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The 1878 Sulu Instrument: A Word in Two Languages

treaty law

Provenance and Stewardship

Peoples: Tausug, British, Bruneian

Languages: Tausug, Malay (Jawi), English

Source Type: primary document

Citation Confidence: high

Why this instrument matters

There is no other document in Philippine legal history whose interpretation has remained as politically active for as long as the 1878 Sulu instrument concerning North Borneo. It is the legal root of the Republic of the Philippines’ standing claim to Sabah; it is the legal basis on which Malaysia exercises sovereignty over Sabah; and it is the source of the longest-running unresolved territorial dispute in maritime Southeast Asia.

This entry is a companion to the history series story The Treaties That Ended a Sovereignty, which treats the instrument within the wider arc of the Sultanate’s dismantling. Here we treat the document itself: what was signed, in which languages, with which words, and under what custody chain.

The signing

On 22 January 1878, at the Sultan’s residence in Maimbung, Jolo, Sultan Muhammad Jamalul Alam signed an instrument concerning North Borneo with two agents acting on behalf of Baron Gustavus von Overbeck (an Austrian businessman holding Hong Kong consular status) and Alfred Dent (a British merchant). The document was prepared in two parallel versions: an English text and a Malay text in Jawi script. Both were signed by the Sultan and witnessed by his datus.

The instrument provided that, in exchange for an annual payment of 5,000 Spanish dollars (later 5,300, after a 1903 supplementary instrument involving territory not covered in 1878), the Sultan transferred to Overbeck and Dent certain rights over the territories of North Borneo previously held under Sulu suzerainty.

What those “rights” were — and whether what was transferred was ownership or use — is the entire legal question.

The vocabulary problem

Source-criticism card: the 1878 instrument

Custody chain: The original Jawi text was held in Sulu and copies circulated through British North Borneo Company files, the British Foreign Office, and the U.S. State Department after 1898. The English text was prepared by the Overbeck-Dent side and signed by the Sultan. No Tausug-language version exists.

Tier: A — primary legal instrument, contemporaneous, signed and witnessed.

Reliability — that signing occurred: HIGH. Multiply attested in British, Sulu, and Spanish records.

Reliability — that the parties understood the same thing: CONTESTED. The English and Malay-Arabic texts use materially different vocabulary for the operative transfer. There is no Tausug version that would settle Sulu-side intent.

Use guidance: Cite as the document that was signed. Annotate explicitly when characterizing what was transferred. Never paraphrase as “sale” or “lease” without flagging the ambiguity.

The English text uses the verbs grant and cede, English-law vocabulary for a permanent transfer of sovereignty equivalent to sale. The Malay-Arabic text uses the verb pajak. This is the word the dispute turns on.

In contemporary 19th-century Malay legal usage, pajak ordinarily denotes:

  • A lease with periodic payment (which the annual 5,000 Spanish dollars would correspond to);
  • A pledge or pawn (Arabic rahn), in which property is transferred for value but with a reversionary right;
  • A revenue-farming arrangement, in which a party acquires the right to collect dues without acquiring underlying ownership.

In none of its standard Malay legal senses does pajak mean unconditional, irrevocable cession of sovereignty equivalent to the English cede. The semantic distance is not a translation nuance — it is a categorical difference between alienable transfer and conditional transfer.

The annual payment is itself evidence pointing toward the pajak reading. In customary cession of sovereignty, payment is one-time (a purchase price). In pajak, payment is recurrent (rent or pledge maintenance). The 1878 instrument provided for recurrent payment — and the payment has, in fact, been made every year from 1878 to the present, first by the British North Borneo Company, then by the Crown Colony of North Borneo, and from 1963 by Malaysia. The continuity of payment is documentary fact; how it should be characterized is the dispute.

The Brunei origin point

A complication that both sides of the modern dispute often elide: the territories transferred in 1878 were not originally Sulu. They had been ceded to Sulu by the Sultanate of Brunei in approximately 1704, in gratitude for Sulu military assistance against Brunei rebels. Sulu’s position in 1878 was therefore that of a sovereign exercising rights derived from a prior inter-sultanate transfer — a chain of title that the British negotiators understood in detail and that subsequent legal analysis must take into account.

This matters because the 1878 transfer cannot be analyzed purely through the 1878 vocabulary. The terms used in 1704 (which are themselves not preserved in the same documentary detail) shaped what Sulu thought it was capable of transferring in 1878 and on what terms.

The British administrative move

Within a year of the 1878 signing, the British government granted Overbeck and Dent’s commercial venture a royal charter as the British North Borneo Company (1881). The Company administered North Borneo as a chartered territory through 1946. In 1946, the Crown Colony of North Borneo was established by direct British administration. In 1963, North Borneo joined the Federation of Malaysia as the state of Sabah.

At each of these transitions, the British and successor administrations treated the 1878 instrument as having effected a permanent transfer — i.e., as governed by the English text’s grant and cede. The Sulu side, including the heirs of Sultan Jamalul Alam and the modern Sulu Sultanate claimants, has consistently maintained that the 1878 instrument was a pajak in the Malay sense and that the underlying sovereignty was never alienated.

The Philippine state position

The Republic of the Philippines, on independence in 1946, inherited a complex legal situation. The 1898 Treaty of Paris transferred Spanish sovereignty over the Philippine archipelago to the United States, but Sulu’s pre-1898 instruments concerning North Borneo were not extinguished by Spanish-American transfer (Spain had never administered North Borneo). The Philippine claim to Sabah, formally asserted from 1962 onward, rests on the position that:

  1. The 1878 instrument was a pajak (lease/pledge) under its operative Malay text, not a cession;
  2. The underlying sovereignty therefore remained with the Sulu Sultanate;
  3. The Sultan’s heirs ceded their proprietary rights to the Republic of the Philippines (instrument of cession dated 24 April 1962);
  4. The Philippines therefore holds the Sulu Sultanate’s residual sovereign rights over North Borneo.

