MADPET is for the Abolition of Death Penalty, an end of torture and abuse of rights by the police, an end to death in custody, an end to police shoot to kill incidents, for greater safeguards to ensure a fair trial, for a right to one phone call and immediate access to a lawyer upon arrest, for the repeal of all laws that allow for detention without trial and an immediate release of all those who are under such draconian laws.
A brief history of Malaysia’s capital punishment and death row inmates
Decades
after colonial rule, Malaysia has finally taken the first concrete
steps towards abolishing the death penalty, after proposed legislation
to make capital punishment optional and not mandatory was put before
Parliament a second time. ― AFP pic
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By Kenneth Tee
Monday, 03 Apr 2023 7:00 AM MYT
KUALA
LUMPUR, April 3 — Decades after colonial rule, Malaysia has finally
taken the first concrete steps towards abolishing the death penalty,
after proposed legislation to make capital punishment optional and not
mandatory was put before Parliament a second time.
The Abolition
of Mandatory Death Penalty Bill 2023 was tabled for first reading in the
Dewan Rakyat by Minister in the Prime Minister’s Department (Law and
Institutional Reform) Datuk Seri Azalina Othman Said on March 27.
Azalina’s
predecessor, Datuk Seri Wan Junaidi Tuanku Jaafar, had tabled a similar
piece of legislation on October 6, 2022, but Parliament’s dissolution
to pave the way for the 15th General Election meant it was never put
before lawmakers for debate.
“Legal amendments involving policies
on punishment and substitute sentence to the mandatory death penalty are
a positive change to make the country’s criminal justice system more
holistic and inclusive, apart from not denying individuals their basic
right to proper justice,” Azalina told the Dewan Negara days before the
Bill’s tabled for the first reading.
The
current Bill seeks to revise the current death penalty by giving judges
the discretion to mete out sentences on a case-by-case basis.
The
amendments also include replacing life and natural life imprisonment
(until death) as an alternative to the mandatory death sentence, with
the new alternative of jail of between 30 and 40 years as well as no
fewer than 12 strokes of the cane.
For the amendments to take
effect, the Bill must obtain approval by way of three readings from both
the Dewan Rakyat and Dewan Negara, before being presented to the Yang
di-Pertuan Agong for royal assent and subsequently gazetted.
Since
July 2018, Malaysia has placed a de facto moratorium on executions
pending institutional reforms undertaken by the various administrations
that have existed in that time.
The last death row prisoner was hanged
in 2017 but because legislation carrying the mandatory death penalty
has remained effective, the courts have been bound to continue
sentencing defendants to death despite the moratorium on executions.
A brief history of Malaysia’s capital punishment
The
death penalty has occupied a place in the Malaysian criminal justice
system ever since British colonial administration, when the mandatory
death penalty was originally enforced for murder.
When Malaya
achieved independence in 1957, it inherited the common law system
including the death penalty introduced during the reign of British
Malaya.
Did you know the well-known Dangerous Drugs Act was
enacted by the British colonial government in 1952 to combat the threat
of substance abuse, yet capital punishment for drug trafficking — under
Section 39B — was not carried out until 1975?
The death penalty
remained discretionary for Section 39B up until 1983 when the legal
provision was amended to make it mandatory, after which Malaysia’s drug
laws would go on to be considered as among the harshest in the world.
Today
in Malaysia, 34 offences such as murder, drug trafficking, waging war
against the state and terrorism were punishable by death. Of those, 11
carried a mandatory death sentence.
Executions are performed as hanging by the neck until death, and usually conducted on Fridays.
At present, Malaysia is one of 53 countries worldwide that still maintain the death penalty in both law and practice.
What are the numbers?
According
to the Prison Department’s latest data, a total of 1,318 prisoners were
sent to the gallows between 1992 and 2023 for one of seven capital
offences that carried the mandatory death penalty.
The capital
offences listed are Section 121, 302 and 396 of the Penal Code for
waging war against a Ruler, murder and gang-robbery with murder,
respectively; Section 39B of the Dangerous Drugs Act for drug
trafficking; Section 3 of the Kidnapping Act for abduction for ransom;
and Section 3 and 3A of the Firearms (Increased Penalties) Act for
illegal firearms discharge.
The majority of the condemned — 870 of
them or 66 per cent — comprised drug offenders, followed by convicted
murderers at 318 or 24.1 per cent.
For the remainder, 16 were
convicted for illegal firearms discharge, seven for waging war against
the Agong, five for kidnapping, and two for gang-robberies.
Despite
the movements to reform the death penalty, 2022 also saw the highest
number of condemned persons at 123, of which 79 or 64.2 per cent were
drug offenders followed by 44 or 35.8 per cent convicted of murder.
