Media Statement – 17/1/2025
Selangor Sultan Ought To Exercise Pardon Powers To Commute Death Sentence Of Sirul Azhar To Be The Same As Azilah Hadri, As They Were Jointly Charged For The Altantuya Murder
Justice demands that Courts should be empowered to impose same sentence/decisions on co-accused of the same crimes eventhough they are not before the Court
MADPET (Malaysians Against Death Penalty and Torture) calls for the commutation of the death sentence of Chief Inspector Azilah Hadri and Corporal Sirul Azhar Umar Chief Inspector Azilah Hadri and Corporal
In 2009, the Shah Alam High Court convicted ex police officers, Chief Inspector Azilah Hadri and Corporal Sirul Azhar Umar Azilah for the murder of Altantuya Shaaribuu on 18/10/2006, and sentenced them to death. Then in 2013, the Court of Appeal overturned the conviction, and released both of them. On appeal in 2015, the Federal Court overturned the Court of Appeal decision, and restored the conviction for murder, and the death sentence on both of them. Interestingly, Sirul Azhar who was in Australia then, and was not present at the Federal Court in 2015.
After the release following the Court of Appeal’s decision, Sirul had left for Australia and was there when the Federal Court restored the death sentence. He chose not to return to Malaysia after being sentenced to death.
Abolition of Mandatory Death Penalty, and Court Review of Death Sentence
Malaysia abolished the mandatory death penalty vide the he Abolition Of Mandatory Death Penalty Act 2023, that came into force on 4/7/2023.
Then, after the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction Of The Federal Court) Act 2023 came into force, it was open for those on death row to apply to the Federal Court to review the death sentence. However, sadly, not everyone on death row filed this application to review the death sentence.
Same Sentenced For All Charged With Jointly Committed Crimes?
In the case of persons charged for crimes committed together with others, justice demands that equal treatment be accorded for all, especially those committed for conspiracy crimes, and this means if the death sentence is commuted to imprisonment and whipping for one, the same outcome should apply to all involved in the said crime, irrespective of whether they applied for their death sentence be reviewed or not.
However, there may be different sentences if and when there is clear evidence that their contribution in the commission of the crimes is different, or some other relevant mitigating/aggravating factors.
Azilah’s sentence commuted – so must Sirul’s sentence
On Azilah’s application to review the death sentence, the Federal Court, it was reported on 10/10/2024, decided to reduce or replace his sentence with imprisonment of 40 years and 12 strokes of the cane.(Malay Mail, 10/10/2024).
It must be noted that Chief Justice ‘Tengku Maimun made it clear that the Federal Court’s decision today is not a review of Azilah’s conviction of Altantuya’s murder. Instead, the judge said the Federal Court was only exercising its discretion in reviewing Azilah’s death sentence in line with Act 847 — or the law known as the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023(Malay Mail, 10/10/2024).
Therefore, justice demands that the death sentence of Sirul also be now reduced to imprisonment of 40 years and 12 strokes of the cane. This will be consistent with Article 8(1) of the Federal Constitution that states, ‘All persons are equal before the law and entitled to the equal protection of the law.’
Precedence of use of Pardon Powers to ensure equal treatment of convicts
This principle, was also acknowledged in past cases, where some appealed, and others did not although all convicted for the same joint crime and sentenced the same.
In the case of Nik Hassan Nik Hussin & Anor v. PP [1947] 1 LNS 74; [1948] 1 MLJ 74 where two out of five defendants of the same crime appealed and the Court quashed their convictions, the Court made an open recommendation to the Governor to grant the remaining three, a free pardon. Thereafter, the then Governor of the Malayan Union granted a free pardon to the other 3. Justice was served equally.
In the Nik Hassan’s case, it is clearly stated in the written judgment as to what Court hopes be done to the other 3 who did not appeal – ‘In the above circumstances, the appeal of each of the two appellants was allowed and inasmuch as the same considerations apply to the convictions of the first, fourth and fifth accused, who have not appealed, a recommendation will be made to His Excellency the Governor to grant a free pardon to each of them.’ This is a good and just practice, that ought to be adopted by Malaysian judges, if and when their judgement will affect conviction and/or sentence of others, not then before the court.
As the offence, and the case happened in the State of Selangor, the Sultan of Selangor has the power to exercise his pardon powers and commute the death sentence of Sirul Azhar to imprisonment of 40 years and 12 strokes of the cane.
Thus, MADPET calls upon the Ruler of Selangor to use his pardon powers and commute the death sentence of Sirul Azhar to imprisonment of 40 years and 12 strokes of the cane, as is now the sentence of the person charged together with him, Azilah, of the crime of murder.
