Abstract
This chapter provides a contemporary and critical overview of Malaysia’s criminal justice system and of government responses to the extent of crime in modern Malaysia. It includes sections on contemporary crime data, prosecution and conviction rates and levels of incarceration. It also details a series of reforms, post 2005, in Malaysian criminal law, procedure, evidence and criminal justice administration, and places those reforms in their historical, social, political and cultural contexts. In addition to shining a light on the values and interests underpinning the criminal justice system, this chapter argues the need for sustained government support to establish criminology as an academic discipline in Malaysia in order to help guide and review the need for future reform.
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Notes
- 1.
Police officers of at least the rank of Inspector are allowed to prosecute (Criminal Procedure Code, section 377(b)(2)). In Sabah and Sarawak, especially in the more remote areas, it is not unknown for senior police officers to conduct prosecutions for less serious offences. In addition to the police, prosecutors can also be from other enforcement agencies such as Customs and Excise, the Securities Commission, the Central Bank and the Anti-Corruption Agency; see Ariffin, Azmi (2001).
- 2.
Customary law has no practical operation in Peninsular Malaysia or East Malaysia (Sabah and Sarawak), other than in matrimonial disputes, administration of estates, property and land rights; see Hamzah and Bulan (2003). The Ninth Schedule, List II, to the Federal Constitution, in addition to matters touching on ritual worship, Islamic trusts and family laws, provides that States have powers to enact legislation for the “creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regards to matters included in the Federal List”. List II adds that the Shariah Courts only have jurisdiction over Muslims and are subject to federal law.
- 3.
Act 355 (section 2). Section 2 was last amended in 1984 by the Muslim Courts (Criminal Jurisdiction) (Amendment) Act 1984, Act A612.
- 4.
This refers to punishments that have been specified in either the Qur’an or Sunnah and which mandate flogging, amputation, stoning or death depending on the particular offence and whether the evidential threshold (which is high) has been reached. See further Basiouni (1982).
- 5.
Jabatan Agama Islam Selangor, or the Department of Religion of Islam for Selangor.
- 6.
The notorious case of Kartika Sari Dewi Shukarno in 2009 was one of a number of cases in which state Islamic authorities have sought to make an example of those transgressing Islamic norms. See Wall Street Journal, 23 August 2009, http://online.wsj.com/article/SB125097405997351597.html (viewed on 28 September 2011).
- 7.
The extent to which the Federal Government should allow the opposition state governments to implement the so-called hudud laws is also an ongoing debate; see Today, 25 September 2011, http://www.todayonline.com/Hotnews/EDC110925-0000240/PM-pledges-no-Islamic-law-in-Malaysia, viewed on 28 September 2011.
- 8.
Whether the Police should assist the religious authorities to enforce Islamic law at all because religion is fundamentally a “state” as opposed to a “federal” matter, remains a problem for the Police (I am grateful to Dr. Khairil Azmin Mokhtar for this point). Given that the religious authorities should be better trained in “religious” matters, one might have thought that enforcement should only be the job of religious officers.
- 9.
Police Act 1967, section 4.
- 10.
See Police Act 1967, Part XII. However, this now needs to be qualified in light of the coming into force of the Enforcement Agency Integrity Commission. See further, below.
- 11.
Former Prime Minister of Malaysia, Tun Mahathir Mohamed, has vigorously asserted in his recent autobiography, that the Police are independent and on the occasion of Operation Lalang in 1987, it was he who had to follow their advice; see Mahathir Mohamed (2011, 551–558). Also like the Armed Forces, they are technically independent by their being placed under the authority of the Malaysian King.
- 12.
Criminal Procedure Code, section 376(1).
- 13.
I am grateful to Dr. Khairil Azmin Mokhtar for this point.
- 14.
Inspector General of Police Standing Order, para D203.
- 15.
See further the evergreen theories of Emile Durkheim and Robert Merton on “anomie”. For a modern review, see Bernard et al. (2009), Vold’s Theoretical Criminology, Chaps. 6 and 8.
- 16.
Given the outroar in the British press in 2011 on publication of statistics that seemed to indicate that the conviction rate for rape offences in England and Wales was 6% (when a more detailed analysis would have shown that the rate was in fact 58%), the reluctance of the Malaysian AG’s Chambers to publish more detailed data is perhaps understandable.
- 17.
These figures are not mentioned in previous Annual Reports of the Prosecution Division of the AG’s Chambers; see http://www.agc.gov.my.
- 18.
In August 2010, the Malaysian Bar Council reported that there were 508 state prosecutors across the country (see Bar Council of Malaysia (2010). If the figures were comparable in 2009, this would have equated to an average of 27 cases per prosecutor over the year.
- 19.
In addition to these sentences, Malaysia also has a mandatory death penalty for murder (Penal Code, s 302), drug trafficking (Dangerous Drugs Act 1952, s 39B(1)), discharging a firearm in the commission of a scheduled offence (Firearms (Increased Penalties) Act 1971, s 3), offences against the person of the Yang di Pertuan Agong (Penal Code, s 121A) and offences relating to firearms, ammunitions and explosives (Internal Security Act 1957, s 57(1)). There is also a discretionary death sentence available for kidnapping (Kidnapping Act 1961, s 3) and a few other offences.
