Tommy Thomas urges Putrajaya to act on UK lawyer, Spanish arbitrator who aided Sulu heirs in claim over Sabah

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Arbitrator Stampa and claimants’ lawyer Cohen labelled as ‘enemies of Malaysia’.

Malaysia should take steps to file complaints against Spanish arbitrator Gonzalo Stampa who had ordered the country to pay US$14.9 billion as compensation to eight individuals claiming to be the heirs of the Sulu sultan, and should also lodge a complaint against the Sulu claimants’ UK-based lawyer Paul Cohen, Tan Sri Tommy Thomas said today.

Thomas, who was formerly an attorney-general of Malaysia, also said Malaysia should seek to stop a private company from funding the Sulu claimants’ multi-million-dollar efforts to pursue the enforcement of the US$14.9 billion arbitration award.

Without mincing his words, Thomas labelled both the arbitrator Stampa and the Sulu claimants’ lawyer Cohen as “enemies of Malaysia in the war of litigation they have unleashed against Malaysia” and said the country must stand united to repel such attacks.

Thomas said the duo’s conduct was “wholly unacceptable” and bordering on “unlawfulness”, adding that such conduct cannot be allowed to continue without Malaysia taking steps against them personally in their home jurisdictions.

Saying that the eight Sulu claimants themselves would not have the legal expertise to engage in the litigation war against Malaysia, Thomas described Stampa and Cohen as allegedly being the “legal masterminds who have personal and direct responsibility in attacking Malaysia”.

“Thus, in the case of Cohen, Malaysia should lodge a complaint against him with the disciplinary body for barristers in England where he practises, namely, the Bar Standards Board in England. The highest standards of integrity and professionalism are expected of the senior legal profession in England, the Bar; Cohen has certainly run foul of them.

Yusof Mat Isa

“In the case of Stampa, Malaysia should lodge a complaint against him with the regulatory authority over arbitrators in Spain. If there is none, we should seek legal advice from leading lawyers practising in Spain on our recourse under Spanish law against this rogue arbitrator,” Thomas said in a statement published today on local financial daily The Edge’s website.

Thomas said Malaysia should also seek court orders in the courts of Spain and France to stop both Stampa and Cohen from acting directly or indirectly on the Sulu claimants’ purported arbitrations against Malaysia in any part of the world. He described these court orders to be sought as “in personam” injunction orders or orders which can be enforced specifically against a person.

Thomas said he believes such an order has already been made in Spain against Stampa, and that there must be a similar order secured in France against Stampa’s relocating of his allegedly “unlawful” arbitration from Spain to France — after the Spanish courts nullified its decision to appoint an arbitrator for the Sulu claimants.

Thomas said the company Therium had apparently already incurred costs of over US$10 million in funding the Sulu claimants’ arbitration bid against Malaysia, including alleged costs of US$2.79 million to Cohen and US$2.33 million to Stampa.

“Malaysia must investigate how the insurance funder, Therium, agreed to fund such a hopeless case in law, insofar as the quantum of compensation lawfully payable to the Sulu Claimants, is concerned.

“We must seek advice from the best barristers in London (on the assumption Therium carries on business in the United Kingdom) whether Malaysia can seek an injunction against Therium restraining it from further funding. Once the money flow ceases, amazingly the rogue arbitration activities will cease,” he said.

Aside from pursuing these “new strategies”, he said Malaysia should at the same time continue to pursue the criminal proceedings it had commenced against Stampa. In early March, Malaysia confirmed that Spain’s public prosecutor had initiated a criminal complaint against Stampa for alleged serious contempt of court and professional intrusiveness, and that the courts in Madrid had started a criminal investigation on Stampa’s allegedly illegal actions.

“We must recognise that this is legal imperialism by certain European powers and personalities; we must therefore defend our national sovereignty and territorial integrity with all our strength.

Yusof Mat Isa

“Attack is the best form of defence; and Malaysia must go on the offensive against Stampa, Cohen and Therium. Merely applying to set aside the unlawful arbitration award of Stampa is insufficient. Other punitive measures must be undertaken urgently by Malaysia,” he said.

Thomas said the arbitration award was “completely illegitimate” and that it was void and unenforceable, also noting: “Stampa’s relocation of the seat of arbitration to France because the courts of Spain had ordered him to cease the arbitration makes it a fraudulent and dishonest award.”

Thomas also criticised the arbitration proceedings which Cohen and Stampa were involved in in Spain and France as being allegedly not only “legal misconduct of the worst kind”, but also as being allegedly “part and parcel of the international arbitration circuit gone mad”.

