Friday, December 16, 2005

Penal Code 121

Bis Millah Hir Rahman Nir Rahim

This paper attempts to look at the repercussion on the ruling of the Federal court judgment on the three if we may call a precedent case study on the definition of our constitution as per cited in the Federal Constitution.
No legal dispute on the question of the conduct of the trial process by our utmost trusted Yang-Yang Arif. We as the upholder of principle of Rule of Law respect the decision chosen for us by the selected corum of panel by Yg.Amat-Amat Arif.
In principle we agreed on the decision made.
We merely wishes to add in some rough if not finer points of the Statutes which being argued by the respondent or the appeallet in the cited case.

This paper will focus on the Federal Case of Mohd.Amin bin Mohd Razali and 18 others (1) popular known as the Al’Maunnah Trail 2002 as for now on will be referred to as Al’Maunnah, Kamariah bte Ali and 3 others (2) it will be referred to Kamariah Ali and Jamaluddin Bin Othman v KDN (3). Except in Jamaluddin, which is a High Court judgment and cited in 1988 but the other two are Federal cases, recently cited and are binding.

To understand the argument posed, we have to interrelate 4 main statutes argued:
1) The Federal Constitution Article 3,Art.8 and Art.11, Art 121 and Art.149 (4)
2) Essential Security Cases Regulation 1975 (ESCAR)
3) Internal Security Act 1960
4) Penal Code (Act 574) Section 121.

3 different cases, 3 different facts, which lead to the act of the offence and leads to the arrest able offence.3 different legal argument on points of law and 3 different charges were brought together by the Attorney General Chamber.

I purposely pick them up to highlight the changes and challenges ahead of us battling with legal contemporary issue .The future is unpredictable, unless we ponder and observe the current world scenario under Microscopic lenses and understood the dominating theory played by the world Supremes hence the argument posed would not be fully understood in legal context.
As a conclusion, what should be done priory to Article 121 of the Federal Constitution?
How do we perceive wagging a wag against the YDPA in broader context?
Should war be limited to the conventional method? Which is a bigger war a physical or mental war?
Does it mean a person with a baseball cap slinging a SLR, M-16 or an AK 47 revolting against the system set by the norms of the society or should it be extended to the unlimited definition?
This paper is not written with any political objective and lays it rest, solely as thought provoking academic perse.
1.Mohd.Amin bin Mohd Razali Dan 18 yang lain (Perayu) v Pendakwa Raya (Responden)
Federal Court (Criminal Jurisdiction) Bil: 05-(02-20)-2002(W)


1.Ahmad Fairuz Sheikh Abdul Halim, CJ (Malaya)
2.Steve Shimp Lip Kiong, CJ (Sabah & Sara wak)
3.Abdul Malik Ahmad, FCJ
4.Siti Norma Yaakob, FCJ
5.Haidah Mohd Noor. FCJ

2. Kamariah Bte Ali, Mad Yaacob Bin Ismail, Daud Bin Mamat and Mohamed bin Ya (Perayu) v Kerajaan Negeri Kelantan dan Pengarah Penjara, Pengakalan Cepa,
Bil: Rayuan Sivil No. 01-11-2002 (D) Hingga 01-14-2002 (D)

1.Ahmad Fairuz bin Dato Sheikh Abdul Halim KHN
2.Hj.Mohd Noor BIN Hj, Ahmad FCJ
3.Rahmah Bte Hussain FCJ
4.Pajan Singh Gill, CJ (Malaya)
5.Richard Malanjum CJ (Sabah & Sarawak)

3. Jamaluddin Bin Othman v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor, High Court (Kuala Lumpur)-Federal Territory Criminal Application No CR 54-18-88. 28th.October 1988. cited :Anuar, J (as he was then)