MADPET calls on Prime Minister Anwar Ibrahim, the Selangor Menteri Besar, the Attorney General/Public Prosecutor and/or the Chief Justice to move the Selangor Ruler to exercise his pardon powers to ensure that Sirul Azhar’s sentence is also commuted to be the same as is the sentence of co-conspirator of same crime; and
MADPET also calls for the government to enact laws to empower the courts the power to apply the same decision to others charged with the same joint offences, even though they may not have appealed or are not before the court then. This would be better, than to rely on King/Rulers exercise of their pardon powers – as the King/Rulers in the exercise of the prerogative of mercy best not be considering matters of evidence relating to convictions and/or sentences imposed by court.
Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
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Altantuya’s convicted killer Azilah avoids death penalty as Federal Court reviews sentence to 40 years and 12 strokes of cane
- Former police commando Azilah Hadri’s death sentence for the 2006 murder of Altantuya Shaariibuu was commuted to 40 years in prison and 12 strokes of the cane by the Federal Court.
- The Federal Court’s decision, chaired by Chief Justice Tun Tengku Maimun Tuan Mat, reviewed Azilah’s sentence under Malaysia’s new sentencing laws, but did not revisit his murder conviction.
- Azilah’s lawyers presented mitigating factors, including a letter from Altantuya’s father supporting the reduced sentence, and claimed Azilah was following orders from then-deputy prime minister Datuk Seri Najib Razak.
- The earliest Azilah could be released from prison, based on good behaviour, is 2034, when he will be 58 years old.
PUTRAJAYA, Oct 10 — Former police commando Azilah Hadri will no longer have to face the death penalty over Mongolian model Altantuya Shaariibuu’s 2006 murder, as the Federal Court has decided to reduce or replace his sentence with imprisonment of 40 years and 12 strokes of the cane.
Chief Justice Tun Tengku Maimun Tuan Mat, who chaired the Federal Court’s three-judge panel, delivered the panel’s unanimous decision to allow Azilah’s application to commute his death sentence to jail time and caning instead.
“We set aside the death sentence and substitute it with imprisonment for 40 years from the date of arrest, November 1, 2006, excluding the period the applicant was released by the Court of Appeal and 12 strokes,” she said after the panel left the courtroom for about 42 minutes to deliberate on the decision.
Earlier in her brief decision, Tengku Maimun made it clear that the Federal Court’s decision today is not a review of Azilah’s conviction of Altantuya’s murder.
Instead, the judge said the Federal Court was only exercising its discretion in reviewing Azilah’s death sentence in line with Act 847 — or the law known as the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023.
Azilah’s lawyers had presented two documents to the Federal Court: a letter from Altantuya’s father Shaariibuu Setev which supported the replacing of Azilah’s death sentence with imprisonment; and Azilah’s supplementary affidavit for his application for his death sentence to be commuted.
Azilah’s supplementary affidavit had included his entire 2019 statutory declaration claiming to have received instructions from then deputy prime minister Datuk Seri Najib Razak for Altantuya’s 2006 murder.
In delivering the Federal Court’s decision, Tengku Maimun said the prosecution had not challenged the two documents presented by Azilah’s lawyers, and said Azilah’s additional affidavit provides a “strong mitigating factor” and reason for the Federal Court to exercise its discretion in favour of Azilah.
She also said Azilah’s additional affidavit provides grounds for the Federal Court to apply the principle of proportionality in deciding the sentence that should be imposed on Azilah.
After also noting the letter from the “victim’s father” which supported Azilah’s application for the death sentence to be reduced to imprisonment, Tengku Maimun then said the Federal Court allowed the replacement of the death sentence with imprisonment and caning for Azilah.
The other two judges on the Federal Court panel are President of the Court of Appeal Datuk Abang Iskandar Abang Hashim and Federal Court judge Datuk Nordin Hassan.
Following the Federal Court’s decision, Azilah’s lawyers J Kuldeep Kumar and Athari Bahardin confirmed to reporters that the earliest that their client can expect to be released from prison is in 2034.
This calculation is based on Azilah’s lawyers taking into account the typical one-third remission or reduction of jail term for prisoners on good behaviour, and also the 16 years and three months that Azilah had already spent in jail since his November 1, 2006 arrest; and also, after excluding a period of one year and four months during 2013 to 2015 when Azilah was acquitted by the Court of Appeal.
Azilah will be 58 years old in 2034.
Azilah, now 48, has been on the death row in prison for the past nine years, after the Federal Court in 2015 decided to uphold his conviction.
Azilah was aged 30 and the chief inspector with the police’s special action unit (UTK) when he was charged in 2006 with the murder, and was aged 39 when the Federal Court decided that both he and fellow police commando Sirul Azhar Umar are guilty of the crime.
At the time of Azilah’s conviction for murdering Altantuya, the punishment under the Penal Code’s Section 302 was a mandatory death sentence. This means the courts had no discretion to hand down alternative sentences.
