ONLINE media Free Malaysia Today reported on Sunday that Najib Razak has panned former attorney-general (AG) Tommy Thomas and the previous Pakatan Harapan government for sending an “extraordinarily stupid” letter to the lawyers representing the descendants of the Sulu sultan in 2019.

In his Facebook post, the former prime minister said the letter was used by lawyers in the United Kingdom last week to dispute the contention of the Attorney-General’s Chambers that the heirs’ identities were doubtful.

If the letter was sent to the lawyer representing the descendants, then 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 in the letter.

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

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

This is to avoid any admission a party may make in a communication to the other party, in order to reach a compromise, be used against him.

Hence, such without prejudice communication 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 of one party against the other.

“Without prejudice” simply means that, if a party who receives the letter or communication goes to court later regarding the dispute referred to in the letter, the party cannot produce the letter in court to use it against the party who sends 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 upon such legal matters as 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 Federal 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.

So, was the letter, or its content, approved by the cabinet in 2019?

You may not agree with Najib that the letter is extraordinarily stupid, but it appears that there is more to the letter. Among others, it was copied to the arbitrator, Dr Gonzalo Stampa of C/Ayala 4, 28001 Madrid, Spain.

Doesn’t that ring any bells?

Stampa is the founding partner of Stampa Abogados, Madrid.

He is the Spanish arbitrator who, according to reports, issued the award of US$14.92 billion (RM62.4 billion) to the Sulu descendants in a Paris court.

The seat of the arbitration was therefore in the French capital, away from Spain.

According to reports, Stampa criticised Malaysia’s “intimidatory and coercive” tactics against him.

But Stampa is the ninth defendant in government of Malaysia v Nurhima Kiram Fornan & Ors [2020] MLJU 425 where Sabah High Court judge Mairin Idang @ Martin sitting in Kota Kinabalu ruled, among others:

• the appointment of Stampa as sole arbitrator is null and void;
• Stampa has no jurisdiction over the sovereign state of Malaysia; and
• the commencement and prosecution of the arbitration proceedings by the Sulu descendants are oppressive and vexatious, and carried on in violation of the legal and sovereign rights of Malaysia.

 Stampa is a contributor to a publication by the International Comparative Legal Guides – Investor-State Arbitration Laws and Regulations Spain 2022. At paragraph 6.4, it is stated as follow:

“In Spain, arbitrators are not immune from liability. Pursuant to article 21 of the [Spanish Arbitration Act], arbitrators may incur liability in cases of bad faith, gross recklessness or wilful default.”

Incidentally, former Court of Appeal judge Hamid Sultan writes in a very recent article as follow:

“In cases of fraudulent misconduct of counsel or arbitrator who secures an arbitration award and attempts to enforce it in breach of the basic norms of the New York Convention 1958 in relation to international arbitration and/or arbitration act of the state, it may give an opportunity for an aggrieved person or a state to lodge a complaint with the law enforcement agencies of relevant countries and also with the relevant professional bodies.

“If a court of competent jurisdiction has taken cognisance of the dispute and rendered a decision, any subsequent conduct of a party, counsel or arbitrator attempting to interfere with the decision of the court may lead to contempt proceedings against party, counsel and/or arbitrator as the case may be.”

The learned writer adds:

“There is a duty and obligation on the part of the arbitral tribunal to ensure that the integrity of the arbitral proceedings is maintained throughout the arbitration process. Any omission to do so may not confirm to legitimate expectation of affected parties to the proceedings.

“The current arbitration practice, jurisprudence and case laws support the proposition that the arbitral tribunal has power to issue interim order for the removal of counsel for misconduct. In addition, if counsel or arbitrator is involved in fraudulent practice relating to the award, the aggrieved person must lodge a complaint with the relevant authorities inclusive of initiating contempt proceedings if applicable” (see “Removal of Counsel for Misconduct in Arbitration Proceedings Including Criminal Complaint to Law Enforcement Agencies: Critical Views” [2022] 1 LNS(A) xxv).

So, the letter may be “extraordinarily stupid”, but the public should be enlightened on the matter now. – March 15, 2022.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.