4. Federal Constitution (as at 5th.November 2003) International Law Book Service.


The Sauk incident remains a historical landmark on Malaysian political history, an act of aggression against the state. It illustrate to us how a group of 20 men managed to penetrate into an army camp posing as Army personnel trespass an Army camp and confiscate sizeable weapons and ammunition. From there on the Al’Maunna Group became public enemy No.1.The one week camp of Bukit Jenalik, Sauk, Perak automatic find it way in world’s atlas (1).
It remains an unanswered question mark, what was the actual objective of the Al’Maunnah Group. It started off as a small organization registered as Self-Defense Club, somehow due to the charismatic, persuasive leadership of Mohd.Amin bin Mohd.Ghazali over others the so call “Silat Club” became entangle with arguable subjective idealism.
The actual final objective of the Al Maunnah as a Society has never been question.
Is Al’Maunnah a Society with a political objective? From the material fact given, it hasn’t legally registered itself as a political organization with an Article of Memorandum or a Society Constitution, which is part of the requirement for any legally formation of society or with the possession of the weapon seize could it be that it has other objective beneath its intention. Using the weapon seize to commit multiple criminal offence. It is similar situation with the line up of any “MAFIA” set crime organization for example the “M16 Gang” or “The Mamak Gang” (3)

Multiple reasons why organized crimes exist, it is not the intention of this paper to indulge in detail reasoning for the mushrooming of such criminal activities. It is better leave it to Criminal Sociologist. The argument posed within the Constitutional framework is, why are they been charge under Penal Code 121 by the Attorney General Chamber? Agreed, it is within the jurisdiction of the Attorney General and the jurisdiction for trail of offences under Penal Code and others Law are enlisted under the Criminal Procedural Code 1976 (4)

‘All offences under the Penal Code shall be inquired into and tried according to the provision hereinafter contained, and all offences under any other all shall be inquired into and tried according to the same provision: subject however to any written law for the time being in force regulating the manner or place of inquiring into or trying such offences’

Section 121 of the Penal Code consist ‘Of Offences Against The State’

“Waging or attempting to wage war or abetting the waging of war against the Yang
diPertuan Agung a Ruler or Yang DiPertuan Negeri
It concludes; Who ever wages war against Yang diPertuan Agung or against any
Rulers or Yang DiPertuan-Yang DiPertuan Negeri, or attempts to wage such war,
or abets the waging of such war, shall be punished with death or imprisonment
for life and if not sentence to death shall also be liable to fine”(5)

Section 121 (A) offences against the Yang DiPertuan Agung’s person.

“Whoever compasses, imagines, invents, devises or intends the death of or hurt to or imprisonment or restraint of the Yang diPertuan Agung or any of the Rulers or Yang diPertuan Agung or any of the Yang DiPertuan Negeri, their heirs or successor, shall be punished with death and shall also be liable to fine” (6)

Such was the grave offence if committed and found guilty by the country judicial process. It should be noted that the Hukum Kanun Melaka being the principle source of legislation when the Malacca Sultanate Empire was at it prime has the motion of the ‘Daulat dan Durhaka’ i.e. loyal and disloyalty and the repercussion for any eventuality if the offence commit is absolute death to the traitor and his immediate family (7).

Throughout English history, the legal battle by traitor and ‘All the King’s Men’ are well noted. The Rebel of Oliver Cromwell toward the King Edward is perhaps the most decorated in English history books. Holding the King’s Realm was the utmost responsibility for any citizen of the state, failing to do so, punishment by being beheaded was executed. As it happen to Sir Thomas Moore, Sir Walter Raleigh, Oliver Cromwell and his St.Alban rebels.

Up until now the best illustrate English modern case on the question of waging a war against the state, which receives most public attention, is best illustrated in William Joyce v DPP (8).
In Al’Maunnah, the facts and legal argument posed, has some similarity to Joyce .The only different in Joyce, no lives was at stake or being killed but his action by propagate and instigating Nazism by merely being a Radio Announcer (DJ) contribute to the war between great Britain and Germany. The popularity of “Lord Haw-Haw” Radio propaganda by Joyce against the British government during the war was interpreted as being the action of wagging a war against the King’s Realm.

