PUTRAJAYA (Aug 20): The government has submitted that the High Court was right in excluding it as a defendant in a civil suit over the murder of Mongolian Altantuya Shaariibuu (pictured), although two policemen were found guilty of the crime in a criminal case earlier.
Senior federal counsel Datuk Nik Suhaimi Nik Sulaiman said this in his submission in support of the government's application to the Federal Court for leave to appeal the decision by the Court of Appeal to reinstate the government as a party in the civil suit.
Nik Suhaimi raised the question of whether the government is liable in tort under Section 5 of the Government Proceedings Act 1956 when a public officer commits the offence of murder.
He also questioned whether the act of murder by a public officer in a criminal court will render the government liable under Section 7 of the Civil Law Act 1956, and whether murder is a cause of action and is in itself a recognised tort under that provision.
Also representing the government in the leave application are senior federal counsels Norinna Bahadun and Muhammad Azmi Mashud.
Altantuya's family, led by her father Shaariibuu Setev, filed the RM100 million civil suit over her death in 2007, after she was murdered in October 2006.
The family is represented by a team of lawyers led by Ramkarpal Singh.
Ramkarpal, in challenging the leave application, argued that the Court of Appeal's decision to overturn the government's bid to dismiss the civil suit meant that the case is not 'obviously unsustainable' as required under Order 18 Rule 19 of Rules of Court 2012 to permit a strike-out application.
The order relates to strike-out pleadings, where it must be clearly manifested on the face of the pleadings that there is no reasonable cause of action by the government as the respondent.
Further, while the government was not a guilty party in a separate criminal trial on Altantuya's murder, the High Court hearing the civil suit had ruled that criminal convictions cannot be used in civil cases — making the two hearings separate from one another.
In a nutshell, this means that the civil suit must prove Altantuya's murder all over again, making the argument on whether the murder — which was established in the criminal court — is a cause of action or a tort irrelevant as the matter has not been proven in the civil court.
"We have to go through the entire process [of proving the murder] again, which we are doing now," Ramkarpal said.
The leave application was heard today by Federal Court judges Datuk Mohd Zawawi Salleh, who chaired the bench, Datuk Alizatul Khair Osman Khairuddin and Datuk Nallini Parhmanathan.
Following the hearing of the arguments by both parties, the bench has reserved judgment until Thursday.
In 2009, the High Court in the criminal trial found Special Action Unit members Kpl Sirul Azhar Umar and C/Insp Azilah Hadri guilty of murdering Altantuya, whose remains were blasted with explosives in Puncak Alam, Selangor, in October 2006.
The Federal Court had in 2015 maintained that the two officers were guilty and sentenced them to death.
The separate civil suit against the government, filed by Shaariibuu along with his wife and Altantuya's two sons, also named Sirul, Azilah, and Abdul Razak Baginda — said to be a close associate of Datuk Seri Najib Razak — as defendants.
The government succeeded in setting aside the suit in the High Court, but the Court of Appeal reinstated the government as one of the defendants and ordered the matter to go to trial, which commenced this year.
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