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|Manili/Larawan ni Alberto Bainto|
|Patungo sa masjid/Larawan ni Sarah Matalam|
Tila isang koral ang tanging nalalabi pa sa dating masjid ng Sitio Bual. Naupo kami sa isang makapal na konkreto na isa sa mga haligi ng dating masjid. “Hindi talaga ito bahagi ng masjid,” ang paliwanag sa amin ni Manong Abubakar, dating kagawad ng baranggay at siya rin ang isa mga taga-Manili na maglalaan ng oras para ikuwento muli sa amin ang pangyayari. “Itinayo lang ito ng militar matapos ang masaker para hindi tumagas ang dugo at lumabas sa masjid. Hanggang bukong-bukong ang dugo sa loob ng masjid.” Ipinaliwanag ni Manong Abubakar sa amin ang nangyari matapos ang insidente, siya muna ang tumayong taga-kuwento habang hinihintay pa namin ang pagdating ng lalaking nasa loob daw mismo ng masjid nang maganap ang insidente. Sa maliit na kuwadrado na iyon inihelera ang dose-dosenang bangkay. Sa bahaging ito ang mga lalaki at du’n naman ang mga babae, paliwanag ni Manong Abubakar. At dahil masyadong marami ang mga katawan at maliit ang espasyo, iyong bangkay ng mga matatandang lalaki ay pinabukaka na lamang at sa pagitan ng mga hita nila inihilig naman ang mga ulo ng mga bangkay ng mga batang nasawi. Halos pitumpo o higit pa ang mga katawan na mga bata, babae at matatandang Moro ang naiwanan ng karahasan na ito—wala nang nagbilang at nagtala ng mga pangalan dahil nagmamadali rin ang lahat na makatakas sa Manili noong araw na iyon ng Sabado. “Saan po inilibing ang mga bangkay?” ang tanong ko kay Manong Abubakar. Malabo ang naging sagot niya at hindi ko nauwaan ang tugon niya sa magkahalong Maguinadanao at Filipino. Inulit na lamang ni Mang Abubakar ang kuwento kung paano inihanay ang mga duguang katawan pagkatapos.
|Ang tanging nalalabi sa masjid. Dito rin inihimlay ang mga katawan ng mga biktima/Larawan ni Sarah Matalam|
Tirik na tirik na ang araw sa umagang iyon ng Linggo at mahinahon na umiihip sa aming mga katawan ang hangin nang simulan ni Manong Sammy ang kuwento ng Manili.
Miyerkoles pa lamang nang makatanggap si Datu Usman ng liham sa opisina ng munisipyo ng Carmen na nag-uutos na tipunin ang lahat ng mga mamamayan sa masjid ng Sitio Bual at sa paaralan ng Manili sa darating na Sabado ng umaga. Nagtatrabaho noon si Datu Usman sa munisipyo. Ang liham ay mula kay Captain Langgam at Lieutenant Lagatus ng Philippine Constubulary. Dumating ang balita sa Manili tungkol sa pagtitipon. Ordinaryong araw at abala ang lahat sa kani-kanilang gawain bagaman nakararating na rin sa liblib na baranggay ang kuwento ng karahasan ng mga Ilaga sa Upi at iba’ibang bahagi ng Cotabato at Lanao. Binatilyo pa si Mang Sammy noon at kararating lang niya sa Manili upang maghatid ng mga mais na inani. Ang ama niya ang nagsabi sa kanya na huwag nang lumabas ng Manili pagka-Biyernes dahil may pagtitipon kinabukasan ng umaga sa masjid. Sumunod naman sa utos ng ama si Manong Sammy.
Natanggap ni Hajji Yusof Nagli, ang community leader ng baranggay Manili, ang utos mula sa liham. Hindi naman siya ang kapitan-de-baranggay ngunit kinikilala siyang ‘elder’ ng komunidad kaya sa kanya dinala ang liham. At dahil mula nga naman sa munisipyo, sa mga sundalo ng gubyerno ng Pilipinas ang utos, bakit hindi ka naman susunod. Dumaan ang Biyernes naghanda na ang lahat para sa pagtitipon kinabukasan. Wala pa ring nakaaalam kung para sa saan ba talaga ang pagpupulong. At nu’ng Sabado ng madaling-araw, matapos ang sambahayang, tinipon ang mga taga-Manili sa paaralan ng baranggay at iyong iba, sa masjid sa Sitio Bual, ang masjid sa tabi ng malabay na puno ng kaimito. Dahil ang ibang mga kalalahikan ay nasa bukid pa at nagsasaka — mga bata, babae, at mga lolo at lola ang nakarating sa ‘pagtitipon’ sa loob ng masjid.
