Cont: s.300 murder

Murder – s.300

In English Law, the mens rea for murder is foresight. In Malaysia, the Code has provided the mens rea of intention and knowledge for s.300. In R v Nedrick, the accused wanted to frighten the adult resident by setting fire in the letterbox but resulted in a fire which killed a child. The court used the foresight test and convicted the accused for murder.

Time of death

The longer it takes for the victim to die, the harder it is for the prosecution to prove that the accused had committed the murder since it gives a bigger time frame for intervening acts to occur.

Proving intention and knowledge

The prosecution must prove the physical and fault elements of the offence beyond a reasonable doubt, and must do so according to the prevailing rules of evidence.

Culpable homicide or murder?

The trier of fact must determine the fault element by inference from all relevant and admissible evidence, and taking account of relevant personal characteristics of the accused. The evidence may include the accused’s evidence in court, what they said at the time, what they told police and what other witnesses say. It will also include the nature of the acts themselves; for example, the type of weapon that was used (if any), the nature, location and number of injuries inflicted on the victim, and the way the injuries were inflicted.

PP v Mahfar bin Sairan and Ismail bin Hussin v PP as stated above.

Intention should be distinguished from premeditation. A person can form an intention to kill on the spur of the moment as shown in Ismail bin Hussin.

s.300(a) and s.300(b)

s.300(a) is the same as the first limb of s.299 (only intention) and s.300(b) encompasses both intention and knowledge as its mens rea as compared to the 2^nd limb of s.299. S.300(b) is rarely invoked in practice.

s.300(c)

In order to prove s.300(c), the prosecution has to prove that the accused had only the intention to cause bodily injury (not death) and the injury that he caused was intended and the nature of the injury should have been such that it ultimately resulted in the death of the victim. Therefore, this section could cover a situation where death did not take place immediately but eventually the victim dies due to the bodily injury.

Virsa Singh v State of Punjab

The prosecution must prove the following:

i) It must establish, quite objectively, that a bodily injury is present

ii) The nature of the injury must be proved; these are purely objective investigations.

iii) It must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintentional, or that some other kind of injury was intended...

iv) It must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

PP v Visuvanathan

In this case, the stab wound was very severe and the court held that it was intended and sufficient in the ordinary course of nature to cause death. All that the prosecution needed to prove is:

(a) that the accused did an act which caused the death of the deceased;

(b) that the said act was done with the intention of causing bodily injury;

(c) that the injury caused-

i) was intended and was not accidental or otherwise unintentional and;

ii) was sufficient in the ordinary course of nature to cause death.

s.300(d)

The mens rea for this subsection is only knowledge. S.300(d) restricts liability for murder based on knowledge to cases where there is no ‘excuse for incurring the risk of causing death’.

Emperor v Dhirajia

The accused was a mother, frequently abused by her husband. One night, she heard footsteps behind her, panicked and jumped down a well with her baby resulting in the baby’s death. She was charged for murder but the court allowed her appeal because she had an ‘excuse’ for jumping into the well.

Criminal Law

Criminal Law Notes

Omission

            The Actus Reus can either be a positive act or an omission. The facts normally indicate if the accused had carried out a physical act (positive act) or he had merely failed to act (negative act). If the accused had failed to act, s.33 recognises his failure to act as an omission and s.43 clearly stipulates that omissions can sometimes be illegal.

            General principles of criminal law do not per se impute criminal liability on those who failed to act unless the facts clearly state that they had a duty to act. English case law has identified several instances where duty can be imposed.

            The first instance is where a statute (e.g. Police Act) imposes a duty. S.19 of the Police Act imposes duty to a police officer to act. A failure to act will amount to a breach of duty and this breach could be an omission under s.33 and s.43. In D’Souza v Pashupati Nath Sarkar [1968] Cri LJ 405, a ship captain had done nothing to remove a member of his crew who had fallen ill and subsequently died. The Court held that his omission had breached s.190 of the Merchant Shipping Act.

            The second instance is under contract law. In R v Pittwood [1902] TLR 37, the accused was a gatekeeper and he failed to close the railway gate. His failure to act made him accountable to the death of the victim.

            In R v Stone and Dobinson [1977] QB 354 and in R v Instan (1893) QB 450, the courts held that assuming responsibility imposes duty on those who accept such responsibility. A failure to act in these cases caused them to be criminally liable for the death of the victims.

            In R v Gibbins and Proctor (1918) 13 Cr App R 134, the court held that duty can be imposed due to relationship and in this case, the parents’ failure to care for the child made them criminally responsible for the death of the child.

            In R v Miller [1983] 2 AC 161, it was established that a duty is imposed on those who cause danger. A failure on their part to take reasonable measures to mitigate the danger is an illegal omission.

Causation

            Causation is an issue if intervening acts caused by others take place after the accused has caused the injury or has carried out the wrongful act.

            In instances where there have been intervening acts which has accelerated the death of the victim, the courts would have to apply tests to determine if the chain of causation is broken. The prosecution would prove that despite the intervening at the chain of causation is not broken. The defence however, would attempt to prove that it was the intervening act that caused the death of the victim.

‘But for’ test

            These tests are used to determine the criminal culpability of the accused. The most common test is the ‘but for’ test. The general rule was established in R v Smith [1959] 2 QB 35. In this case, it was established that generally intervening acts cannot break the chain of causation. The principle in R v Smith was applied in Shaiful Edham bin Adam v PP [1999] 1 SLR(R) 442.

