SIRUL AZHAR: TO EXTRADITE OR NOT TO EXTRADITE?

NURUL QURRATUL AINI BT MD ROSLAN

NUR FARHANA AFIQAH BT RADZWAN
Faculty of Syariah and Law, Universiti Sains Islam Malaysia

A.

INTRODUCTION
Australia has a consistent law in abolishing the death penalty and
prohibiting any extradition against fugitive criminal who faces capital
punishment. In 2010, the Commonwealth Parliament passed the
Crimes Legislation Amendment (Torture Prohibition and Death Penalty
Abolition) Act 2010 to fill the lacunae in the Commonwealth Death
Penalty Abolition Act 1973. The Commonwealth Death Penalty Abolition
Act 1973 only abolished the death penalty under federal law. This left
the death penalty under the state or territory law remain enforced.
The enactment of the Act was a step to abolish the death penalty in
continuance of the step taken by the international community. More
than two thirds of the countries around the world abolished death
penalty in accordance with the Second Optional Protocol to the
International Covenant on Civil and Political Rights (ICCPR), which
Australia ratified in 1990. The Second Protocol to the ICCPR requires all
states party to take necessary steps to abolish the death penalty
within its jurisdiction.

The governmental policy in Australia has caused difficulties to Malaysia

to execute Sirul Azhar, a Malaysian fugitive who was sentenced with
death penalty as he fled to Australia. Thus, the question to extradite
or not to extradite remains unsolved.
B.

FACTUAL BACKGROUND
Altantuya Sharibuu, a Mongolian citizen had travelled to Malaysia with
her cousin, Namiraa Gerelmaa and her friend, Urintuya Gai-Ochier to
meet her boyfriend, Abdul Razak Baginda before she went missing on
20 October 2006. A report was lodged by Namiraa and Urintuya on the
same date. Altantuya was last seen to be with Bagindas friends, Azilah
bin Hadri and Sirul Azhar bin Hj Umar. Both were members of the
Special Action Unit of Polis Diraja at Bukit Aman, Kuala Lumpur with the
rank of Inspector and Corporal respectively. Altantuya was brought to
Puncak Alam, a forested hill where Azilah and Sirul shot Altantuya
twice and blown her body with military-grade explosives. The cause of
the death of Altantuya was a blast related injuries. Azilah and Sirul
were

convicted

and

sentenced

to

death.

While,

Baginda

was

discharged and acquitted.1 An appeal was forwarded in which the

conviction and sentence was set aside. Azilah and Sirul were acquitted
and discharged at the appeal level. 2 Nonetheless, the saga continues

1 Public Prosecutor v Azilah bin Hadri & Ors [2012] 8 MLJ 222.
2 Azilah bin Hadri & Anor v Public Prosecutor and another appeal [2013] 5 MLJ 309.
2

when the Federal Court overturned the acquittal of Azilah and Sirul and
the previous decision of the High Court was sustained.3
While awaiting the decision from the Federal Court, Sirul, however,
escaped to Australia using tourist visa and a valid passport. Siruls
presence in Australia was exposed by national newspaper. He was
arrested and transferred to Sydneys Villawood Detention Centre.
Siruls extradition to Malaysia was requested in February 2015 and
since then the extradition process is still in progress.
C.

INTERNATIONAL LAW OF EXTRADITION

i.

Extradition by treaty
Treaty

entails

international

obligation

between

States.4

Extradition Treaty serves an important mechanism under which

Sates cooperate with one another to surrender the fugitive
criminal to the Requesting State for a crime committed within its
territory. As extradition demands a binding obligation under
international law, most nations chose to bind themselves with
the existence of bilateral treaty, which codified the specific
extradition procedures. If States chose to extradite fugitive
criminal without concluding any bilateral treaty, they basically do

3 Public Prosecutor v Azilah bin Hadri & Anor [2015] 1 MLJ 617.
4 Reparation for Injuries Suffered in the Service of the United Nations. [1949] ICJ rep
174 para. 184.
3

so as a matter of reciprocity. That is to say I watch your back,

you watch mine basis. It is more to friendly cooperation among
nations.
Extradition without treaty also can be derived based on the
principles of jus cogens and customary international law as
explained below.
ii.