|Manong Sammy/Lawaran ni Bainto|
Pagtataka. Ito ang naramdaman ng mga tao sa paaralan at sa masjid. Pagtataka dahil bukod sa mga sundalo ng mga Filipino may mga sibilyan din silang kasama at may hawak na mga baril bukod pa sa mga bagong mukha sila sa komunidad. Ang iba ay namumukhaan nila na mula sa katabing baranggay na Arunan, pero hindi sila sigurado. Pagtataka rin dahil hindi nila alam kung para saan ba ang pagtitipon at kung bakit kailangan silang tipunin lahat pati mga bata at matatanda. Alas-kuwatro ng madaling-araw nang sinimulan silang tipunin lahat sa paaralan at sa masjid. Ang iba ay may mga gawain pa sa bukid at sa kanilang mga tahanan, may mga aning mais na kailangan pang dalhin sa palengke. Aligaga at maingay sa loob ng masjid at paaralan habang naroroon sila sa loob at napalilibutan ng mga sundalo at ng mga bagong mukha. Apat na oras silang naghihintay sa loob ng mga gusaling ito.
Alas-siyete ng umaga nang ipahayag ng pinagsanib na puwersa nina Capt. Langgam, Lt. Lagatus at ng mga kasapi ng Ilaga na mula pa sa malayong Upi ang kanilang pakay sa Manili. Naririnig ko ang pagtunog ng kamera ni Sarah—at ito ang tanging ingay na nagmumula sa kanya. Natahimik ang lahat sa amin at patuloy sa pagsasalita si Manong Sammy. Marahan pa rin ang paghihip ng hangin na nahahalinhinan ng ingay ng pagkikiskisan ng mga dahon sa puno ng kaimito na nakatunghay lang sa amin. Hinahanap ng mga Filipinong sundalo at ng mga Ilaga ang isang tao: si ‘Mr. Enalang’ at hinihiling nila sa komunidad na ilabas ang machine gun, isang armalite at ilang baril na itinatago ng mga tao sa komunidad. Tumanggi ang mga tao. Hindi dahil sa ayaw nilang ilabas ang mga baril na hinahanap kundi wala namang baril sa kanilang komunidad dahil ang mga tao sa Manili ay mga magsasaka, nagtatanim ng mais, at namumuhay sa kung anuman ang ibibigay sa kanila ng isang adlaw. Ngunit kilala nila kung sino si Enalang, at hindi nila itatanggi ito. Nagpumulit ang mga Filipinong sundalo at mga kasapi ng Ilaga sa kanilang nais. Nagsimulang umiyak ang mga bata sa loob ng masjid at paaralan dahil kanina pang alas-kuwatro ng umaga sila naroroon at mag-aalas-otso na.
Nagbanta ang mga estranghero. Sa loob ng isang oras at hindi pa nailalabas ang mga armas at si Enalang, papatayin silang lahat. At tulad ng inaasahan, ano pa ang dapat mong maramdaman kung tataningan na ang iyong buhay at bibigyan ka lamang ng isang oras? Nakiusap si Hajji Yusof Nagli sa mga lalaki sa labas ng masjid. Doon sa kung saan siya nakikiusap sa mga sundalong Filipino at mga kasapi ng Ilaga natatanaw siya ng lahat sa loob ng masjid. Paano kami maglalabas ng mga armas kung wala naman talagang mailalabas? Si Enalang, tatlong kilometro pa ang layo ng bahay niya mula rito sa Manili at du’n siya sa malayo, sa Rio Grande de Mindanao malapit. Kulang ang isang oras. Bakit kayo humihingi ng imposible sa amin sa isang oras bilang katubusan ng aming mga buhay?
|Ang pader na itinayo ng militar para hindi tumagas palabas ng masjid ang dugo sa nagpatung-patong na bangkay/larawan ni Bainto|
Hindi ko na ako nakarinig ng anumang ingay mula kay Sarah. Iniiwasan ko rin siyang makita at mabasa ang kanyang mukha. Isang Maguindanaon si Sarah mula sa Pagalungan. Naupo kaming lahat sa makapal na pader at doon naman nakatungtong si Mang Sammy habang nagpapatuloy sa pagkukuwento. Naaalala pa ni Mang Sammy ang lahat dahil naroroon siya sa loob ng masjid. Binatilyo na siya noon at kasama niya rin ang kanyang kamag-anak at kapitbahay sa loob.
|Kaimito sa harap ng masjid/Larawan ni Matalam|
May ibang nakatakbo papalabas ng masjib at doon na rin sila pinagbabaril at bumagsak sa harapan. Masuwerte ako, ang dagdag ni Mang Sammy, dahil nag-Boy Scout ako sa elementary at mabilis akong nakatakbo. Hindi siya tumakbo ng diretso kaya nahirapan din silang sapulin siya ng bala. Matapos ang mga pagsabog pumasok sa loob ng masjid ang mga Filipinong sundalo at mga Ilaga. Hanggang bukong-bukong ang dugo sa loob ng masjid. Hindi mo malaman kung kaninong bahagi ng katawan ang kanino. Umabot at dumikit sa kisame at sa mga pader ang mga pirasong laman ng mga tao. At yung iba na gumagalaw pa ay pinagbabaril ng mga Ilaga at tinutusok ng bolo. At matapos iyon, tinanggal nila ang kanang tenga ng ilang bangkay ng lalaking Muslim. Apat ang nakita ni Mang Sammy. Ngunit ang Ilaga, alam naman natin (o alam mo ba talaga?) ay nabubuhay sa katapangan – sa kung gaano karaming tenga ang maipon nila ganoon katindi ang kanilang katapangan.