            In R v Blaue (1975) 61 Cr App R 271, the young victim was stabbed by the appellant and the victim was sent to the hospital. Due to her religious belief, the parents refused blood transfusion. The appellant argued that the refusal of blood transfusion was unreasonable and it broke the chain of causation. The courts however applied the principle of R v Smith and held the appellant legally responsible for the death.

            In R v Malcherek and Steel [1981] 2 All ER, it was argued that the disconnecting of the life support equipment broke the chain of causation. However, the court rejected the argument.

            In R v Jordan (1956) 40 Cr App R 152, the courts held that the incorrect medical treatment broke the chain of causation. The victim was stabbed and given antibiotics but the victim was actually allergic to the antibiotics.

            In R v Halliday (1889) 61 LT 701, the husband argued that if the wife had not jumped out of the window she would have survived. The courts refused to accept this argument and held that the chain of causation was not broken. From this case it was established that if the victim reacts or responds to the accused’s wrongful acts and death is caused due to the victim’s own actions, courts have still considered the chain of causation not broken.

Doctrine of Transferred Malice

            Once the prosecution has established that the accused has committed the wrongful act and possessed the requisite mens rea, in essence it can be said that the person could be charged of the said offence. However, in limited circumstances, it is likely that the accused may argue that the injury or death was not caused to the intended victim.

            Using the doctrine of transferred malice, it allows the prosecution to charge the accused even if an innocent victim suffered the ill consequences caused by the accused. This doctrine simply means that if someone else was that victim, that will not exclude the accused for his criminal liability.

Simplified: If a person by mistake causes the death of another other than the person whom he intended to kill, according to the doctrine, the mens rea can be transferred provided that the actus reus and the mens rea is of the same offence.

            In R v Latimer, the court recognized the doctrine of transferred malice and convicted the accused although the victim was an innocent bystander (unintended victim).

            In R v Pembliton, the doctrine could not be applied because the mens rea was to cause injury.

MENS REA

The primary terms used to describe the fault element of offences under the Penal Code are ‘intention’, ‘knowledge’, reason to believe’, ‘voluntarily’, rashness’ and ‘negligence’.

Intention

- s.300(a)-(c) of Penal Code (murder)

            Its definition is not defined in the Penal Code. Case law has to be resorted. In Bhagwant Appaji v Kedari Kashinath, intent means that it implies aim and connotes the one object for which the effort is made. It has been held in Ram Kumar v State that intention denotes a purposeful doing of a thing to achieve a particular end.

            In Yap Sing Hock v PP, it was said that a man intends to commit the offence if he has foresight that his conduct will lead to the commission of the offence and he desires the commission of such offence. In Daniel Vijay s/o Katherasan v PP, it was said that he who intends a result usually knows that it will follow, and he who knows the consequences of his act usually intends them.

            Intention should not be confused with motive. Motive may be useful in identifying suspects in a crime but it does not constitute intention. Although it is correct to define intention as purposive or goal orientated, that alone is too restrictive. It is submitted that intention should be extended slightly to cover cases where the accused knew that his or her conduct would, in the ordinary course of events, be absolutely certain to produce a result.

Knowledge

-s.300(d) and s.299 of Penal Code

            Knowledge is not defined in the Penal Code. In Jai Prakash v State, the Indian Supreme Court defined knowledge as signifying ‘a state of mental realization with the bare state of conscious awareness of certain facts in which the human mind remains simple and inactive’. Knowledge denotes awareness of certain facts with absolute conviction or certainty as to their existence.

Reason to Believe

-s.411 and s.412 (handling of stolen goods)

            It is defined under s.26 of the Penal Code to mean ‘A person is said to have reason to believe a thing, if he has sufficient cause to believe that thing, but not otherwise’. The concept is partly subjective and partly objective. The objective test is to see whether a reasonable man would have reason to believe that thing. The subjective test is to look at the accused’s actual knowledge or expertise to see whether a person in his position would have reason to believe that thing.

Voluntariness

- s.322 of the Penal Code (causing grievous bodily hurt)

            It is defined in s.39 as follows: ‘A person is said to cause an effect voluntarily when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.’ There are 3 elements of voluntariness, i.e. intention, knowledge and reason to believe. To prove voluntariness, fulfilling any one of the elements is sufficient.

Rashness

- s. 304A of the Penal Code (causing death by negligence)

            There is a material difference between rashness and negligence. Criminal blameworthiness for negligence is premised on an objective standard of conduct whereas, for rashness, it is the accused’s actual knowledge of the risk of harm produced by his or her conduct.

            In re Nidamarti Nagabhushanam, ‘culpable rashness is acting with the consciousness that mischievous and illegal consequences may follow, but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening’. It was held in Empress v Idu Beg that ‘criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused’.

Negligence

-s. 304A of the Penal Code (causing death by negligence)

            The position taken is that negligent conduct is criminally blameworthy since the actor has been inattentive to the danger posed to others by his or her conduct.

            Straight J in Empress v Idu Beg said that ‘criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted’.

            In re Nidamarti Nagabhushanam, ‘culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that, if he had, he would have had the consciousness’.

            In Emperor v Waryam Singh, the accused and his wife went to a cremation ground to perform a magical ritual on the tomb of their child. The victim appeared on the scene and the accused beat him to death thinking it was a ghost. The court acquitted the accused by reason of the defence of mistake of fact under s.79 of the Code.

