Shamsher Singh Thind’s open letter to the AG

 

My name is Shamsher Singh Thind and I am a law lecturer with a private college in Penang, teaching Criminal Law and Evidence.

I write this open letter in response to an online article published by Malaysiakini entitled “I never admitted to killing her, says Sirul” (URL: http://www.malaysiakini.com/news/289756). Among others, it was reported therein that Sirul Azhar ‘… maintained that he had acted under orders and was being made a scapegoat.’

This news has certainly created another round of global shockwave, since from the beginning, for one reason or another, this trial has been linked to our Prime Minister, Dato’ Seri Mohd Najib Tun Razak.

I have read another online article published by Asia Sentinel entitled “Sirul Azhar Statement” (URL: http://www.asiasentinel.com/politics/sirul-azhar-statement/). This article purportedly contains the cautioned statement made by Sirul Azhar on 9 November 2006, that is to say, after his arrest. Sirul purportedly confessed that ‘… I met Azilah at Central Market …[and] [h]e instructed me to observe Malaya Hotel[,] where the woman who was disturbing the businessman stayed [and] [o]n the way there, Azilah talked about a reward of between RM 50,000 and RM 100,000 if the case was settled.’

Of course, I am not in any position to confirm whether or not both of these online articles are true. However, the contents therein are highly believable.

On 13 January 2015, the Federal Court has reversed the decision of the Court of Appeal and restored the conviction and punishment set by the High Court but the motive of killing of Altantuya Shaariibuu was never established. No one seems to know until today why the two elite police officers from the Special Task Force (Unit Tindakan Khas) abducted and murdered a foreigner.

For public, it is a natural thing to blame the police for not doing a thorough investigation professionally. However, my humble opinion is that it is your office that has to be blamed for this blunder.

Let me explain. Firstly, section 334 of the Criminal Procedure Code clearly provides that ‘[w]hen any person dies while in the custody of the police …, the officer who had the custody of that person … shall immediately give intimation of such death to the nearest Magistrate, and the Magistrate or some other Magistrate shall … hold an inquiry into the cause of death.’

Put it simply, the duty of a Magistrate to hold an inquiry, where a person has died in police custody, is mandatory and not discretionary.

This mandatory requirement is reiterated in the Practice Direction No 1 of 2007 (Guidelines on Inquest). Para 3(A)(1)(a) thereof provides that ‘[t]he Magistrate must hold an inquest if any person dies while in the custody of the police …’

“Cause of death” is defined by section 328 of the Criminal Procedure Code to include not only the apparent cause of death as ascertainable by inspection or post-mortem examination of the body of the deceased, but also all matters necessary to enable an opinion to be formed as to the manner in which the deceased came by his death and as to whether his death resulted in any way from, or was accelerated by, any unlawful act or omission on the part of any other person.’

Furthermore, section 337 of the Criminal Procedure Code provides that ‘[a] Magistrate holding an inquiry shall inquire when, where, how and after what manner the deceased came by his death and also whether any person is criminally concerned in the cause of the death.’

I strongly believe that had inquiry into the cause of the death of Altantuya Shaariibuu was promptly done, we would have found the answers to many of the questions are at the moment are bothering us. I agree with the courts that motive of killing is irrelevant in securing a conviction under section 302 of the Penal Code. However, without knowing the motive, how was it possible for the police to conclude that only Sirul Azhar and Azilah Hadri, with the exclusion of all others, were responsible for the brutal killing of Altantuya Shaariibuu?

There is a legal maxim in Latin that says nemo judex in causa sua, which literally means no one should be a judge in his own cause. This is one of the fundamental principles of natural justice.

Police cannot be given the task to investigate its own wrongdoings. I can vividly remember that police investigation had failed to reveal the identity of the person who caused bodily injuries to Dato Seri Anwar Ibrahim on 20 September 1998 at the Bukit Aman police lock-up.

In fact, the then Attorney General of Malaysia, Tan Sri Datuk Seri Mohtar Abdullah in the conclusion part of his press statement dated 5 January 1999 stated that ‘… I am also of the opinion that the Royal Malaysian Police is fully responsible for the injuries to the Complainant whilst he was in the legal custody of the Police [but] [n]evertheless, the investigation which have been carried out so far have not identified the person or persons responsible for such injuries.’ (emphasis added)

However, everyone knows today that the former Inspector General of Police, Tan Sri Abdul Rahim Mohd Noor was the person who caused the said injuries to Dato Seri Anwar Ibrahim. Interestingly, we are able to know this truth only after a Royal Commission of Enquiry was established under the Commissions of Enquiry Act 1950.

Therefore, in the interest of justice, I call upon you, the Attorney General of Malaysia, to direct a Magistrate to hold an inquiry into the cause of, and the circumstances connected with, the death of Altantuya Shariibuu, in accordance with section 339(1) of the Criminal Procedure Code.

The restriction under section 339(2) of the Criminal Procedure Code, that a Magistrate cannot make further investigation where a finding of murder or culpable homicide not amounting to murder has been returned against any person, does not apply here because that restriction only applies when a proceeding at any inquiry into the cause of death have been carried out and closed.

I will end my open letter with a quote from an Irish philosopher, Edmund Burke. He said that the only thing necessary for the triumph of evil is for good men to do nothing.

Thank you.

Yours sincerely,

 

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Shamsher Singh Thind (Mr.)

Law Lecturer

Tel: (016) 474 1978

Email: [email protected]