KOTA KINABALU: An admission of owing money to the self-proclaimed Sulu heirs in a letter attributed to former attorney general Tommy Thomas is seen as a damaging blow to Malaysia's case.
Prominent Sabah lawyer Roger Chin said the contents of Thomas's letter were obviously "relied upon" by the Sulu claimants in their Madrid and Paris arbitration claims against Malaysia.
"In law, admission of owing money could nearly always be fatal," he said when asked about a September 2019 letter Thomas wrote to lawyers of the purported Sulu heirs who were making a demand for US$33bil.
In the letter, Thomas reportedly regretted that payments had ceased in 2013 and said Malaysia was "now ready and willing" to pay heirs of the defunct Sulu Sultanate all arrears from 2013 to 2019 amounting to RM48,300.
"That was an admission (owing money)... it would certainly have been damaging (to Malaysia)," Chin said, adding that he did not see in the letter that the offer was made "without prejudice".
On Thomas' stand not to recognise the Spanish courts' jurisdiction to arbitrate the Sulu claims and not defend it in those courts – while only resorting to copying letters to the Spanish judge – Chin said copying those letters was an admission that Malaysian representatives were aware of the case.
"I always have issues with this stance. By ignoring it, it doesn't make it disappear and by copying the letter, it acknowledges you know about it.
"So you basically say, you know the matter, and then say you will ignore it and let the court do what it wants?" he said, noting that some other lawyers might have taken the same approach as Thomas.
"But I would not have taken that approach," Chin said, adding that he would have mounted a vigorous defence against the heirs' claims.
He hoped there would be more background provided by the Attorney General's Chambers to find out why the annual RM5,300 cession payments to the Sulu heirs were stopped since 2013 after the Lahad Datu intrusion.
He felt that stopping the payment in 2013 should have been followed immediately by a legal action in Sabah courts to stop the payments and establish the link between the Lahad Datu intruders and the Sulu heirs.
Former chief minister Datuk Yong Teck Lee also agreed that Thomas' letter and contents of his book "My Story: Justice in the Wilderness" ( which makes reference to the Sulu case) were clearly damaging to Malaysia's non-recognition of the Sulu claim.
Yong, a lawyer and Sabah Progressive Party president, said Thomas essentially admitted that the 1878 Sulu grant was still valid and Malaysia had been "legally erroneous in stopping the payments".
"His letter offering payment was the most damaging," he said, adding that the contents from the book were used as evidence by the heirs' lawyers.
"I think Thomas formed his opinion based only on the arbitration papers. It was too narrow a look at the issue," he said.
Yong said he wondered if Thomas had consulted the former Pakatan Harapan government's de facto law minister Datuk VK Liew before responding to the letter of demand from the Sulu heirs.
"If he did not consult Liew before issuing that letter, then he committed gross negligence. I would also be surprised if Liew did not know," he said, referring to Parti Warisan leader Liew, who passed away in late 2020.
Yong also noted that Thomas appeared to lack awareness of the Sulu claim issues and pointed out that during the Sabah Law Society (SLS) webinar in April, Thomas had admitted that he was not aware of the historical and current facts.
On Feb 28, a Paris Arbitration Court under arbitrator Dr Gonzalo Stampa awarded the Sulu heirs US$14.92bil (RM66.4bil) from Malaysia.
In July, Malaysia managed to obtain a stay order from a French superior court and is now working to overturn the decision.
However, despite the stay order, the heirs' London-based lawyers used the ruling under the New York Convention to seize the assets of two PETRONAS subsidiary companies in Luxembourg last week.
The award by Stampa came after superior courts in Spain issued a suspension order on the case which had been initiated in Madrid.
Stampa moved the arbitration to Paris to grant the award, ruling that the 1878 treaty was a commercial "international private lease agreement".