Coincidence of Actus Reus and Mens Rea

            There is a fundamental principle of criminal law which requires the fault element of a crime to coincide in point of time with the physical elements in order for the accused to be convicted of the crime charged. In Fowler v Padget, Lord Kenyon CJ stated that ‘the intent and the act must both concur to constitute a crime’.

The same transaction approach

            In Thabo Meli v R, the appellants acted under a preconceived plan first to kill V and then make the death look like an accident. They struck V on the head and, believing him to be dead, rolled him over a cliff and faked the scene to resemble an accident. Medical evidence revealed that death was caused by exposure to the elements and not the head wounds. The appellants argued that the concurrence principle had not been met since the blows which were intended to kill did not kill.

            The Privy Council rejected the argument saying: ‘It appears to their Lordships impossible to divide up what was really one transaction in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan and as parts of their plan.

            In Shaiful Edham bin Adam v PP, the appellants had inflicted several wounds on V before disposing what they thought was a corpse into a canal. The autopsy showed that V had died by drowning. The Court paraphrased the judgement in Thabo Meli:

‘A series of distinct acts may in some circumstances be regarded as forming part of a larger transaction; and it will suffice if the accused had the necessary mens rea at some point in the transaction, even if it did not coincide precisely in time with the actus reus, the act which caused death.’

Causation Approach

This approach works by taking into account the operative and substantive cause of death. For example, in Shaiful Edham, the neck wounds would have caused the death over a period of time.      

Moral Congruence Approach

This approach is an advanced form of the same transaction approach as it explains why the series of acts should be regarded as forming the same transaction. It looks at the cause of death through a series of acts which are morally congruent.

            In Muhammad Radi v PP, the D and V went to vacant teachers’ quarters to engage in sex and drug-taking. A quarrel ensued and D delivered several blows to V’s head with a stick. D concealed her body by pushing it into a tight space under the kitchen ledge. The court treated it as one transaction.

            In instances where the defendant had carried out the initial assault (stabbing, hitting, etc) on the victim and the victim does not die immediately but suffers other forms of violence or his death is accelerated by another, it is likely that the defendant will raise 2 legal arguments:

i) The intervening act had broken the chain of causation. To determine if the chain is broken, the courts will use the ‘but-for’ test. The courts in this case will decide or will find the defendant guilty if his original assault was the substantive and operative cause of death.

ii) The principle established in Fowler v Padget that the mens rea and the actus reus must coincide. In determining this element, courts have referred to several cases (Thabo Meli v R, Shaiful Edham v PP) and have concluded that despite the commission of several acts, the courts in general have viewed all these wrongful acts as one transaction and have held that the mens rea need not be formed at the beginning of this transaction. If it is formed anytime during the transaction, the defendant will be held liable and the principle established in Fowler cannot be applied.

Sample Answer for Problem Question

Dashing was sleeping soundly and her boyfriend came into the room with his cigar, she was angry with him for smoking as she was one of those who wanted to protect the environment against pollution. She scolded him for smoking and a quarrel broke out. After sometime she thought that he had left. However, she did not realize that he had gone to the next room to continue smoking “in peace” but he fell into a deep sleep. When he woke up he saw her room on fire. He was too angry with her and walked away. Dashing could not put out the fire, as a result of it she was severely burnt.

Referring to case law and relevant provisions, discuss if the boyfriend can be held criminally liable for the injuries sustained by Dashing.

Answer

            Based on the facts that Dashing was severely injured it is likely that the prosecution could invoke s.322 of the Penal Code. In order to obtain a successful conviction the prosecution has to prove that the boyfriend caused the actus reus of s.322 and possessed the requisite mens rea beyond reasonable doubt as stated in DPP v Woolmington.

            S.33 clearly stipulates that the actus reus of s.322 could either be a positive act or an omission. S.43 further states that in certain instances omissions could be illegal. This is only possible if the defendant had a legal duty to act and had breached this duty.

            Based on R v Miller, a failure to act amounted to an illegal omission. In Miller, the accused caused a fire when he slept with a lighted cigarette. He woke up and saw the fire but he went to sleep in another room. In the present case, the boyfriend caused the fire, saw it, he walked away and failed to act. Lord Diplock in Miller said that whoever creates a dangerous situation has a duty to act on it. Applying Lord Diplock’s judgement, the boyfriend in this case had failed to act upon seeing the fire and his failure is an illegal omission under s.43. If this line of reasoning is accepted, then the actus reus is established.

            Since the prosecution has established the actus reus, the next element to prove is the requisite mens rea.

Homicide (Unlawful killing)

Murder – s.300

Mens rea required is intention (a) – (c) and knowledge (d).

PP v Mahfar bin Sairan

The accused had driven a car which had run over and killed his wife. The Court had to decide what inferences could be drawn from the manner of his driving, evidence as to where the wife had been standing, the nature and extent of her injuries, evidence from witnesses about the surrounding circumstances and other relevant matters.

Ismail bin Hussin v PP

The accused was a Home Guard during the Malayan Emergency. He was convicted of murdering a man named Omar. Since he shot him at close range, there was intention.

Culpable Homicide – s.299

Mens rea required is intention and knowledge. Murder is reduced to culpable homicide if it falls under one of the special exceptions.

Death by Negligence – s.304A

Mens rea required is rashness or negligence, the former of a higher degree.

