Penal Code

Self Defence & Mohamad Zulkifli

It appears that Malaysians are up in arms about the fact that Mohamad Zulkifli Ismail, who allegedly stabbed two men who were trying to rob him at his house, was charged under Section 302 of the Penal Code for murder and under Section 326 of the Penal Code for causing grevious bodily harm.

What many do not know is that what happened to Mohamad Zulkifli is quite normative. In most cases where prima facie, there appears to be legal defences available, the defences are pleaded by the defendant whilst he/she is on trial (the exception being where there are no criminal proceedings initiated as the Attorney General exercised his discretionary power to not institute prosecution)

For the sake of parallelism, the common law defence of automatism will be examined. This defence is pleaded when the wrongful act was done “by the muscles without any control by the mind” (as per Lord Denning in Bratty v A-G of Northern Ireland)

The defendant’s lack of physical control over his/her conduct renders the conduct involuntary and “no act is punishable if it is done involuntarily” (Lord Denning in Bratty v A-G of Northern Ireland)

Thus, even in a situation where automatism appears to be a part of the facts of the case, generally, the defendant will still be charged with an offence, plead not guilty, proceed to trial, and then attempt to prove the defence

As for the defence of self defence, the statutory provisions governing it can be found in Sections 96-106 of the Penal Code. The ones relevant to Mohamad Zulkifli will be delved into below

Section 96 of the Penal Code

“Nothing is an offence which is done in the exercise of the right of private defence”

The provision would clearly absolve Mohamad Zulkifli of liability if it can be proven that he was merely exercising his right of private defence

However, the Inspector General of Police was right to say that “it is not an absolute right to kill someone who tries to rob us”

The right to private defence is very much subject to other provisions, of which we will consider accordingly

Section 97 of the Penal Code

“Every person has the right, subject to the restrictions contained in section 99, to defend – … the property … against any act which is an offence falling under the definition of … robbery …”

Based on the minimal facts we are aware of, it is apparent that section 97 would further support Mohamad Zulkifili’s case as he was protecting his house in Kampung Labohan, in Kerteh, Terengganu, from two robbers

Section 103 of the Penal Code

“The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence … occasions the exercise of the right, be an offence of … robbery …”

Section 103 is merely an extension of Section 97. In Mohamad Zulkifli’s case, his exercise of his right of private defence lead to the voluntary causing of death of the two robbers, hence, it is submitted that section 103 is the more appropriate provision to be relied upon

Section 99 of the Penal Code

This section lists out acts against which there is no right of private defence. The fourth act is the only one which bears any potential relevance to the facts of Mohamad Zulkfili’s case

“The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence”

This is basically an issue of proportionality. Was Mohamad Zulkifli’s exercise of his right of private defence proportional to the need to defend his property from the two robbers?

A-G’s Reference (No.2 of 1983) established that the degree of force deemed reasonable varies according to the nature and degree of the threat. Regrettably, the question cannot be answered conclusively due to the lack of facts available at the time of writing

However, as a matter of principle, if the answer to the question of proportionality is in the negative, it would mean that Mohamad Zulkifli would have no right of private defence

The people need to let the law take its due course. However, the people also need to keep an eye out on how Mohamad Zulkifli’s case progresses and it is hoped that the continuous public attention associated to the case will prevent there being a miscarriage of justice

*This article was featured in Malaysiakini, The Malaysian Insider, The Rakyat Post, Malaysia Today

Time To Decide Once And For All

Under statute, Jabatan Agama Islam Selangor (JAIS) only has power over muslims. Theoretically it seems pretty clear cut but what happens when a certain scenario involves non-muslims?

Malaysians were dealt with another blow when JAIS allegedly trespassed into a Hindu temple “to stop a traditional wedding ceremony where the bride is apparently a Muslim.”

In protecting Islam & Muslims, does JAIS have the power to infringe on the rights of non-muslims? This is a question that needs urgent addressing.

The courts could make a landmark decision which would bury this issue once and for all, or the Selangor State Assembly could amend the Selangor Non-Islamic Religions (Control of Propagation Among Muslims) 1988, to unambiguously define the scope of JAIS’ authority

One can argue about their rights under Article 11 (guaranteeing the freedom of religion) till the cows come home but in actual fact, the Selangor Non-Islamic Religions (Control of Propagation Among Muslims) 1988 is not unconstitutional as per Article 11(4)

Although many critics pointed out correctly that JAIS seems to have trespassed onto a place of worship, many failed to notice that on top of that, JAIS disturbed a religious ceremony (i.e. the wedding)

Section 296 of the Penal Code makes it a criminal offence to voluntarily cause disturbance to any assembly lawfully engaged in the performance of religious worship or religious ceremonies. 

The aggrieved parties should report this matter to the authorities and allow them to investigate and take further action if necessary. Although JAIS may have been acting under a statutory duty, it seems as if they crossed the line when they interfered with the wedding 

Another question that needs clarification is regarding unilateral conversions. In the case of this bride, she was converted by her father when she was a child.

Although the courts ruled that unilateral conversions are legal, the decision seems to be in conflict with the Guardianship of Infants Act 1961. Unfortunately after so long, we are back to square one

In order to resolve this issue, the courts need to overrule their previous decision(s) or Parliament needs to amend the statute to reflect the same view as the courts

Maintaining the status quo is out of the question as it causes uncertainty as well as leaves the law open for manipulation by certain parties

* Read it also at The Malay Mail Online

Freedom Of Speech

The freedom of speech is guaranteed under Article 10 of the Federal Constitution. The freedom of speech is NOT an absolute right. This is because it is subject to certain limitations. Clause 2 and 4 of Article 10 allows Parliament to make laws restricting the freedom of speech

What most Malaysians dont know is that their freedom of speech is limited. If certain quarters knew, they wouldnt go around make seditious, provocative and/or defamatory statements as it is punishable by law. There’s a quote that says, “If you think twice before speaking once, you will speak twice the better for it”

Below are provisions of the law of Malaysia limiting the freedom of speech (for good purposes). The only shame is that they are rarely used nowadays despite all the statements filled with hatred and bigotry

s.298 of the Penal Code makes “uttering any word or making any sound in the hearing, or making any gesture or placing any object in the sight of any person with intention to wound his religious feeling” a criminal offence. The maximum punishment would be imprisonment for one year, or fine, or both

“Causing, etc., disharmony, disunity, or feelings of enmity, hatred or ill-will, or prejudicing, etc., the maintenance of harmony or unity, on grounds of religion” is also an offence as per s.298A of the Penal Code. The punishment is imprisonment between 2 (min) to 5 years (max).

s.500 of the Penal Code makes defamation a criminal offence which is punishable by imprisonment for two years (max), or fine, or both. Malaysia also has the Defamation Act 1957 which makes defamation (both libel and slander) a civil offence. Some of the provisions include slander of women (s.4), slander affecting official, professional, or business reputation (s.5), and slander of title, etc (s.6)

Now to our infamous Sedition Act 1948.
s.3(1) defines a “seditious tendency.” It covers seditious statements made “against any Ruler or any Government” [s.3(1)(a)], “against the administration of justice” [s.3(1)(c)], and “to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia” [s.3(1)(e)]

One may wonder, “since we have so many statutes limiting the freedom of speech (albeit for our own good, unless misused), how come the extremists are still running around like headless chickens, shouting at the top of their lungs as if their brains are located at their behinds?” To be honest, I do not have the answer. Our Attorney-General needs to step up his game or step down completely for incompetency

* The Malaysian Insider featured this article