KOTA KINABALU: Spanish arbitrator Gonzalo Stampa acted unprofessionally in awarding about RM63bil to the so-called heirs of the defunct Sulu sultanate, says former attorney general Tan Sri Tommy Thomas.
"Stampa is the biggest rogue arbitrator. He took the case to France (the Arbitration Court in Paris) to make his judgment (in favour of the Sulu claimants)," he said during a webinar on Monday (April 4) on the Philippines/Sulu claim to Sabah organised by the Sabah Law Society (SLS).
He said Stampa moved the proceeding to France after a Spanish court set aside the Madrid arbitration court judgment, following a Sabah High Court decision that such claims should be heard in Malaysian courts.
Thomas said Stampa's action of shifting the matter to Paris was highly irregular as Malaysia had, in 2019, already obtained an order to set aside the claimants' hearings at courts in Spain.
"This is a money (contract) claim and what they (the claimants and their lawyers) have done is... to somehow say they want the whole of Sabah's wealth and oil. This is absolutely ludicrous," he added.
Explaining for the first time his role in the events around the Sulu claimants' suit when he was AG from 2018 to 2020, Thomas said the matter was a monetary claim and had nothing to do with sovereignty.
Thomas said the claimants seeking Spanish arbitration amounted to a grave violation of Malaysia's legal rights.
He said foreign courts should not stand idle and allow such abuse of the legal process to persist.
He said Malaysia had appointed Spanish lawyers in 2019 to stop the arbitration proceedings by Stampa.
"Malaysia as a sovereign nation and is not subject to another country’s jurisdiction, unless Malaysia submits to the jurisdiction of the Spanish court or waives its sovereignty. Neither ever occurred," he said, adding that the Sabah High Court was the proper forum to determine all disputes on the matter.
On the RM5,300 payment to the heirs, Thomas said that upon the formation of Malaysia the country decided to accept the obligation.
Thomas stressed that Malaysia must see through the process of setting aside the French court order to the end or risk leaving its assets in numerous countries vulnerable to "vexatious claims".
This he said referred to the New York Convention which allows litigants to seek claims on a nation's properties in other countries.
"It is critical to keep in mind that the monetary claims by the descendants of the sultan of Sulu is completely distinct and separate from the Philippines' objections to Malaysia’s establishment back in 1963," he said.
Thomas said that the 1878 deal signed by the Sulu with representatives of the British was a contractual claim and had not been disputed.
In fact it was re-endorsed through a deed signed in 1903 between the British colony and Sulu who agreed to increase the annual cess payment from '5,000 dollars' to '5,300 dollars'.
Historically, it was not clear which dollar currency was referred to in the original deal but the amount paid after Malaysia was formed was RM5,300.
Furthermore, he said the Sandakan High Court judgement by Charles Macaskie in 1939 also endorsed the contractual claim by the heirs of the Sultanate with North Borneo's government of the day not contesting the payment.
"The judge said that the original deed of succession to the British was a complete and irrevocable grant of territory.
"The right (to the Sulu claimants) was reserved only as a right to an annual payment," he added.
Thomas said that the claimants seeking Spanish arbitration despite nothing in the agreement that referred to Spain amounted to a grave violation of Malaysia's legal rights.
He said the foreign courts must not stand idle to allow such abuse of process to persist.
He said Malaysia had appointed Spanish lawyers in 2019 to stop the arbitration proceedings by the Spanish arbitrator Stampa.
"Malaysia as a sovereign nation is not subject to another country’s jurisdiction, unless Malaysia submits to the jurisdiction of the Spanish court or waives its sovereignty. Neither ever occurred," he said, adding that the Sabah High Court was the proper forum to determine all disputes. - Star
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