Adolf Eichmann was a German Nazi SS-Obersturmbannführer (lieutenant colonel) and one of the major organisers of the Holocaust. After the war, when he was finally captured, and brought to trial in Israel, it was finally established that “blindly following orders to commit wrong-doing” is against the human conscience and violates human dignity.

For those interested to read more, please read ‘Eichmann in Jerusalem: A Report on the Banality of Evil’ by Hannah Arendt. The phrase ‘the banality of evil’, refers to Eichmann\’s ( right ) deportment at the trial, displaying neither guilt nor hatred, claiming he bore no responsibility because he was simply ‘doing his job’ (‘He did his duty…; he not only obeyed orders, he also obeyed the law.’ p. 135).

Eichmann was found to be guilty of ‘murder’.

The Altantuya case and intentionality

In any first degree murder trial, ‘intentionality’ for the crime committed is an essential component for consideration by the courts.

William Blackstone (citing Edward Coke), in his Commentaries on the Laws of England set out the common law definition of murder, which by this definition occurs: “when a person, of sound memory and discretion, unlawfully kills any reasonable creature in being and under the king\’s peace, with malice aforethought, either express or implied.”

The elements of common law murder are:

1. Unlawful

2. killing

3. of a human

4. by another human

5. with malice aforethought.

The words, ‘with malice afterthought’ define the intentionality requisite for a first degree murder conviction. In Malaysia, such a conviction by the courts always carries a mandatory death sentence.

The lack of ‘malice aforethought’

The Free Malaysia Today report of the above case was recorded in the following way: The Court of Appeal had on Aug 23, last year allowed the appeal brought by the two policemen to set aside the 2009 Shah Alam High Court’s decision in finding them guilty for the woman’s murder and sentenced them to death.

Former political analyst Abdul Razak Baginda, 50 who was charged with abetting Azilah Hadri and Sirul Azhar Umar, was acquitted by the High Court on Oct 31, 2008 after it held that the prosecution failed to establish a prima facie case against him. The prosecution did not appeal against his acquittal.

In today’s proceeding, Sirul Azhar’s counsel Kamarul Hisham Kamaruddin ( right ) argued that his client was being made a scapegoat.

Justice Arifin then said: “If he is being made a scapegoat, he must be able to say why and by whom. Everyone would say that. You can’t say you are being made a scapegoat for no reason.”

Kamarul Hisham said there were two reasons for a person being made a scapegoat, firstly when someone was framing the person and secondly, evidence against a person was fabricated by the police.

“My client is saying that evidence was fabricated against him,” he said, adding that Sirul Azhar did not know why he was being targeted.

In my reading of this case-story, there was no malicious intent demonstrated by the two police officers, especially other than circumstantial evidence like the C4, or the fingerprints, or their presence, as the case may be. Recently, the acquitted person was even quoted as calling both of them “rogue cops!” While the inspector-general of police (IGP) protested to this assertion; no one, including the IGP, protested when the public prosecutor never appealed against the death sentence. Why?

The Eichmann argument

The Eichmann argument at his trial is simple and straightforward for us who seek to understand the similar set of issues.

1. Adolf Eichmann was a soldier under orders of his ‘bosses’. Ours were two police officers.

2. Soldiers/police do not question the intention of their bosses when they give such orders.

3. A soldier or policeman’s duty is to follow all such orders without questioning them.

4. Therefore, Eichmann’s argument was: “I was only obeying orders!”

All public servants, in their official capacities can make or argue with the same logic or reason. That is also the main reason why we review this case for Public Policy work. The verdict by the Israeli court; that “blindly following wrong, or illegal, or immoral orders does not constitute ‘obeying orders’,” can now become public policy dictum we all need to understand and appreciate.

Applying this argument to the Azilah and Sirul case, without the existence of any external implicit or explicit ‘intentionality’; because they now have no ‘bosses’ on trial, to me, this case constitutes a complete and frivolous miscarriage of Common Law justice. I disagree even with the Federal Court judges on this matter of the lack of pure motive for the killing.

Sirul and International Criminal Law

Now that Sirul is in Australia, thanks to our ‘brilliant immigration system’, he is also now subject to the laws of Australia and falls under the jurisdiction of their cross-border laws.  Australia does not recognise the death penalty, while Malaysia does.

Therefore, my unsolicited and free advice to both Sirul and his lawyers is the following:

  • Murder, at least second degree murder, or manslaughter, may become the final verdict and established guilt;
  • The absence of ‘pure intentionality for the murder’ is still obvious to all;
  • The Eichmann argument may be valid, at least for the lack of intentions for the first degree murder charge by two junior police officers; and
  • The matter should now be appealed to the International Court of Justice.

I rest my case.