His defense was how could an alien be wagging a war against the King’s Realm, since the offence was committed in foreign land i.e. Germany and from the material fact given, he is merely a neutral citizen by virtue of being born in the USA and migrate to Ireland at the age at 3,by virtue of being born in USA, he argued that it do not constitute being a British subject and he is not under the protection of the King’s Realm on a foreign land. However both appeal court and the House of Lord perceive otherwise and up hold the decision of stay on execution. The decision was reaffirm in recent In re P (G.E) (An Infant)(9) and R V Arrowsmith (10)

Following Mohd Amin did he or did he not intend to wage war against the Yang diPertuan Agung? It is a subjective question, on his actual attention for seizing the military weapons that belong to The Malaysian Royal Army. From a legal perspective the real intention i.e. the absence of “mens rea” to wage war as stipulated in Sect.121 was questionable.
Is wagging a war to the Yang diPertuan Agung was his actual attention, that he wants to wag war against the YDPA, that he acts in order to wag war against the YDPA.
This brief definition is best descript in Hancock and Shankland (11) Nedrick (12)
It defines intention as
a) A result is intended when it is the actor’s purpose
b) A court or jury may also infer that a result is intended, through it is not desire when
i. the result is virtually certain consequence of the act
ii. the actor knows that it is a virtually certain consequences. (13)

Along the judgment, there was never been any cited the actual intention for the seizure of the weapons. Hence, should Section 121 been used as per charge sheet remain questionable? Yes, a capital crime has been commit and no dispute about it but to charge under 121 of the Penal Code not only the actual attention of the Al’ Maunnah questionable but it raise another doubt on the administrative of justice.

Firstly, Malaysia, blessed with peaceful, politically stable and economic sound performance is not at war with any other nation neither do any war mongering among us Malaysian. How is it possible by merely illegal trespassing in a Military camp and seizure of the weapons one could be charge for wagging a war against the YDPA?

Unless the immediate seizure of the whole military camp with a total control over the main communication center and strategically logistic support and able to neutralize the whole army camp personnel to be on his side of the struggle hence we could argued it is wagging a war or the very least instigating to induce others to joint efforts to wag war against the YDPA.
This could be found in any classic coup d’ete from a civil government to a military junta such as it happens in Pakistan when Gen Musharraf over throwing Sheriff’s civil government or at presents, the coup d’ete in Burma. How ever in Gen Musharraf case it was not totally seen as a coup d’ete because his action was back by the Pakistan Members of Parliament. Does that happen in Al’Maunnah? From the facts given it is “No”. It was merely a ‘hear say’ evidence suggested by the prosecution team.

The linkage for the bombing of the Carlsberg and Guinness factories, the attack on Hindu Temple at Batu Caves and the attack on the electricity cable tower and installation belonging to Tenaga Nasional Bhd. to link the chain of event with Al’Maunna has no merit because no concrete evidence was found as per orbiter of Yg.Arif Abdul Malik Ahmad FCJ (14).

It was merely on speculation by the prosecution to link the chain of event to enforce their opinion that the Al’Maunnah organization is a radical movement with objective to overthrown the present government of the day. Such a tabloid defense facts by the prosecution team is merely lame to be accepted by any reasonably intelligent legal fraternity. Until it is proven that Al’Maunnah is a political organization whose main objective is to set a government and to promote anarchy in this beloved country and Mohd.Amin as the President of Malaysia thus we could agree Section 121 of the Penal Code apply. Applying Section 121will open the floodgate to the flaws of inaccurately of administrative of justice.
Malaysia has a colorful political history. We do tumble along in achieving a just, equitable and progressive nation. To understand this argument, we have to look within us the reasons for the introduction of the Internal Security Act 1960,Essential Security Cases Regulation (ESCAR) 1975 and Penal Code in particular reference to Sect.121.

If sect.121 of the Penal code was used against the Al’Maunnah, from legal justice view, bearing in mind the independency of the judiciary is maintain and uphold by the government of the day, “why don’t the Malayan Communist Party which is active in their hey days of 1948 till the formalization of the Peace treaty in 1995 over 4 decade of revolutionary visionary. A vision for ‘The Peoples Republic of Malaysia’, instigated, propogated and rebel for by its Central Committee members whom are still alive up until today not charge under section 121 of the Penal Code?”
Wagging a war against the YDPA? Ample evidence of the arm struggle by the MCP was beyond redemption and was written very bold and is a black hole in Malaysian History.