“It brings into disrepute a system which is Mafia-like, controlled by European lawyers abusing the legal systems of their countries, and the arbitration world to the detriment of Third World countries, like Malaysia,” he said.

Noting that arbitration is a highly specialised and technical area of legal practice, Thomas said the persons acting for Malaysia should be legally trained in various jurisdictions to combat the multi-national strategies and tactics adopted by Cohen and Stampa.

He also said Malaysia should leave the fight to Attorney-General Tan Sri Idrus Harun, instead of setting up special task forces or other committees.

“Because this is pre-eminently a legal dispute, the Attorney General, as the chief legal adviser for the nation, should be left to defend Malaysia’s interests. It is currently in safe hands.

“There is no need for a special task force or any other committee to be set up. Further, the dispute has reached an advanced stage in July 2022, as I write this. A committee is a bureaucratic excuse for indecision.

“Please let the Attorney General decide whether he needs to consult anybody; do not impose unqualified persons, ostensibly to help, but in reality, to cloud decision-making,” he said.

According to Thomas, the Malaysian government under then prime minister Datuk Seri Najib Razak should have explained its abrupt decision in 2013 to discontinue the annual RM5,300 payments to the descendants of the Sulu sultanate claiming ownership of Sabah.

He added that the Najib administration had been making the yearly payments without interruption since Malaysia was formed in 1963 and had never questioned the legal obligation to make these payments.

“To the best of my knowledge, the government of Malaysia did not publicly explain in 2013 why it ceased annual payments of compensation to the Sulu claimants. This occurred during the administration of Najib Razak.

“The prime minister, the ministers of Foreign Affairs or Defence or the attorney general ought to have issued a public statement rationalising their decision. Indeed, until today, a decade later, members of that administration have remained silent, which has led to unnecessary speculation and confusion,” Thomas said.

He said the “unofficial explanation” given by the government back then was due to the 2013 armed incursion into Lahad Datu on the east coast of Sabah.

“However, there appears to be no evidence linking the Sulu claimants who were receiving the annual compensation from Malaysia with the armed invaders of Lahad Datu,” he said.

Thomas said that if the Malaysian government had concrete proof linking the Sulu claimants who had been receiving RM5,300 yearly to the same group of armed men who invaded Lahad Datu that year, it should have gone to court and obtained formal approval to stop those payments.

“If the government of Malaysia had such evidence, the prudent course would have been to file an action in the High Court of Sabah at Kota Kinabalu against the Sulu claimants (all of whom were known to our Embassy in the Philippines where the annual payment was disbursed to them), seeking an Order of the Sabah Court that because the Sulu claimants were personally and directly involved in the Lahad Datu invasion they had forfeited their right to receive future payments and that the 1878 grant had ceased to operate.

“If that had occurred, the government’s action to cease payment would have received judicial imprimatur. Regrettably, this option was not exercised by those in charge in 2013,” he added.

Judicial imprimatur is a legal term meaning official approval by the courts.

Thomas said that Malaysia breached the 1878 grant when it did not give any reason to stop the annual payments to the Sulu claimants after decades and without ever having sought the courts’ approval of the termination of these payments.

As a result, he said the Sulu claimants would have a right for specific performance of the 1878 grant — which he described as a contract, saying that this means that Malaysia has to pay the arrears of annual compensation of RM5,300 for the years from 2013 to 2022 and undertake to continue paying the same amount every year.

He said the amount was fixed in 1878 and 1903, which was when the Sulu sultan signed off on documents to cede or give away the land of Sabah.

“The only loss that the Sulu claimants suffered was the loss of the annual compensation sum of RM5,300/-: no more or no less,” he stressed.

As then AG, Thomas said he wrote a letter to the Sulu claimants’ lawyer in September 19, 2019 offering to pay the arrears for the years from 2013 to 2019 amounting to RM37,100 along with a 10 per cent simple interest of RM11,130. The whole sum offered was RM48,230.

Thomas said such an amount would be for the loss the Sulu claimants suffered in the seven-year period from 2013 to 2019 when the annual payments stopped.

He added that their acceptance would have meant there would “no longer be any dispute” with Malaysia.

He said he had also given assurance that Malaysia would pay the RM5,300 in future years.

But he said the Sulu claimants’ lawyer rejected the offered sum.

Thomas still believes the Sulu claimants are only entitled to the fixed yearly sum of RM5,300 as spelt out in the 1878 and 1903 documents.

He said they cannot demand more based on the current market value of Sabah as the land no longer belonged to the Sulu sultanate after 1878.