The Malaysian state position is that Sabah’s joining of Malaysia in 1963 was effected through proper decolonization processes including a UN-supervised assessment of popular will (the Cobbold Commission), and that the question of underlying historic title was extinguished by the act of self-determination. Both positions are internally coherent. They cannot both be operationally correct.

The 2013 Lahad Datu incident

In February 2013, a group of approximately 200 followers of Jamalul Kiram III, a claimant to the Sulu sultanate, landed at Lahad Datu in Sabah and asserted that they were occupying ancestral territory. Malaysian security forces engaged the group. By the time operations concluded in March, more than 70 persons had died (approximately 60 of the Sulu group, 10 Malaysian security personnel, and 6 civilians). The episode brought the dormant 1878 dispute back into international attention.

The 2013 incident is not an authoritative source on the 1878 instrument’s meaning. It is, however, evidence that the underlying claim of continuous sovereignty by the Sulu line — the interpretation of pajak as a non-alienation transfer — has remained a live conviction within at least some Sulu communities for 135 years and counting.

The 2022 Paris arbitration

In February 2022, a French commercial arbitrator (sitting in Paris under Spanish arbitration rules in a dispute originally seated in Madrid before procedural challenges) issued a final award of approximately USD 14.92 billion against the government of Malaysia and in favor of the heirs of the Sulu Sultanate. The award was based on the position that Malaysia, through its predecessor the British North Borneo Company, had breached the pajak obligation when it stopped payment of the annual sum after 2013.

Malaysia has refused to recognize or pay the award, has obtained French court rulings setting aside enforcement actions, and continues to litigate in multiple jurisdictions. The award itself remains contested as a matter of international commercial arbitration and as a matter of underlying sovereignty.

What the 2022 award does, regardless of its eventual enforcement, is demonstrate that the 1878 instrument’s interpretive ambiguity continues to produce real legal and commercial consequence in the present. A document signed by a Sultan and a baron in 1878, in two languages with two words, has now generated a 21st-century arbitral award in the tens of billions of dollars.

What can honestly be said

Within the confidence framework laid out in Story 1 of the Sulu series:

  • Anchored: That the instrument was signed on 22 January 1878 by Sultan Jamalul Alam in two language versions; that the English text uses grant and cede and the Malay-Arabic text uses pajak; that annual payment has been continuous since 1878.
  • Contested: Whether the operative legal meaning is the English cede or the Malay pajak. Both readings are textually supported and have been defended by serious legal scholarship.
  • Probable: That the Sultan and his court, signing a document in their own language using their own legal vocabulary, intended the pajak meaning. The English text was prepared by the foreign side; the Sulu side could only have understood what its own text said.
  • Unknown: What Overbeck and Dent privately believed they were obtaining. Their internal correspondence is incomplete, and the discrepancy between the texts may have been deliberate ambiguity for negotiating purposes rather than mutual misunderstanding.

Quarantined Claims

Applying the framework laid out in Story 1:

  • QUARANTINED: That the 1878 instrument unambiguously “sold” Sabah. The Malay-Arabic text uses pajak, not a cession verb. Calling it a sale presupposes the disputed reading.
  • QUARANTINED: That the 1878 instrument unambiguously “leased” Sabah. The English text uses grant and cede. Calling it a lease presupposes the inverse disputed reading.
  • QUARANTINED: That the 1962 cession of Sulu Sultanate rights to the Republic of the Philippines settled the matter in favor of the Philippine claim. It transferred whatever rights existed; if no underlying pajak right existed, no transfer of substance occurred. The 1962 instrument is parasitic on the 1878 reading question.
  • QUARANTINED: That the 1963 Cobbold Commission process settled the matter in favor of the Malaysian claim. The Commission addressed the will of the population at the moment of decolonization; it did not adjudicate the antecedent question of whose sovereignty had been operative since 1878.
  • QUARANTINED: That the 2022 Paris arbitration is a definitive ruling on the 1878 instrument. It is a commercial arbitration award between specific parties, not a binding inter-state determination, and is itself the subject of ongoing challenge in multiple jurisdictions.

Primary source: The 1878 Sulu instrument concerning North Borneo, in both English and Malay-Arabic (Jawi) versions; reproductions in British colonial files (CO 144, FO 12 series), Philippine government compilations of the Sabah claim documentation, and Malaysian state publications. Secondary: K.G. Tregonning, A History of Modern Sabah (1965); Nicholas Tarling, Sulu and Sabah: A Study of British Policy Towards the Philippines and North Borneo (1978); Cesar Adib Majul, Muslims in the Philippines (1973), chapter on the 1878 transfer; Paul Kratoska (ed.), South East Asia: Colonial History, vol. 4 (2001); Joseph Chinyong Liow and Don Pathan, Confronting Ghosts: Thailand’s Shapeless Southern Insurgency (2010) for comparative analysis of post-Sultanate territorial claims; arbitration award documentation in the matter of Heirs of the Sultan of Sulu v. Malaysia (2022). Internal cross-references: see “The Treaties That Ended a Sovereignty” for the wider arc of Sultanate dismantling, “The Sulu Zone” for the political-economic context in which the 1878 transfer occurred, and “The Bates Treaty” for the parallel American instrument signed 18 months later.