Infanticide – s.309A

            Only women can be punished for infanticide under s.309B. It reduces the criminal liability of a woman who killed her natural child when the ‘balance of her mind was disturbed’ following childbirth. In Malaysia, the child must be ‘newly born’, there is no fixed limit.

Abortion/Miscarriage – s.312

            To describe a woman as ‘with child’ means that she has conceived and even a short period of pregnancy will suffice. The term ‘quick with child’ refers to the stage, usually sometime around the middle of the pregnancy, when the woman feels some motion from the foetus.

The exception to this is that medical practitioners registered under the Medical Act 1971 is not, in good faith, liable if the continuance of pregnancy would involve risk to the life of the woman.

Police Powers (Police Act 1967)

Police Powers

One of the main functions of a police officer is to ensure that peace is preserved. They are legally appointed persons who are given the special duty of preserving peace. The main statute that regulates their powers is the Police Act 1967. Although every citizen has the power to arrest without a warrant and to use reasonable force in the prevention of crime, the police are the specialists. The Act is divided into 3 aspects, namely, police powers, where police officers have powers to ensure that the public obeys the law; control of the police powers, to prevent an abuse of powers by police officers; and consequences of acting beyond powers, to punish police officers who have breached their duty.

General powers

s.19 -Every police officer is always on duty when required to act and shall perform the duties and exercise the powers granted to him under this Act or by any law in Malaysia. For example, if a police officer is off duty, and sees a robbery taking place. The officer is under a duty to stop such robbery.

s.20(1) - Every police officer shall perform such duties and exercise such powers imposed by law or conferred upon a police officer, and shall obey all lawful directions given by any superior. For example, if the superior orders his subordinate to head to the crime scene even when he is off duty, the police officer must obey.

s.20(2) - A police officer is subjected to the orders and directions of any police officer to whom he is directly subordinate and if the superior feels that he himself has a duty to perform the order, then the superior would have to perform such duty.

s.20(3) – Under this  section, more examples of duties of a police officer are provided but it does not affect the previous sections mentioned. Examples include apprehending all persons whom he is by law authorized to apprehend, conducting prosecutions, giving assistance in the protection of life and property, protecting public property from loss or injury and so on.

s.20(4) – A police officer is deemed to be a prison officer when he is escorting and guarding prisoners and other persons in the custody of the police.

Specific Powers

s.21 – Duty on Public Roads

s.21(1) The police officers have the duty to:

 (a) regulate, control and divert any traffic;

(b) to keep order on public roads, streets, thoroughfares and landing places, and at other places of public resort and places to which the public have access; and

(c) to prevent obstruction on the occasions of assemblies and processions on public roads and streets, and in any case, when any road, street, thoroughfare, landing place or ferry may be thronged or liable to be obstructed.

s.21(2) – Any person who obstructs, opposes or disobeys any reasonable direction given by any police officer in the performance of his duties under this section is guilty of an offence and liable on conviction to a fine up to RM 200 or imprisonment for a term up to three months or both.

s.21(3) – Any person who commits an offence under this section may be arrested without warrant unless he gives his name and address and otherwise satisfies the police officer that he will duly answer any summons or other proceedings that may be taken against him

s.24 – Power to inspect licences, vehicles, etc

s.24(1)(a) – Any police officer may stop and detain any person; (i) whom he sees is doing any act or who is in possession of anything; or (ii) whom he has reasonable grounds for suspecting is doing any act or is in possession of anything; for which a licence, permit or authority is required under any law.

s.24(1)(b) – Any police officer may stop and search without warrant any vehicle or vessel which he has reasonable grounds for suspecting is being used in the commission of any offence against any law in force, provided such vehicle or vessel, subjected to s.24(4), may not be detained longer than is reasonably necessary to complete such search.

s.24(2) – Any person who fails to produce a licence, permit or authority when required under ss.1(a) may be arrested without warrant unless he gives his name and address and otherwise satisfies the police officer that he will duly answer any summons or other proceedings that may be taken against him.

s.24(3) – Any person who fails to obey any reasonable signal of a police officer to stop any vehicle or vessel or obstructs the police officer in performing his duty, shall be guilty of an offence under this Act and any police officer may without warrant arrest such person unless he gives his name and address and otherwise satisfies the police officer that he will duly answer any summons or other proceedings that may be taken against him.

s.24(4) – Any police officer may cause any vehicle or vessel, which he has reasonable grounds to suspect has been used in the commission of any offence against any law or to be the evidence of such commission of an offence to be moved to the nearest Police District headquarters or other convenient place. The Officer in Charge of such Police District (OCPD) may detain such vehicle or vessel pending enquires for not more than 48 hours. However, if there are commenced proceedings in respect of any such offence in which the vehicle or vessel is liable to forfeiture under any law or may be used for evidence, the OCPD may detain until the end of those proceedings.

The OCPD may direct the release of any such vehicle or vessel if he is satisfied that the owner of such vehicle or vessel will duly produce such vehicle or vessel before court when required and may require such owner to execute a bond or deposit such security as deemed reasonable.

s.27 – Powers to control any assembly, meeting or procession.

s.27(1) – Any OCPD or police officer may direct the conduct in public places in such Police District of all assemblies, meetings and processions, whether of persons or of vehicles and may prescribe the route by, and the time at, which such assemblies or meetings may be held or such procession may pass.

s.27(2) – Any person intending to convene or collect any assembly or meeting or to form a procession in any public place has to apply a licence from the OCPD. The OCPD will grant the licence if he is satisfied that the assembly, meeting or procession is not likely to be prejudicial to the interest of the security of Malaysia or to excite a disturbance of the peace. The licence will specify the name of the licensee and define the conditions upon which such assembly, meeting or procession is permitted.