The
Abolition of Mandatory Death Penalty Bill seeks to abolish the
mandatory death penalty, to vary the sentence of imprisonment for
natural life and whipping, and to provide for matters connected
therewith by amending the Penal Code (Act 574), the Firearms (Increased
Penalties) Act 1971 (Act 37), the Arms Act 1960 (Act 206), the
Kidnapping Act 1961 (Act 365), the Dangerous Drugs Act 1952 (Act 234),
the Strategic Trade Act 2010 (Act 708) and the Criminal Procedure Code
(Act 593) in line with the Government policy to abolish the mandatory
death penalty in all legislation. - Malay Mail, 3/4/2023
Bills for Abolition Of Mandatory Death Penalty, Imprisonment For Natural
Life And The Giving The Courts Power To Review Those Currently On Death Row Passed
on 3/4/2023
The Dewan Rakyat has passed it, and
now we wait for the Senate and the King
MADPET (Malaysians Against Death
Penalty and Torture) welcomes the Dewan Rakyat’s passing of Abolition of Mandatory Death Penalty Bill
2023 in the Malaysian Parliament on 3/4/2023. This restores sentencing discretion
to the judiciary, who now will have the option of imposing either the death
penalty or the sentence of “imprisonment for a term of not less than thirty
years but not exceeding forty years and if not sentenced to death, shall also
be punished with whipping of not less than twelve strokes”.
The Bill also will amend “imprisonment
for natural life” with the words “imprisonment for a term of not less than
thirty years but not exceeding forty years”. This ends imprisonment until one die.
One must remember that the
purpose of criminals sentencing to ensure just punishment of the perpetrator,
and rehabilitation for social reintegration of the offenders. Imprisonment for
natural life makes it impossible to fulfil the obligation of rehabilitation and
reintegration.
Life imprisonment was also considered
a “secret death penalty,” by Pope Francis as stated in his 2020 encyclical
“Fratelli Tutti” (On Fraternity And Social Friendship).
MADPET also welcomes the passing
of the Revision Of Sentence Of Death And
Imprisonment For Natural Life (Temporary Jurisdiction Of The Federal Court)
Bill 2023 the Federal Court to review the sentence of death and
imprisonment for natural life imposed on a convicted person following the abolition
of the mandatory death penalty.
This will mean that the about 840
of the 1,320 on death row, who have completed all appeals will have their death
sentence reviewed by the Federal Court. Likewise, those that are currently serving
natural life imprisonment.
For, the others on death row or sentenced
to natural life imprisonment, the appellate courts can now deal with it as the Abolition
of Mandatory Death Penalty Bill 2023 states they ‘…shall be sentenced in accordance
with the provisions of the principal Act as amended by this Act even though the offence was committed
before the date of coming into operation of this Act.’. This will
abolish mandatory death penalty and natural life imprisonment sentences in the
future.
Family Members of Murder Victims
We saw some media reports that
stated a few family members of murder victims opposed the abolition of the
mandatory death penalty. It must be pointed out that many other victims do
support the abolition of the death penalty. The international group, Murder
Victims’ Families for Human Rights (MVFHR) is one such example that seeks the
abolition of the death penalty.
One family member, allegedly said
‘"If the mandatory death penalty is abolished, criminals will no longer be
scared.’ (Star, 4/4/2023). It must be pointed out that even with the mandatory
death penalty, the number of murders and drug trafficking continued to be high,
if not rising, a proof that death penalty failed to act as a deterrent.
Compensation for Victims
The government is considering
this but it must be pointed out that it is already provided for in the Criminal
Procedure Code. Section 426 states ‘….the
Court before which an accused is convicted of an offence shall, upon the
application of the Public Prosecutor, make an order against the convicted
accused for the payment by him, or where the convicted accused is a child, by
his parent or guardian, of a sum to be fixed by the Court as compensation to a
person who is the victim of the offence committed by the convicted accused in
respect of the injury to his person or character, or loss of his income or
property, as a result of the offence committed… (1B) Where the person who is
the victim of the offence is deceased, the order of compensation shall be made
to a representative of the deceased person..’.
Unfortunately, a perusal of
reported cases, shows that the Public Prosecutor seldom applies for
compensation for victims, including murder victims’ family. In some cases, they
just apply for prosecution cost.
Section 426 also states, ‘…the
order for payment shall not prejudice any right to a civil remedy for the
recovery of any property or for the recovery of damages beyond the amount of
compensation paid under the order….’ This means that victims of murder or other
crimes can still commence a civil court action to claim damages.
