Ex-AG Thomas: Najib administration never explained 2013 decision to stop Sulu payments over Sabah, did not seek court nod either

KUALA LUMPUR, July 27 — 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 descendents of the Sulu sultanate claiming ownership of Sabah, according to Tan Sri Tommy Thomas.

The former attorney general, now thrust into the spotlight over an international row, 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," he said in a lengthy statement published in local news portal The Edge.

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.

Between 2017 and 2018, the eight Sulu claimants initiated international arbitration proceedings seeking up to US$32.2 billion from Malaysia over Sabah.

This resulted in Spanish arbitrator Gonzalo Stampa deciding that the 1878 agreement was terminated and deciding to order Malaysia to pay US$14.9 billion as compensation.

But, Thomas argues that the US$14.9 billion awarded by the "rogue" arbitrator against Malaysia is invalid and cannot be enforced.

He 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.