‘What a price to pay’: Revisiting ex-AG’s words after RM63b Sulu award


Excerpts from:

‘What a price to pay’: Revisiting ex-AG’s words after RM63b Sulu award

Published:  Mar 2, 2022 5:26 PM

Updated: 5:47 PM

Although there appeared to be no evidence linking the Sulu descendants who were receiving the annual fees from Malaysia to the intruders of Lahad Datu in 2013, the Malaysian government ceased payments to them, rued the former attorney-general.

In his book, My Story: Justice in the Wilderness, published last year, Tommy Thomas (above) warned it could prove to be a costly decision.

Contacted this afternoon, Thomas declined to comment on the matter beyond saying, “I stand by what I wrote in Chapter 39 (of his book).”

Thomas acknowledged in his book that there were no legal grounds for Malaysia to stop the annual payment and doing so resulted in a breach of the 1878 agreement.

“As one would expect, the families of the Sulu descendants who had been receiving payment for 135 years threatened legal action against Malaysia.

“Such threats were not taken seriously by past administrations.” he wrote.

Thomas also highlighted that Malaysia’s membership in the Convention on Recognition and Enforcement of Arbitral Awards signed in 1958 in New York (the New York Convention) could also impact the matter.

“When I left office, our Spanish lawyers were in the midst of registering the Malaysian court injunction and issuing a fresh challenge in the courts of Spain.

“This was to seek the setting aside of the Spanish court order appointing the arbitrator. All the steps that Malaysia could reasonably take to confront the problem about the Spanish arbitration were promptly and professionally taken.

“The unforeseen consequences of Malaysia becoming a member of the New York Convention came to haunt us. What a price to pay when the annual payment to the Sulu claimants was stopped unilaterally by Malaysia in 2013 in the aftermath of the Lahad Datu incursion. And that too for RM5,300 per year,” he wrote.

Meanwhile, Thomas also sent a letter to the Spanish arbitrator informing him that Malaysia had recently tendered the RM5,300 payment from 2013 and promised to pay the sum in the future.

“It followed that there was no longer any dispute in any event. The lawyers for the Sulu claimants responded by stating that they were now claiming billions of ringgit. There was absolutely no legal or factual basis for such an absurd and ludicrous claim.

“Based on their Notice of Arbitration submitted in July 2019, it was clear their primary objective was to seek the re-writing of the 1878 agreement so that the annual payments of RM5,300 – which they falsely and wrongly interpreted as ‘lease payments’ – were adjusted to reflect the value of Sabah’s oil and gas revenue since the 1970s.

“According to the claimants, they should be paid ‘some three million times greater than the annual amount called for’ or an equally proportioned lump sum in exchange for terminating the agreement and ceding their sovereignty over Sabah.

“Aside from the unmeritorious arbitration claim, the actions of the claimants and the sole arbitrator, as well as the decision of the Superior Court of Justice in Madrid brought to light myriad legal issues.

“Most important is the doctrine of state immunity. State immunity is a mandatory rule of customary international law of long-standing that sovereign states may not be impleaded in the domestic courts of other sovereign nations against their will.

“The 1878 Agreement was not a commercial transaction, but an act of a sovereign to cede territories. There was no expressed or implied waiver of state immunity by Malaysia.

“Thus, the inexplicable decision by the Superior Court of Justice of Madrid to entertain the claimants’ request for judicial appointment of an arbitrator against a sovereign state struck me as wholly unacceptable,” he added.



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1 Response to ‘What a price to pay’: Revisiting ex-AG’s words after RM63b Sulu award

  1. E Lye says:

    My company introduced the unpopular co-pay for medical coverage. Let me take that idea and drive it to the ultimate conclusion: introduce co-pay for any blunders. Those who voted to install elevators in Brickfields which are now locked up should be charged for wastage of public monies. If the police are at fault, they should pay out of their pension fund instead of the government who pays out of public taxes. Think about it. If the police win a case, the rakyat loses. If the police lose a case, the rakyat again loses. Let those who voted to stop this payment foot part of the RM63billion. Jail if they can’t pay. At this rate we can weed out selfish public officials and eventually get a government we deserve.

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