Altantuya Sharibu’s family did
just that, and the court found that not just convicted murderers Sirul and Azilah,
but also political analyst Abdul Razak Baginda liable to their claim of
unlawful killing of the deceased (Altantuya). The government was vicariously
liable as Sirul and Azilah were police officers. They were ordered to pay cost
and ‘…RM5 million in general, aggravated and exemplary damages to the
deceased's family,”(Edge Markets, 16/12/2022).
MADPET urges the Malaysian Senate to also speedily pass the Abolition
of Mandatory Death Penalty Bill 2023 and the Revision Of Sentence Of Death And
Imprisonment For Natural Life (Temporary Jurisdiction Of The Federal Court)
Bill 2023, so that it can be put in force as soon as possible.
MADPET calls on the Public Prosecutor to diligently apply for
compensation from the convicted in criminal trials for victims of crime,
including family members of murder victims.
MADPET reiterates the call for the total abolition of the death penalty
and corporal punishment of whipping.
Charles Hector
For and on behalf of MADPET
(Malaysians Against Death Penalty and Torture)
KUALA LUMPUR: Amendments in relation to the abolition of the mandatory death penalty have been approved by the Dewan Rakyat.
The amendments were introduced via the tabling of the Abolition of Mandatory Death Penalty Bill 2023 for the second and third reading by Deputy Minister in the Prime Minister’s Department (Law and Institutional Reform) Ramkarpal Singh in Parliament on Monday (April 3).
The Bill was passed via a voice vote after 10 MPs debated on it, followed by a winding-up speech by Ramkarpal.
Ramkarpal said the abolition of the mandatory death penalty did not mean that capital punishment was being totally abolished.
"The death penalty is still maintained in certain cases. We need to have confidence in the judiciary in deciding based on their discretion," said Ramkarpal.
The Bill also proposed to allow judges the option to impose jail terms of up to 40 years instead of the death penalty. - Star, 3/4/2023
Keep mandatory death sentence for brutal crimes, say victims' grief-stricken kin
KUALA LUMPUR: The mother of a rape and murder victim has made a tearful plea to the government to retain the mandatory death penalty.
Alice Tan Siew Ling, whose 17-year-old daughter was raped and murdered in 2009, broke down during a press conference in the Parliament lobby on Monday (April 3).
"She died after being stabbed in the neck," Tan said in urging the Dewan Rakyat not to pass the amendments abolishing capital punishment as scheduled on Monday.
At the same press conference, Noor Hakimi Abdul Halim said his friend, a security guard in Sungai Petani, Kedah, was also a murder victim.
"He was attacked by three assailants and murdered with a parang.
"If the mandatory death penalty is abolished, criminals will no longer be scared.
"Please think about the families of the victims," he said.
Lawyer Christina Teng, who was also present, said the mandatory penalty should be retained for heinous crimes involving the loss of life.
She said many judges preferred not to mete out hanging sentences after being given the discretion to impose a non-lethal penalty.
She said that even life imprisonment usually did not go beyond 30 to 40 years of jail time and justice would not be served on those who had committed abominable crimes.
"A brutal killer who has raped and murdered will (eventually) be released (if the death penalty is abolished).
"(Jail) is not a serious enough punishment for heinous crimes.
"We ask the government to focus on cleaning up the justice system and address the many loopholes and weak enforcement instead of abolishing the mandatory death sentence," she said.
She also appealed to the government to put the interests of victims and their families before consideration for the perpetrators.
She said a petition under the non-governmental organisation Protect Malaysia has garnered almost 100,000 signatures in support of keeping the death penalty, and added that the government should not rush into abolishing it.
On March 27), Minister in the Prime Minister's Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said tabled the Abolition of Mandatory Death Penalty Bill 2023 for first reading, along with revisions to the death sentence and imprisonment for natural life. - Star, 3/4/2023
Removing Mandatory Death Penalty And Mandatory
Life Imprisonment Is Just, And Increases Chances That Those Who Ordered Or
‘Paid’ For Death Will No Longer Escape Justice
MADPET (Malaysians Against Death Penalty and
Torture) welcome the tabling of the Abolition of Mandatory Death Penalty Bill
2023 in Malaysian Parliament on 27/3/2023. This Bills will finally bring about the
abolition of mandatory death penalty on 27/3/2023. With mandatory death penalty
offences, on conviction, judges had no choice but to sentence to death.
If the Bills tabled becomes law, judges will finally
have the option and discretion to impose the death penalty or “or imprisonment
for a term of not less than thirty years but not exceeding forty years and if not
sentenced to death, shall also be punished with whipping of not less than
twelve strokes”.
