The Honourable Attorney General had in effect clarified on 26 March 2013, as reported in the media, that he has the discretion to direct the re-opening of investigations into the 2006 murder of Altantuya Shaariibuu.
He is reported to have stated that he would consider the Bar Council’s suggestion to re-open investigations, but only if there is new evidence.
Thus, the issue presently is not whether the Attorney General has the discretion to do so, but whether there is sufficient cause for him to do so.
The Malaysian Bar is of the view that the revelations in the public domain by Deepak Jaikishan, the late Balasubramaniam Perumal, and Americk Singh Sidhu provide sufficient cause for the authorities to re-open investigations or to conduct further investigations.
These revelations, for example the events, and persons involved in those events, as narrated by Deepak Jaikishan in relation to the affirmation of a statutory declaration on 4 July 2008 by Balasubramaniam Perumal for the purpose of recanting his first statutory declaration affirmed on 1 July 2008, and the role Deepak had played in the matter, were not evidence that had been earlier revealed. Taken at face value, such revelations may speak to the possible motive for the events that led to the demise of Altantuya Shaariibuu.
It must be borne in mind that “motive” is not the same as “mens rea”. “Mens rea” refers to whether a person had the intention to commit a crime; whereas “motive” refers to why a person would have committed the crime. “Mens rea” is an essential element in the offence of murder; whereas motive is not.
It is thus possible to establish that a person did kill another, that is, he had the intention to kill and did commit the act, even though one may not understand or know the reason why that person killed another.
However, motive may be important in cases where there is doubt as to the “mens rea”, or where there are questions as to whether there may be more people connected with or involved in the crime, and the nature or extent of such connection or involvement.
In the current context, the High Court found the two police officers guilty of having killed Altantuya Shaariibuu, that is, they had intended to kill her and did in fact kill her. The High Court stated: “Whatever his motive was, it is a matter of law that the ‘motive’ although relevant has never been the essential to constitute murder.” The question as to why they killed her is said by some to have been unsatisfactorily dealt with. The third accused was acquitted by the High Court.
The revelations by Deepak Jaikishan, the late Balasubramaniam Perumal, and Americk Singh Sidhu raise sufficient concern to warrant further investigations by the authorities. Such further investigations may or may not lead to anything new, but we would only know if additional investigations are in fact undertaken.
Christopher Leong
President
Malaysian Bar
30 March 2013