PUTRAJAYA, Dec 8 ― Ex-prime minister Datuk Seri Najib Razak today failed at the Federal Court to become an intervenor in former police commando Azilah Hadri's bid for a retrial and review of his conviction over Mongolian Altantuya Shaariibuu's 2006 murder.
In delivering the five-man panel's unanimous decision, Chief Judge of Malaya Tan Sri Azahar Mohamed noted that it was clear that the interested party in the review application was Azilah himself and the public prosecutor.
“The proposed intervenor (Najib) was never prosecuted. The proposed intervenor will not be affected by any order made by this court in this review application.
“In other words, the outcome of the review application will not affect the proposed intervenor.
“In our opinion, the proposed intervenor's legal rights and interests are not related to and connected to the subject matter of the review application. It's also our opinion that the parties to the review application namely the public prosecutor and Azilah are both able to assist the court in respect of the review.
“Accordingly we dismiss the proposed intervenor's motion, counsel is at liberty to appear before us in the review application, holding watching brief for Datuk Seri Najib,” the judge said in the brief oral judgment.
This means that Najib's lawyers will only be able to be present to hold a watching brief in this case, which is the same position held by the lawyers of the family of Altantuya.
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.
Today was the hearing of Najib's application to be an intervenor or be a party to Azilah's review application, or alternatively to be allowed to be an amicus curiae or friend of the court that would be allowed to submit arguments in court.
In December 2019, Azilah 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. Azilah's review application had named the public prosecutor as the sole respondent.
Najib, who was named repeatedly in Azilah's statutory declaration to support his application for the murder conviction review, had applied to intervene or be part of the court case.
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 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.
Earlier, Najib's lawyer Tan Sri Muhammad Shafee Abdullah argued that his client's intervention application was made necessary as the result of the serious allegations made by Azilah in the statutory declaration to support the review application, and as Najib's legal rights have been affected due to the allegations.
“In short Yang Arif, the applicant (Azilah) has now accused my client of being the principal person who has directed him to commit the murder.
“So the details are in fact atrocious, it's the worst allegations one can have with the unkindest cut of all, and of course he will have a direct legal interest, not because his reputation is going to be tarnished, but because he is accused in the affidavit and he ought to be given the chance to say something and rebut if necessary, but certainly at this stage we must intervene,” Shafee argued, further saying that intervention in criminal cases have been allowed in the UK.
Shafee argued that the basis of Azilah's review application was a “total condemnation” of Najib and “not just calling him a crook but in fact accusing him of masterminding the murder”, noting however that Najib is denying the accusation as there was no evidence to support the allegation.
“It's perhaps instructive for me to submit that we are not even an alien third party, my client is technically a third party, he's not involved in this case, but he has been alleged to be the person who ordered the murder. He has got legal interests to protect,” Shafee added.
“I think it's sufficient enough for me to say that in both civil and criminal cases, the test is whether you have a legal right, not simply a busybody situation... He definitely has legal interest because he has been alleged in a very direct way,” Shafee said.
Azilah's lawyer J. Kuldeep Kumar however objected to Najib's bid to intervene, pointing out that the review application is a criminal proceeding solely between his client and the goverment as represented by the public prosecutor, as the outcome of the murder conviction review bid will only affect Azilah instead of Najib.
“Azilah alone faces jeopardy to his life. This review application, whatever the outcome is, has got no impact on the intervenor in any manner,” he argued, later pointing out that Najib has not been charged over this case.
Kuldeep also said Malaysia does not have any criminal procedure or any express provisions in criminal law for any party to intervene in criminal proceedings.
Kuldeep said that if Azilah’s review application is allowed, his client would want the case to be sent for retrial, which means the evidence can be taken back to the High Court to be tested and challenged there.
Kuldeep also said Azilah may be prejudiced and will not be able to properly have his say in court, if Najib was to be allowed to be an intervener as his lawyers would then be submitting against Azilah’s review application.
Kuldeep however said Azilah has no objections on Najib’s lawyers coming in to hold a watching brief.
Objecting to Najib's application to intervene, deputy public prosecutor Datuk Mohd Dusuki Mokhtar earlier acknowledged that the courts have inherent powers to allow intervention by a third party, but stressed that such powers must be used “sparingly”.
“The court cannot allow anybody to come in, for example if a person has any right to intervene, so the court will allow that,” he said, later arguing that Najib did not have legal interest but only had personal interest due to his name being mentioned in Azilah’s statutory declaration.
Dusuki argued that review applications revolve around issues of procedural fairness instead of the factual issues which was claimed by Azilah, further saying that the veracity of the statutory declaration was unknown and would only be tested via further investigations if Azilah succeeds in getting a retrial of the Altantuya murder case.
“So the intervener is not affected by this, it depends on investigations,” he said, agreeing that it would make Najib a “busybody in a way” in this case.
Dusuki also said Najib has no locus standi or legal standing in the review application, as criminal matters are between the public prosecutor and the accused.
Shafee responded by saying that Najib needed to be given the chance to have his views expressed as his reputation had been tarnished, and also said the court could limit his arguments to be only on specific topics only.
Shafee later also said that his client would ask for remarks relating to Najib to be expunged or erased from the court records of Azilah’s statutory declaration, if Azilah’s review application is allowed.
Lawyers Sangeet Kaur Deo and Harshaan Zamani today held a watching brief for Altantuya’s family.
Najib was present in the court briefly today but left for Parliament before the decision was delivered.