MADPET is against corporal punishment, and urge
that whipping be removed.
With the mandatory death penalty, accused are
less likely to reveal who paid or ordered them to kill, as they will still be
sentenced to death and will be hanged to death. This situation allowed for many
accomplices including those that asked or paid them to kill to escape justice.
We recall the Altantuya Shaariibuu, where many
believed that the 2 policemen Sirul and Azilah who have been convicted for
murder, had acted on the order or instructions of third parties.
With the mandatory death penalty, the disclosing
information or evidence which could lead the one who ordered or ‘paid’ for the
killing Altantuya be identified and prosecuted, really will not safe the 2 from
being hanged.
As such, with the amendments, where there is
the possibility of sentences other than death, the chances of accused persons
revealing evidence of accomplices increases – where such corporation with law
enforcement would likely mitigate the sentence, and they may evade the death
penalty.
This will end situations where the one who paid
or ordered someone to be killed escapes.
Therefore, MADPET urges the government to
consider amending the lower limit of imprisonment of 30 years to maybe 15-20
years, as this may assist prosecution and increase chances of ALL involved in
the murder being brought to justice.
MADPET is also of the position that death
penalty should be restricted to offences that actually directly caused the
death of the victim. The actual killer may be imposed a higher sentence, but
other accomplices who did not actually kill be given lower sentence. Of course,
the person who ordered or ‘paid’ for a person to be killed should be given the
highest sentence – for if not, for the action of that person, no one will be
killed.
MADPET opposes the death penalty as there is a
serious risk of miscarriage of justice. Judges are human and not infallible. There
are so many other reasons that support abolition. Malaysia had in 2018, 2020
and 2022 also voted in favour of the UN General Assembly Resolution towards
abolition of the death penalty.
In 2009, the High Court found Sirul and Azilah
guilty of murder. Then in 2013, a 3-member panel on Malaysia’s Court of Appeal
unanimously decided that the conviction of the 2 had been unsafe, and acquitted
them. The Court of Appeal said that certain evidence was not considered, and
was also concerned that motive was never established. (Reuters, 23/8/2013) Then,
in 2015, the Federal Court overturned that COA decision, and reinstated the
High Court’s conviction and mandatory death sentence.
Then, on 8/12/2020, the Federal Court dismissed
Azilah Hadri’s application for a retrial and review of his 2015 conviction over
Mongolian Altantuya Shaariibuu’s 2006 murder, saying his own suppression of
alleged instructions to carry out the murder did not lead to an exceptional
situation warranting a review. One of the new issues raised was the alleged
instructions from a “third party” to conduct murder. (Malay Mail, 8/12/2020)
However, there the Federal Court stressed on ‘the
importance of finality of decisions for the administration of justice’. The Court apparently stated ‘“Now it must be
emphasized that he kept silent about this so-called new evidence during his
investigation, during trial in High Court and appeals at Court of Appeal and
also Federal Court.’
MADPET is concerned that the accused may have kept
silent because of threats or ‘promises’ to himself and his family. Further, revelations
that you killed because you were given instructions to kill by some other will
NOT save you from conviction and the mandatory death penalty.
Further, many a lawyer would advise clients in
criminal trial to remain silent, and the law also acknowledges this right even
in police questioning, where a ‘…person may refuse to answer any question the
answer to which would have a tendency to expose him to a criminal charge or
penalty or forfeiture….’(Section 112(2) Criminal Procedure Code).
If the death penalty is abolished, and there is
a flexibility of sentences no more just a mandatory death penalty, or a death
penalty or a mandatory life imprisonment, then accused persons will more likely
corporate and reveal accomplices so that their sentence can be reduced.
Hence, there is still doubt on the guilt of Sirul
and Azilah’s case? Was there miscarriage of justice? Miscarriage of justice
happens also when the ‘guilty’ escapes prosecution.
MADPET also believes
that application for retrial, reviews and even submission of additional
evidence need to be made easier to ensure justice be done. That is more
important than the finality of decision.
In the Altantuya matter, we also note that the
High Court in a civil matter, found that, besides Sirul and Azilah,political
analyst Abdul Razak Baginda was also found liable to the claim of unlawful
killing of the deceased(Altantuya). The government was also vicariously liable
as Sirul and Azilah were then police officers. They were ordered to pay ‘…RM5
million in general, aggravated and exemplary damages to the deceased's family,”(Edge
Markets, 16/12/2022).
It is a sad situation that very view victims of
crime in Malaysia commence civil suits against perpetrators of crime. For
murder victims’ family, a civil suit which will allow them to get monetary compensation
will bring about some justice for family members and dependents. They should
simply not just be satisfied with the death penalty, prison sentence, whipping
or fines imposed on the convicted.