Those living during the Chin Peng era will remember the unforgettable chain of events in which the horror of treacherous free killing of innocent life and destruction of public property is part and parcel of MPC arm revolution and was a daily occurrence.

Do Al’Maunnah have such political ambition and vision? Boldly, does he intend to destroy Parliamentary Supremacy system to our beloved Malaysia? Or is Al’Maunnah event similar to Guy Faulk heroic attempt, when he intends to burn down the English Parliament during the 14th. Century. If he does, sect.121 applies.

In comparison to Jamaluddin bin Othman v Menteri Hal Ehwal Dalam Negeri Malaysia (15), the applicant applied to the High Court of Malaya the wit of Habeas corpus against his detention pursuant to an order made under s 8 (1) of the Internal Security Act 1960.The ground for detention was given due to his activity in practicing and propagating Christianity as per cited in:

Alasan-alasan untuk Tahanan (16)
‘Bahawa kamu, Jamaluddin bin Othman @ Yeshua Jamaluddin, sejak tahun 1985 hingga ditangkap pada 27hb.Oktober 1987,telah melibatkan diri dalam satu rancangan untuk menyebarkan agama Kritian dikalangan orang-orang Melayu.Kegiatan kamu itu boleh mendorong kepada timbulnya suasana ketegangan dan permusohan diantara masyarakat Islam dan Kristian dinegara ini dan boleh memudharatkan keselamatan negara”

The applicant argued that the detention order is inconsistent with Art.11 (1) of the Federal Constitution, which guarantees freedom of religion to it citizen. He also argued that such activities were not prohibited under Art.149 of the Federal Constitution and thus detention his detention illegal. It is inconsistent with Art 11 and therefore invalid.

Held: Allowing the appeal, the learned Judge posed that under Art.149 of the constitution, any provision in the ISA designed against action prejudicial to national security is declare valid notwithstanding that it is inconsistent with any provision of Art.5, 9 or 10 of the Constitution. It is therefore clear that any provision in the Act, which is inconsistent with the provision of Art 11 of the Constitution shall not be valid.
The trail judge added although S.8 (1) of ISA give the power to the minister concerned to detain a person for preventive measure from acting in any manner prejudicial to the security of the nation, the minister has no power to deprive a person of his right to profess and practice his religion which is guaranteed under Art.11 of the Constitution.
It was noted by the learned Judge, that the control or restriction of any religious doctrine or belief among persons professing the religion of Islam of a Muslim fall under jurisdiction of the State Islamic Authority. At the relevant time there was no such law prohibiting such propagation. It is settle in law that any inconsistency of law in the ISA 1960 which infringe Art.5, 9 or 10 of the Constitution of a person is invalid (16)

Should the situation arise now, what could be said to a Malay born Muslim whom later in life decided to convert to any religion or following any cult movement and like any other missionary movement the propagation and instigation of religious doctrine to the society? It is the objective of any cult and religious movement to recruit new membership and the increase in number could be interpreted as a threat to Muslim population and the country socio-political stability.
It was an interesting obiter statement by Allahyarham Tun Mohd.Azmi SFJ (As he was then) in Mohammad Habibullah bin Mohammad v Faridah bte Dato Talib (18)

“The very fact that people professing religions other than Islam are constitutionally guaranteed the right to practice their faith in peace and harmony, must necessarily mean that Muslims are also similarly guaranteed the right to practice Islam in the like manner.
Being the religion of the Federation, Islam has a special position in Malaysia”(19)

Do ISA 1960 applicable or could the very same Art.11 (1), the guarantee of religious freedom and it practices it content is constitutionally right?
In arguing this point we have to look at the purpose objective and the Golden and Hidden Rule of Statutory Interpretation when interpreting Article 3 of the Federal Constitution.

