The perennial claim on Sabah by (political) elements in the Philippines is seasonal, rather than structural. It is often mounted on the basis of individual and political calculations, notwithstanding the legal and historical dimensions that surround the issue.

When thousands of Filipinos are deported from Sabah, for instance, the calls to reclaim it surge. On other occasions, the claim is made by individuals who seek to bask in the limelight of the media. One such incident came to a head on Oct 3.

Under the pretext of being the newly crowned Sultan of Sulu, Rodinood Julaspi Kiram, also known as 'Robinhood' in the Philippines, resurrected the old argument that Malaysia was illegally occupying Sabah.

Rodinood claims that the British, who had been renting the territory from the Sultan of Sulu from 1878 had no prior right to turn it over to Malaysia in 1963 in the first place. Abdul Patta Hadjibun, a spokesman for the families of the nine heirs of the late Sultan of Sulu and North Borneo, has called Rodinood "bogus".

Hadjibun affirmed that the nine genuine heirs were recognised in a 1939 British court judgment, which ordered the crown colony to pay an annual lease of US$1,300 to the sultan's family. The descendants of the nine heirs now number around 70. Of the nine heirs, five are vying for the sultanship today.

In spite of Rodinood's questionable background, however, his claim on Sabah drew a sharp reaction from the Foreign Affairs Ministry in Malaysia.

While not denying the annual payment, the Deputy Foreign Minister Joseph Salang Gandum told Parliament that the practice was in keeping with a British custom.

As Joseph explained: "That is a fact, that was the thing we inherited during the British times. Terms can change over time, as to what they called it, whether they call it pajak (pawning) or rental, I am not sure."

Why did Malaysia react so sensitively to Sabah? The answer lies in the convoluted history of Sabah before Malaysia took possession of it from the British.

History of the sultans

To begin with, the Sultan of Sulu in the southern Philippines first obtained Sabah from the Sultan of Brunei as a gift for quelling a rebellion in 1704. Historical records showed that some 600 warriors from Sulu died in the service of the Sultan of Brunei.

On Jan 22, 1878, however, Sultan Jamalul Alam leased out Sabah to the British North Borneo Company (BNBC) for 5,000 Malaysian dollars (now known as ringgit); a practice not unknown in those days, as Penang and Singapore were also leased to the British East India Company during that period.

Three and a half years later, the BNBC was granted the British Royal Charter on Nov 1, 1881. From this point onwards, BNBC regularly paid the lease to the Sultan of Sulu, which the Malaysian government continues to pay until the present.

However, in 1962 the Sultan of Sulu granted what was the equivalent to the 'power of attorney' to the Philippine government - the title of sovereignty to Sabah. More importantly, the late Sultan Esmail Kiram transferred sovereignty rights 'over the inhabitants and territory of North Borneo' to the Republic of the Philippines in a resolution on Aug 29, 1962.

It was at this juncture that the Philippines' claim on Sabah was formalised by President Macapagal (father of present President Gloria Arroyo).

Since then any effective claim on Sabah could only be made through Manila, in spite of the repeated assertion by the Sultan of Sulu that the original 'power of attorney' had expired due to the inability of the Manila to reclaim Sabah more zealously.

Nevertheless, Macapagal did continue the serious effort to pursue the Philippines' claim over Sabah. It was also during this time that the Philippines was signatory to the Manila Accord, along with Malaysia and Indonesia.

The accord provided for the inclusion of Sabah in the Malaysian federal states, but did not preclude the Philippines' claim over the area. This accord complicated the Sabah situation further.

Not unlike his predecessors, President Ferdinand Marcos also relentlessly pushed the Sabah claim in the 1970s, triggering tensions between Manila and Kuala Lumpur. But the claim was kept quiescent as Marcos sought to quell a communist rebellion first. The Sabah issue was therefore put on the back burner.

Still, the Philippines has never formally renounced its claim over Sabah although officials in Manila have said previously that they would not allow it to be a thorn in bilateral relations. The biggest change in attitude came during the tenure of President Fidel Ramos.

In 1993, the Ramos administration established the Legislative Executive Development Policy Advisory Council (Ledac) on Sabah issues. However, it was left dormant when the Philippines signed an agreement with Malaysia to shelve the claim for the meantime and focus on cooperation in other areas, particularly trade and investment.

Renewing the claim?

Be that as it may, when Arroyo took over the reins of government, one of the things she did was to sign an executive order to reconvene the dormant Ledac. The goal purportedly was to come up with 'a national unified policy on whether to renew the country's long-standing claim over the disputed territory'.

This executive order has, however, not been pursued with any vigor as Arroyo has had to relied on the good office of the Malaysian government to mediate in the internecine Mindanao conflict.

As such, while the progeny of the Sultan of Sulu may feel entitled to Sabah - in this regard official communication has even been sent to the UN Secretary General Kofi Annan to intervene on this matter - the extent to which the Sabah issue can be pursued clearly lies with the Philippines government.

Indeed, Manila's sovereignty claim on Sabah is based on the proprietary rights of the southern Philippines Islamic sultanate. This is in line with the 1962 agreement between the Sultanate of Sulu and Manila.

On the part of Malaysia, it has refused to deal with the Sultanate of Sulu at all claiming that the entity no longer exists in full. This is because historically the Sultanate of Sulu has been abolished on three occasions.

In this context, it is no longer able to reclaim both its proprietary rights and sovereign ones, according to the foreign affairs minsitry.

"As an international entity, the Sultanate of Sulu disappeared in September 1878, when Spain at last succeeded in conquering the sultanate," said an official.

"It disappeared as a political entity within the Philippines in 1913 when the US government took over. It disappeared as an entity of any kind whatever when the US abolished the Sultanate entirely in 1936."

To be sure, the heirs to the Sultan of Sulu are not convinced by this argument. As such, regardless of who may be the new sultan today, it has been agreed by the progeny of the sultanate that Manila should first return to them 'sovereignty rights' over Sabah.

The first hurdle to reclaim Sabah is therefore trapped under the weight of bureaucratic machinations in Manila, just as the right to seek its return is with the Philippines' national government, rather than the new or reigning Sultan of Sulu.

PHAR KIM BENG is author of the Eye Eye You column in malaysiakini . He graduated from the International Islamic University in 1994 as a Muslim convert, having previously been a Buddhist. He has travelled around the world studying at the University of Notre Dame, where he understood the beauty of Catholic scholarship, the University of Cambridge, where he learned the importance of British education, and later the University of Tokyo, where he learned his survival Japanese.