The OCPD may, at any time on any ground for which the issue of a licence under this subsection may be refused, cancel such licence.

(2A) – An application for a licence shall be made by an organization or jointly by three individuals.

(2B) – Where the application is made jointly by three individuals, the police officer may refuse the application if he is satisfied that such assembly, meeting or procession is in actual fact intended to be convened, collected or formed by an organization.

(2C) – Where an application is made jointly by three individuals, the police officer shall specify in the licence the names of those persons as licensees.

(2D) – No licence shall be issues on the application of an organization which is not registered or recognized under any Malaysian law.

s.27(3) – Any police officer may stop any assembly, meeting or procession where a licence has not been issued or has been cancelled under ss.(2) or which contravenes any of the conditions of any licence. Any such police officer may order the persons comprising such assembly, meeting or procession to disperse.

s.27(4) – Any person who disobeys any order given under ss.(1) and ss.(3) shall be guilty of an offence.

(4A) – Where any condition of a licence issued under ss.(2) is contravened, the licensees shall be guilty of an offence.

s.27(5) – Any assembly meeting or procession which takes place without a licence issued under ss.(2) or in which three or more persons taking part neglect or refuse to obey any order given under ss.(1) and ss.(3) shall be deemed to be an unlawful assembly. All persons attending, found at or taking part in such assembly, meeting or procession, shall be guilty of an offence.

(5A) – In any prosecution for an offence under ss.(5), it is not a defence that the person charged did not know that the assembly, meeting or procession was an unlawful assembly or did not know the facts or circumstances which made it an unlawful assembly.

(5B) – In any prosecution for an offence under ss.(5), it shall be a defence that the presence of the person charged came about through innocent circumstances and he had no intention to be associated with the assembly, meeting or procession.

(5C) – Every member of the governing body of the organization is deemed to have taken part or been concerned in convening, collecting or directing the assembly, meeting or procession unless he proves that he did not know nor had any reason to suspect that the assembly, meeting or procession was going to take place or, if he knew or had reason to believe as aforesaid, he had taken all reasonable steps to prevent the assembly, meeting or procession from taking place or, if it was not reasonably within his power to so prevent, he had publicly objected to or dissociated himself from the convening, collecting or directing the assembly, meeting or procession.

s.27(6) – Any police officer may arrest without warrant any person reasonably suspected of committing any offence under this section.

s.27(7) – Any person aggrieved by the refusal of the OCPD to issue a licence may within 48 hours appeal in writing to the Commissioner or Chief Police Officer (CPO) and the decision of the said Commissioner or CPO is final.

s.27(8) – Any person guilty of an offence under this section shall be liable on conviction to a fine of not less than RM 2,000, not exceeding RM 10,000 and a term of imprisonment for up to 1 year.

(8A) – s. 173A and 294 of the CPC shall not apply in respect of an offence under this section.

Control of Police Powers

Police officers are subjected to the ordinary laws of the land and also a certain extent of judicial control. Under the Act, there are 2 main offences which are desertion and mutiny.

s.86(1)- Any police officer who absents himself from duty without a reasonable cause for at least 21 days consecutively or shows that he has no intention of returning to his duty shall be deemed to have deserted, and shall be guilty of an offence and liable on conviction to imprisonment not exceeding 12 months.

s.86(2) – The Disciplinary Authority may direct that all arrears of pay due to a person who has been convicted under this section to be forfeited.

s.86(3) – ‘police officer’ includes an extra police officer, a member of the Police Reserve and Police Volunteer Reserve and any other member of the police force in Malaysia.

s.87 – Any police officer who causes, incites, or joins in any mutiny or disaffection in the Force or conspires with any other person to cause such mutiny or disaffection, or having knowledge of any mutiny or disaffection or intended mutiny or disaffection, does not, without delay, give information to any superior police officer shall be guilty of an offence and liable on conviction to imprisonment for up to 5 years.

Consequences of Breaching Powers

s.74 and s.96 state that the YDPA has discretionary powers to make regulations with reference to police discipline and it can be inconsistent with the Act itself.

s.97 allows the Inspector-General to issue Standing Orders for the general control, direction and information of the Force and of all bodies established or raised for police duties under this Act.

s.75 – All fines imposed by or under the Disciplinary Authority for offences against discipline shall be recovered by stoppage of pay, less allowances and trade pay, due, or become due, to the offender. Such stoppage does not exceed 1/7 of the monthly pay, less allowances and trade pay of the offender. If more than one order of stoppage of pay is in force at one time against the offender, his pay shall only be stopped as to leave him with at least ¾ of such pay, not including allowances and trade pay.

s.76 – No pay or allowance, including trade pay shall accrue to any police officer during the period which he was absent from duty without good cause or leave, or is undergoing any sentence of imprisonment provided that the Disciplinary Authority may authorize the payment of such pay, allowances and trade pay up to one half.

s.94 – Any person guilty of an offence under this Act for which no other penalty is prescribed is liable to a fine of up to RM 500 or to imprisonment for up to 6 months or both.

s.78(1) – If there are any complaints, then the Disciplinary Authority may interdict the police officer pending the investigations and enquiry into his conduct.

