian Enforcement Agency and the Royal Malaysian Navy.

Kurish told reporters in a recent news conference that Malaysia had deployed three ships and six patrol boats in addition to the three ships that had been patrolling Sabah waters prior to the security crisis with the Philippines.

On March 8, Malaysian military chief Gen. Zulkefeli Mohamad Zin was quoted by Bernama as saying that the “tightened cordon” had prevented the “Sulu terrorists” from slipping out of Sabah.

“We are convinced that they are trapped in Kampung Tanduao and Kampung Tanjung Baru,” he said. “We will continue to enforce the cordon and conduct the search, focusing on two places.”

Of direct relevance to Filipinos is the issue: What do we do with the returning gunmen we have? Are we going to act as surrogate jailers of our own people on behalf of Malaysia? And for breaking whose laws? Are we going to send them back to Sabah to be killed there?

WHO OWNS SABAH ? - COMPLICATING THE QUESTION Friday, March 01, 2013 By Patricio P. Diaz on February 27 2013 7:02 pm

I. The Question

When we started writing this piece in the afternoon of February 25, the followers of Sulu Sultan Jamalul Kiram III were still in their refuge in Tanduo (not “Tanduao” as used in Philippine media), Lahad Datu in the eastern side of Sabah.

The Malaysian Security Force had not enforced its new Sunday deadline for the Sultan’s followers under his brother Raja Muda Agbimuddin to leave without a shot. A second deadline had been set for midnight of February 26.

As of this morning, media reports from Manila and Sabah indicated no change in the standoff. Agbimuddin had repeated his brother’s “do-or-die” stand. The Sultan, through his spokesman, told the Philippine Daily Inquirer that his men would stay put in Tanduo until ordered otherwise by him despite President Aquino III’s stern warning of possible arrest.

From Sabah, Wikisabah reported security forces were ready to move in.

Evidently, Kuala Lumpur, ignoring the calls of the political oppositions in Sabah for the military and police to use force, is making good its option to avoid bloodshed through diplomacy.

As Manila has sent a ship to bring home the Sultan’s followers, the two countries obviously want to simplify the solution: Go home in peace; we’ll talk later. Avoiding the spilling of blood is in the conscience and hands of Sultan Jamalul Kiram III and his brothers.

Clarifying the Question

Unless consumed by pride or markabat (also: maratabat), leaving Tanduo in peace is simple. But talking later will involve the simple question, “Who owns Sabah?”, that events and circumstances of three centuries and a half have complicated. Will leaving Tanduo peacefully and talking later happen?

Let’s clarify the question. “Sabah” is the eastern part, less than half, of the present Sabah state as delineated in legal documents; “Who” refers to the Sultanate of Sulu or the Sultan and his heirs, Malaysia, the Philippines and the Sabahans; and “owns” denotes possession of a territory with sovereignty – not just possession or ownership of any piece of property with mere proprietary rights alone.

In the first case, “possession of a territory with sovereignty”, proprietary (territorial) and sovereignty rights are inseparable; the possessor must be a sovereign state or a political entity vested with sovereignty.

In the second case, the possessor, limited to a private individual or group, is entitled to proprietary but not sovereignty right.

History of the Question

Let’s trace the history of the question. When the Sultan of Brunei awarded North Borneo to the Sultan of Sulu in 1658, the act was the transfer of a territory from one sovereign state to another, by one sovereign to another. The Sultanate of Sulu owned Sabah. Since during that era of monarchy, the sovereign state is identified with the sovereign, the Sultan of Sulu owned Sabah.

In 1761 when the Sultan of Sulu, by an agreement, allowed the British East India Company to set up trading posts in North Borneo and in 1878 leased North Borneo to the British North Borneo Company, the Sultanate of Sulu still owned North Borneo. The agreements, according to legal experts, were not treaties as private companies could not enter into treaties; the Sultan of Sulu did not give away any part of his dominion or his sovereignty.

In 1881, the British North Borneo Company was chartered by the King. It was tasked to administer North Borneo which in 1888 became a protectorate of the Great Britain. To clarify, as gleaned from various sources, the protectorate did not just consist of that part of North Borneo under lease by the Company from the Sultanate of Sulu but included the other part ceded by the Sultan of Brunei to Britain in 1846.

When the Company was dissolved in 1946, North Borneo became a British Colony and the Great Britain assumed the lease in spite of a stipulation prohibiting of its transfer to a third party without the consent of the Sultan of Sulu. In 1963, when the Federation of Malaysia was formed, Great Britain turned over North Borneo, together with Sarawak, to the Federation. Malaysia assumed the lease . As a federal state, North Borneo is now Sabah. As stated earlier, as delineated in legal documents, the claim of the Sultan of Sulu covers less than half of Sabah, only the eastern part.

Two Analyses

Sen. Jovito Salonga, while a congressman in 1962, analyzed the Sabah question in an article, “The Philippine Claim to North Borneo: A Statement of Facts”, published in the Manila Times, Manila Chronicle and Philippine Free Press in May, 1962. In that year, President Diosdado Macapagal initiated the Philippine claim to North Borneo and in the following year, he picked Salonga to lead a delegation to London to pursue the claim. North Borneo was then a colony of Great Britain.

By his analysis of the facts, he concluded that “the Philippine Government should now, in the light of all relevant evidence, institute the claim and initiate the necessary steps toward the peaceful settlement of the North Borneo question”. Great Britain did not own North Borneo. [The article was republished in Manila newspapers on September 1, 2011 obviously in support of a move urging President Aquino III to revive the claim.]

Vidal Yudin Weil, a Sabahan noted writer and blogger, when asked for his views on the standoff, wrote “To whom does Sabah belong?” that was published in Free Malaysia Today (February 22, 2013) and in Wikisabah (February 23, 2013). He analyzed documents starting with the1878 lease agreement, events and circumstances related to the Sabah question.

Concluding with a critical comment on the relinquishment to Malaysia by Great Britain of her sovereignty over North Borneo as provided in Article IV of the “Malaysia Agreement of 1963”, he wrote:

“Because it was stated that one part of Sabah** belonged to the Brunei Sultanate and the other part to the Sulu Sultanate, and while Brunei had ceded her part of Sabah’s sovereignty, Sulu (now part of the Philippines) only leased her part of Sabah, does Her Britannic Majesty had (sic) sovereignty over the whole or only one part of Sabah?

“It is obvious that the answer is only one part of Sabah, therefore Article IV is null and void thereby rendering the entire Malaysia Agreement of 1963 illegal and of no effect…!

“There is a legal maxim ‘nemodat quod non habet’ which means ‘you cannot give what you do not have’.”

Great Britain did not own that part of Sabah leased to British North Borneo; she has no sovereignty over it. She cannot relinquish sovereignty that she did not have. Malaysia does not own that part of Sabah claimed by the heirs of the Sultan of Sulu.

By Salonga’s and Weil’s analyses, does it mean that the heirs of the Sultan of Sulu, and by extension the Philippines, own the Sabah in question?

(“Comment” is Mr. Patricio P. Diaz’ column for MindaViews, the opinion section of MindaNews. The Titus Brandsma Media Awards recently honored Mr. Diaz with a “Lifetime Achievement Award” for his “commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate.” You can reach him at patpdiazgsc@yahoo.com.)

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