PUTRAJAYA (Oct 9): The government has contended that it should not be held liable for the actions of chief inspector Azilah Hadri and corporal Sirul Azhar Umar, who were convicted for the murder of Mongolian interpreter Altantuya Shaariibuu, as the killing did not happen when the two were on official duty. The government further argued that if the court decides that the government is to be held liable, a sum of only RM1.384 million should be paid as damages and not RM5 million.

Senior federal counsel (SFC) Nik Mohd Noor Nik Kar, who led the defence team representing the government in its appeal on Thursday over its being held vicariously liable for the murder, also said that the quantum of damages awarded by the High Court to Shaariibuu Setev, who is Altantuya’s father representing the next of kin, was excessive.

“There should be an apportionment in liability to the damages to be divided, as there are four defendants, and the court should differentiate between personal liability and vicarious liability on the government.

“Furthermore, Azilah and Sirul’s actions were not done in their official duty, and not in the course of their employment. Their actions are to the frolic of their own,” he added.

Nik Mohd Noor further pointed out that the government cannot be held vicariously liable due to the actions of former political analyst Abdul Razak Baginda, who is a private individual and not a civil servant.

Nik Mohd Noor claimed that Shaariibuu made the claim under Section 7 of the Civil Law Act 1956, which is a dependency claim, and not under Section 8, which is a claim of the estate.

Hence, the SFC argued that the family’s claims were based only on financial loss following the loss of income, and based on Altantuya’s salary which was only about RM6,000 a month, and evidence showed that she only worked part time.

 “We (the government) submit that the family is entitled to only one-third of her monthly wages, as she did not work full-time, and hence it would only be RM2,000, multiplied by 12 months, and the multiplier 16 as the formula (under the Civil Law Act) which would come to RM384,000.

“The government also questions the vindicatory damages as part of the global damages of RM5 million awarded by the High Court, as this was not pleaded in the statement of claim. If the court finds the government vicariously liable, then we offer aggravated damages of RM1 million, making it a total of RM1.384 million,” he added.

Altantuya was killed between the night of Oct 18 and early morning of Oct 19, 2006. Shaariibuu, along with his wife, Altantsetseg Sanjaa, and their two grandsons (Altantuya’s children), Mungunshagai Bayarjargal and Altanshagai Munkhtulga filed the suit where it named Azilah, Sirul, Abdul Razak and the government as defendants.

Altanshagai’s name was removed from the list of plaintiffs after he died in 2017 at the age of 15.

In 2022, the Shah Alam High Court, through Datuk Vazeer Alam Mydin Meera (now a Federal Court judge), had found Azilah, Sirul and Abdul Razak liable for Altantuya’s death, and held the government as being vicariously liable for the Mongolian’s death. The court also ordered for the four defendants to be jointly and severally liable to pay the RM5 million in damages.

Following the decision, the government and Abdul Razak appealed the High Court’s decision, while Shaariibuu and the others also filed a cross-appeal over the quantum.

Earlier in the proceedings on Thursday, Shaariibuu’s counsel, Sangeet Kaur Deo, informed the Court of Appeal bench, comprised of judges Datuk Hashim Hamzah, Datuk Azman Abdullah and K Muniandy, that the plaintiffs were withdrawing their appeal on the quantum awarded by the court.

Although the sum awarded was RM5 million plus interest, as of earlier this year, the sum had reached in excess of RM9 million.

Shaariibuu was present during Thursday’s proceedings.

Azilah had originally been sentenced to death, but has had his sentence commuted to 40 years’ imprisonment and 12 strokes of the cane by the Federal Court last year.

Meanwhile, Datuk Dr Gurdial Singh Nijar, who appeared with Abraham Au for Abdul Razak, said the court had erred in finding the political analyst liable for the civil claim, whereas his client had given no directions to kill.

Gurdial added that from Abdul Razak’s caution statement, it was shown that Azilah had told Abdul Razak that he could “habiskan perempuan itu” (“finish off the woman”), adding Azilah had done this a number of times before. Abdul Razak had replied, “perkara sebegini kita jangan fikir” (“we should not think of such things”), showing that his did not want such an action.

Gurdial argued that the civil court was wrong to rule that the political analyst had conspired to kill Altantuya and hence ordered him to pay damages, when, at the criminal court trial, Abdul Razak had been acquitted without his defence being called.

Au, meanwhile, agreed with SFC Nik Mohd Noor’s submissions that there should not be vindicatory damages awarded and the trial judge had also erred in awarding the sum.

Nik Mohd Noor and Au also said that the High Court judge had erred in awarding interest payment from 2007 — the year the suit was filed — and said it should be calculated from the date of the decision in December 2022.

Sangeet, on the other hand, maintains that Vazeer Alam’s decision in holding vindicatory damages was correct, as the issue was not disputed by the government and Abdul Razak in their appeal.

Consequently, she said that the High Court did not only award a statutory claim, but also constitutional damages — through vindicatory damages — over the loss of life.

Sangeet added that Shaariibuu had also included constitutional damages through the loss of life in the statement of claim, and had not limited to only Section 7 of the Civil Law Act for dependency claim.

“The killing of Altantuya was a blatant violation of her constitutional right to life, and therefore fell within the realm of a constitutional tort, which allows for vindicatory damages.

“This case is not merely a Section 7 claim. It is a case involving a constitutional tort. Prior to this, the Federal Court had dismissed the government’s application to strike out the suit, confirming that the cause of action and the government’s vicarious liability were valid,” Sangeet added.

She said that judge Vazeer Alam had decided on the conspiracy to injure and cause of death as vindicatory claims, as it was a different category of a constitutional tort.

“The learned trial judge found that when persons in authority misuse their powers by using a gun or rifle or explosives to take a life, it constitutes a constitutional tort separate from a dependency claim,” she said.

Sangeet was countering the arguments by Nik Mohd Noor, that vindicatory damages are forbidden under Section 7 of the Civil Law Act.

The lawyer also said that the court was right in holding Abdul Razak liable, as he had given Altantuya’s hotel address (to Azilah) in their meeting a day earlier. A handwriting expert, testifying as a witness, had verified that the handwriting in the note retrieved from Azilah’s station diary was that of the political analyst.

“Why then did Abdul Razak give the hotel address, when, as his counsel claimed, he did not want anything to be done to her?” she said, adding that the High Court’s decision was safe and should be maintained.

Judge Hashim said that the court needed time to deliberate on the matter and fixed Oct 27 for case management for the appellate court to fix a date for the bench to deliver its decision.

Read also:
Azilah, Sirul, Razak Baginda and Govt found liable in Altantuya's death, ordered to pay RM5m damages
High Court directs govt, Razak Baginda to pay over RM9m to Altantuya’s family