After Malaysia changed its laws last year, the courts can now choose to decide whether to sentence a person who committed murder with either the death penalty; or between 30 to 40 years of jail and at least 12 strokes of the cane.
Following the changes to Malaysian law, prisoners in Malaysia who were sentenced to death for murder — including Azilah — had applied to the Federal Court to review their sentences and to consider replacing it with a minimum 30-year imprisonment and caning.
What Azilah and the prosecution argued
Besides reading out Altantuya’s father’s letter to the Federal Court, Azilah’s lawyer Kuldeep this morning listed mitigating factors that the court should consider, including his Sarawak-born client’s upbringing where he came from a family of hardship and was a good student.
Kuldeep also noted that his client had took on various public duties in the past while with the police’s UTK, including escorting and ensuring the security of VIPs and VVIPs such as the Yang di-Pertuan Agong, then prime ministers Tun Dr Mahathir Mohamad and Tun Abdullah Badawi and then deputy prime minister Datuk Seri Najib Razak, and heads of states such as Russia’s Vladimir Putin and the late Saudi ruler King Abdullah.
Kuldeep also cited certificates of appreciation signed by Dr Mahathir and one such certificate signed by then inspector-general of police Tan Sri Mohd Bakri Omar in 2005 over Azilah’s service, while also noting Azilah’s other achievements when he was serving in the police force.
“It is our humble submission, this is not a criminal killer, he is not a criminal, ordinary murderer. He is not a criminal, he has no propensities to commit crimes. The applicant has on numerous occasions conveyed his deep regret on this tragic event that has led to loss of an innocent woman’s life,” he argued.
Kuldeep argued that Azilah would not be a “threat to society” if his death sentence is reduced to imprisonment and whipping and after he serves his sentence, noting that Azilah had dutifully attended the Federal Court hearings and also the Federal Court proceeding in 2015 when it delivered its decision to uphold his conviction and death sentence.
“It is undisputed that the murder of Altantuya Shaariibuu was not for purposes of sexual gratification nor was it a hired assassination job. Also no evidence to show he was a serial killer, hired assassin, and he did not benefit monetarily and had no benefit in killing. The prosecution failed during trial to prove any motive on that,” he argued.
Kuldeep argued that his client had no connection at all to Altantuya and had no motive to kill this woman who was a “complete stranger” to him.
Citing Azilah’s 2019 statutory declaration, Kuldeep said that his client had claimed to have been informed by then deputy prime minister Najib and his aide de camp DSP Musa Safri that Altantuya was a foreign spy who exposes national secrets and that was why he had carried out what he believed to be a covert operation to safeguard national secrets.
Kuldeep said police officers are trained to carry out instructions from their superiors and the statutory declaration shows Azilah’s “state of mind” when he committed the murder, and that his client had not raised this in trial previously as he was told he could not disclose this covert operation.
He argued his client should be spared from the gallows to enable him to be rehabilitated and be allowed to return to society.
Kuldeep also argued that the sentence imposed on his client should be proportionate, as the prosecution did not file an appeal when the High Court acquitted political analyst Abdul Razak Baginda—who was charged with abetting the murder—without calling for him to enter defence. Kuldeep said Abdul Razak was however found liable for RM5 million in compensation together with others in a civil lawsuit by Altantuya’s family on the same facts.
Also when arguing on the need for proportionality in sentencing, Kuldeep highlighted that the Australia-based Sirul had taken advantage of the system and is now a “free man” there.
“If the death sentence is given to Azilah alone, he will be the only man put to death. And that would also mean, Australian laws, the authorities and police will never be able to bring Sirul back to face justice. Sirul will walk away as a free man,” he argued.
Deputy public prosecutor Datuk Mohd Dusuki Mokhtar, who is also the head of the Attorney General’s Chambers’ appellate and trial division, argued that “public interest” should be the most important factor when the court sentences a convicted person.
“This case has shocked the conscience of our community. The way it was committed, in a gruesome manner, the victim was shot and then blown up in pieces, has shown the gravity of the offence, where it has also shown the gruesomeness without due regard of life of human being,” he argued, adding that the “brutal” murder had also attracted a lot of attention and that Altantuya was a foreign citizen.
While acknowledging that Kuldeep’s argument of Azilah following orders as a police officer as trained could be a possible mitigating factor, Dusuki stressed that public interest in this case should override the fact that he was implementing orders from his higher ups.
Dusuki said the way the murder was carried out showed that Azilah had a guilty mind when executing the murder, and that he should have made some inquiries first instead of immediately carrying out the murder on the pretext that Altantuya was allegedly a foreign spy.
When responding to Kuldeep’s arguments about Sirul, Dusuki said the procedure applicable in Malaysia has to be followed and the fact that Azilah is in Malaysia now cannot be avoided, and left it to the court to balance the facts against the public interest.
