‘Foreign courts should have ignored it’

KUALA LUMPUR: Claims by the so-called Sulu heirs should not have been entertained by the courts of other countries because there is no clause in the 1878 agreement that provides for any dispute over Sabah to be resolved with arbitration, says former attorney general Tan Sri Tommy Thomas.

He said it was disappointing that the courts of Spain, France and Luxembourg appeared to have not read the 1878 agreement signed by then Sulu Sultan Jamal Al Alam.

“It’s only a short document, one would immediately conclude that there is no agreement to arbitrate and that should be the end of the matter,” he told senior journalists at the Concorde Club meeting yesterday.

“It’s disappointing that these courts did not do what I called an elementary checklist,” said Thomas, who was speaking as a guest at the monthly Concorde Club gathering.

The Concorde Club is an informal group of editors and senior journalists meeting with politicians and key policy makers.

In June last year, the Madrid High Court in Spain had annulled Gonzalo Stampa’s appointment as arbitrator and decided that all arbitration proceedings and any decision by Stampa was invalid and could not be legally enforced.

However, last September, the French Arbitration court, without knowing the decision of the Madrid Court to cancel Stampa’s appointment, went ahead with the Sulu descendants’ case against Malaysia.

On Feb 28, Stampa made an award of US$14.92bil (RM62.69bil) to the claimants of the Sulu sultanate.

Last month, it was reported that bailiffs in Luxembourg had seized Luxembourg-registered subsidiaries PETRONAS Azerbaijan (Shah Deniz) and PETRONAS South Caucasus on behalf of the Sulu claimants.

Legal points: Thomas (centre) with senior journalists at the Concorde Club meeting.Legal points: Thomas (centre) with senior journalists at the Concorde Club meeting.

Commenting on the matter, Thomas said he was confident that PETRONAS would have had a strong legal team to fight the case in Luxembourg.

“PETRONAS would have pointed out to the Luxembourg courts that the assets of PETRONAS are not the assets of the Malaysian government, but separate entities,” said Thomas.

He said it was time for Malaysia to go on the offensive and file complaints against both Stampa and Britain-based lawyer Paul Cohen who is representing the so-called Sulu heirs, to prevent a case of continuous “international forum shopping”.

Forum shopping refers to the choosing of courts based on which are most likely to land a favourable outcome to the clients concerned.

“If the courts in England are satisfied, they can order Cohen not to file any more proceedings in other countries and if he does that, he will be liable for contempt,” Thomas said, adding that a complaint should also be filed to the disciplinary board for barristers in Britain.

Similar action, said Thomas, could also be taken by Malaysia against Stampa for proceeding with the arbitration in France despite having his appointment as arbitrator revoked by Spain.

Malaysia, he said, should not have stopped paying the RM5,300 cession money to the Sulu heirs since the Lahad Datu intrusion in 2013. “In my opinion, Malaysia has always had a legal obligation since 1963 to pay. So, we should’ve paid,” he added.

The RM5,300 cession money was part of agreements under the 1878 agreement signed by then Sulu Sultan Jamal Al Alam, Baron de Overbeck and the then Maharaja of Sabah and the British North Borneo Company’s Alfred Dent.

Malaysia took over the payments when it became the successor of the agreement following Sabah’s independence and the formation of Malaysia in 1963.

The Lahad Datu intrusion in Sabah, a standoff that lasted over a month, saw the deaths of six civilians, 10 Malaysian security forces personnel and about 56 Sulu intruders in 2013.

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