s.78(2) – The powers, privileges and benefits of a police officer shall be in abeyance during his interdiction provided that he will continue to have the same privileges or ranking prior to the interdiction.

s.78(3) – During interdiction, the police officer must be paid but only half of his normal pay unless the Disciplinary Authority wants to pay more than half. If the officer is not guilty, the he must be paid in full even for his time in interdiction.

s.79(1) - A Committee of Enquiry may be convened  by a Commanding Officer to enquire into the death or injury of any police officer or into the loss or damage to any property entrusted to or lawfully in the possession of the Force.

s.79(2) – A Committee of Enquiry is empowered to make findings and recommendations as follows:

(a) whether the deceased or injured person was on duty at the time of such death or injury;

(b) whether the death or injury was directly attributable to the nature of the duty on which the deceased or injured person was engaged;

(c) whether the death or injury was due to the default of the deceased or injured person;

(d) whether a pension, gratuity or allowance should be paid in accordance with the provisions of rules under this Act or any other law.

(e) whether any action is necessary to prevent the future occurrence of similar death or injury to other police officers.

s.79(3) – A Committee of Enquiry shall make findings and recommendations to the Commanding Officer as follows:

(a) estimated cost of loss or damage;

(b) individual responsibility for such loss or damage;

(c) action necessary to prevent the future occurrence of similar loss or damage;

(d) the manner in which the cost of such loss or damage may be recovered or made good to the lawful owner of such property.

Electoral System (7 types)

Elections are a crucial part of Malaysian constitutional law, because they provide the basis of Malaysia’s claim to have parliamentary democracy and representative government, although the government has been the same since Merdeka. To ensure proper representation, there has to be a proper electoral system. The current electoral system practised in Malaysia is First Past The Post (FPTP) system.

Majoritarian Systems – Who wins the majority wins the seats

1. First Past The Post

2. Alternative Vote System

3. Supplementary Vote System

Proportional Systems (fairest) – Every vote the party obtains is considered before deciding on the number of seats each party gets

1. Single Transferrable Vote System

2. Party List System

Hybrid Systems – Combines Majoritarian system and Proportional system

1. Additional Member System

2. A.V. Plus System

First Past The Post (FPTP) System/ Simple Majority System

            Under this system, the candidate who gains the highest number of votes in the election wins the seat in his or her constituency, irrespective of the proportion of votes cast for himself or his opponents. For example, if the votes cast for individual candidates at an election are John 3,200, Mark 2,800 and Brown 2,400, John still wins the election although 5,200 or 70% voted for other candidates. The party that wins the majority number of seats is the party that wins the election, and that party will form the government.

Advantages

- It is the simplest to understand, to operate, to use, and to count votes. The voters only choose whichever party they want and the results can be obtained very quickly.

- Each constituency is represented by a Member of Parliament. It is good because the constituents will know who their representative is.

- There is a link between the MP and the constituent. There will only be one MP in the constituency, thus, the constituent will know which MP to turn to whenever there is a problem.

- This system encourages a strong and stable government. Why is this so? The biggest party during the election will normally have the support of more people compared to smaller parties. Hence, more members, stronger campaigning powers and advertising powers. In every constituency, the stronger party will win the seat even though there may be massive support for the opposition

- No coalition government will be formed. It means that the government will be more accountable as they cannot blame any minority parties for bad decisions.

- Party strongholds. There will be strongholds all over the country, meaning that the constituencies will always be won by the ruling party as they have the support of the majority even if they made bad decisions, possibly due to better candidates. The opposition might have strong support, but insufficient to topple the bigger party

Disadvantages

- The system is not proportionate. It lacks the concept of proportional representation. It means that the number of seats which a party obtains in Parliament is not proportional to the actual number of votes gained. This is because under the system, the winner takes it all.

- There are many wasted votes. The total number of votes cast will not be taken into account when it comes to the allocation of seats in Parliament. For example, in UK, John (Conservative Party) gets 8,000 votes, Brian (Labour Party) gets 7,000 votes and Sarah (Liberal Party) gets 5,000 votes, the winning candidate will still be John even if his total number of votes is lower than that of the other two parties combined. In the 1997 UK elections, Labour Party won 44.4% of total votes but they gained 419 out of 659 seats, which means that more than 50% of the seats. This shows that the amount of votes wasted is huge.

- FPTP does not require the candidate to obtain the majority of votes. It does not follow the principle of “1 man, 1 vote, 1 value”. As a whole, sometimes the ruling party might not even have half the seats in Parliament.

- This system translates a small number of votes into a big number of seats. In the 1983 UK elections, Labour Party won 27% of total votes, while the SDP-Liberal Alliance won 25% of total votes. However, Labour controlled 33% of the seats while SDP-Liberal only won 3.5% of seats. This shows that Labour won slightly more votes yet they obtained much more seats.

- The government sometimes becomes too strong and too stable. They will end up dominating the Parliament and they will pass laws as they wish.

Alternative Vote System and Supplementary Vote System

-Both systems are similar to FPTP as they are all Majoritarian systems. There will still be constituencies and in each constituency, there will only be one Member of Parliament. The candidate who wins the majority of votes in the constituency will still win the seat.

AVS

-The main difference between AVS and FPTP is that voting is done according to preference.

- To win the election, the candidate must have at least obtained 50% of first preference votes. In other words, 50% of voters must put him as number 1 to become an MP. The voter marks his ballot paper with preferences expressed in numerical order. The candidate who gets the lowest first preference votes will be redistributed in accordance with that candidate’s supporters’ second preferences. This process is continued until one candidate achieves an overall majority of votes.