Sabado ng umaga iyon, alas-otso, ika-19 Hunyo, 1971. Tirik ang araw at patuloy na umiihip ang mga hangin mula sa mga kaparangan sa paligid. Maingay ang pakikiskisan ng mga dahon sa puno ng kaimito. May isang salita na nahihirapan akong palabasin sa aking bibig pagkatapos ang kuwentuhan kay Mang Sammy: hustisya. Kinabukasan ng Lunes, ayon sa isang mensahe na ipinadala sa akin ng isang kaibigan sa Maynila, lalagdaan na ng pangulo ng mga Filipino ang isang batas na magbibigay ng kompensasyon at pagkilala sa mga naging biktima ng rehimeng Marcos. Bahagi raw ang paglalagda sa selebrasyon ng EDSA People Power ng mga Filipino. Paano mo nga ba idudulog sa mesa ng isang Moro ng Manili ang kompensasyon at hustisya na mula sa mga Filipino na hindi mo binabayaran sa kanila ang dignidad, ang kanilang pagkatao, ang kinilang pagdadalamhati?
|Ipinakikita sa amin ni Manong Abubakar kung paano isinalansan ang mga bangkay pagkatapos/larawan ni Bainto|
“Dito na rin. Dito ang mga lalaki at bata at doon naman ang mga babae,” ang paliwanag ni Manong Abubakar.
“Dito na rin? Sa kinatatayuan natin ngayon?” Ang gimbal kong tugon kay Manong Abubakar. Napatingin kami ni Sarah sa lupa na aming inaapakan. Gusto ko sanang humakbang papalabas ng kuwardradong dating masjid dahil nasa ilalim pala ng mga paa namin ang mga bangkay. Sa mga Tagalog, sa amin sa Maynila, hindi mo inaapakan ang puntod ng mga patay.
Pabalik sa Kabacan, dala-dala ko pa rin sa aking sarili ang kapangahasan ko sa pagtatanong ng hustisya sa harap ni Manong Abubakar. Hindi; marahil hindi iyon ang pinakasaktong tanong na marapat at moral na ipataw sa Manili. Sana hinalukay ko na muna sa aking sarili ang sagot sa tanong na bumabagabag sa akin habang nakikinig sa kuwento ni Manong Sammy tungkol sa Manili, paulit-ulit na itinatanong ko sa aking sarili: Mayroon nga bang kapayapaan kung walang kalayaan? May mga bagay na hindi naman na kailangan pang hingiin, na dapat matagal nang naririyan tulad ng kalayaan, hustisya, kasaysayan, at identidad. Ilang Moro pa para maging Filipino ka? ang tanong ko sa aking sarili. At naisip ko bilang pagpapatawad na rin sa aking kapangahasan at katampalasanan: hindi lang naman siguro ako ang tanging Filipino na palaging may saliwa at impertinenteng tanong sa harap ng isang Moro.
The Philippine Claim to North Borneo:
There is ample justification, I believe, for the statement that emotionalism has beclouded and confused the North Borneo question. There are Filipinos who summarily adopt the my-country-right-or-wrong attitude; in specific terms, they tell us, “Let us have North Borneo by all means,” little realizing that by such a hasty, imprudent posture they render no little disservice to the very cause they propose to champion.
At the other end of the line are the faint-hearted souls who cherish a host of vague, nameless fears, and who have not stopped imagining the catastrophic, nuclear wars into which the Philippines would be drawn should it so much as attempt to press the claim to North Borneo, regardless of the merit or validity of such a claim. Responsible quarters confess to no little measure of amusement over the unrestrained enthusiasm, on the one hand, of home-grown nationalists in supporting claims — without adequate study of their validity — of sister countries in Asia over territories held by Western powers, and their unconcealed dread, on the other hand, in espousing a claim — without the slightest inquiry into its possible merit — over a portion of the globe’s surface which may belong as a matter of law and equity to Filipinos.
A good number of friends have asked me to deliver what they call an “impassioned speech” on the question, but I had felt that the time was not ripe and that the whole issue should be studied in an atmosphere of dispassion and restraint. I felt and still feel that the restoration of prudence and sobriety in the conduct of our foreign policy is a matter of cardinal importance. In the language of one world statesman, foreign policy is not only what we do, but how we do it.