Extradition without treaty

A prominent scholar in extradition, Bassiouni, argued that the
obligation to extradite or prosecute has attained the status of
customary international law. However, this view is restricted on
the violation of core international crimes, which confer universal
jurisdiction to every state. For instances, genocide, the crimes
against humanity, war crimes and torture. This is because
international crimes entail erga omnes to every States that the
jus cogens status of these crimes prohibits any derogation. Thus,
Requested States have no option rather than to extradite fugitive
criminal to the Requesting States.
The absence of treaty between two States and customary status
of extradition caused difficulties to extradite or prosecute the
offender. This is because States could not rely on general
principles of international law to impose obligation on another
States to extradite fugitive criminal.

The existence of customary obligation to extradite or prosecute

is based on two components of customary law; state practice
and opinio juris. In order to demonstrate the customary
obligation, one must prove that the obligation to extradite or to
prosecute has persistently being practiced and accepted by
States.5
In Fiocconi6, customary international law on extradition only
exists as a result of general and consistent practice of states that
is followed by them as a sense of legal obligation.
It is undeniable that numerous treaties provide the obligation to
extradite or prosecute. For instance, the Convention against
Torture, the four 1949 Geneva Conventions and Convention on
the Prevention and Punishment of the Crime
of Genocide.7 Again, to reiterate, the obligation to cooperate in
extradition exist due to the fact that, the prevention of
international crimes require the cooperation of international
community.
5 Fisheries case (UK v Norway), Report of Judgments 1951, Advisory Opinions and
Orders, ICJ at 131.
6 Fiocconi v Attorney General. [1972]. 462 F.2d 475, 479 n.7 (2nd Circuit).
7 Convention on the Prevention and Punishment of the Crime of Genocide. 1948. Article
VII:Genocide and the other acts enumerated in article III shall not be considered as political
crimes for the
purpose of extradition.
The Contracting Parties pledge themselves in such cases to grant extradition in
accordance with their laws and treaties in force.

Trough out the years, States are being reluctant to extradite

fugitive criminal in the absence of treaty. In fact, international
law does not even recognize a customary legal duty or right to
extradition. Such obligation only arises when provided by
agreement between States. Therefore, until and unless the
crimes committed entail universal jurisdiction under international
law, States have no obligation to extradite fugitive criminal for
non-treaty basis.
D.

EXTRADITION UNDER AUSTRALIAN LAW

Following the request of Malaysia for extradition in February 2015, Sirul
was detained in Brisbane for a visa violation. Malaysia and Australia
have signed the Extradition Treaty in 2006. However, Australian
Extradition Act 1998 makes it clear that immigration officials cannot
extradite a person who could face capital punishment 8 unless Malaysia
assured that the death penalty will not be carried out. 9 Thus, when
signing the Extradition Treaty, Malaysia agreed as follows:

8 n.a.. 22 January 2015. Australia pressured by Malaysia to extradite convicted

socialite killer being held in Brisbane. http://www.news.com.au/.
9 Australia Extradition Act. 1988. Section 22 (3) (c) (iii). An expert on international law at the
Australian National University, Don Rothwell commented :The Extradition Act makes it
quite clear that if a person has been sentenced to capital punishment, the
attorney
general can refuse extradition until such time as appropriate assurances are given that
capital
punishment would not be applied.

