By : DAVE AVRAN
DON’T THE people have a
right to self defence in life-threatening situations? This is a seriously
worrying question. Social media has been raging over this topic for some time
now.
First we saw how it is OK to
rape a 13-year-old girl if you’re a star when Court of Appeal President Raus
Sharif led the three-man panel in ruling that the jail term for national bowler
Noor Afizal Azizan be substituted with a bound over sentence for good behavior
for five years.
Now, two brothers are sent
to the gallows for killing a burglar. Indonesian brothers Frans Hiu, 22, and
Dharry Hiu, 20, were found guilty of murder for defending themselves against a
violent robber. The High Court in Shah Alam sentenced them to death on Oct 18.
The brothers were jointly
charged with having a common intention in the murder of 26-year-old R Khartic
at a shophouse in Sepang on Dec 3, 2010. They were caretakers of the premises.
In her brief judgment,
Justice Nurchaya Arshad ruled that the prosecution had successfully proven the
case beyond reasonable doubt and sentenced the men to death.
What does “in her brief
judgment” mean? How brief is brief? Two human beings are being deprived of
their lives. Wouldn’t we require the court to give more substantial
consideration than just a brief judgment?
Here are the facts of the case:
three guys were inside their room. A burglar tries to break in first through
the front door, then through the back door, and finally he climbs through the
ceiling and falls into the room. There is so much determination and
premeditation on the burglar’s part – he seriously wants to break in.
He then violently attacks
the three occupants of the room. One of the occupants runs away. The other two
defend themselves, there is a desperate life and death struggle and in the
process the robber dies. Now the robbery victims are ironically sentenced to
death.
Why not charge them with
assault which carries a lesser sentence instead of murder? Criminal intent
(Mens Rea) is a vital ingredient in all murder charges. How could the two
brothers have entertained such an intention when in fact it is the burglar who
had broken into their room and then attacked them?
He must have startled the
brothers when he crashed through the ceiling and started attacking them. In
self defence, the brothers fought back with their bare hands. They did not have
any weapons in their bedroom.
Acting in self defence
The Malaysian Bar Council
has weighed in on the issue and said that people should not take the law into
their own hands.
Should the brothers not have
defended themselves when attacked? The incident involved a robber who had
gained illegal entry into a building and was motivated by a predetermined
criminal intent.
In such cases, isn’t it
instinctive and normal for the occupants to react spontaneously to restrain an
intruder who may pose a danger to their lives?
It would be interesting to
know which officer in the Attorney-General’s Chambers sanctioned the murder
charge, knowing full well that the brothers were acting in self-defence. Don’t
the people have a right to self defence in life-threatening situations? This is
a seriously worrying question.
Why didn’t the court assign
counsel for the defendants for a charge as serious as murder and for which a
death sentence was a distinct possibility? The brothers were the only ones who
testified in their own defence.
Doesn’t this case and the
subsequent the charge reek of a serious defect in our legal system? There have
been many similar cases where victims of crime have been penalised but for the
sake of this article we will remain focused on this case alone.
Rightfully, several groups
are calling for a judicial review into the death sentence imposed on the two
Indonesian brothers, with National Crime Prevention Foundation vice-chairman
Lee Lam Thye saying that the sentence was too extreme and would have
implications on the way people react to situations that involved their own
personal safety and security.
MARAH has also started a
forum on the subject. There must be consistency and fairness in how sentences
are meted out. What were the brothers supposed to do? Wait for the robber to
kill them first?
What are we the public
supposed to do when someone breaks into our home? What kind of signal is the
court giving?
Given the current crime free
for all spree in Malaysia, should we all simply give in to the inevitable and
just wear t-shirts with a bright red target painted on it?
(NOTE
: Dave Avran is the founder of MARAH (Malaysians Against Rape, Assault &
snatcH).
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