Murder ACCORDING TO JURISTS VIEWS

LAW OF JURISPRUDENCE. analysis of murder based on views given by few jurist scholars like mile Durkeim. also in Islamic perspective.

1. MURDER NUR IZZATI ZAFIRAH BT ZAINAL (225296) NUR AKMAL BT ADNAN (225543) NAJIHA BT ZAHID (225909) ASMAH BT CHE WAN (226388) WAN NUR FATIHAH BT MUKHTAR (226713) DENI SAPUTRA B MUZAKIR (229107) NURULHAFFIZAH BT AHMAD (229109) MUHAMMAD FAIZI B TAJUDDIN (229112)

2. Murder  Unlawful killing of another human being without justification or valid excuse. Punishment  the heaviest sentence imposed depends on country. Usually life imprisonment or capital punishment. Australia = life imprisonment Malaysia = capital punishment

3. Malaysia was rated as the country with third highest crime rate of murder after Russia and United States with 2.73 cases for per 100, 000 persons in year 2000. (World Data Atlas) when it comes to murder solving cases, Malaysia was not included in the list of top ten countries which succeeded in solving murder crimes unlike Taiwan, Japan, Canada and other countries. from year 2000 until 2010, the crime rates involving intentional murder has declined to 1.9 cases for per 100, 000 persons , making Malaysia listed as one of safest country in Southern Asia in year 2011 and ranked 19th of the safest country in the world

4. Prohibition of murder in Islam.. “Whoever slays a soul, unless it be for a manslaughter or for mischief in the land, it is as though he slew all men; and whoever keeps it alive, it is as though he kept alive all men .” ( Surah Al- Ma’idah , 5:32 )

5. MURDER AS CRIMINAL OFFENCE

6. MURDER IN MALAYSIA DEFINITION Causing death of a human being by another human being. MURDER UNDER THE PENAL CODE - In the Malaysian law, the crime of murder is discussed under S. 300 of the Penal Code while the punishment is mention under S. 302

7. From S. 300 it can be extracted that there are 4 elements of murder. Except in the cases hereinafter excepted, culpable homicide is murder — (a) if the act by which the death is caused is done with the intention of causing death ; (b) if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; (c) if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death ; or (d) if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death , or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.

8. PUNISHMENT S. 302 - Whoever commits murder shall be punished with death.

9. THE SPECIAL EXCEPTIONS Penal code also listed out 5 exceptions to the offence of murder under S.300 Should an offence fulfilled any of the elements under S.300, but somehow the incident happens under any of the situation as stated under the special exceptions, the offence should be addressed as Culpable Homicide not Amounting To Murder. For that matter, the punishment will be reduced from that of a murder. ( S. 304: 10- 30 years imprisonment, or/with fine, or both).

10. 5 SPECIAL EXCEPTIONS Provocation exceeding right of private defense sudden fight exceeding public powers Consented murder

11. Al Sarip Bin Ambong v Public Prosecutor The appellant was charged before the High Court at Tawau with the murder of one Muslim bin Sammah by stabbing him with a knife and was convicted and sentenced to the mandatory death penalty under section 302 of the Penal Code. The appellant appealed . Three issues were raised before the court, that is; i. That the learned trial judge erred when he rejected evidence that the appellant sustained injuries ii. That the learned trial judge had erred in law when he had put extra burden on the appellant of the need to tell someone after the incident that he was acting in self defence . iii. That the learned trial judge erred in his finding of facts by inferring that the appellant was the one who took the knife from the kitchen.

12. Held: The appeal was dismissed and the conviction and sentence of the learned trial judge is affirmed. In regards to the first issue, the trial judge did consider the injury, however did not consider it as a defensive wound. For the second issue, it was found out that no such extra burden was placed upon the appellant of the need to tell someone after the incident that he was acting in self-defence, but the evidence credibility was being questioned. And for the final issue, the trial judge was not found erred in his finding that the appellant was the one who took the knife based on circumstantial evidence .

13. MURDER AND ITS PUNISHMENT UNDER OTHER JURISDICTION

14. INDIA After the partition of the British Indian Empire, the Indian Penal Code was inherited by its successor states, the Dominion of India and the Dominion of Pakistan. The Code was also adopted by the British colonial authorities including Malaysia (previously known as the Straits Settlements), Singapore and Brunei. The Code remains as the basis of the criminal codes in Malaysia. Therefore, it is not shocking that S.300 of the Penal Code of India and Malaysia stated on the offence of murder, with the same elements and also the same punishment.

15. Satya Narain @ Satpal vs State Of Rajasthan In this case, the appellant appeal against the decision made by Additional Session Court which sentenced the appellant under section 302 of India Penal Code as he murdered the deceased known as Balram . The appellant’s job is an exorcist and fortune teller . The case begun when the deceased and one of the witnesses (PW1) went to appellant’s house to know about their future and about the evil soul troubling Balram’s wife. It is alleged that accused Satya Narain and his wife, Guddi asked them to bring a bottle of liquor for the sake of the ritual. Thereafter the appellant asked all of them to drink liquor as part of the ritual. After all of them drink the liquor, the appellant and two other accused namely, Guddi and Kalu , tied hands and feet of PW1 and Balram by ropes. Then, all the accused assault both of them repeatedly. The main incident of this case happens when the appellant struck iron rod on the head of the deceased and also twisted his neck which cause the deceased died.