If the Philippine claim to North Borneo is valid, we should — despite our standing as a young, physically weak nation — institute and press the claim in accordance with the accepted peaceful modes of settlement prescribed by international law and procedure. If, despite the assumed knowledge of the validity and justice of the Philippine claim, we fold our arms in mortal fear, we should lose not merely the respect of all law-abiding nations (the United Kingdom and the Asian countries inparticular), but also a considerable measure of self-respect — which, to my mind, is more important — and, by our own inaction and timidity,lose our faith in the ultimate validity of that which is right and just. If,on the other hand, we come to the conclusion that the Philippine claim is without basis, then we should say so and let the British Government know our stand. Such candor and probity will undoubtedly inspire the respect of the entire free world.
It is partly because of the well known regard of the British Government for the rule of law, and partly because of our deep-seated respect for the British institutions of law and order, that I have requested the Department of Foreign Affairs to make a careful, thoroughgoing study of the question and, if morally convinced of the merit of the Philippine claim, to institute and prosecute this claim through all peaceful processes, including diplomatic negotiations, good offices, commission of inquiry, arbitration, or resort to the International Court of Justice. There need be no fear of breach of amicable relations between the United Kingdom and the Philippines. Both are members in good standing of the United Nations; both are committed to the rule of law and to the necessity of maintaining a society of free men. On the other hand, the peaceful solution of the North Borneo question may well be a distinct Anglo-Philippine contribution, so sorely needed at a time such as this, where instead of a precarious equilibrium of terror as a temporary stabilizing factor in international relations, there should emerge more instances of healthy respect for law and for more voluntary arrangements among nations so that the moral force of right may be made to prevail over the right of might.
Friendly countries will therefore understand why the Filipinos view with deep concern any move on the part of the United Kingdom, in advance of the institution of such a claim, to render academic the North Borneo question through extra-legal means. For instance, a dispatch from Kuala Lumpur. Malaya, published in the New York Times issue of February 7, 1962. states and I quote:
“KUALA LUMPUR, Malaya, Feb. 6. — A political merger under a strong central government has been recommended by the Malaysian Solidarity Committee.
”The five-state merger would create a federation of Malaya, Singapore Island — which is linked to Malaya by a three-quarter mile causeway — and the Northern Borneo territories of Sarawak, Brunei and British North Borneo.
“A British and Malayan commission, headed by Lord Cobbold, former Governor of the Bank of England, is due to arrive in Borneo soon to inquire into public opinion in Sarawak and British North Borneo concerning the merger. Both are crown colonies. Brunei is a British protectorate, and its Government will deal directly with the Federation of Malaya and with London.”
One may well inquire: — why this plan of a merger at a time such as this? At any rate, and without considering such a development, let us consider the facts.
I . There is no controversy regarding one historical fact: namely, that in 1850, the Sultan of Brunei, in gratitude for the aid he received during war from the Sultan of Sulu, ceded North Borneo to the latter.
II. In January, 1878, the Sultan of Sulu entered into an agreement with two representatives of a private British company, namely, Gustavus Baron de Overbeck and Alfred Dent. It is at this point where controversy arises.
There are, to be sure, several versions of the agreement and quite a number of translations of said agreement. One group of heirs of the Sultan of Sulu submitted a certified translation of a Spanish text of the agreement, dated January 4, 1878, which in turn is a translation of the original in Arabic. Under this document, the Sultan of Sulu merely concluded a contract of lease with Baron de Overbeck and Alfred Dent, and granted to Mr. Overbeck the title of “Datto Padajara Rajah de Sandakan” as long as he might live, with the right to levy taxes on the said land, exploit its ores, forest products and animals, administer justice and collect dues and taxes from the traders of said towns. There are also in the files of the Department of Foreign Affairs several English translations (Conklin translation; Saleeby translation on the “History of Sulu” pp. 225-233; Decision of High Court of Borneo citingtranslation in “Treaties and Engagements affecting the Malay States,” by Maxwell and Gibson), which invariably use the terms “lease,’ “cede” and “grant.”
On the other hand, a document purporting to be the British text of the agreement, kept in the files of the British North Borneo Company in London, would seem to show that the Sultan of Sulu ceded and granted to Overbeck and Dent on January 22, 1878,
“all the rights and powers belonging to me over all the territories and lands being tributary to us on the mainland on the Island of Borneo”
in consideration of a yearly compensation of 5,000 dollars, together “with all other powers and rights usually exercised by and belonging to Sovereign Rulers, and which we hereby delegate to him of our own free and sovereign will.”
III. On November 1, 1881, the British Government granted a Charter to the British North Borneo Company which, after a recital of the terms of agreement between the Sultan of Sulu and the two representatives of the Company, empowered the Company to acquire full benefit of the said “grant” and “benefits.” Accordingly, Baron de Overbeck and Alfred Dent turned over their rights to the British North Borneo Company, which continued paying the stipulated 5,000 Malayan dollars.
IV. In 1915, Governor Frank Carpenter, head of the Mindanao and Sulu division of the Philippine Government, defined the stand of the United States vis-a-vis the Sultan’s temporal and ecclesiastical jurisdiction over the territories of the Sultanate beyond American jurisdiction, particularly those in North Borneo. He stated and I quote:
“It is necessary, however, that there be clearly of official record the fact that the termination of the temporal sovereignty of the Sultanate of Sulu within the American territory is understood to be wholly without prejudice or effect as to the temporal sovereignty and ecclesiastical authority of the Sultanate beyond the territorial jurisdiction of the U.S. Government, especially with reference to that portion of the Island of Borneo which as a dependency of the Sultanate of Sulu is understood to be held under lease by the chartered company (known) as the British North Borneo Company.”
