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Former attorney general Tan Sri Tommy Thomas (Photo by Mohd Izwan/The Edge)
KUALA LUMPUR (Nov 30): While Tan Sri Tommy Thomas had sought to dismiss the misfeasance suit filed by nine Sabah politicians against him following the US$14.92 billion (RM69.06 billion) Sulu Sultanate arbitration award by denying any harm was caused by the Spanish arbitral award which was considered illegal, they maintained the former attorney general should be held liable for his actions.
Tommy, in his defence sighted by theedgemarkets.com to dismiss the US$14.92 billion claim made against him by the politicians for being liable for the Sulu claim, described the proceedings by the arbitrator in the courts of Spain or France as illegal, null and void.
There was no agreement in writing in the grant, Tommy said relating to arbitration.
“Thus, arbitrator Dr Gonzalo Stampa acted illegally and without jurisdiction from the inception and throughout his awards are equally illegal. The defendant (Tommy) pleads there is no harm that has been caused to Malaysia and it has suffered no losses, monetarily or otherwise, by reason of the illegal arbitral proceedings, illegal partial award, or illegal final award.
“Any costs incurred by Malaysia in challenging the same were necessary, regardless of my Sept 19, 2019 letter,” he said, adding that his decision for Malaysia not to participate in the illegal arbitral proceedings and to instead obtain the Kota Kinabalu Court decision was made, not only based on his own experience, opinion and consideration.
He added that decision was also independently supported by internal legal advice from senior federal counsel from the civil division and the international affairs division in the Attorney General’s Chambers, and external legal advice from two lawyers of reputable standing, experience and specialisation, namely, Sitpah Selvaratnam and Elaine Yap.
Tommy further denied that he had committed misfeasance in public office as the Sabah politicians claimed, as he no longer is a public officer, after resigning as an AG on Feb 28, 2020, and that he had not abused his powers or authority as AG in the matter of illegal arbitral proceedings and the Sulu claimants during his tenure.
He further denied he had acted recklessly indifferent as to limits of such powers or authority and he did not act maliciously or with intention to harm Malaysia, the Malaysian citizens or the nine politicians for that matter.
The former AG further added that he had acted in the honest belief of the legality of his actions based on departmental and independent legal advice. He further maintained that as the AG then he was empowered and had the authority to issue the Sept 19, 2019 letter, and its contents were made known to the prime minister and the foreign affairs minister during his AG tenure.
It was reported that two Sabah deputy chief ministers and seven ministers and assistant ministers filed the misfeasance suit against Tommy in which they sought a declaration that he had committed misfeasance in public office, an injunction for the immediate withdrawal of his prejudicial statements or public remarks on the rogue arbitration award, general, aggravated and exemplary damages and indemnity of US$14.92 billion as a result.
Two of the plantiffs are Sabah Deputy Chief Ministers Datuk Seri Dr Jeffrey Kitingan and Datuk Seri Dr Joachim Gunsalam, while the others are Sabah ministers Datuk Jahid Jahim and Datuk Ellron Alfred Angin as well as state assistant ministers Datuk Joniston Bangkuai, Datuk Abidin Madingkir, Robert Tawfik, Datuk Julita Mojungki and Datuk Flovia Ng.
Tommy maintained that the statement of claim filed by the nine politicians were in contravention of his fundamental freedom of speech under Article 10 of the Federal Constitution and the claim for them to be indemnified with US$14.92 billion or to be paid to Malaysia was wholly without basis in law and he further claimed the legal action contained no cause of action sustainable in law.
It is understood that Tommy chose to represent himself in the Kota Kinabalu suit when he filed a notice of appearance.
The Sept 19, 2019 letter was where Tommy expressed regret to the Sultan Sulu lawyers and offered to pay a sum of RM48,230 as compensation and that document was said to be used as a basis for Stampa’s award.
The proceedings were initiated in Spain because the Philippines (including the empire of the Sultan of Sulu) was previously under Spain. In April 1851, the sultan signed an agreement with Spain in which he agreed to submit to its rule.
