Delegatus non potest delegare: Altantuya, the charges

(For the uninitiated, the Latin words used in the title to these articles address hindsight, in that one ought not attend to matters as serious as this with the help of anyone else.

‘Delegatus Non Potest Delegare”. Put simply, if you have the power to do something yourself, don’t ever get someone else to do it for you. This is where the problems start.)

Just over a week ago, Malaysia was exposed to yet another scandal when Azilah Hadri, in a lengthy and detailed statutory declaration, revealed that he had been ordered to kill Altantuya. This order, he says, came directly from the then deputy prime minister, Najib Razak in October 2006.

The purpose of Azilah’s SD was to support a motion, filed by his lawyers in the Federal Court, for a review of his conviction for murdering Altantuya. He basically says it is unfair for him to take the rap because he was only acting under orders and so his conviction ought to be scrutinized in light of these revelations and a new trial ordered.

Whether he succeeds or not is another matter entirely. From a legal perspective, it doesn’t look good for Azilah for the simple reason he has confessed, on oath, that both he and Sirul Azhar Umar murdered Altantuya. This is what they were convicted and sentenced to death for by the highest Court in the land. If there was any doubt in those convictions, they have now been put to rest.

However, this does not prevent the police from re-opening investigations into the murder based on the fresh allegations made by Azilah. The police are not required to re-investigate the original matter. This has already been done. Based on those initial investigations, charges were laid against Azilah, Sirul and Razak Baginda and dealt with by the Courts. There is a subtle distinction here which has to be appreciated. This is a new case.

A number of keyboard warriors and "experts" have taken to the internet recently providing their 2 cents worth, which is probably the correct valuation. It is time to set the record straight.

Any fresh investigations by the Police will naturally be directed to the recent allegations made by Azilah that he was instructed to carry out the execution of an alleged ‘foreign spy’ by Najib Razak (above).

If police investigations reveal that this is indeed true, then Najib Razak would be faced with potential charges under the Penal Code for common intention, abetment and criminal conspiracy, despite Azilah and Sirul’s convictions.

Section 34 of the Penal Code makes the offence of common intention clear. It reads as follows: “When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the same act were done by him alone.”

(We may use an example to demonstrate how this section is designed to work. Say there are three persons involved in the kidnap and murder of a businessman held for ransom. Two of the perpetrators are caught, charged in Court and convicted. This does not mean the third perpetrator gets off scot free just because he was not caught and charged with the other two. This third perpetrator would also face charges if he is apprehended in the future and after the original two had been convicted and sentenced.)

Section 107(aa) of the Penal Code sets out the requirements of abetment. It says this: “A person abets the doing of a thing - who commands any person to do that thing.” Punishment of the abettor would be the same as the punishment imposed on the person who actually carries out the crime.

Criminal conspiracy is defined in section 120A of the Penal Code as “when two or more persons agree to do, or cause to be done – an illegal act”. Punishment would be the same as in abetment. This is the basis upon which, it is anticipated, the police are to begin their fresh investigations.

Najib has welcomed these investigations. He has also declared on oath in a mosque that he did not give orders to Azilah (above) to kill Altantuya and that ‘if’ he is telling the truth, his accuser will inevitably suffer the wrath of the Almighty in this world and in the hereafter.

However, the irony of the situation is that his accuser has already suffered the wrath of society for failing to tell the truth previously and is now sitting on death row for this indiscretion, awaiting the hereafter.

This series of articles will explore the entire history of this matter from the time Altantuya was abducted outside the home of Razak Baginda on October 19, 2006, the investigations into her murder conducted by a polarised police force, the stage-managed trial of Razak Baginda, Azilah and Sirul, the revelations made by PI Bala and his prompt ‘banishment’ from Malaysia, the shenanigans that went on whilst he was away, the atrocious behaviour of a complicit and spineless judiciary, the participation of delinquent lawyers, Sirul’s escape to Australia and his detention at Villawood, the flurry of activity in Sydney to keep him silent and all the overwhelming evidence which has emerged since.

Many new names, as yet unrevealed, have been added to the original list of players in this ordeal. Their roles have been for one purpose and one purpose alone, and that is to protect one man from any connection with Altantuya and her murder.

Lawyers, prosecutors, judges, attorney-generals, police, politicians and businesssmen have all played roles in the cover-up of the century and will be identified as the tale unfolds.

As someone quite rightly pointed out recently; you certainly couldn’t make this stuff up.

Stay tuned.

(This is Part 1 in a series of articles that will explore the entire history of the murder from the time Altantuya was abducted to the most recent revelations and allegations.)

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AMERICK SIDHU is a senior lawyer representing A Santamil Selvi, widow of private investigator P Balasubramaniam, in her lawsuit against former premier Najib Abdul Razak and a number of others over an alleged conspiracy linked to the murder of Altantuya Shaariibuu. - Mkini