- The disadvantage is that some people only have one preference. It also takes more time to calculate the votes

SVS

- It is very similar to AVS

- The only difference is that the voter’s choice is only 1^st and 2^nd preference, instead of ranking all the candidates. If nobody reaches 50%, then votes cast for all candidates other than the top two are redistributed between the two top candidates until a clear winner emerges.

-The advantages and disadvantages are similar to the FPTP system.

Proportional Representation System

-Proportional Representation simply refers to an electoral system in which parties gain seats in proportion to the number of votes cast for them. The percentage of total votes is proportional to the total number of seats. For example, 25% of votes will result in 25% of total seats. There are two types of proportional representation, i.e. the Single Transferrable Vote System and the Party List System

STV

- Under this system, multi-member constituencies between 5 to 7 members are required. Voters list the candidates in order of preference. The principle used in vote counting is that the candidate only needs a certain number or quota of votes to be elected and any votes he receives beyond this figure are surplus. Once the candidate has received the quota necessary to secure his election, the surplus votes are redistributed among other candidates according to 2^nd preferences.

Party List System

Under this system, each party is allowed to put up a list of candidates equal to the number of seats to be filled. The voters vote for a party rather than an individual. The voters will see a list of all candidates for a particular party and vote for the list as a whole. Seats are allocated in proportion to the votes cast. For instance, the total number of votes polled by each party is then divided by the quota. Suppose the quota is 10,000 and a particular party list gets 50,000 votes. The first 5 names of the list are declared elected.

Advantages

- Every vote has a value, there will no longer be wasted votes; “1 man, 1 vote, 1 value”. Every vote has an equal value because there are no more constituencies under this system. The ruling party will become weaker as there are no more burnt votes

- Provides a better check on the Executive in Parliament, thus, ministerial responsibility will be upheld. When there are more opposition MPs in Parliament, everything becomes more effective.

- Easy for illiterates to vote, as they only vote based on the logo of the party.

- Vote calculation can easily be done

- Minorities will be represented fairly in the Parliament

Disadvantages

- There are no constituencies under the Party List. It destroys links between the MP and the constituents. If any problem arises, constituents will not know who to go to since no MP represents them.

- Under the Party List, the government formed may end up too weak, too unstable and cannot rule. Therefore, they may have to form a coalition government. France uses Party List and after every election a coalition government is formed. The parties there are matured enough politically to rule together. However, such system is unlikely to work in Malaysia

- Difficulty in drawing the list. It is hard to decide on who should be the 1^st, 2^nd, 3^rd and etc. It may end up having a system where the leader of the party has the say on who should be the MP

- Voters cannot choose which candidates they want to vote for

Hybrid system

- Basically, it is the combination of one majoritarian system and one proportional system. Under the system, each voter will now have 2 votes. There are two main hybrid systems; Additional Member System (AMS) and A.V. Plus system

AMS

-AMS is the combination of FPTP and Party List system. Each voter would have two votes; one for the candidate in the constituency and another for the party of his choice on a regional basis. An equal amount of seats for constituency and Party List is put up. Whichever party with the most seats after combining the systems will become the ruling party. To illustrate, Jack votes for Bala from BN, voting by constituency and at the same time, he votes for DAP, voting by party. BN won 80 seats from constituencies and got 40% of votes (50 seats) for Party List. They become the ruling party with a majority of 130 seats.

A.V. Plus

-This system is very similar to the AMS. It was first proposed by a special commission formed in UK. Lord Jenkins proposed that AV Plus, a combination of AVS and Party List should be used. It has the exact same advantages and disadvantages with AMS.

Advantages

-A strong and stable government where people get to choose their representatives is formed

- The number of seats that the winning party wins will be reduced. This is to ensure that the opposition parties have the chance to win more seats.

-There will be more checks on the Executive by the Parliament as the Parliament is well represented.

- Voters can choose to vote for a candidate and a Party which they favour separately. For example, John can vote for Lim from PR and yet vote for BN in the Party List.

- There are still constituencies and each constituency has 1 MP. Thus, the link between MP and constituent is not broken.

 Disadvantages

- Government may not be as strong and stable as in FPTP

- It is a more complicated system and it is harder to use

- More MPs will be coming from constituencies and Party List. MPs from the constituencies will probably gain more respect from the people as MPs from the Party List represents the list, not the people.

Conclusion

-Democratic states take many forms, but all have an electoral system where citizen can elect for their political leaders. There are no right or wrong answers in choosing an electoral system. There is no one perfect electoral system where everybody can agree on.

Parliament

Is the Scrutiny of Bills effective in Parliament?

No.

Functions of Parliament (briefly)

-Parliament is the prime law-making body in the country. A Bill cannot become law without the going through the fires of scrutiny in Parliament. Each of the government’s policy is put into effect through legislation

- Parliament controls the national expenditure and scrutinises public expenditure. Money Bills cannot become law without the authority of Parliament. The Dewan Rakyat oversees matters of national expenditure through its Public Accounts Committee (PAC)

- Parliament also checks on the Executive. The Executive represents the people. Therefore, the Parliament must ensure that the Executive is accountable to the people.

- Parliament checks on Executive by checking on the Bills. Since the Bills are introduced by the Executive, such Bills contain the policies of the Executive. Hence, they are indirectly checking on the Executive. Debates on the bill happen in the 2^nd reading and the committee stage (clause to clause basis).