MADPET welcomes the
tabling of the Abolition of Mandatory Death Penalty Bill 2023, but calls for
the death penalty to be abolished.
MADPET also calls for
the abolition of the corporal punishment of whipping, and calls on the
government of Malaysia to amend the Bill, and remove whipping. Whipping in Malaysia
is torture and inhumane and could even result in long term physical and
psychological damage. It is very different from the whipping as practiced in
Syariah law.
MADPET reiterates the
call for the speedy passing and putting in force of this law, for until then,
all those who commit mandatory death penalty offences will still face the
mandatory death penalty. Providing for retrospective effect of laws may not
work.
Charles
Hector
For and
on behalf of MADPET(Malaysians Against Death Penalty and Torture)
Malaysia court overturns convictions in grisly, high-profile model's murder
By Reuters Staff
4 Min Read
KUALA
LUMPUR (Reuters) - A Malaysian court on Friday overturned the
conviction of two policemen found guilty of shooting and blowing up a
Mongolian model linked to a former associate of Prime Minister Najib
Razak.
The
lawyer of Malaysia's former police special action unit personnel Sirul
Azhar Umar and Azilah Hadri, Kamarul Hisham Kamarudin (C), is hugged by
Sirul Azhar's uncle, Mustaffa Samad, as Sirul Azhar's brother looks on,
outside the courthouse in Putrajaya near Kuala Lumpur August 23, 2013.
REUTERS/Bazuki Muhammad
The
release of the officers, who were part of Najib’s personal security
detail at the time of the 2006 murder of 28-year-old Altantuya
Shaariibuu, appears to distance the prime minister from the case.
But
the ruling also revived public outrage over her mysterious death and
raises further questions as Najib prepares for a possible leadership
challenge from within his ruling party in October.
A
three-member panel on Malaysia’s Court of Appeal unanimously decided
that the conviction of Chief Inspector Azilah Hadri and Corporal Sirul
Azhar Umar had been unsafe.
Among
the grounds cited were that a key witness, Najib’s then aide-de-camp,
hadn’t been called to give evidence and that a police diary that may
have given one of the men an alibi hadn’t been considered.
“It
is our judgment that the cumulative effect of the non-directions by the
learned trial judge rendered the conviction of the appellants unsafe,”
state news agency Bernama quoted one of the three judges, Justice Tengku
Maimun, as saying.
The
high court that found the policemen guilty and sentenced them to death
in 2009 never established a motive for the crime. Najib’s one-time close
associate, Abdul Razak Baginda, a political analyst, was charged with
abetting the murder but was acquitted in 2008.
Civil
society groups and Malaysia’s political opposition have alleged that
Altantuya’s killing was connected to her role as an interpreter and
associate of Razak Baginda in Malaysia’s purchase of two Scorpene-class
submarines from French shipbuilding giant DCNS in 2002.
Najib,
who was defence minister at the time, has strenuously denied
allegations of corruption in the purchase and of having any links to the
murdered woman.
But
his government has declined opposition requests for a public inquiry
into the case - which is currently the subject of a French investigation
- and has only given brief responses to questions raised in parliament.
Documents,
including records seized by French prosecutors in a raid on DCNS’s
offices, detail payments made to two companies set up by Razak Baginda,
but there has been no evidence linking Najib directly to corruption in
the deal.
“The
verdict this morning calls for nothing short of full and fresh
investigations,” said Cynthia Gabriel, an activist with the rights group
SUARAM, which is a plaintiff in the French investigative court case.
“SUARAM questions whether her brutal death was linked to the allegations of corruption in the Scorpene deal,” she added.
Many
people took to Twitter and other sites to voice anger and disbelief
over the still unresolved saga. Altantuya was blown up with
military-grade explosives.
“A
woman was killed using explosives. No one is found responsible for her
death. Where is justice?” tweeted one person with the username
@1Obefiend. (Reporting By Siva Sithraputhran; editing by Stuart
Grudgings and Nick Macfie)
Federal Court rejects Azilah's bid for retrial in Altantuya murder, says he kept silent on alleged instructions to kill
Chief
Judge of Malaya Tan Sri Azahar Mohamed said Azilah had in his October
17, 2019 application asked the Federal Court to review and set aside its
own January 13, 2015 decision to convict Azilah on the murder. ―
Picture by Choo Choy May
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By IDA LIM
Tuesday, 08 Dec 2020 12:37 PM MYT
PUTRAJAYA, Dec 8 ― The Federal Court today dismissed former police commando Azilah Hadri’s application for a retrial and review of his 2015 conviction over Mongolian Altantuya Shaariibuu’s 2006 murder, saying his own suppression of alleged instructions to carry out the murder did not lead to an exceptional situation warranting a review.