Art.3 (1) cited: ‘Islam is the religion of the Federation but other religion may be practiced in peace and harmony in any part of the Federation and
Art.3 (5) stipulate ‘notwithstanding anything in this Constitution the Yang diPertuan Agung shall be the Head of the Religion of Islam in the Federal Territories and for this purpose Parliament may make law for regulating Islamic religious affair and for constituting a Council to advise the YDPA in matters relating to the religion of Islam”

Following the hidden rule of the statutory interpretation of the protection of Islam as the religion of the State and the YDPA as the Supreme Head of the religion of Islam is well protected against any aggression, subversion or propagation against him, his government, his agent, his Muslim subject, his heir and his state by instigating any Anti Islamic activities. Thus, could it be that if such a new situation arise Penal Code s.121 could be used because any aggression instigation against His Majestic official religion of the state is an act of aggression against his Majestic and thus it is wagging a war against the YDPA as defined in s.121 of the Penal Code (Act 574).
It should be noted, that the code also includes the protection of the State Rulers and the heir and agents and the Yang DiPertuan-Yang DiPertuan Negeri. Since Islam is under the jurisdiction of the State Rulers any aggression towards Islam could be define as wagging a war against the Rulers since he is the Head of Islamic Religious Affairs.
Could Jamaluddin’s action be defined a wagging a war against the YDPA?
Should the definition of war be limited to physical war i.e. two conflicting state or should it be broader as the situation now is beyond borderless and the effect of “cyber-ism” to the society, demands a new perspective on the definition of wagging a war.

Any political scientist would agree that arm struggle is only the last resort for any kind of any kind of revolution. It’s main objective is intimidation, suppression and sabotage in order to achieve it mission. The army or back lane rebel rouser is the instrument used to intimidate the present system of government. Weapons as the instrument either conventional method, biological or micro logical war weapon use if all other means to achieve it main mission could be effective but a great cause of damage done to human civilization. The current political climate in Arab-Israel conflict explains the illustration.
The war leaves Italy, Greece, Central and Northern Europe bankrupt.
The victim is the innocent citizen. It leaves Europe divided into 2 political divided, either with the NATO ally or with the Russian block. The damage has been done. Was it because of the war and weapons use or the propagation and instigation of both sides insisting the division of political power? To very great extend the proportions of damage was solely due to the political propaganda machinery of both sides.
What Chin Peng and the MPC did was an act of aggression to the State by using Arm struggle. But the main war confront us now is the physiological warfare. As what it term by political scientist as after the ‘Cold war between the USA and The Russian’ is the “Quite War”. The danger of ‘ISM-War” is well noted by scholars. Propagation and instigation is used as a weapon. Cyber warfare has been launch. Each school of thought propagates his or her belief and the battle of is deep rooted in the society’s mentality for generation to come. That is the utmost dangerous warfare we are confronted now, against the state, it is an attack against Art.3 of the Federal Constitution by hiding behind Article 11(1), Art.5, Art 9 and Art.11. (see William Joyce v DPP)

Thus, without doubt in Jamaluddin, the sovereignty of the YDPA has been challenge. His action not only could be define as an aggression to the society norm as stipulated in Article 160 Part X11 (General and Miscellaneous) the Constitution definition of a ‘Malay’ but also the act by circulation the uncalled pamphlet under the hidden rules statutory interpretation definition is ‘wagging a war against the YDPA and Islam’ which is protected in Art.3 of the Federal Constitution.

To convert to other religious is within the constitutional right of a citizen but it does not mean one has the right to instigate and propagate others to joint his effort to propagate Christianity among the Muslim community. Hence by the action of distributing the pamphlet is an act of aggression to the Muslim Malay society and that guaranteed right confers to all in Art.3 has been breach by his action.

