Azilah's conviction and death sentence for Altantuya's murder stand

PUTRAJAYA (Dec 8): A five-member Federal Court bench has dismissed former chief inspector Azilah Hadri's review application to set aside an earlier decision by the apex court five years ago to convict him in the murder of Altantuya Shaariibuu.

The unanimous decision was made by the bench led by Chief Judge of Malaya Tan Sri Azahar Mohamed.

“This is an application by Azilah by a notice of motion, dated Oct 17, 2019, to review and set aside the decision on Jan 13, 2015. The scheme of the Federal Constitution is that the final decision has been heard and disposal of the case should be brought to a final conclusion. Finality of a decision is important in an administration of justice.

“The court has no power to open or rehear a decision safe for this court to review its decision based on Rule 137 of the Federal Court Rules. The legal principles that have been established are that there must be exceptional circumstances as a ground of review to adduce further evidence,” he said.

Justice Azahar said according to Azilah's statutory declaration (SD), which he had affirmed, as well as the supporting affidavit, the accused claimed he committed the crime under the order of a third party.

He said nothing new emerged during investigations and proceedings in the High Court, the Court of Appeal and the Federal Court.

“Whatever evidence was deliberately suppressed by the applicant from the police and court, we are of the view that the applicant has not shown injustice against him or [if] there is a break of rule of natural justice. There is no miscarriage of justice. As such, there are no exceptional circumstances for this court to grant and hence we dismiss the review application,” he said.

Sitting with Justice Azahar were Justices Datuk Seri Mohd Zawawi Salleh, Datuk Vernon Ong Lam Kiat, Puan Sri Zaleha Yusof and Datuk Zabariah Mohd Yusof.

With today's decision, Azilah's death penalty stands unless he is granted a pardon by the Selangor ruler, for which he has filed an application.

A male relative was seen talking to the former chief inspector before and after the proceedings ended.

Azilah, 43, had filed the motion to set aside the conviction and sentence for the murder of Mongolian Altantuya on top of a hill in Mukim Bukit Raja, near Puncak Alam between 10pm on Oct 18 and 1am on Oct 19, 2006.

He and former corporal Sirul Azhar Umar were found guilty of the murder by the apex court on Jan 13, 2015. However, Sirul has left the country and is presently being detained at the Wollongong immigration facility near Sydney, Australia.

Sirul has been in Australia since late 2014 after the Court of Appeal set aside their convictions and sentences. Then Court of Appeal judge Justice Tun Tengku Maimun Tuan Mat, who is now the chief justice, wrote that their convictions were unsafe due to the prosecution's failure to call Deputy Superintendent Musa Safri.

Musa was then deputy prime minister Datuk Seri Najib Razak's aide-de-camp.

In Azilah's SD and supporting affidavit, he alleged that when he met Najib in Pekan, Pahang, the politician directed him to be involved in a covert operation to arrest and terminate a foreign spy and dispose of the body.

“I asked the DPM what he meant by arrest and destroy, and Najib said “shoot to kill” while signalling [to slit the throat]. I suggested that a report be made on the matter at the Brickfields police station. However, Najib disagreed as he wanted the matter to be kept out of the public as this involved national security,” the former elite police officer said in his SD.

Azilah's lawyer J Kuldeep Kumar, who appeared with Athari Bahardin, told the court that his client should be given a retrial in light of a breach of rules of natural justice.

“There is procedural unfairness against my client. The police investigations as to what is claimed are still ongoing. The prosecution in their affidavit have not credibly denied this,” the lawyer said.

This led Justice Azahar to ask whether there was anybody who stopped him from adducing the evidence in the High Court, Court of Appeal and the Federal Court.

Deputy Public Prosecutor (DPP) Datuk Mohd Dusuki Mokhtar, also the head of the appeals unit of the trial and appeals division of the Attorney-General's Chambers (AGC), said nobody stopped him from adducing such evidence.

“It seemed that he himself suppressed the evidence. His inability to say this in the trial or bring it up during the High Court, COA [Court of Appeal] and Federal Court shows there [are] no exceptional circumstances for this court to grant a review of his notice of motion under Rule 137.

“It is only after five years after his conviction in the Federal Court that he is saying this. Hence, this motion should be dismissed,” the DPP argued.

Despite the end of the episode in the criminal trial, lawyer Sangeet Kaur Deo, holding a watching brief in the application on behalf of Altantuya's family, said the civil trial where her family is seeking RM100 million will continue next month in Shah Alam.

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