COMMENT | Still interested in fighting for Najib's release?
COMMENT | The Federal Court had agreed to commute Azilah Hadri's death sentence to 40 years imprisonment plus 12 strokes of the cane for the murder of Mongolian model Altantuya Shaariibuu in 2006.
Be that as it may, the former police commando somehow managed to escape the gallows as he will no longer have to face the death penalty over the grotesque murder.
Azilah was 30 and he was with the police’s special action unit when a murder charge was slapped on him in 2006, he was 39 when the Federal Court decided that both he and fellow police commando Sirul Azhar Umar were guilty of the crime.
Legally speaking in deciding to commute Azilah's sentence, the apex court was merely...
COMMENT | The Federal Court had agreed to commute Azilah Hadri's death sentence to 40 years imprisonment plus 12 strokes of the cane for the murder of Mongolian model Altantuya Shaariibuu in 2006.
Be that as it may, the former police commando somehow managed to escape the gallows as he will no longer have to face the death penalty over the grotesque murder.
Azilah was 30 and he was with the police’s special action unit when a murder charge was slapped on him in 2006, he was 39 when the Federal Court decided that both he and fellow police commando Sirul Azhar Umar were guilty of the crime.
Legally speaking in deciding to commute Azilah's sentence, the apex court was merely exercising its discretion pursuant to a law known as the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 (Act 847). The act came into effect on July 4, last year.
The law essentially 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 various statutory provisions in line with the government policy to abolish the mandatory death penalty in all legislation.
Before the law came into being, the judges were barred from considering mitigating or other relevant factors relating to the crime or the individual found responsible for the death penalty, which could show that the circumstances of the offence were less serious or the individual less culpable.
That was due to the mandatoriness of the death penalty. Period.
Post-amendment, the court, however, has now been clothed with the discretionary power whether to impose the death penalty or the sentence of imprisonment for a period of not less than 30 years but not exceeding 40 years and if not sentenced to death, shall also be punished with whipping of not less than twelve strokes.
In fact, the aforementioned law was specifically legislated in order to provide for the temporary revisionary jurisdiction of the Federal Court to review the sentence of death and imprisonment for natural life imposed on a convicted person pursuant to the abolition of the mandatory death penalty and amendment to relevant provisions.
Landmark decision
At the time of Azilah’s conviction for murdering Altantuya, the punishment under section 302 of the Penal Code was a mandatory death sentence. This means the courts had no discretion to hand down alternative sentences.
For the time being, only the Federal Court is cloaked with the exclusive jurisdiction to hear the revision matters pursuant to Act 847.
Some of us may have heard that in November 2023, in its landmark decision, the Federal Court revised the sentencing of Teh Hock Leong, who had been on death row for the longest time (24 years) since his arrest in 1999 for a drug-related offence.
After the court commuted his death sentence, his sentence was lowered to 30 years, and then further reduced to 20 years, for good behaviour.
READ MORE: The Altantuya murder - a recap
With the emergence of this law does it mean the Federal Court must necessarily commute any death penalty sentence every time the applicant files a motion of review? The answer is a resounding no.
In January 2024, the Federal Court, for instance, rejected a commutation application for the first time since the revisions commenced.
Hence, Court of Appeal president Abang Iskandar Abang Hashim, who chaired the panel, dismissed the applicant’s - Junaidi Bambangʼs - application, having ruled that the circumstances of the case did not warrant the court to exercise its discretion under the new amendment to the law to substitute the death sentence to life imprisonment.
Thus, his death sentence which was meted out by the High Court on April 28, 2005, for killing two-year-old Julaika, nine-year-old Julaiha, and 11-year-old Juriyanti, at their house in Kampung Dusun Cini, in Pekan, Pahang, between 8pm on Feb 27, 2002, and 3.30pm the following day, was duly reaffirmed.
Strong mitigating factor
Some people have raised this question: What triggered the Federal Court to review Azilah’s death penalty sentence?
In delivering its decision, the Federal Court held that the prosecution had not challenged two documents presented by Azilah’s lawyers. In law, the absence of challenge by the prosecution signifies the acceptance of Azilah’s assertion.
The court also ruled that Azilah’s additional affidavit provides a “strong mitigating factor” and reason for the Federal Court to exercise its discretion in favour of Azilah.
By the way, Azilah’s lawyers had presented two documents to the Federal Court, namely a letter from Altantuya’s father Shaariibuu Setev which supported the replacing of Azilah’s death sentence with imprisonment, as well as his supplementary affidavit.
Interestingly, Azilah’s supplementary affidavit had included his entire 2019 statutory declaration claiming to have received instructions from then deputy prime minister Najib Abdul Razak for Altantuya’s murder.
The apex court equally held that Azilah’s additional affidavit provides a “strong mitigating factor” and reason for the Federal Court to exercise its discretion in favour of Azilah.
As far as the court is concerned, 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.
Some people have jokingly remarked that Azilah needs to be thankful to Najib simply because of his SD which claimed that he had received instructions from Najib for Altantuya’s 2006 murder which somehow salvaged his life.
It is unclear now whether Umno is still interested in fighting for Najib’s release with such a startling fact.
MOHAMED HANIPA MAIDIN is a former deputy law minister.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.
