KUALA LUMPUR – The Federal Court commuting Azilah Hadri’s death sentence to 40 years imprisonment and 12 lashes of the cane for the murder of Altantuya Shaariibuu shows the judiciary’s proactive participation in considering the complex circumstances behind crimes when meting out punishments, lawyers suggested.
Speaking to Scoop, former deputy public prosecutor Farhan Read said that the introduction of provisions relating to victims’ impact statements (VIS) in the Criminal Procedure Code enabled the victims or their families to have a say in criminal proceedings.
Although the statement by the victim’s father Shariibuu Setev was favourable to the appellant, Farhan pointed out a VIS could act as a double-edged sword and see an accused person getting a heavier sentence too.
“The point of the VIS is to enable the victim to have a say in how a judge deals with the sentence.
“The victim could come to court and say how the crime affected them, how they were mentally affected by the incident and express hope for the criminal to receive a heavy punishment.
“On the other hand, the victim could also point out that the crime wasn’t a big deal to them, and suggest to the court that the perpetrator should be given a lighter sentence.
“It’s all very free form,” Farhan told Scoop.
Meanwhile, lawyer A. Srimurugan highlighted another Federal Court decision where former lawyer Datuk N. Pathmanaban and his farmhand failed in their attempt to overturn their death penalty for the murder of cosmetics millionaire Datuk Sosilawati Lawiya on Tuesday.
In the Sosilawati case, he said the ruling was different from Azilah’s appeal, possibly because there was more than one victim in Pathmanaban’s challenge,
Srimurugan also agreed that Setev’s letter to the Federal Court did have a bearing on the ruling to commute Azilah’s death sentence.
However, the weight of a statement by a murdered victim’s family member would depend on a case-by-case basis, Srimurugan suggested.
“A VIS can have a bearing on the court’s decision but we can’t assign a mathematical value to it.
“It’s a factor which must be looked at with other circumstances of the case,” Srimurugan said when contacted.
Meanwhile, human rights lawyer Kuhan Raj Manokaran is of the view that recent Federal Court decisions show that Malaysia’s judiciary emulates other jurisdictions such as Japan by considering various factors during the sentencing process, which would see fewer convicts having to face the noose.
Referring to the Japanese Nagayama standards, Kuhan said that the justice system there allows the court to separate those who acted in the spur of the moment in a murder, compared to those who planned to kill.
“I am against the death penalty and I understand that such a sentence is viewed differently depending on the crime.
“In drug cases, the penalty is viewed as a deterrent. However, given that several murder cases happened at the spur of the moment, I don’t see how it can act as a deterrent.
“Thus, taking into account various factors before sentencing we can reduce the amount of convicts we punish with death and rehabilitate them instead,” Kuhan added.
Taking into consideration Altantuya’s case, where the former police officer Azilah shot and tried to dispose of the remains of his victims using an explosive device with the help of his colleague Sirul Azhar Umar, Kuhan did acknowledge the crime had elements of viciousness and planning.
“Yes there were elements of viciousness and planning, but it must also be balanced with sentiments from the victim’s family.
“The balance of justice should be weighed towards the family in this case,” Kuhan explained.
Earlier today, a three-judge panel at the Federal Court led by Chief Justice Tun Tengku Maimun Tuan Mat, unanimously accepted Azilah’s appeal for his death sentence to be commuted.
In delivering its verdict, the bench, which also comprises Court of Appeal president Datuk Abang Iskandar Abang Hashim and Federal Court judge Datuk Nordin Hassan, said that a supporting letter from Altantuya’s father backing Azilah’s bid for life imprisonment was taken by the panel as a strong mitigating factor.
In mitigating arguments, Azilah’s lawyer J. Kuldeep Kumar also submitted that at the time of Altantuya’s murder, his client had acted as a police officer who had received instructions from his superiors.
Azilah filed his death sentence review bid after Parliament passed the Abolition of Mandatory Death Penalty Act 2023 in July last year, giving judges discretion to impose life imprisonment between 30 to 40 years instead of a mandatory death sentence for crimes such as murder and drug trafficking.
In 2009, three years after Azilah and Sirul were charged at the Shah Alam High Court, both were convicted of murdering Altantuya.
In 2013, the duo succeeded in overturning their conviction at the appellate court after a three-member panel, which included Tengku Maimun, found the conviction to be “unsafe”.
The Federal Court in 2015 led by the then-chief justice Tun Arifin Zakaria restored their conviction and reinstated their death sentence.
Before the 2015 ruling, Sirul fled to Australia, where he remains due to the country’s anti-death penalty laws preventing it from extraditing individuals who could face the death sentence in their home country. – October 10, 2024