- 20.
Negeri Sembilan, Pahang, Perak and Selangor.
- 21.
The Penal Code (Amendment) Act 2006, Act A1273, which came into force on 7 September 2007.
- 22.
In the case of the wife who is “nushuz” (disobedient, i.e. she has not complied with her Islamic obligation), the husband does have the right and the power to reprimand and physically chastise her (without causing harm and not in anger) if this is not the first time she has refused (cf Abu Ishaq al-Shirazi 1983, 170). The purpose of exercising this power, however, is not so that he may have sexual intercourse but rather as part of his individual obligation to Allah of bidding the good and prohibiting evil and to uphold the responsibilities imposed upon the marriage partners under the Shariah (Abu Ishaq al-Shirazi, ibid, 169). Malaysian religious leaders also warned against having a technical “marital rape” offence as it would be contrary to Shariah; see Norbani Mohamed Nazeri, ibid.
- 23.
See note 17, above.
- 24.
See Abdul Razak bin Baharudin & Ors v Ketua Polis Negara & Ors & Another Appeal 1 MLJ 320 [2006]; Sejahratul Dursina@Chomel bte Abdullah v Kerajaan Malaysia & Ors 1 MLJ 405 [2006].
- 25.
Criminal Procedure Code (Amendment) Act 2006, s 27.
- 26.
See The Star, “Foreign Prisoners to Join Parole Programme”, 28 April 2010.
- 27.
See The Prison (Amendment) Act 2008, Act A1332, Part 1Va.
- 28.
Parole is not available for a number of sex offences, housebreaking causing death or grievous hurt, as well as those who plant or cultivate dangerous drugs; see Prison (Amendment) Act 2008, Fourth Schedule.
- 29.
In 2011, there were only 310 parolees; see Gunaratnam and Palansamy (2011).
- 30.
The system has strict vetting procedures overseen by a Parole Board and requires all potentially eligible applicants to have successfully completed an “in-house” rehabilitation programme; see Prison (Amendment) Act, 2008s 46E.
- 31.
The Public Prosecutor can now demand police reports at any stage of an investigation (s 120 of the CPC). See also sections 107 and 107A that oblige police officer to submit reports to the Public Prosecutor within specified time periods following requests by the person who first lodged the police report. This is following reforms from other jurisdictions. In England and Wales, for example, since the publication of the Glidewell Report in 1998 and then the Auld Report in 2001, the Crown Prosecution Service has been cooperating more closely with the Police, especially in the charging process; see Jehle and Wade 2006, 177.
- 32.
See “The Malaysian Insider”, 15 January 2011, online available at http://www.themalaysianinsider.com/malaysia/article/a-g-plea-bargaining-to-be-implemented-in-three-months/html, accessed 15 October 2011. See also Anbalagan (2011).
- 33.
See “Appellate Court give nod for judges in plea bargaining”, Bernama 30 September 2011, accessed from http://www.theedgemalaysia.com/index.php?option=com_content&task=view&id=193803&Itemid=27, and viewed on 15 October 2011.
- 34.
The Malaysian courts have now overturned previous case authority that prohibited a judge from indicating in a pre-trial conference the sentence he or she would be minded to give in relation to this particular accused and on the facts of the case. However, the court retains a discretion to refuse any potential “deal” forged between prosecution and defence counsel; ibid.
- 35.
For the experience in England and Wales, see further Baldwin and McConville (1977), Negotiated Justice, London, Martin Robertson.
- 36.
Criminal Procedure Code, section 272B.
- 37.
Section 3.
- 38.
Section 4.
- 39.
Section 6.
- 40.
Section 5. While the judge is specifically empowered to issue such directions, he or she is contingent upon the availability of the technology within particular courts. Not all courts in Malaysia, especially outside Selangor and the Federal Territories, have been modernised, so judges’ hands may be tied in practice. See further Mustaffa and Salleh (2010, viii).
- 41.
Section 8.
- 42.
Section 14.
- 43.
Section 10.
- 44.
Act 696.
- 45.
The Act allows relocation within peninsular Malaysia only, specifically excluding relocation in either Sabah or Sarawak; section 13(3).
- 46.
Section 9. For further discussion on the Witness Protection Act 2009, see Kaur (2011).
- 47.
Enforcement Agency Integrity Commission Act 2009. The Act came into force in April 2011.
- 48.
See Tan Boon Wah v Datuk Seri Ahmad Said Hamdan & Ors (2010) (Federal Court) cited in The Star, 21 May 2010. This decision upheld the Court of Appeal’s literal interpretation of section 30(1)(a) of the MACC Act 2009 that “day-to-day” questioning did not prohibit questioning out of office hours and was not subject to rule 20 of the Lock-up Rules 1953. See further Tan Boon Wah v Datuk Seri Ahmad Said Hamdan & Ors [2010] 4 AMR 312 (CA), [2010] 6 CLJ 142.
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Farrar, S.A. (2013). Crime and Criminal Justice in Malaysia. In: Liu, J., Hebenton, B., Jou, S. (eds) Handbook of Asian Criminology. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-5218-8_16
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