V. In 1939. a group of heirs of the Sultan filed suit in the court of North Borneo against the Government of North Borneo and the British North Borneo Company for the recovery of the stipulated annual payments. Both defendants admitted their obligation to pay, the only issue being — in view of reported dispute among the heirs — to whom payment was to be made. The High Court of the State of North Borneo, through Chief Justice Macaskie, rendered judgment in favor of the heirs on December 18, 1939.
VI. On July 10, 1946, six days after the Philippines became independent, the British Government, by virtue of an alleged agreement between the Secretary of State for the colonies and the British North Borneo Company dated June 6, 1946 — whereby the Company “have transferred and ceded all the said rights, powers and interests to the Crown with effect from the 15th day of July, 1946, to the intent that the Crown should, as from that day, have full sovereign rights over, and title to, the territory of the State of North Borneo, and that the said territory, should thereupon become part of His Majesty’s dominions” — announced, by what is now known as the “North Borneo Cession Order,” that from the 15th day of July, 1946, “the State of North Borneo shall be annexed to and shall form part of His Majesty’s dominions and shall be called, together with the Settlement of Labuan and its dependencies, the Colony of North Borneo.”
VII. On February 26, 1947, former Governor General Francis Burton Harrison (as Special Adviser on Foreign Affairs to the Philippine Government), in a special report to the President of the Philippines, considered this an act of political aggression, “which should be promptly repudiated by the Government,” since it was done by the British Government “unilaterally and without special notice to the Sultanate of Sulu nor consideration of their legal rights.” He added:
“The proposal to lay the case before the United Nations should bring the whole matter before the bar of public opinion.
“Never in history has there been given any people such an opportunity to secure justice by an appeal to the enlightened conscience of mankind.”
VIII. In 1957, the heirs of the Sultan of Sulu issued a proclamation declaring the termination of the lease contract over the territory in question effective January 22, 1958. This declaration was served on the British Government. Since then, the heirs have made claims upon the British Government for the return of the territory, but their claims have been disregarded.
The crucial question, then, is one of ownership: Is ownership vested in the United Kingdom? Does the Philippines have any right to claim North Borneo?
In discussing this, I have taken careful note of the statements of the highest British officials and considered the views of English authorities on international law. In this way, we avoid pointless controversy since the British Government cannot possibly dispute, under the principle of estoppel, its own official stand. There may be a lot of wrangling over what is the authentic version of the agreement of 1878, but there can be no debate on the official British stand on that agreement.
At the time the agreement was entered into in 1878, the British North Borneo Company had no legal personality whatever. It was incorporated by Royal Charter only on November 1, 1881. It is important to note this, since admittedly in 1878, North Borneo was not under the territorial supremacy of any member of the Family of Nations.
Overbeck and Dent, therefore, acquired rights over North Borneo merely as private individuals and no more. Their purported acquisition of territory and “sovereignty” was therefore beyond the pale of International Law. Did the incorporation by Royal Charter of the British North Borneo Company in 1881 create a trading company with sovereign rights — even from the English viewpoint — over North Borneo? This was the very bone of contention between the Spanish and Dutch Governments, on the one hand, and the British Government, on the other, soon after the Royal Charter was granted the British North Borneo Co. It is a matter of record that the British Government had declared that it did not intend to acquire sovereign rights in North Borneo. But the Spanish and Dutch Governments protested that such a declaration was inconsistent with the grant of a Royal Charter to the British North Borneo Company, “invested with sovereign rights by the Native Chiefs of North Borneo, and subject, as regards the exercise of these rights, to the Supreme authority of Her Britannic Majesty’s Government.” The British Foreign Minister, Lord Earl Granville, in a correspondence to the British Minister at Madrid, Mr. Morier (No. 197), dated January 7, 1882, recapitulated “the circumstances under which Her Majesty’s Government acceded to the application of the Company for Incorporation by Royal Charter,” drew attention “to the special character of that Charter,” and explained “its legal effect.” Lord Granville said the British North Borneo Company was in fact established under three Charters: (1) the Charter and territorial concession from the Sultan of Sulu; (2) the Charter and territorial concession from the Sultan of Brunei; and (3) the British Charter of incorporation. Note the following significant passages from Lord Granville’s correspondence:
“The first two Charters, from the Sultans of Sulu and Brunei, are those under which the Company derive their title to the possession of the territories in question, and their authority to administer the government of those territories by delegation from the Sultans.