The picturetorial evidence has shown us how religious cult and its up-keepers could turn into genocide and merciless murderers when religious cult leaders goes fanatic. The Bosnian unforgetfull scenario is an example. The incident of Waco in Alabama and the gas chambering in an under ground train tunnel in Japan is an example how extreme a human craziness could be if fanatical element overrule a person emotion.
The state is under constant attack from the unwarranted desire. The attack comes under various forms of ideological attack. ‘State’ here means as define in Art.1 and Art.3.The main reason is economic domination. Neo-imperialism is making it way via multi-corporation giants. No doubt, it does contribute to the economic growth of the nation but if it is left uncheck the unbalance proportion of socio economic equity among its citizen.
Fair modern authors praise Islam for its superior justice for its enlightened, manner, for elevating and uplifting the nation that came under its rule and for its civilizing teaching. Yet, some others motivated by their hatred to Islam and by immoral Zionist tendencies have made a profession of picking up all the long fourteen hundred years history of Islam, put them together, added some unbelievable claims of their own imagination and produced a mosaic of a bloody history of discrimination and oppression in order to give discredit to Islam. A clear example of a book authored by Bat Ye’or under the title ‘The Dhimmis, Jews and Christian Under Islam’ (20). Published in France in 1980 and translated into English in 1985. It is to warn my Muslim brothers against such prejudice literature, which unfortunately enjoys wide circulation. It is similar to Salman Rushdi writing which instigate and propagate and made a mockery of Sydinna Mustapha Rasullulah s.a.w and the Islamic history. Unfortunately such writing receives wide attention to the secular Muslim arguing that it should be look at a literature perspective instead of a historical aspect. No explanation needed from those schools of thought.
As command of Allah in Surah Al’Kafirun verses 1 till 6 (21)

Bismillah Hir Rahman Nir Rahim

Say; o ye
That reject Faith!
I worship not that
which ye worship.
Nor will ye worship
that which I worship
and I will not worship
that which ye have been
wont to worship
Nor will ye worship
That which I worship
To you be your way
And to me mine

The sentimentality of the Malay race towards it customs and religion is well noted. The Rulers being the protector of the Islamic faith is a subjective argument. Being the keeper of Rasullah Nur Islam and justice is the paramount of any sovereignty, the Malay mind are set to the dogma of “Raja adil Raja disembah, Raja zalim Raja disanggah” i.e. a just ruler is respected but a tyrant will be over thrown.

We take it at face value that Islam will be forever be protected by the Constitution and any government of the day forever despite political differences.

Such strong motion needed and Islam having a special position in the Federal Constitution as stipulated in Art.3 and reconfirm again in Act.160 Part XII (General and Miscellaneous) the definition of a Malay as per cited in the constitution should and will always be guarded against undesirable destructive element by any foreign powers or alien or any citizen of the beloved Malaysia. Any aggression toward it Penal Code 121 should be reconfirm!!!

Amin Ya Rabul Alamin.
4.Criminal Procedural Code (Act 593) Sect.3 (as at 15th.May 2001) ILBS
5. Penal Code Sect 121 Chapter VI Gazette Hansard, Parliament Malaysia.
6. op.cit Sect 121 A
7. Sejarah Melayu (Malay Annual) Tun Sri Lanang Forwarded by Shearleybear
8. Joyce v Director of Public Prosecution ELR (1946) 186
9. In re P. (G.E)(An Infant) (1965) Ch.568 C.A
10. R v Arrowsmith (1975) Q.B 678 C.A (1975) 2 W.L.R 484 C.A
11. (1986) AC 455, (1986) 1 All ER 641
12. (1986) 3 All ER 1, (1986) 1WLR 1025
13. J.C Smith & brain Hogan “Criminal Law” ELBS 7th.edit. pg.58
15. (1989) 1 MLJ, Criminal Application No CR 54-18-88
16. Minister for Home Affairs, M’sia v Kapel Singh (1988) 3 MLJ 29
18. (2002) 4 CLJ 231
19. Farid Sufian Shuaib ‘Powers and Jurisdiction of Shariah Court in M’sia MLJ pg.58.
20. Mohammad Abdul Rauf, Tan Sri Prof. “The Concept of Islamic State”
– With Particular Reference to
Treatment of Non-Muslim Citizens -
JAKIM 1988.
21. A.Yusof ALI “The Holy Quran – Text, Translation and Commentary -”
The Islamic Foundation.1975


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