Procedure for the passing of Bills (very briefly)

Bills are introduced by Ministers most of the time. In Dewan Rakyat, the Bill goes through the First Reading, Second Reading, Committee Stage, Report Stage, Third Reading and is passed to the Dewan Negara. The same cycle occurs in the Dewan Negara. After the Bill has been passed in both Dewan, it will be sent to the YDPA for his Royal Assent and published in the Federal Gazette to take effect.

Parliament is not playing its role properly (why?)

(i) Dewan Rakyat

- dominated by ruling party. Bills are simply debated because the ruling party will be supporting their own Bill.

- PM uses Party Whip to ensure that important Bills will go through. MPs from the ruling party will have no choice but to support the Bill.

- At the Committee Stage, the number of MPs is very small. A lot of MPs do not attend the session, thus, debates are not effective. Since Independence, only five Bills have been committed to Select Committees

-There are many motions to restrict the debates; namely; guillotine motion, kangaroo motion and closure motions

Kangaroo motion - If any MP from the ruling party decides to propose a motion to skip certain debates, if more than half the house agree then they can skip whatever was proposed and so they will only debate whatever they want to debate.

Guillotine motion - Whenever the MPs are debating, if the ruling party finds the debate is taking too long, any MPs can set a time to end the debate, whether on a particular issue or the whole debate. Again, they will vote, if more than half the house agrees then it’ll happen.

(ii) Dewan Negara

-Better in the sense that there are no motions to restrict the debates

- Senators are more learned; they have more time and less politically aligned

-However, Dewan Negara can only delay a Bill for 1 year and for money Bills only 30 days if they don’t agree with the Bill.

(iii) YDPA

- YDPA has to give his royal assent to Bills within 30 days, if he doesn’t, it still becomes law

There are other mechanisms in the Parliament to check on the Executive

(i) Select Committees

- Special Committees formed in Parliament, consisting of MPs and their role is to check on Ministries. Sometimes they may be formed at the Committee stage of the Bills and sometimes formed to check on the issue, for example, the Electoral System

- Plays a key role in eliminating loopholes or defects in Bills before they become law

Why it is not effective

- Most of the MPs in the Select Committee are members from the ruling party. They will not scrutinize the Bills introduced from their own ruling party.

- It is not compulsory to debate on the report given by the Select Committee. Most of the time, the reports are disregarded.

- The members of the SC are not experts and the SC may not know what is right or wrong

- SC cannot subpoena or compel Ministers to answer their questions

-However, the Public Accounts Committee is a good SC, it really checks on the government.

-Although the SC is not very effective, at least the Ministries are afraid because there is someone watching over them. Unfortunately, the SC can only check on what has already happened and not what is happening.

(ii) Question Time

- It is a procedure in Parliament for the Ministers to answer questions regarding their ministries.

- It takes place during the Second Reading, Committee Stage, etc

-It is important as it compels the Ministers to be responsible and accountable to the people. For Question Time, oral answers are important for it to be effective.

Why it is not effective

- The time allocated for Question Time is too short

- Most of the questions asked are replied in the written form, where very few actually read it.

- Any ‘dangerous’ questions will be put at the bottom and it would not be answered orally due to time constraint.

- 2 days notice must be given to the minister so that the minister will prepare the answer very carefully. However, the answer is most probably prepared by civil servants in his department that have a vast amount of resources to answer the question. The answers prepared might be even more effective than the question asked.

- Ministers can always use stone-walling, i.e. no real answer is given and the minister speaks about something irrelevant.

- Ministers can divert the questions to other departments

- Ministers might hide behind the concept of Collective Responsibility, where all agrees that the Minister cannot be asked individually

(iii) Debates

-There are three types of debate; namely; daily adjournment debate for the debate of any matter; emergency adjournment debate for important issues; and debates in the passing of a Bill

- Debates are to compel the government to explain and defend its policies and decisions

Why it is not effective

- The House is controlled by the ruling party. Therefore, time may not be allocated for debates on certain issues

- If a certain issue to be debated is too difficult to be answered, then the government will hide under Collective Responsibility or Public interest immunity

- Most of the time, the Dewan is nearly empty. Thus, the debates will not be effective

-Government passes motions to cut short debating time through guillotine motion, kangaroo motion and closure motion

-Debates are not done properly, since the ruling party tends to defend their own Bill

Reforms

(i) Select Committees

- Should be given the power to compel Ministers to answer their questions

- Should be given power to call in experts to assist them in certain issues

-The reports prepared by the SC should be compulsorily debated in the Dewan

-More Bills should be sent to the SC

(ii) Question time

- Questions should be on a first come first serve basis either on orally or written reply, not at the discretion of the Parliament

- Parliament should have more sittings and allocate more time for Question Time.

- There should be a Prime Ministerial question time, like the one in UK

- Ministers should not be allowed to hide behind Collective Responsibility

(iii) Debates

- More time should be set aside for debates

- MPs should not be allowed to leave before the end of the session

(iv)Other reforms

- Improve the Electoral System, because the current system gives too many seats to the ruling party, which is the main factor behind the ineffectiveness of Parliament.

- Remove the Party Whip. MPs are not members of the Executive, so they should not compulsorily support their own Bills.

- Kangaroo motion, Guillotine motion and closure motion should be abolished

- More emphasis should be put on Individual Responsibility

- The number of parliamentary sittings should be increased.