In delivering the five-man panel’s unanimous decision, Chief Judge of Malaya Tan Sri Azahar Mohamed said Azilah had in his October 17, 2019 application asked the Federal Court to review and set aside its own January 13, 2015 decision to convict Azilah on the murder.
“Under the scheme of the Federal Constitution and the Courts of Judicature Act, it is patently clear that a final decision has been given on this matter when this court heard and deposed the appeal by Azilah on January 13, 2015. In other words, it’s a final conclusion,” the judge said.
Stressing the importance of finality of decisions for the administration of justice, Azahar said that there should be no further appeal once the Federal Court delivers its decision as it is the apex court of the country, but noted that the Federal Court however has powers under Rule 137 of the Rules of Federal Court to review its own decision.
“The legal principles in respect of the court’s review power is well-established, the power to review is to be used sparingly and only in circumstances which can be described as exceptional,” the judge said.
Rule 137 of the Rules of the Federal Court is regarding the inherent powers of the Federal Court to “hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court”.
The judge noted, however, that Azilah’s review application was based on purported new evidence that was not presented during the Altantuya murder trial, making a reference to Azilah’s October 2019 statutory declaration of alleged instructions from a “third party” to conduct murder. The judge did not mention Datuk Seri Najib Razak’s name, but only described the origin of alleged instructions as being from a “third party”.
“Now it must be emphasised that he kept silent about this so-called new evidence during his investigation, during trial in High Court and appeals at Court of Appeal and also Federal Court.
“Indeed, this so-called material evidence which was available before the High Court trial and three levels of court was deliberately suppressed by the applicant himself, he himself withheld the so-called evidence from the police, his lawyers and the courts.
“Clearly in our judgment, the introduction of so-called new evidence is not in accordance with established legal principles,” the judge said.
“We are of the view on the face of records it has not been shown there was injustice in the present case,” the judge said, adding that there is no grounds to show there was breach of natural justice or miscarriage of justice.
“And in our judgment, there’s no exceptional circumstances for a review under Rule 137. We therefore dismiss this review application,” he concluded.
The other judges on the Federal Court’s panel today were Datuk Seri Mohd Zawawi Salleh, Datuk Vernon Ong Lam Kiat, Datuk Zaleha Yusof, and Datuk Zabariah Mohd Yusof.
The dismissal of the review application will mean that the Federal Court’s decision in 2015 to convict Azilah still stands.
Today was the hearing of Azilah’s application for the review of the
Federal Court’s January 2015 decision to convict and sentence him and
another to death over the murder of Altantuya.
Earlier, lawyer J.
Kuldeep Kumar argued that his client Azilah was unable to give the same
alleged evidence in court previously of the purported secret mission he
was ordered to go on to kill Altantuya who was purportedly a foreign
agent.
Kuldeep said Azilah was “under impressions it was a covert
operation and it was supposed to be a secret mission and that the
deceased in this case is a foreign agent and possesses national secrets
and (is a) threat to national security”.
“And this evidence was
unable to be adduced at the trial on the basis that this was a covert
operation and therefore he would be acquitted. He never divulged
this...and he never put forward this version before the court,” he said,
before going on to read excerpts from Azilah’s statutory declaration
and affidavit on why the former police officer was unable to provide the
same evidence previously in court.
Kuldeep at one point
initially suggested that there was procedural unfairness, but then
clarified that the situation was not one of procedural unfairness,
noting: “The position is he was unable to give that evidence during the
trial”.
Deputy public prosecutor Datuk Mohd Dusuki Mokhtar
noted, however, that Azilah’s inability to produce evidence due to his
own suppression of evidence “is not considered as an exceptional and
rare circumstance under Rule 137”.
“We need limited and very
exceptional circumstances to urge this court to exercise its power under
Rule 137. We find none in this motion filed by the learned counsel and
the applicant (Azilah),” he said, referring to Azilah’s motion or
application for review of the Federal Court’s 2015 decision.
“And
with regard suppression, nobody actually suppressed the evidence. He
himself withheld the evidence to be produced. It’s not limited and
exceptional circumstances to allow for this court to exercise its power
under Rule 137,” he argued.
Dusuki highlighted that it has been
almost five years since the murder conviction, noting: “Within that
period of time, there was a long time for the applicant to think about
that, to disclose whatever he himself suppressed.”
Following the
arguments presented by Kuldeep and Dusuki, the Federal Court delivered
its decision on Azilah’s review application.
