RIGHT OF DEFENCE

A person is not expected to silently bear and bite his lips whilst an offender is causing harm to his person, his loved ones or his property. Everyone oof us has the right of defence to his person and his property.

This right is enshrined in our Penal Code. It is there to allow us to stop harm being done to ourselves, our loved ones and our property. If someone punches us we have a right to stop his punches and to retaliate so as to prevent being further harmed. This right does not extend to punishing an offender - for that is the duty of the court. What we oftentimes read in the papers is thiefs being assaulted by those arresting him to 'teach him a lesson' for committing the offence. This is not exercising the right of defence as the fear of harm had passed when the thief is caught. The persons arresting the thief are themselves committing an offence.

The underlying principle of this right is that of 'reasonableness'. Firstly it must be reasonable to exerrcise the right - ie there must be a harm that this right is intended to prevent and secondly one cannot use more harm than is necessary to prevent the harm that is feared. Thus this right does not entitle your to shoot someone who steals your car.

The right of defence surfaces when one is discussing criminal law, however the same right exist and is acted upon on a regular basis outside of criminal law. When you are defamed, or your copyright is infringed or someone is spreading lies about you which will affect your business or employment, you have the right to go to court to stop this harm from happening or continuing. This is usually not viewed as exercising the right of defence, but essentially it is.

Justice dictates not only that there is a right of defence but that everyone be given the opportunity to defend himself. The opportunity is given in a criminal matter when an accused is brought to court and he is given the opportunity to know the accusations and evidence against him so that he can fully defend himself. When someone defame another, the person defame can take the former to court where there are mechanism in place to allow him to know the full extant of the lies that had been spread about him and to give his version of events.

However what has caused me some concern is when a third party had acted upon the lies spread about you, whilst you may have caused of action against the person who spread the lies, this would be of no consequence if a third person, especially if he is your employer, had acted upon the lies. If your employer acting upon what another employee had said about you, had terminated you or transferred you to a dead end job, provided the employer had acted properly in following procedures, there is not much you can do about this.

In Islam, these lies are labelled as 'fitnah' and is is said that spreading 'fitnahs' is worse than eating the carcass of your friend. It is also called upon everyone to afford an opportunity to those affected to know what is being said of them and to hear their explanation or defence to this accusation. This is what justice dictates. Unfortunately this is not reality, there are too many who will throw the proverbial stone and hid their hands thereafter.

De Novo

As this year draws to an end and a new one begins, perhaps to post something on 'De Novo' - starting afresh, is apt.

The phrase de novo is usually used where a trial that had proceeded in part has to be started all over again because of a fundamental flaw. In the movies which more often than not feature the American system of law, this is referred to as a mistrial. This is correct in the context it is said because the first trial was abandoned because it was a mistrial and a fresh trial or trial de novo is ordered.

Brunei had a major taste of this when the protracted corruption trial against the former Minister of Development had to be abandoned as the presiding Judge was sickly and had been adjourning the hearing on many occassions leading to concerns that the trial cannot be completed before him. A trial de novo or a fresh trial was ordered before another judge. This must have been a costly affair for both the prosecution who had engaged a Senior Counsel from Hong Kong, and the defence.

Talking about fresh start, one important piece of law that Brunei is missing is the equivalent of the Rehabilitation of Offenders Act of England. In this Act, previous convictions of a person will be disregarded in passing sentence if these convictions were more than 7 years old. What it means is that a person gets a clean slate or a fresh start once every 7 years not only if you are reconvicted, but also for the purpose of answering the question of whether you have a previous conviction when seeking employment, etc. With this Act you can lawfully say that you do not have any previous conviction if the last one you had is more than 7 years old.

More importantly in Brunei there are many statutory provisions that makes it mandatory for the court to impose a minimum sentence when the offender committed the same offence again. For example a person who is convicted a second time for careless driving, a relatively common offence, will be mandatorily disqualified from driving for 12 months; a person who is convicted a second time for consuming drugs will be mandatorily sent to prison for 3 years.