In cases in which a person could be subject to capital punishment in

the Requesting Party but would not be subject to capital punishment in
the Requested Party for the same offence under the laws of the
Requested Party, no request for extradition shall be submitted without
prior consultation and agreement by both Parties to make such a
request.10
The Extradition Treaty requires further negotiation between the
Government of Malaysia and the Government of Australia. For this, the
Royal Malaysian Police (RMP) has liaised with the attorney-general to
request

and

negotiate

with

Australia

to

extradite

Sirul. 11

The

negotiation is necessary as Australia has abolished the death penalty

under its federal law.12 Thus, the wording a person could be subject
to capital punishment in the Requesting Party but would not be subject
to capital punishment in the Requested Party for the same offence
10 Extradition Treaty between the Government of Malaysia and the Government of
Australia. 2006. Article 3 (2).
11 Mamy Kay Ash GR. 2015. Police Will Liaise With A-G to Extradite Sirul AzharIGP. Bernama. February.
12 In 2010, the Commonwealth Parliament passed the first new Australian law on
the death penalty for many years. The Commonwealth Death Penalty Abolition Act
1973 (Cth) had abolished the death penalty under federal law. However, nothing in
that Act precluded the use of the death penalty under state or territory law. This gap
was filled by the Crimes Legislation Amendment (Torture Prohibition and Death
Penalty Abolition) Act 2010 (Cth), which blocks any state or territory attempt to
reintroduce capital punishment. It amounts to a clear statement of national law that
Australia renounces the death penalty now and into the future. Jo Lennan & George
Williams. 2012. The Death Penalty in Australian Law. Sydney Law Review. Vol:34
at 659.
7

under the laws of the Requested Party imposed no obligation

against Australia to extradite Sirul even though both Malaysia and
Australia has ratified the Extradition Treaty.
Commenting on Australian refusal to extradite Sirul, the Malaysian
Home Minister Wan Junaidi Tuanku Jaafar said that Malaysia would
consider bringing legal action against Australia if the government
refused to extradite Sirul.13
E.

CONCLUSION
The Australian government once missed its opportunity to extradite
fugitive criminal in the case of Minister for Home Affairs of the
Commonwealth v Zentai. Zentai was charged with the offence of war
crime in 2009 and sentenced with death penalty. 14 He, however,
escaped prosecution. Along the trial for his extradition, in November
2009, the Minister for Home Affairs determined that Zentai was to be
surrendered to Hungary for the extradition offence of war crime.
Nonetheless, in December 2010, the decision was quashed by the
Federal Court of Australia because the alleged war crime was not yet to
be an extraditable offence under Hungarian Law at the time Zentai
committed the crime. The universal crime of Zentai offence has not

13 n.a. 22 January 2015. Australia Pressured by Malaysia to Extradite Convicted

Socialite Killer Being Held in Brisbane.
http://www.news.com.au/world/asia/australia-pressured-by-malaysia-to-extraditeconvicted-socialite-killer-being-held-in-brisbane/story-fnh81fz8-1227193579984
14 Zentai v Republic of Hungary [2009] FCA 284.
8

been discussed by the trial Court. Though it is not an extraditable

offence under Hungarian Law, however, Zentai should have been
extradited. This is because war crime was recognized as a core
international crime, which confers universal jurisdiction towards States.
Australias refusal to extradite Zentai unless it is satisfied that the
offence of war crime was an offence against the Hungarian law at the
time it was committed has led to miscarriage of justice to the victims
family.
Indeed, in Siruls saga, the Court did not establish Siruls motive for
murdering Altantuya. However, this is not a valid reason to refuse his
extradition. One can argue that Siruls trial was improper as the Court
failed to observe certain evidences. During the appeal, the Court of
Appeal commented that the circumstances relied upon by the
prosecution had not been cogently established and the chain of
evidence is not complete. However, the Federal Court observed
otherwise, that the prosecution has successfully prove the case beyond
reasonable doubt which overturned the acquittal of Sirul. The question
to extradite or not to extradite carries serious discussion.
One can assume that if Australia agrees to extradite Sirul, he will face
his sentence. Subsequently, this will gives justice to Altantuyas family.
Unfortunately, that is not the situation. If Malaysia demands Australia
to extradite Sirul, Malaysia must take an undertaking that the capital

