Umwelten and the Sabah crisis

The mind, neuroscientists say, operates in a very small subset of the world that its eyes are able to see. This subset forms a restrictive cognitive environment that makes it extremely difficult for the mind to understand the wider world; in other words, a set of biases that makes the mind myopic. This subset is called the Umwelt.

Professor Randy David once wrote that those who live in an Umwelt are, in a way, color-blind– and usually unaware of it.

There is no doubt that the biggest security issue facing both Malaysia and the Philippines, even eclipsing the South China Sea disputes, is the escalating situation in the disputed region of Sabah. And perhaps the biggest bar to a proper resolution of this conflict is the inability of all the actors involved to think beyond their respective umwelten.

There is, for instance, a nationalist Umwelt: a world where advancing the interest of the nation-state, no matter how costly and destabilizing, is the ultimate value. We see this in Malaysians who think that their government’s response to the crisis has been weak and in Filipinos who think that their government’s failure to support the invasion is an act of treason. There is also the historical Umwelt, which insists that events of the past should still be the arbiter of present disputes, despite the fact that realities on the ground have changed. We see this in those who still cling to old titles to claim territories, oblivious to concepts like sovereignty and values like the right to self-determination. Still, there are those who live in an academic Umwelt that sees little value in the modern international system based on nation-states, emphasizing identities that precede modern national boundaries instead.

Even Prime Minister Najib Razak and President Benigno S. Aquino III seem to live in a restrictive Umwelt, too– one that does not compromise the concept of sovereignty or state authority. Prime Minister Najib, for instance, doesn’t seem to fully appreciate the political realities that compel Manila, a government friendly to his, to request access to Sabah on humanitarian grounds. For him, the crisis is strictly a police issue for Malaysia. Similarly, President Aquino doesn’t see the importance of giving the so-called sultan an opportunity to save face. He only sees the Muslim leader’s insubordination.

Resolving the Sabah crisis requires understanding all these umwelten– that is, understanding where the different actors are coming from. We should take note of all the cultural issues involved, and understand and appreciate the history behind the dispute. But, as columnist John Nery said, history can only go so far. At the end of the day, we will have to act in accordance with present realities.

We can of course argue how arbitrary the current national boundaries are, and how older identities are more enduring than modern nationalities. But realistically, these current boundaries and nationalities are here to stay, and the only way to resolve international disputes is through the framework of the current international system, which recognizes these geo-bodies and nationalities, not old kingdoms and identities.

We can also argue all day about the merits of the Sultanate of Sulu’s claim over Sabah, but the following realities will not change:

Firstly, that despite its long history and the Philippine government’s recognition of its importance to the Moro people’s cultural identity, the Sultanate of Sulu is not a juridical entity, much less a sovereign one. It cannot maintain an army, since militias are prohibited under Philippine laws, and it cannot defy the Philippine government and press an international claim by itself.

Secondly, that Sabah is not merely a piece of private property but a territory whose people have been granted the right to self-determination. While the United Nations-sponsored commission that found that the Sabahans desired to federate with Malaysia in 1963 may have been questionable to the Philippine and Indonesian governments then, the fact remains that Sabah has chosen to be part of the Malaya-Singapore-Sarawak federation and that the people of Sabah see themselves today either as Sabahans or Malaysians and not as Filipinos or Sulu subjects.

Thirdly, that historical titles usually mean next to nothing in international law– otherwise, Spain and Portugal should own the world– and that, finally, there is a clear distinction between sovereignty and ownership: the former trumps the latter. And while the Philippines has legislated its sovereignty over Sabah, Malaysia exercises actual sovereignty.

However, despite the inherent weakness of its claim to Sabah, domestic considerations make it extremely difficult, if not in fact impossible, for the Philippines to drop the claim. This is a practical reality that Malaysia should understand, just as Manila understands that Kuala Lumpur will never cede its sovereignty over Sabah.

Similarly, both Malaysia and the Philippines should understand that the Tausugs, the former subjects of the old Sultanate of Sulu, will always see Sabah as part of their homeland. No amount of Philippine admonition or Malaysian crackdown would change this. In this regard, therefore, the nation-state configuration must be flexible enough to accommodate extra-political nuances that are cultural and historical in nature; for given the fact that the Tausugs have historically been a warrior people, any attempt by both states to force their orientation on them will only result in sustained violence. This is why the current crackdown by Malaysia on the Tausugs in Sabah, assuming it is true, is dangerous for Kuala Lumpur– if Prime Minister Najib is not careful, this might become for him what the Jabidah Massacre was to Philippine dictator Ferdinand E. Marcos in the 1970s.

It will be best for both the Philippine and Malaysian governments to break out of their respective umwelten and understand the nuances of the current realities. Good faith between the two Southeast Asian powers is important, as this would create wiggle room for both to end violence in the immediate term and to solve the dispute in the long term. This, not nationalism, is what patriots on both sides should be fanning.

The situation in Sabah is obviously a Malaysian police issue, and there is nothing the Philippines could do but to call on Kuala Lumpur to respond to the Sulu intrusion in a proportionate manner, and to treat Filipinos in Sabah humanely. President Aquino is paying a steep political price domestically for recognizing this. But while he should remain stern towards the self-proclaimed sultan for provoking this crisis, he should also be flexible enough to allow his group a face-saving way to withdraw from Sabah.

On the other hand, while it is understandable for Prime Minister Najib to show his resolve in defending Malaysian sovereignty against the self-styled sultan’s followers, he should also appreciate President Aquino’s political will and help the President minimize the flak he’s getting from Filipino nationalists. For starters, perhaps he should exercise restraint in deploying the armed forces at his disposal, and grant Foreign Affairs Secretary Albert del Rosario’s request to send a Philippine humanitarian team to assist the Tausugs in Sabah.