Later when met
outside the courtroom, Tan Sri Muhammad Shafee Abdullah who was holding a
watching brief for former prime minister Najib said he was “satisfied”
as a whole on the Federal Court’s decision to reject Azilah’s
application.
Commenting on Azilah’s review application and the
court’s decision today, Shafee said that there would not be procedural
unfairness or deprivation of fair proceedings for Azilah in the
Altantuya trial if there was suppression of facts by Azilah.
Shafee pointed out that an application for review is different from an
application to present further evidence in court, noting: “In the review
you cannot adduce further evidence. In the review, it’s a challenge on
procedural fairness, not on the facts.”
When asked about the
statutory declaration by Azilah which had named Najib as purportedly
giving instructions for Altantuya’s murder, Shafee said: “So what will
happen is the statutory declaration now is in the court, we are
considering to apply to expunge or not, we are considering because
whether it is worthwhile doing it or not.”
Shafee also said that
the court’s decision today has no impact on Najib, as the Altantuya
murder case that went through the police and the courts did not
implicate him.
Lawyers Sangeet Kaur Deo and Harshaan Zamani
today also held a watching brief for the family of Altantuya in the
hearing of Azilah’s review application.
In December 2019, Azilah
had filed an application to the Federal Court to seek for a review of
his conviction and death sentence in 2015 over Altantuya Shaariibuu’s
2006 murder, and also sought for a retrial by having the case sent back
to the High Court to be heard again. Azilah’s review application had
named the public prosecutor as the sole respondent.
In Azilah’s
statutory declaration dated October 17, 2019 and published in full by
news portal Malaysiakini in December 2019, the former police Special
Action Unit (UTK) officer claimed that Najib as the then deputy prime
minister had in 2006 allegedly given him the orders to kill Altantuya
and dispose of her body with explosives.
Najib had previously
dismissed Azilah’s claims as a “complete fabrication” and maintained his
innocence while also welcoming police investigations into the
allegations.
In January 2015, the Federal Court reversed the
Court of Appeal’s August 2013 acquittal of Azilah and former police
commando Sirul Azhar Umar, reinstating the High Court’s April 2009
conviction and mandatory death sentence on the duo over Altantuya’s
murder.
Azilah has been on death row in Malaysian prisons since
then, while Sirul did not show up in court for the Federal Court
decision and was later found in Australia where he is believed to remain
under detention by Australian authorities until today. - Malay Mail, 8/12/2020
Azilah, Sirul, Razak Baginda and Govt found liable in Altantuya's death, ordered to pay RM5m damages
SHAH
ALAM (Dec 16): The High Court here on Friday (Dec 16) found political
analyst Abdul Razak Baginda, then chief inspector Azilah Hadri and then
corporal Sirul Azhar Umar to be liable for the death of Altantuya
Shaariibuu 16 years ago, and hence the Government was also found to be
vicariously liable.
Court of Appeal judge Datuk Vazeer Alam Mydin Meera, who was sitting
as a High Court judge, ruled that all four hence need to pay damages,
but said the amount of RM100 million sought by the family of the slain
Mongolian was excessive.
“Hence, the court awards damages to be paid jointly by all four
defendants (Azilah, Sirul, Abdul Razak and the Government) of RM5
million in general, aggravated and exemplary damages to the deceased's
family,” he ruled.
He ordered that the damages be charged at 5% interest from the date
of the filing of the lawsuit, until the full settlement of the amount.
Vazeer Alam also ordered that all four defendants pay RM25,000 costs each.
The proceedings done via the Zoom application were also monitored by Mongolian embassy officials.
The family was represented by Sangeet Kaur Deo, Tan Chee Kian, and
Simranjit Kaur Chhran, while Azilah and Sirul were not represented.
Lawyers P Mithran, Avtaran Singh and Eshwinder Kaur Gill appeared for
Abdul Razak, while senior federal counsel Zetty Zurina Kamaruddin and
federal counsel Khairuddin Amhar Mahmud represented the Government.
Lawsuit filed in 2007, a year after murder
Altantuya's father Dr Shaariibuu Setev, her mother Altantsetseg
Sanjaa, and the deceased's two sons, Mungunshagai Bayarjargal and
Altanshagai Munkhtulga, filed the lawsuit on June 4, 2007, claiming that
the model's death resulted in them suffering mental shock and
psychological trauma, and sought compensation as well as exemplary and
aggravated damages.
They named two former members of the Special Actions Unit attached
with the police force, namely Azilah and Sirul, as well as Abdul Razak
and the Malaysian Government as defendants.
However, Altanshagai's name was removed from the list of plaintiffs after he died in 2017.