“The third Charter is the British Charter under which the Company have obtained incorporation and a recognition of her Majesty’s Government of their title to the territories granted. In return for incorporation by Royal Charter, and for the recognition of the Concessions, the Company have surrendered to Her Majesty’s Government various powers of control over their proceedings which, though of a negative character only, are sufficient for the prevention by Her Majesty’s Government of any abuse in the exercise of the authority conferred by the Sultans. It is important to bear in mind that no such control would have been reserved to the Crown had theCompany taker, incorporation in the usual manner by registration under the Companies Acts, and elected to follow their own course independently of Government support.
“The British Charter therefore differs essentially from the previous Charters granted to the East India Company, the New Zealand Company, and other Associations of that character, in the fact that the Crown in the present case assumes no dominion or sovereignty over the territories occupied by the Company, nor does it purport to grant to the Company any powers of Government thereover; it merely confers upon the persons associated the status and incidents of a body corporate, and recognizes the grants of territory and the powers of government made and delegated by the Sultans in whom the sovereignty remains vested. It differs also from previous Charters, in that it prohibits instead of granting a general monopoly of trade.”
In thus differentiating the status of the British North Borneo Company, Lord Granville stated that “after very careful consideration of all the circumstances of the case Her Majesty’s Government decided that the Charter should be granted, and you will perceive from an examination of its provisions that its effect is to restrict and curtail the powers of the Company and not to create or enlarge them.”
In similarly repudiating the Dutch contention, Lord Granville stated that the territories “will be administered by the Company under the sovereignly of the Sultans of Brunei and Sulu, to whom they have agreed to pay a yearly tribute,” and that “the British Government assumes no sovereign rights whatever in Borneo.”
Much the same disclaimer was sounded by the famous Prime Minister, William Ewart Gladstone. Speaking in the House of Commons, he acknowledged that the “remarkable powers” obtained by the British North Borneo Company involved the “essence of sovereignty” but they were “covered by the Suzereignty of the Native Chief.” He declared that no greater obligation rested upon the Government to protect the Company than “to protect any other subject who might be in pursuit of objects not unlawful.”
These authoritative statements show, in brief:
1 . that Overbeck and Dent were not authorized by the British Government to acquire and administer North Borneo; they merely acted in their private individual capacity.
2. that the British North Borneo Company was not invested by the British Government with the public power of acquisition and administration of North Borneo, unlike the different trading companies chartered at the time.
3. that the British Government assumed no rights of sovereignty whatever in North Borneo; and
4. that the British Government explicitly acknowledged the sovereignty and title of the Sultan of Sulu over North Borneo.
The classic British text on International Law, a Treatise on International Law by Oppenheim (7th edition, edited by Lauterpacht, 1948), gives us the significance in International Law of the above facts. Oppenheim states that where an individual or a corporation acquires land in countries which are not under the territorial supremacy of a member of the Family of Nations, such acquisition of territory and sovereignty thereon “takes place outside the dominion of the Law of Nations, and the rules of this law, therefore, cannot be applied,” unless the “corporation in question is invested by its State with public power of acquisition and administration.” (Volume I, sec. 209 (2), p. 496). He adds:
“If the individual or corporation which has made the acquisition requires protection by the Law of Nations, he or it must either declare a new State to be in existence and ask for its recognition by the Powers, as in the case of the former Congo Free State, or must ask a member of the Family of Nations to acknowledge the acquisition as having been made on its behalf.” (Id., at 496, 497.)
It is obvious that the British North Borneo Company, as the successor in interest of Overbeck and Dent, has not declared a new State to be in existence in North Borneo; and it is equally obvious that the BritishGovernment has refused to acknowledge, at least until 1946, the acquisition by Overbeck and Dent, and latterly, the British North Borneo Company, as having been made in its behalf.
What, then, is the significance in International Law, of the British Cession Order of July 15, 1946, which states in part:
“And whereas by an Agreement dated the twenty-sixth day of June, 1946, and made between His Majesty’s Secretary of State for the Colonies on behalf of His Majesty (therein and hereinafter referred to as ‘the Crown’) of the one part and the Company of the other part the Company (amongst other things) have transferred and ceded all the said rights, powers, and interests to the Crown with effect from the fifteenth day of July, 1946, to the intent that the Crown should, as from that day, have full sovereign rights over, and title to, the territory of the State of North Borneo, and that the said territory should thereupon become part of His Majesty’s dominions;
“Now, therefore, His Majesty is pleased, by and with the advice of His Privy Council, to order, and it is hereby ordered, as follows:
“1. This Order may be cited as the North Borneo Cession Order in Council, 1946, and shall come into operation on the fifteenth of July, 1946;
“2. As from the fifteenth day of July, 1946, the State of North Borneo shall be annexed to and shall form part of His Majesty’s dominion and shall be called, together with the Settlement of Labuan and its dependencies, the Colony of North Borneo;
“3. All persons who on the fifteenth day of July, 1946, are citizens of the State of North Borneo by virtue of the provisions of the North Borneo Naturalization Ordinance, 1931, shall, on that day, become British subjects;
“4. His Majesty hereby reserves to Himself, His Heirs and Successors, power to revoke, alter and to amend this Order.”