In July 2019, the Sulu heirs filed a notice of arbitration, but Malaysia — then under the Pakatan Harapan (PH) government led by Tun Dr Mahathir Mohamad — did not participate in the process.
The heirs sought to terminate the agreement and claimed US$5 billion in unpaid rent, as well as US$26 billion in post revenue following the termination.
After challenging the jurisdiction of Stampa to arbitrate proceedings in Spain, he moved the matter to Paris, resulting in the initial and final award, which is now being challenged by Malaysia.
Meanwhile, in a reply to Tommy’s defence dated Nov 21, the nine Sabah politicians said that Dr Arias and Capiel from Messrs Herbert Smith Freehills of Spain were from the same firm that Tommy appointed to represent Malaysia when he was AG.
“By doing so, we contend that Malaysia had consented or conceded to the jurisdiction of the arbitrator by virtue of the fact that Dr Arias and Mr Capiel had sought for a stay of the arbitral proceedings, an acknowledgement of which, was fatal to Malaysia’s challenge to Stampa’s jurisdiction.”
Subsequently, Arias and Capiel said they withdrew from the arbitral proceedings on Nov 18, 2019.
They further claimed that Tommy had acted contrary to the independent legal advice by instructing Arias and Capiel to participate in the arbitral proceedings.
“The defendant (Tommy) is further stopped from relying on such advice when he had acted contrary to what had been advised,” they claimed.
They further said that the Sept 19, 2019 letter which Tommy had sent was relied on by Stampa as evident in the award, and that open letter to Paul Cohen, representing the Sulu claimants, constituted a wrongful admission of liability on behalf of Malaysia together with an offer of compensation to the Sulu claimants.
“As a result, it was accepted by Stampa as an admission of liability on the part of Malaysia and that compensation was to be paid by Malaysia to the Sulu claimants,” they said.
The nine Sabah politicians further contended that Tommy had no powers to issue the Sept 19, 2019 letter without Cabinet’s approval or an official delegation of such powers of the relevant minister, in particular the prime minister and the foreign affairs minister.
“Hence, we contend that Tommy had wrongfully usurped the powers of the relevant minister under the Ministerial Functions Act 1969 when he had issued the Sept 19, 2019 letter to Cohen.
“Furthermore, the defendant (Tommy) ought to know that the anti-arbitration injunction as issued by the Kota Kinabalu High Court is ineffective as there was no automatic/effective legal instrument to reciprocally enforce such judgements in Spain. Hence, Tommy’s acts were woefully inadequate and in vain as Stampa was able to continue to arbitrate the matter,” they added.
The Sabah politicians further asserted that Tommy ought to have known that the steps he had taken as AG would be ineffective as the Spanish arbitration legislation allowed Stampa to decide on his own jurisdiction under the principle of kompetenz-kompetenz.
“He ought to have known that his actions by applying for an anti-arbitration injunction as a sole remedy before the Kota Kinabalu High Court was inadequate and unnecessarily risked Malaysia’s interest and the interest of Malaysians because Stampa was able to continue with the arbitration without any legal impediment,” they said.
They further contended that Tommy’s action to cause the Malaysian government to file such an application before the Spanish High Court of Justice of Madrid to nullify Stampa’s appointment was bad in law as the relevant order that was issued by a clerk of the court was challenged by the Sulu claimants.
“It was ineffective to stop Stampa from proceeding with the arbitration as Malaysia was not represented in the arbitration to reply to the objections raised by the Sulu claimants,” they added.
The award, they said given by Stampa against Malaysia due to Tommy’s misfeasance in public office, has caused Malaysia and/or Malaysians to be liable to pay US$14.92 billion together with other orders on the payment of interest and cost.
The nine Sabah politicians added there are considerable costs incurred by Malaysia to annul the award in France and in Spain and to resist recognition and enforcement of the said award in Luxembourg and the Netherlands.
“Malaysia is also open to further actions by the Sulu claimants in obtaining recognition and enforcement in other countries who are signatories to the New York Convention.”
They further said Tommy’s defence was bare denials with regard to his acts of misfeasance in public office.
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