Letter sans ‘without prejudice’ note can be prejudicial

 

From Hafiz Hassan

The 2019 letter penned by former attorney-general (AG) Tommy Thomas has been criticised by two Sabah lawyers, and rightly so.

You would expect it to be a “without prejudice” letter. And that would be indicated on the first page of the letter and reiterated in one of the paragraphs.

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A “without prejudice” letter is a communication between parties to a dispute, made for the purpose of settling the dispute.

The purpose of such a “without prejudice” communication is to allow parties to negotiate privately in good faith to resolve disputes without resorting to the courts.

This is to avoid any admission a party may make to the other party in order to reach a compromise.

Hence, such “without prejudice” communications cannot be used as evidence in court.

The letter may, for example, state a readiness and willingness to come to a compromise on the claim by one party against the other.

“Without prejudice” simply means that if a party who receives the letter goes to court later regarding the dispute referred to in the letter, the party can’t produce the letter in court to use it against the party who sent the letter.

But it appears there was no indication in the letter that it was sent on a “without prejudice” basis, although it did state that nothing in the letter “should be construed as Malaysia submitting to the jurisdiction of the laws of Spain, whether under its national court system, arbitral jurisdiction or otherwise”.

The letter indeed concluded by reiterating that the intention to recommence payment of monies under the 1878 and 1903 agreements should be construed as submitting to the jurisdiction of Spain.

The AG’s constitutional duty is to advise the Cabinet on such legal matters as it may from time to time be referred or assigned to him by the Cabinet, and to discharge the functions conferred on him by or under the Constitution or any other written law (Article 145(2) of the Federal Constitution).

In short, the AG is the legal adviser to the government.

He advises the government on the law and takes instructions from the government.

Did the former AG take instructions from the Cabinet on this issue? - FMT

Hafiz Hassan is an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.