Federal Court rejects Azilah’s bid for retrial in Altantuya murder, says he kept silent on alleged instructions to kill

(MMO) – 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.