Whilst the intention to deter a person from reoffending is laudable, the imposition of these mandatory minimum sentences fails to take into account the age of the last offence. The last time you had been convicted of careless driving may be when you were a brash 20 years old. Now when you are pushing retirement, more than 35 years on, should you be disqualified from driving if you get convicted of careless driving again? Surely the just way of looking at it is that you have been driving carefully for 35 years and not to take an act propelled by the raging hormone of your youth to haunt you forever.

The Courts in Brunei had taken it upon themselves to disregard offences more than 7 years old in passing sentence. Whilst ththe courts has wide discretion in passing sentences, to say that the courts has this discretion in the face of clear statutory provision to pass a minimum sentence when there is no express provision to disregard old conviction, may be outreaching itself, although the intention behind it is commended. It is for the legislature to pass a law allowing for convictions to be 'spent'.

It is important that everyone be given an opportunity to start afresh - a very heavy burden of a conviction is the inability to ever work for the government and most major companies who will do a background check and uncover your conviction no matter how minor it was and how long ago it had been. Without a Rehabilitation of Offenders act, a convict can never be rehabilitated and start afresh. De novo denied.

The Bent Rib

"Vir et uxor consentur in lege una persona" - A husband and wife is considered in law to be one person. This is the underpinning maxim of the common law of coverture.

The idea that women is less than men has biblical roots. Women, it is said in the Bible, was made from the bent rib of Adam.

This emphasises two things - firstly that women is but a small part of man,and worse, they are made from a 'bent' part of men, meaning that they can never be just and fair.

It is also narrated in the first book of the Bible, Genesis, that Satan embodied himself in the guise of a serpent and made Eve not only to go against the command of God but also to persuade Adam to do likewise in eating the apple from the tree of knowledge. So womanhood from this day forth had been painted as gullible for succumbing to Satan's deception and for being scheming for persuading Adam.

The majority of muslims believe that the above depiction of Adam and Eve are similarly found in the Quran. I cannot agree with this. The same event as related in the Quran did not paint Eve as the temptress. The guilt was said to be borne equally by them (read Quran 07:019 to 07:026).

At Quran 20:120, it was related that Satan tempted Adam which made both of them transgress God's law. There is also no account of Eve being made from Adam's rib in the Quran.

But l digress....

It is from this collective memory, albeit not well anchored in scripture for the muslims, that injustice against the female sex springs from. Religion and customs had a heavy hand to play in the propagation of this injustice, which injustice invariably find itself into the law of the land.

Examples abound. In Brunei a female Muslim judge cannot sit in judgment where the accused is a muslim. The logic behind this escapes me. Is a female muslim more emotional and unlikely to give sound judgment if the accused is a muslim? Or having accepted that females should generally not sit in judgment, that the life of an unbeliever is of less value that it does not matter that he gets the less able judge? Either way it is discrimination - either agains womankind or religious discrimnation.

The Chinese has this customs that the property of a Chinese man dying without a will goes to only his sons. This has worked its way into our law in section 58 of the Probate and Administration Act, Cap 11.

It is in the administration of the civil service that one can see mark discriminations against the female sex. There had been improvement in this area, but progress had been slow.

Discrimination against females as with all discrimination is generally founded on fear that those discrimnated against may in fact be better than us, driven by our own lack of self confident.

Femme Fatalism - Doctrine of Coverture

The complaint is females are given the short end of the stick in a Syariah Court. It is not my intention to defend this allegation on a purely abstract or academic line. The use of the verse in 2:282 of the Quran as a basis that women are less worthy than men is short sighted and do not take into account other verses, like 24:6-9. Where l am coming from is the practical application of Syariah laws in Brunei.

Admittedly there are weaknesses in the practice of Syariah laws in Brunei. It does not help that we have a dual system of justice where the Syariah courts had for more than a hundred years been made out to be a system predominantly for marriage and inheritance dictated by the political agenda of the colonial masters. The shackle of colonisation had been broken, but the shackling had caused the Syariah system to be years behind the English system. One area where there is need for greater improvement is assistance to the female sex. This will be elaborated at another time.

