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Wednesday, November 30, 2022

Ex-AG Thomas files defence against Sabah ministers’ suit – report

 


Former attorney-general Tommy Thomas denied harm was caused by a US$14.92 billion (RM69.35 billion) Spanish arbitral award for the alleged heirs to the Sulu Sultanate.

However, two Sabah deputy chief ministers and the state’s other seven ministers countered that the civil court should still hold Thomas (above) liable in their related civil action against him.

The Edge today reported about Thomas’ statement of defence against the Sabah state ministers’ civil suit filed at the Kota Kinabalu High Court on Aug 16, as well as the plaintiffs’ response to the defendant’s defence.

The civil action by the Sabah state ministers was over Thomas’ alleged mishandling of the claim on the state’s territory by descendants of the Sulu sultanate.

The nine plaintiffs are Sabah Deputy Chief Ministers Jeffrey Kitingan and Joachim Gunsalam; state ministers Jahid Jahim and Ellron Alfred Angin; as well as state assistant ministers Joniston Bangkuai, Abidin Madingkir, Robert Tawfik, Julita Mojungki and Flovia Ng.

The Edge cited Thomas’ defence that contended there was no agreement in writing in the grant linked to the arbitration.

"Thus, (Spanish) arbitrator Gonzalo Stampa acted illegally and without jurisdiction from the inception and throughout his awards are equally illegal.

“The defendant pleads there is no harm that has been caused to Malaysia and it has suffered no losses, monetarily or otherwise, by reason of the illegal arbitral proceedings, illegal partial award, or illegal final award.

"Any costs incurred by Malaysia in challenging the same were necessary, regardless of my Sept 19, 2019 letter," Thomas claimed.

The defendant added that his decision for Malaysia to stay out of the alleged illegal arbitral proceedings and instead obtain a ruling from the Kota Kinabalu court, was not merely by his own experience, opinion and consideration.

Spanish judge Gonzalo Stampa

Thomas claimed that the decision received independent support from internal legal advice from senior federal counsel from the Attorney-General’s Chamber’s (AGC) civil division and international affairs division.

He denied the Sabah politicians’ claims that he had committed misfeasance in public office as he was no longer a public officer after stepping down as attorney general on Feb 28, 2020, as well as the allegation of abuse of power linked to the Spanish arbitral proceedings.

Thomas added that his action was in the honest belief in the legality of his actions as then AG, further contending that in his then position, he was empowered to issue the letter dated Sept 19, 2019, and that its contents were known by the then prime minister and foreign minister during his tenure.

The letter was where the defendant expressed regret to the legal team of the alleged Sulu heirs, as well as offering to pay a sum of RM48,230 as compensation.

Thomas’ defence is bare denial, Sabah ministers say

Meanwhile, in a reply against Thomas’ defence, the Sabah ministers described the defence points as bare denial over the purported misfeasance in public office.

The plaintiffs claimed that Malaysia had consented to the jurisdiction of the Spanish arbitrator when then AG, Thomas hired lawyers from Spanish law firm Messrs Herbert Smith Freehills to act for Malaysia.

The plaintiffs pointed out that the two lawyers - cited only as Arias and Capiel - were from the same Spanish law firm.

"By doing so, we contend that Malaysia had consented or conceded to the jurisdiction of the arbitrator by virtue of the fact that Arias and Capiel had sought for a stay of the arbitral proceedings, an acknowledgement of which was fatal to Malaysia's challenge to Stampa's jurisdiction,” the Sabah ministers contended.

They claimed that Arias and Capiel withdrew from the arbitral proceedings on Nov 18, 2019.

The plaintiffs alleged that Thomas contravened independent legal advice by directing Arias and Capiel to take part in the arbitral proceedings.

Didn’t go through cabinet?

"The defendant is further stopped from relying on such advice when he had acted contrary to what had been advised," the Sabah ministers contended.

The plaintiffs further claimed that Thomas’ letter dated Sept 19, 2019 - which Stampa relied upon in issuing the award to the alleged Sulu heirs - amounted to wrongful admission of liability on Malaysia’s part.

"As a result, it was accepted by Stampa as an admission of liability on the part of Malaysia and that compensation was to be paid by Malaysia to the Sulu claimants," they claimed.

The plaintiffs also claimed that Thomas, as then AG, was not empowered to issue the said letter without prior approval of the cabinet, among other contentions. - Mkini

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