Note that the Cession Order is convenient in its vagueness as to the exact nature and scope of the rights and interests of the British North Borneo Company. How could it be otherwise in the light of the categorical disclaimers made by Lord Granville and Prime Minister William Gladstone?
Could the British North Borneo Company purport to transfer sovereignty over North Borneo to the Crown? Certainly not. The British Government had made it crystal clear that the Company did not have that power, and that sovereignty remained with the Sultan of Sulu. All that was transferred, in the very carefully worded Cession Order, was the mass of “interests, powers and rights” previously acquired by the British North Borneo Company.
In other words, the assertion of sovereignty over North Borneo by the Crown, effective July, 1946, under its own Cession Order, repudiated and set aside all the solemn Government declarations made by its highest officials; more than that, it threw overboard the sovereignty and title of the Sultan of Sulu which it had acknowledged in the past and completely disregarded the proprietary rights of the heirs of the Sultan over North Borneo. It was, to borrow the language of former Governor General Francis Burton Harrison, “an act of political aggression which should be promptly repudiated by the Government.”
I shall not, at this juncture, belabor the point so ably expounded by the Philippines Free Press writer, Mr. Napoleon Rama, namely, that the agreement of 1878 was just a contract of lease, not a contract of cession. The statements of Lord Granville and Prime Minister Gladstone three years after the contract was concluded, the contemporaneous official communications to and from the Minister of State in Madrid, the yearly tribute of 5,000 dollars to the Sultan of Sulu, and the terms of the “Cession Order of 1946” amply show that no cession was contemplated or ever perfected. A lease arrangement which, according to language scholars, is the English translation of the Malayan word, “padjak,” would seem to be the only other explanation. At any rate in International Law, individuals do not and cannot enter into treaties of cession (whereby sovereignty is acquired) with native tribal chiefs: these are outside the realm of the Law of Nations.
It is probable that the British Government, to justify its new stand, will fall back on one of two modes of territorial acquisition in International Law; namely, occupation and prescription.
Occupation is an original mode of territorial acquisition, and is effected through possession and administration of the territory by or in behalf of the acquiring State. The prime object of settlement by occupation is the incorporation of unappropriated territory into the national domain of the acquiring State. Only such territory as is not within the dominion of any State may be the object of occupation. In other words, the territory must be res nullius or terra nullius. The term res nullius, as has been interpreted, does not require that the territory be uninhabited, but that it be not already occupied by a people or State whose political organization is such as to cause its prior rights of occupancy to be recognized.
We must concede that in the past European powers did not recognize the title of settled peoples whose civilization was allegedly below the European standard. The emergence of non-European powers, and the growing importance of new nations in the Afro-Asian bloc, have eroded away this concept. At any rate, insofar as the British Government is concerned, it is precluded from claiming that the Sultan of Sulu had a title or a political organization below the European standard. All we need to do is to refer back to the text, of Lord Granville’s correspondence. Note the last paragraph in his letter to Morier, the British minister at Madrid, portions of which were quoted earlier:
“As regards the general features of the undertaking, it is to be observed that the territories granted to the Company have been for generations under the government of the Sultans of Sulu and Brunei, with whom Great Britain has had treaties of Peace and Commerce. . .”
It would be passing strange now for the British Government to contend that the Sultan of Sulu did not possess either a perfect title or a political organization below European standards, at least insofar as North Borneo is concerned. In the Law of Nations, states the British authority, Oppenheim, the conclusion of a bilateral treaty, such as a treaty of commerce and navigation, implies recognition (Op. cit., Section 75 (cl) p. 143).
THE NORTH BORNEO QUESTION
But this is not all. The important thing is that the Cession Order of 1946, annexing as it does the Territory of North Borneo and incorporating it as part of His Majesty’s dominions, ran counter to and violated:
(1 ) the official declarations of the British Government as to the legal nature and effect of the Agreement of 1878;
(2) the Treaty of Peace and Commerce entered into between Great Britain and the Sultan of Sulu;
(3) the title and rights of dominion which the Sultan of Sulu, on the strength of British admissions, had over North Borneo.
Oppenheim is authority for the proposition that while it is true that States may acquire new territorial or other rights by unilateral acts, such an annexation, without recognition on the part of third States being required for their validity, yet the position is different when “the act alleged to be creative of a new right is in violation of … conventional International Law. In such cases the act in question is tainted with invalidity and incapable of producing legal rights beneficial to the wrongdoer in the form of a new title or otherwise.” (Op. cit., Sec. 75 (b), at p. 136).
Prescription. — Prescription has been defined as the acquisition of territory by an adverse holding continued through a long term of years. The generally accepted concept of prescription in International Law apparently requires the existence of two essential facts, namely: continuous and undisturbed possession, and lapse of a period of time. Hugo Grotius, the father of International Law, laid down the rule that the adverse holding should go “beyond the memory of man. Vattel maintained that possession may ripen into title only after the lapse of a “considerable number of years ” Insofar as the present question is concerned, there may not be sufficient warrant for saying that the British possession was adverse, considering the yearly tributes they have paid to the Sultan of Sulu and his heirs. Their possession from 1946 up to this date, in the light of the continuous protests of the heirs and the termination of the lease, has not been uninterrupted and cannot possibly ripen into a title.