The implementation of syariah laws is adverse to womenhood, however the English Common Law fairs worse historically for it had enshrined in it the doctrine of coverture which made women non independent human beings - denying them the right to sue or be sued, the right to independently enter into a contract or make a will and which virtually turn over all of the women's property to her husband upon marriage. A married woman thus lost all rights to be an independent being because of marriage because of this doctrine of coverture.

A little known fact is that it was only on the 1st August 1999, that the rights of married women was formally recognised by the legislature of Brunei with the passing of the Married Women Act. Chapter 190. Section 6 of this Act states what many thoughts was a given to all women:

6. Subject to the provisions of this Act, a married woman shall —
(a) be capable of acquiring, holding and disposing of, any
property;
(b) be capable of rendering herself, and being rendered, liable in
respect of any tort, contract, debt or obligation;
(c) be capable of suing and being sued in her own name either
in tort or in contract or otherwise and shall be entitled to all remedies
and redress for all purposes; and
(d) be subject to the law relating to bankruptcy and to the
enforcement of judgments and orders,

in all respects as if she were a feme sole.

Justitia nemini neganda est

'Justice to be denied to no one' - that's what the latin phrase means. Lawyers had continued the tradition of the scribes of old (which the priests and ulamaks continue to this day) of mystifying everything in a cloak of a foreign language, preferably a dead language - be it Latin or Sanskrit or the not so dead language of Arabic for the ulamaks.

The sense of importance when grand sounding although incomprehensible words passed the lips of lawyers and the likes stroke their egos and by way of warped logic justify to themselves the fees they charge....

Back to the topic ... can we say that anyone who has a need to turn to the court will have access to it? Sadly reality may not meet the lofty aspirations we hoped for.

Anyone charged with a capital crime - meaning that the punishment for the crime is death - will be given a lawyer to act for him. This is the available legal aid. The problem with it is that it is not far reaching enough. It assume for one that being sentence to death is the ultimate punishment. Is being locked up in a small cell for the rest of your life a lesser punishment?

The hope of giving justice to all is idealistic, the reality of life is that justice can be denied at every turn - from the first policeman who called a suspect for questioning, to the money driven lawyer who took on the defence till finally to the judge who decide not to believe the suspect and send him to be hanged. This is such a huge topic that it is virtually inexhaustible. It is unfortunately one of my hobby horses and undoubtedly l will bore you with many postings on this.

To digress, how is a judge able to conclude that a person is lying just because he has heard this man giving evidence? You get lied to by people you had known for years without realising it, but a judge will suss up whether a witness is lying from a couple of hours of hearing him give evidence. Which is why in Islam, a judge is said to already have one foot in hell!! A heavy price indeed.

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A judge was annoyed to find that his car wouldn't start. He called a taxi, and soon one arrived at his house.

Climbing in, he told the driver to take him to the halls of justice. "Where are they," asked the driver.

"You mean to say that you don't know where the courthouse is?" asked the incredulous judge.

"The courthouse? Of course I know where that is." replied the driver. "But I thought you said you wanted to go to the 'halls of justice.'

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In limine

At the outset, guess l should say that nothing that l post in this blog must be taken as legal advice - for that privilege you must have the unenviable experience of consulting and paying a qualified lawyer, but read on and be warned:


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A new client had just come in to see a famous lawyer.

"Can you tell me how much you charge?", said the client.

"Of course", the lawyer replied, "I charge $200 to answer three questions!"

"Well that's a bit steep, isn't it?"

"Yes it is", said the lawyer, "And what's your third question?"

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This is but a personal rambling of all things legal - the norms and strictures that others try to impose on us.

God gave Moses only 10 commandments, but men must outdo God in having voluminous laws passed!

With that l shall ponder on a subject matter to ramble upon.....