16. Court Held: Court dismissed appellant’s appeal as after examined the accused’s act carefully, the court agreed with the prosecution that the accused had mens rea or intention to commit murder by assault the deceased repeatedly and also twisted his neck.

17. However, according to a 2014 article written by Tariq Ahmad , a legal research analyst, the court in India is seen to be adopting inconsistent view on the punishment for murder after the amendment made to the India’s Code of Criminal Procedure. Previously, the punishment for murder under India’s Penal Code is life imprisonment or death and the person is also liable to a fine. Following the amendment , it was held that in Bachan Singh v. State of Punjab. “the offence of murder shall be punished with the sentence of life imprisonment . The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so .”

18. MURDER & JURISPRUDENCE

19. BASED ON NATURAL LAW Natural law theory is a legal theory that recognizes law and morality as deeply connected, if not one and the same. Morality relates to what is right and wrong and what is good and bad. Natural law theorists believe that human laws are defined by morality, and not by an authority figure, like a king or a government. Natural law requires that we protect people life, therefore murder is contrast with natural law.

20. ARISTOTLE’S VIEW Aristotle says our purpose in life is to use rationality with moral virtue. He stated that actions of murder are not the source of immorality, but the character that commits those actions is. When considering murder, Aristotle would say murder is not virtuous because there is no mean, or intermediate state. Murder is murder whether it is killing one person or ten people. Either way you look at it, it is still wrong. Aristotle give two primary reasons why the act of murder is wrong : first, it is an act of bad character . Second, regardless of how much virtue or vice a person has, an act of murder is an act of vice. Being a murderer is not positive and therefore would not fit into his theory of moral virtue.

21. ST THOMAS AQUINAS’S VIEW Aquinas stated there are four principles of natural law and the second principal forbids us to kill because murder is against the natural law . " Whatever is a means of preserving human life and of warding off its obstacles belongs to natural law"; He stated that God forbids one to kill another because life is God’s gift to man. “Thou shalt not kill men.” However Aquinas suggest capital punishment (death penalty) towards the criminal when it is necessary to protect the rest of society. “if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed in order to safeguard the common good”

22. Relationship with Malaysian law It can be seen that natural law theory has some agreement with Malaysian law for murder’s crime for example : In Malaysian law, the act of murder is also considered as immoral act because it is kind of unlawful homicide. In natural law theory the act of murder is an offence that will cost a person his life which is considered wrong and unacceptable in nature. Malaysian law imposed capital punishment (death penalty) for murder crimes which if a person is found liable guilty for committing murder, thereof he will be liable to death penalty under section 300 of Penal Code. Aquinas suggest capital punishment (death penalty) towards the criminal when it is necessary to protect the rest of society.

23. POSITIVISM

24. L.H.A Hart There is no connection between law and morality Hart insisted that the connection was not a necessary one. Law can still exist without morality. Law can be moral, immoral and amoral. Hart divide the rule into two; Primary Rule and Secondary Rule. Primary rules are generally duty imposing (Criminal law) ‘secondary rules’ are ones which let people, by doing certain things, introduce new rules of the first kind, or alter them. Hart believes a system consisting entirely of the kind of liberty restrictions found in the criminal law is, at best, a rudimentary or primitive legal system.

25. John Austin Austin differentiate the ‘ law as it is ’ and ‘ law as ought to be ’ Existence of law is one thing – we have to follow the stated law Not rejected the importance of morality but it must be separated He view law as the command of sovereign – laid down for guidance Law must backed with sanction – without sanction people will not obey the law Sanction is necessary component to the law

26. NORMATIVE JURISPRUDENCE DEONTOLOGICAL THEORY & MURDER

27. Generally, normative jurisprudence is knowledge or wisdom to recognise what law ought to be in an ideal world. Discussion of normative jurisprudence is what lies behind the law so as to gain a better understanding of what makes the law. in relation to questions like whether the law should be obey, why offender should be punished, what moral or political theories provide a foundation for the law, or is there a duty to obey the law.

28. Webster  deontology is "the theory of duty or moral obligation“. Founder  Immanuel Kant . known as act-oriented approach, thus it has been termed formalistic as its main principle is lies in conformity of any action to some rule or law . Emphasize that right or wrong of an act depending on morality of the act not the consequence.

29. Famous example act of legendary Robin Hood, portrayed as a hero even robbing from the rich and giving to the poor, but according to deontology it is wrong. Stealing is a crime even it is necessity for that moment to do so, it is immoral and wrong.

30. Formulae According to Immanuel Kant there are a few formulae to see any act is right or wrong . An act would become universal law=good act . A good act is a treatment you give to others as you want people to treat you.

31. Formulae & Murder Now we will cross examine these formulas with crime of murder. Can a murder be accepted by universal law? Murder is prohibited around the world. “Any act in such a way that you always treat humanity, whether in your own person or in the person of any other” do a normal person or reasonable man want to be murdered? or to have any family members to be murdered?

32. Deontology & Penal Code Section 300 “except in the cases hereinafter excepted, culpable homicide is murder— (a) if the act by which the death is caused is done with the intention of causing death; (b) if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; (c) if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or (d) if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid”

33. The ACT of hurting people with intention to kill, to cause bodily injured and can cause of death is more likely an immoral act. the theory of deontological is set in Malaysian law for murder crime. Deontological theory is based on act. Thus crime of murder under S. 300 (intention to kill, to cause bodily injured and can cause of death) in Malaysian Penal Code is accordance with deontological theory & formulas which is crime of murder is immoral act.