punishment will not be executed. This means that Sirul will not face his
sentence.
It must be highlighted, that Sirul was charged under Section 302 of the
Penal Code, which carries the sentence of death penalty. If Malaysia
undertakes that Sirul will not be sentenced with death penalty whereas
he was convicted under Section 302, it will lead to improper execution
of his punishment. In fact, there should be no fresh trial as his case
was regarded as res judicata.
Extradition of fugitive who is facing death penalty in the Requesting
State was discussed thoroughly under international law. In Ng v
Canada15, extradition to face the death penalty is not a violation in the
United States. Hence, extradition to the United States without
assurances that the death penalty would not be imposed or executed
was allowed. The position is similar with Malaysia. Malaysia never
abolished death penalty. Even though, Australia abolished death
penalty, this does not mean that Malaysia should do the same.
Malaysia neither a party to ICCPR nor its Second Protocol to abolish
capital punishment. Australia should have considered the extradition of
Sirul to Malaysia even though he is facing death penalty. Australias
refusal to extradite Sirul will not only cause injustice to Altantuyas
family, it will also jeopardize Malaysia rights and duties in enforcing its
jurisdiction for the crime committed within its territory. The role of
15 Ng v Canada. (1994). Communication No. 469. U.N. Doc. CCPR/C/49/D/469/1991.
10

extradition is crucial as the increase ease of travel have open floodgate

for fugitives to avoid prosecution for crimes.

F. REFERENCES

11

STATUTES
Australia Extradition Act. 1988
Convention on the Prevention and Punishment of the Crime of Genocide.
1948
Extradition Treaty between the Government of Malaysia and the Government
of Australia. 2006
CASES
Azilah bin Hadri & Anor v Public Prosecutor and another appeal [2013] 5 MLJ
309
Fiocconi v Attorney General. [1972]. 462 F.2d 475, 479 n.7 (2nd Circuit)
Fisheries case (UK v Norway), Report of Judgments 1951, Advisory Opinions
and Orders, ICJ
Ng

Canada.

(1994).

Communication

No.

469.

U.N.

Doc.

CCPR/C/49/D/469/1991.
Public Prosecutor v Azilah bin Hadri & Anor [2015] 1 MLJ 617
Public Prosecutor v Azilah bin Hadri & Ors [2012] 8 MLJ 222
Reparation for Injuries Suffered in the Service of the United Nations. [1949]
ICJ rep 174
Zentai v Republic of Hungary [2009] FCA 284
ARTICLES & JOURNALS

12

Geoff Gilbert. 1993. Extradition. International and Comparative Law

Quarterly. Vol. 42. No. 2.
Jo Lennan & George Williams. 2012. The Death Penalty in Australian Law.
Sydney Law Review. Vol:34
Melanie OBrien. Minister for Home Affairs of the Commonwealth v Zentai.
Australian International Law Journal.
n.a. Customary International Law Extradition Eleventh Circuit Holds That
Rule of Specialty Applies only when Provided by Treaty - United States V.
Valencia-Trujillo. 573 F.3d 1171 (11th Cir. 2009). Harvard Law Review. Vol.
123. No.2.
n.a. International Law Extradition and the Death Penalty United States v
Bin Laden. 156 F.Supp. 2d 359 (S.D.N.Y. 2001). Suffolk Transnational Law
Review. Vol. 26: 223.
Raphael van Steenberghe. 2011. The Obligation to Extradite of Prsecute.
Journal of International Criminal Justice. Vol 9 (5) : 1089.
Ved P. Nanda. 1999. Bases for Refusing International Extradition Requests
Capital Punishment and Torture. Fordham International Law Journal. Vol. 23 :
1369.
NEWSPAPER
n.a.. 22 January 2015. Australia pressured by Malaysia to extradite
convicted socialite killer being held in Brisbane. http://www.news.com.au/.

13

Mamy Kay Ash GR. 2015. Police Will Liaise With A-G to Extradite Sirul AzharIGP. Bernama. February.

14