KUALA LUMPUR, Nov 14 — Malaysia can only invoke an extradition agreement with Australia to bring Sirul Azhar Umar back if he applies for an application to review his death sentence and if the review does not lead to a death sentence.

Home Minister Datuk Seri Saifuddin Nasution Ismail said this is due to the element or principle of dual criminality that is used between Australia and Malaysia.

"If he through his lawyer submits an application in accordance with the newly amended laws, and the result does not lead to a death penalty, only then can we invoke the extradition agreement because of the element or principle of dual criminality that is used between us and Australia,” Saifuddin told the press at the Parliament here.

According to Saifuddin, there is an extradition agreement between Malaysia and Australia. Although in Malaysia Sirul has been delivered the death sentence, Australia does not recognise the death penalty for criminal offenders in its country.

"This is one of the conditions of extradition. There are many conditions, and one of the conditions for extradition to be implemented is that the offence must have an element of dual criminality.

"What does dual criminality mean — an offence must be a criminal offence in two countries that also carries the same punishment. So even though we have an extradition agreement, there is a difference there,” he said.

On Sunday, the police said they would discuss with relevant parties including the attorney-general and the courts the possibility of seeking repatriation for Sirul Azhar Umar, who was sentenced to death for the murder of Mongolian model Altantuya Shaariibuu in 2006.

Guardian Australia reported Sirul was one of 92 men released from the country’s detention centres in what human rights lawyers deemed as a landmark ruling that would put an end to a two-decade immigration law that allowed the authorities to detain foreign citizens indefinitely who cannot be deported back.

Sirul’s lawyer, William Levingston, confirmed to the news outlet that Sirul had been released after the high court decision but could not be deported back to Malaysia.

Earlier today, Malay Mail reported lawyers saying Malaysia will not be able to get Australia to send Sirul back as long as his death sentence remains hanging over his head.

They told Malay Mail that it is now up to Sirul to apply to the Federal Court in Malaysia for his death sentence to be replaced with a jail term and whipping but if he chooses not to do so and his death sentence remains, there is nothing that Malaysia can do under current laws.

In 2009, Sirul and fellow Special Action Unit commando Azilah Hadri were sentenced to death for the October 2006 murder of Altantuya in a gruesome case that garnered national interest and fuelled political conspiracy theories that remain popular to this day.

The Mongolian woman was first shot in an execution-style killing before being blown up with military-grade explosives.

The Federal Court reinstated their death sentences in 2015 after the Court of Appeal quashed them, but Sirul fled to Australia before the apex court’s ruling and has been detained there since.

He previously sought a moratorium on his sentence in return for "tell-all” about the murder that has been linked to former prime minister Najib by way of former aide Abdul Razak Baginda, but the Malaysian government rejected this.

Saifuddin added that Malaysia had in July has abolished the mandatory death penalty for offences such as murder and in September allowed death row prisoners to apply for a review of their death sentences.

"The fact is, the death penalty still exists. Because Sirul’s status is of a person who had been sentenced to death, so the next question is whether he, through his lawyer can apply for the sentence to be reviewed.

"Does Sirul have the right, he can. If all that has been done, then the extradition process — if for example, his appeal ends with a change in terms of punishment while the conviction does not change, but the punishment can be changed — that is still an assumption,” he said.

Under the Abolition of Mandatory Death Penalty Act 2023, the courts will now have the option of choosing between giving a death sentence or other alternatives for certain offences, including the offence of murder.

This is unlike previously when it was compulsory or mandatory to give out a death sentence for such offences.

Under this new law, murder is now punishable with either the death penalty; or the alternative of between 30 and 40 years’ jail and whipping of not less than 12 strokes.

When asked if Sirul had filed a review, Saifuddin said he has no information on the matter. Similarly, the Minister said he had no information on whether the other police commando, Azilah, has applied for a review of his death sentence.

Azilah is still serving his sentence in Sungai Buloh Prison since the 2015 Federal Court decision.

Local news daily Utusan Malaysia had yesterday cited an anonymous source when saying that he is still waiting for the decision by the Pardons Board to decide whether to maintain his death sentence or to grant him clemency.