It would be unfortunate if the Prime Minister would exploit the situation to strengthen the Barisan Nasional’s position ahead of the coming general elections in June at the expense of the Philippines. That would be a myopic path that could lead to long-term instability in the Sabah-Sulu corridor, something that would not be in the interest not only of Malaysia and the Philippines but also of the Association of Southeast Asian Nations in general.

Finally, once the fighting has subsided, the Philippines and Malaysia should pro-actively seek ways to prevent similar incidents from happening in the future. Perhaps Secretary del Rosario and Foreign Minister Anifah Aman should meet and issue a joint communique expressing their intention to, once and for all, put a closure to the Sabah dispute. Perhaps a joint exploratory committee should be formed to determine a framework on how both countries can address all issues concerned, leading to a final treaty on the Sabah dispute that would address the grievances of the heirs of the Sultanate without violating the Sabahans’ right to self-determination.

I’m sure there are sober, creative minds among Filipinos, Malaysians, and Sabahans that can come up with a win-win solution. I myself have some vague ideas, but I’ll keep them to myself for now.

You may heckle, but you may not defy

As I understand it, when the Supreme Court convened Tuesday to hear the petition of the never-elected former President Gloria Macapagal-Arroyo for that temporary restraining order (TRO), the main issue was not whether or not the Department of Justice’s circular restricting individuals’ right to travel is constitutional — at least not yet, anyway. The issue was whether or not the Court should temporarily order the Department to defer the implementation of the said circular right away, without hearing what the government has to say first.

It is true that the right to travel is a fundamental constitutional right, to be restricted only by law and when three constitutional conditions are met, namely, public safety, public health and national security. But it is also true that, rightly or wrongly, there have been legal loopholes that allowed state institutions to restrict it even without enabling laws. The Supreme Court itself, for instance, prevents all employees of the Judiciary from leaving the country without its permission.

The justification for the DOJ’s circular is that preventing individuals from travelling as a means to ensure that the state can exercise its power to prosecute crime is part of the residual powers of the Executive. Whether this is unconstitutional or not is the subject of a legal debate. I personally think it is, but that is for the Supreme Court to decide. What’s interesting to note is that this circular was issued by the Arroyo administration itself, which begs the question: If Arroyo didn’t think that preventing individuals on the DOJ’s watch-list order from leaving the country is unconstitutional then, why does she think it is unconstitutional now? Well, the government has an answer: Arroyo, now facing possible indictments for plunder and electoral sabotage, is merely trying to evade justice. The fact that pronouncements made by the Arroyo camp on her medical condition is inconsistent and that her travel itinerary is questionable—the “sick” woman is attending conferences in countries that have no extradition treaty with the Philippines— seem to buttress this suspicion.

For these reasons, writes Justice Ma. Lourdes Sereno in her dissenting opinion, would it not have been prudent for the Supreme Court to hear what the government has to say first before issuing the TRO? Eight justices of the Court, all of whom are Arroyo appointees, do not think so.

Do you agree with these eight justices? Neither do I. And neither does the feisty Leila de Lima, who refused to honor the court’s decision, thereby causing that breathtaking commotion in the airport that we all saw on our TV sets.

Now, one may disagree with the Court’s decision. One may heckle the court and question its integrity. One may scream his lungs out to express outrage. But to defy the Supreme Court is something one may not do, especially if that someone is the Secretary of Justice. When the DOJ refused to enforce the TRO just because it thinks that it should be heard first, even though the Supreme Court, rightly or wrongly, had already ruled otherwise; it was in effect putting the law in its hands, so to speak.

Secretary De Lima’s actions have pushed the country to the brink of a constitutional crisis, a collision of two co-equal branch of government. Instead of recognizing a lawful order from the highest court of the land, the Executive chose to square off with the Judiciary. In a nation of laws, constitutional crises happen only when there’s a dispute and the Constitution and the laws are silent on how to resolve it. In the case of the current spat between the DOJ and the Supreme Court, however, there’s no such ambiguity; the Court prevails. But apparently, the Philippines is not a nation of laws.

The thing is, Secretary De Lima’s actions are supported by the people, including, surprisingly, many of the country’s legal minds. It was a political decision, they say, not a legal one. The Supreme Court is not an unassailable arbiter, and when it abuses its discretion, someone must make it accountable. The problem with this view is that is presupposes that when people think that a court of law is wrong, they may defy it. I think this is a dangerous paradigm. If everyone is free to defy the courts, then what do we need these courts for? If everyone is free to defy the courts, we might as well get rid of these courts and let everyone be allowed to interpret the law.

In fact, the law provides a mechanism to hold errant justices accountable. That mechanism is called impeachment. True, there are nuances that make this mechanism extremely difficult, or even useless; but this doesn’t dilute its value. If Filipinos want their institutions to work, they should strive to strengthen them.

It is very important for Mrs. Arroyo to be brought to justice indeed. But one must wonder if it is actually that important that the country should be willing to ignore and even defy its own laws and institutions– which it has painstakingly been trying to build through the years– thus diminishing their importance, and even risk a constitutional crisis, in pursuit of it. This is not even just a legal or political question anymore; it’s also sociological. The Philippines has to consider also the perspective of its society’s long-term transition to modernity, which requires the strengthening of laws and institutions and the withering away of its penchant for sacrificing these for impulsive, emotional, albeit very justifiable, considerations.