A total of 26 witnesses for the plaintiffs, including Altantuya's
father and eldest son, testified in the trial that began in 2019. The
Government presented three witnesses, while Abdul Razak chose not to
testify.
Altantuya was killed in Puncak Alam in the early morning of Oct 19,
2006, and Azilah along with Sirul were found guilty with the grisly
murder. At present, Azilah is on death row at the Kajang Prison, while
Sirul has left the country, and is said to be detained at the Australian
immigration centre in Wollongong.
Meanwhile, Abdul Razak, who was charged with abetting with the murder, was acquitted without his defence called.
Vazeer Alam in his broad grounds said although Abdul Razak had chosen
not to testify and denied liability, the court found him liable to the
claim of unlawful killing of the deceased.
He said the court had considered and found that Abdul Razak had a
case to answer, as he had sought the assistance of both Azilah and Sirul
to deal with the deceased.
“There was no reasonable motive for Azilah and Sirul to kill the
deceased. The only link was the third defendant (Abdul Razak), who
wanted to stop harassment [by Altantuya],” the judge added.
In relating the events, the court said Altantuya had come to Malaysia to seek compensation for translation work.
Although the court did not relate what was the translation work, past
revelations said this was in relation to the purchase of the two
Scorpene submarines that Malaysia had acquired from France.
Abdul Razak, the court said, sought help from Deputy Superintendent
Musa Safri, who was the aide-de-camp to then deputy prime minister Datuk
Seri Najib Razak, to deal with Altantuya, and hence Azilah was
dispatched to meet the political analyst.
It was during this meeting that Azilah related that he could "habiskan perempuan itu" (finish off the woman) and admitted that he had done this several times.
Why the court found Abdul Razak liable
The judge said as Abdul Razak had chosen not to testify, the court
had to rely on his Section 112 statement recorded by the police, which
showed that he sought assistance from Azilah to stop his family from
being harassed, and the court found this reason hollow.
Vazeer Alam said Abdul Razak had admitted that Azilah told him the policeman could "habiskan perempuan itu", and the political analyst replied "perkara sebegini kita jangan fikir" (we should not think of such things).
“He (Abdul Razak) nevertheless continued to seek Azilah’s assistance
to deal with the deceased when she showed up outside his residence that
fateful night.
“On the night of Oct 19, the deceased was made to come alone to Abdul
Razak’s home. Abdul Razak’s hired private investigator P
Balasubramaniam then called him, who was having a meal with his family
at a hotel.
“Abdul Razak then called Azilah on the phone, and told him that the
deceased was outside his house. Azilah then told Abdul Razak that he
will go to his house. Abdul Razak then called Balasubramaniam, and told
him to keep the deceased there until Azilah arrived. It was then that
Azilah arrived at Abdul Razak’s house to take her in the car to Puncak
Alam and ultimately kill her.”
The judge said when the evidence is considered as a whole, the court
found that there is a case against Abdul Razak, as his own private
investigator had advised him to lodge a police report and have Altantuya
deported.
“Instead, Abdul Razak proceeded to enlist the assistance of a
self-confessed killer to deal with the deceased. Even Azilah had told
the third defendant (Abdul Razak) that he can 'habiskan perempuan itu', he did not stop enlisting Azilah’s assistance.
“The first defendant (Azilah) did not know the deceased. There was no
reasonable motive to kill the deceased, and the only link was the third
defendant (Abdul Razak), who wanted to stop the harassment,” the judge
said.
The judge added that there was no motive for Azilah and Sirul to kill Altantuya and blow her up with high-grade explosives.
“In the circumstances, I find that the plaintiffs have successfully
proven on a balance of probabilities that Abdul Razak had a culpable
role in the death of the deceased. If not for Abdul Razak, Azilah and
Sirul would not have taken the deceased in their car from his residence
and ultimately kill her.
"This court also found the fourth defendant (the Government) to be
vicariously liable, as the two defendants carried out the killing in the
capacity when they were policemen. Judgement is entered on liability,”
the judge added.
The High Court in finding Azilah and Sirul guilty of the murder ruled and found there was no motive for the killing.
The Court of Appeal in a unanimous judgement written by then judge
Tun Tengku Maimun Tuan Mat, who is now the Chief Justice, then acquitted
Azilah and Sirul.
However, a five-member Federal Court overturned the decision in
January 2015, and found both of them guilty of the murder. At that time,
Sirul had already left the country.
Azilah and Sirul led the police to the scene of the crime separately,
as Azilah was first arrested a few days after the murder, while Sirul
was arrested on Nov 6, 2006, after returning home from official duty
overseas. On his return, Sirul also led the police to the same murder
scene.
