I am beginning to find this WordPress theme a little difficult to read, but maybe I simply need new spectacles.
I completely missed this story, which appeared almost three weeks ago. In short, a clerk and her then-boyfriend (now-husband) were, well, chatting in the boyfriend’s car. This took place in a housing estate in Klang, at 8.30 on the evening of Aug 19 last year. (For non-Malaysian readers, “housing estate” is our very poetic term for “suburb”.)
Along came some coppers in a squad car who then proceeded to shine a torchlight into the car. If they did this to me “I’d say mind your own $*!@)%^ business” and probably be shot dead for offering violence.
The couple decide to flee; and off they sped. The coppers decide to open fire, and the woman Siti Nasrinda Tumirin, 23, was hit in the waist and back. A third slug clipped her headscarf. They were subsequently investigated (sc., not charged) under the following:
Penal Code, S. 353: Using criminal force to deter a public servant from discharge of his duty
Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.
Now, would this have been a defective charge? One wonders a bit at how off in a car possibly constitutes assault or the employment of criminal force. In elementary physics, force = mass X acceleration and in this case the only force exerted was the one moving away from the policemen. Yes I am making a joke.
The couple was also investigated under the Syariah Criminal Offences (State of Selangor) Enactment 1995 (NB. the report cites the wrong enactment) for khalwat, which is defined thus:
S. 29 Khalwat
(a) Any man is found in the company of one or more than one woman who is not his wife or his mahram (unmarriagable kin);
(b) Any woman is found in the company of one or more than one man who is not her husband or her mahram;
In wheresoever a place concealed or in any dwelling or room in such condition as to raise the suspicion that they are at that moment in commission of an immoral act, shall be deemed to commit an offence and shall be punished with a fine not exceeding three thousand ringgit or imprisonment for a term not exceeding two years or both.
Police have no business enforcing Shariah; and in any case the use of firearms in preventing khalwat is at the very least debatable since I don’t believe Shariah enforcement officers are warranted to bear arms of any kind. I think the only justifiable defence is when the case gets kicked back suddenly to the Penal Code (e.g. a suspect attempts to kill a cop).
The now-husband, Mohamad Fauzi Mohamad Daud, 26, was also investigated under S. 43(1) of the Road Transport Act, i.e. driving recklessly. He was released on police bail the following day, and I assume Siti Nasrinda was in hospital at the time. No charges have been laid and no new developments in the police investigation have taken place.
The couple, as well as Mohamad Fauzi’s father Mohamad Daud Abdul Hamid (whose car his son was driving) are seeking a total of RM4.75 million in damages, costs and interest etc. against six defendants including the Inspector-General and the Federal Government.
This is a test casem and so far, so good. Civil proceedings are necessary because there are no other legal mechanisms in place to investigate and redress cases of police brutality (I mean, wrongful use of authority).
Criminal proceedings lately have all had more or less the same result: the prosecution fails to establish a prima facie case; which leads me to wonder if the Attorney-General will achieve his prosection quota at all, and whether our investigators and prosecutors need to be summarily dismissed and charged with criminal incompetence (that is a new thing I just made up, but it sounds nice).
However, the Home Ministry issued a letter to the Nut Graph (see this story) in which a very dangerous idea seems to have prevailed:
4. Walaupun tindakan seseorang pegawai polis itu mengakibatkan seseorang yang tidak bersalah terbunuh atau cedera atau tidak diluluskan di sisi undang-undang sepatutnya, dia dikira masih berhak dengan syarat niatnya ikhlas dan penuh yakin mempercayai bahawa nyawanya dan nyawa orang yang dilindunginya dalam keadaan bahaya.
Translation (mine, differs a little bit from the Nut Graph’s, but not substantially): 4. While the actions of a police officer may cause the death or injury of an innocent person, and these actions are not fully sanctioned within the law, the officer is considered entitled [to these actions] provided his intent is sincere and he is fully convinced that his life and the lives of those within his protection are in danger.
I can see three problems with this.
1. “Provided his intent is sincere“: what is the test of intent? There are no provisions for it, nor definitions, nor an avenue for contest. Being “fully convinced” of danger is another matter altogether, and one that I think few people will have a problem with; but sincere intent has no place in law enforcement if it is not publicly unaccountable—and if it is, how do we account for it other than try policemen in such cases for murder. Intent, after all, is central to proving murder. All they would need to do is prove its sincerity.
2. “These actions are not fully sanctioned within the law”: are they partly sanctioned, then? I don’t think they are sanctioned at all, anywhere, in the law, nor for that matter are they expressly prohibited. But the absence of prohibition does not imply sanction. Or does it?
3. The most obvious bit: “the officer is considered entitled [to these actions].” Since when was culpable homicide an entitlement based on “sincere intent”?
I say culpable homicide because the law in this case is very clear, namely the third exception to Section 300 of the same Penal Code I quoted at you earlier:
Exception 3—Culpable homicide is not murder if the offender, being a public servant, or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant, and without ill-will towards the person whose death is caused.
In the case of Siti Nasrinda and Mohamad Fauzi, should the policeman be relieved of the burden of proving that he acted in good faith and that firing his weapon at them “was necessary for the due discharge of his duty” simply because his intent was sincere and he believed fervently that they were a threat to him? Such is what the Home Ministry’s letter implies.
What was the “due discharge of his duty”? What were the policemen’s duties as public servants when they chased Aminulrashid Amzah and shot him dead in Shah Alam? Or when they fired on Norizan Salleh, hitting her five times, and then allegedly beat her up (with no charges subsequently laid)? Or when A. Kugan and countless others died in their cells?
Is it to protect the innocent? And are we not all innocent until proven (that is, by a court) guilty? Does that even matter now that the Royal Malaysian Police is entitled to shoot innocents?
The problem with the Home Ministry’s letter is that, if it is acceptable in law, Siti Nasrinda and Mohamad Fauzi will have lost their case the moment the policemen who fired on them declare a sincere intention. The same applies to the officers who shot Aminulrashid and Norizan, and every other future contested shooting.
I think I speak for most of us when I say: WTF?
P/S. What about Indonesia’s claims that only a small proportion of her 64 nationals we killed in the past three years were actually criminals?