“Only Azilah is now before this court, so I can’t in fact comment on the other party or the other accused person who is now in Australia. But we got to deal with this case first, and maybe other forum we can deal with other issues. Maybe in other times, maybe in some other times,” he said.
After
emphasising that public interest should be the most important factor, he
then left it to the Federal Court to decide on Azilah’s sentence. - Malay Mail, 10/10/2024
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NIK HASSAN BIN NIK HUSSIN & ANOTHER v. PUBLIC PROSECUTOR HIGH COURT, KELANTAN WILLAN, CJ MALAYAN UNION; MURRAY-AYNSELY, CJ SINGAPORE; CAREY, J CRIMINAL APPEAL NO 67/47 4 SEPTEMBER 1947 |
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PENAL CODE, s 402-Assembling with others for the purpose of comitting gang Robbery-Conspiracy-Evidence Enactment s 10. |
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Counsel: For the respondent-CM Sheridan (Crown Counsel) |
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Willan CJ: The Judgement of the Court was delivered by: These two Appellants were convicted in the High Court at Kota Bharu of assembling with others for the purpose of committing gang robbery contrary to s. 402 of the Penal Code and were sentenced to five years RI each. They appealed against these convictions and sentences. Their appeals were allowed and the convictions quashed. The allegation of the prosecution was that at about 1.30 a.m. on 10 December 1946, nine men assembled at a hut on a piece of high ground under scrub for the purpose of committing robbery at the house of one Sulaiman about 100 to 200 yards distant. The first witness called by the prosecution at the trial of five of the nine men gave evidence that at about 6 o'clock pm. on the evening in question, as he was fishing in a water-channel about 200 yards distant from the said hut, one Derahman came and told him to stop fishing and go home as people were going to commit a robbery at Sulaiman's house. The second witness called by the prosecution, having seen some eight men about midnight in the neighbourhood of the hut, called others to investigate and ultimately the Penghulu of the district was sent for and arrived with fifty men. One man was found outside the hut and arrested. He was the second of the five men charged and is the first appellant, Nik Hassan. When the Penghulu ordered the arrest of this man, about eight others ran out of the hut. The Penghulu's 50 men gave chase and about 400 yards away a second man was caught in a bush. He was the first accused of the five charged and convicted and has not appealed. It is alleged that on being captured he gave the names of others accompanying him to the Penghulu. The learned Judge properly rejected this evidence. The remaining three men charged and convicted were arrested at 7 a.m. next morning on the road. They had arrived at a certain man's house about three miles from the hut in question at about 2 a.m. and had slept in this man's house for the remainder of the night. The house of one of these three men (their spokesman) was about five miles from where they slept. There are varying accounts as to weapons carried by the nine men-parangs of one kind or another and one gun. A gun was found in a water-course through which the fugitive men are alleged to have run, about 9 days later. This was at a spot about 60 yards from the hut in question. That is a precis of the evidence on which the prosecution relied. Now the statement made by Derahman to the first witness as to people being about to commit a robbery was admitted in evidence possibly on the assumption that Derahman was one of the witnesses being called. Section 10 of the Evidence Ordinance provides: The Derahman who is alleged to have given the warning was not one of the accused men and was not called as a witness. The evidence given by the 1st witness as to what Derahman said to him is therefore merely hearsay and is inadmissible. Excluding this evidence, there is nothing to indicate for what purpose the persons were assembled at the hut. This element of the crime alleged is therefore entirely dependent on suspicion, and is not proved. The first appellant admits having been in the hut with the first accused (who has not appealed) but he gives an explanation consistent with his innocence of their presence and denies the presence of any others. The Penghulus fifty men only caught these two of the nine they allege were there. As against the 2nd appellant, there is merely a suspicion based on the fact that he slept for the later part of the night in question at a house three miles away from the hut and five miles from his own home. He also gives a plausible explanation of why he and the remaining two persons (Accused 4 and 5 in the High Court trial) slept at that house and he alleges that the time of their arrival there was 9.30 p.m. and not "about 2 a.m." as alleged by their host, who admittedly had no time-piece. In his grounds of judgment the learned trial Judge says: It would seem therefore that the learned trial Judge misdirected himself as to what Derahman said being admissible. In the above circumstances, the appeal of each of the two appellants was allowed and inasmuch as the same considerations apply to the convictions of the first, fourth and fifth accused, who have not appealed, a recommendation will be made to His Excellency the Governor to grant a free pardon to each of them.* Appeal Allowed. Convictions Quashed. Foot Note:- Only two out of five persons convicted having appealed, HE the Governor of the Malayan Union was pleased to grant a free pardon to the other 3rd Edn. MLJ. [1947] 1 LNS 74 |
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