I have heard it said that the Philippine claim may not prosper because of Article 1 of the Philippine Constitution defining the National Territory. Article I provides:
“Section 1. The Philippines comprise all the territory ceded to the United States by the Treaty of Paris concluded between the United States and Spain on the tenth day of December, eighteen hundred and ninety-eight, the limits of which are set forth in Article III of said Treaty, together with all the islands embraced in the treaty concluded at Washington, between the United States and Spain on the seventh day of November, nineteen hundred, and in the treaty concluded between the United States and Great Britain on the second day of January, nineteen hundred and thirty, and all territory over which the present Government of the Philippine Islands exercises jurisdiction.”
I feel that those who argue along this line confuse the concept of national domain with proprietary rights of Filipino citizens over a portion of the earth’s surface. The Philippine Government is now called upon to defend and vindicate those rights, and if, as I know, appropriate arrangements have been made by the heirs of the Sultan of Sulu, with the Philippine Government, there should be no apprehension whatever that this claim will provide undue incentives for mere speculators. In other words, Article I has no applicability whatever to this kind of a claim. In the remote possibility that Article I is made to apply, there is ample room for protection in the saving clause found in said article, in the light of authoritative pronouncements of British officials. We need not even consider the thesis that in 1935, when the Philippine Constitution was adopted by the Filipino people, the Philippines was not an independent State but a mere dependency, and that therefore the restrictive provisions of Article I could not possibly tie the hands of the Republic as soon as independence became a reality.
There is something pathetic in the fact that it took an American official, the former Governor General Francis Burton Harrison, to assess the full import of the Cession Order of 1946. In a special report he submitted on September 26, 1946 in his capacity as Special Adviser on Foreign Affairs to the Philippine Government, he called the Cession Order by its proper name — “an act of political aggression.”
It would seem equally pathetic that some home-grown nationalists have counseled the Government to pursue a policy of fear and inaction.
In 1946, the voice of Harrison sounded like a cry in the wilderness. In 1962, that voice has gained volume and is no longer alone. Just a few days ago, the House of Representatives unanimously passed a resolution requesting the President to take all the necessary steps consistent with international law and procedure for the recovery of North Borneo.
Before the bar of world opinion, the Philippines can invoke the ringing declarations of responsible leaders all over the world — including those of the United Kingdom — who have vowed to end the practice of colonialism in all its manifestations. In recent years, the United Nations has been seriously concerned with the problem of colonialism and has now asked for its speedy liquidation. The North Borneo question should furnish an excellent instance for the British Government to translate a preachment into a cold reality. When in 1946, the British Government saw fit to make North Borneo a colony, in disregard of its previous disclaimers, her policy-makers must have foreseen the inevitable consequences of such an inopportune move, considering the temper of subject peoples all over the world. For the Filipinos, the North Borneo situation is not merely a problem of liquidation of colonialism; it is a question of the return to them of what, in law and equity, properly belongs to them, and which they can rightly call their own.
As I said in the beginning, there should be no apprehension of any rupture in the friendly relations between the United Kingdom and the Philippines. Friends can and should at times disagree. The important thing is that they should not become disagreeable. And like two good friends, the Philippines and the United Kingdom can differ on this point without being difficult. It is merely in keeping with the highest traditions of civility and a mutual respect for the rule of law 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.
Manila Times, Manila Chronicle, Philippines Free Press – May, 1962.
February 21, 2013
Dear Moro-IP Brothers, Sisters and Support Groups:
Greetings from Bulanbulan (Bukidnon) – the “Heart of Peace” in Mindanao!
The aspiration of the Indigenous Peoples (IP) and the Moro of Mindanao to attain genuine and lasting peace is not yet over. Although the signing of the Framework Agreement on the Bangsamoro (FAB) by the leadership of the Moro Islamic Liberation Front (MILF) and the Government of the Republic of the Philippines (GPH) was successfully achieved and optimistically moving forward, its final outcome still remains to be seen. Considering all these, the Moro and the IPs of Mindanao, including the settlers, need to continue initiatives independent of the MILF negotiation with the government to ensure that their peaceful relationships as neighbors is effectively sustained.
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Below is a 1968 report from New York Times about the new Philippine law declaring Sabah as part of the Philippines. Has that law been repealed? Manila Asserts Rights to Sabah New Law Declares State is Part of Philippines Special to The New York Times MANILA, Sept 18 – President Ferdinand E. Marcos signed […]
Below is a 1968 report from New York Times about the new Philippine law declaring Sabah as part of the Philippines. FROM: THE SILENT RIOT DOCUMENTARYManila Asserts Rights to SabahNew Law Declares State is Part of PhilippinesSpecial to …
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