Asklegal
Home banner d93b

Criminal

Wait... Bullying is NOT a crime in Malaysia?

6 months ago SiewAnne

1

Shares


[Note: The image above is from a Youtube video by Fusion Malaysian featuring young actors. Watch the full video here]

Recently the Malaysian public was shocked by two cases of bullying that was taken to such extreme lengths that resulted in the victims losing their lives.

Zulfarhan and his family. Photo credit: says.com

In the first incident, Malaysia National Defence University (UPNM) Naval Cadet Zulfarhan Osman Zulkarnain was sent to the hospital with horrible injuries which included burn marks allegedly caused by a steam iron. Five university students were charged with his murder while another was charged with abetting of the act.

In the second incident, 18 year old T. Nhaveen was allegedly tortured, beaten and sodomised by his high school classmates because he was “effeminate” and that he refused to join their secret gang society. Four of his ex-schoolmates (including two who are underaged) were charged with his murder and for causing grievous hurt.

A relative shows a picture of T. Nhaveen. Photo credit: abcnews

But these young men were not the only victims. Statistics suggest that 84% of children in Malaysia have suffered from some form of bullying which, if anything, indicates that bullying has grown to be a serious pandemic in the country. Bullying has long lasting effect on their victims and their aggressors. The trauma of being undermined, humiliated and terrified often follow bullied children into adulthood while an estimated 60% of bullies have at least one criminal conviction before they turn 24 years old.


But "bullying" itself is not a crime in Malaysia

A common question among parents is whether bullying is illegal in the eyes of the law. A parent might ask, "Can I take legal action against the kid that’s always calling my child names and laughing at him?"

But here's the thing - NOT ALL FORMS of bullying is illegal! This is because bullying is a widely used term to definite bad behaviour towards a victim, so acts such as acting aggressively towards other children, name calling and teasing are not punishable under the law of Malaysia.

However, as in the cases of Nhaveen and Zulfarhan, some acts of bullying may RESULT in criminal charges. Here are some extreme acts of bullying that may be considered a crime:

1. Verbal abuse

Most acts of bullying take a form of verbal abuse, but most forms of verbal abuse are not a crime. For example, name-calling, isolation, teasing, laughing at and insulting another is not a crime in Malaysia - even if such abuse leads to self-harm of the victim.

Although regular verbal abuses are not punishable by the law, if such acts escalate to threatening someone with injury - whether physically or to their reputation or property - with the intention to cause alarm or to force that person to do something against their will; the perpetrator may be charged with criminal intimidation under section 506 of the Penal Code. Criminal intimidation is defined under Section 503 (in part) as:

Whoever threatens another with any injury to his person, reputation or property, ... with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

2. Physical abuse

Contrary to popular opinion, girls can be bullies too. Photo credit: Astro Awani


Bullying that escalates to violence is a possible crime. If there is violence without the use of weapons, the perpetrators or bullies may be charged with voluntarily causing grievous hurt; which is defined under section 322 of the Penal Code as:

"Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt". "

This offence is punishable under section 323 of the Penal Code, or section 326 if it involves a dangerous weapon or substance.

It should also be noted that in some cases, the bully doesn't need to actually hit you. A verbal threat followed by a physical action - such as saying "I'm going to beat the **** out of you" and an upraised fist - can be considered grounds for the criminal charge of Assault. Just saying "I'm going to beat the **** out of you" does not.

Section 351 of the Malaysian Penal Code - Assault (in part):

"... Explanation -- Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault."

3. Sexual assault

Some acts of bullying involve sexual harassment and sexual assaults, such as a 2016 incident where two senior students at a Secondary school in Malacca raped a 13 year old student within the school’s compound.

In such incidents where male bullies raped a female victim, they may be charged with Rape, punishable with imprisonment and/or whipping under section 376 of the Penal Code. Rape is defined under section 375 of the Penal Code as (in part):

A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions: (a) against her will; (b) without her consent...

In cases involving minors, the perpetrators may be charged with statutory rape. Statutory rape refers to sexual intercourse with a girl under the age of 16 regardless of whether she consents or not.

There are sexual assaults that do not involve intercourse such as molestation or getting someone to strip against their will. These are crimes known as Outrages of decency, defined in section 377D of the Penal Code as:

"Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person..."

The same section also provides a punishment of up to two years imprisonment if found guilty. If a child below the age of 14 is involved, 377E of the Penal Code provides an even stiffer punishment of up to 15 years imprisonment and possible whipping.

4. When it results in death

As evidenced in the cases of Nhaveen and Zulfarhan, acts of bullying can sometimes result in the death of the victim. In these situations, the bullies may be charged with murder or culpable homicide (sections 299 - 304 of the Penal Code). The difference between the two is the intention of the bullies to cause death as well as the circumstances surrounding the act.

Because the punishment for murder is the death penalty, Nhaveen's case has created an interesting legal scenario due to two of the accused being minors....


Can a minor be charged with murder?

Nhaveen's alleged attackers appearing in court. Photo credit: Danial Saad, New Straits Times.


If the perpetrators are under the age of 18 but above the age of 10, they are to be tried as a minor at a special Court For Children according to section 11 of the Child Act 2001, which has no death penalty.

However. when a crime has occurred where the perpetrators are both minors and adults (above 18), the law provides certain avenues where both can be charged and tried as adults. These can be found in section 83(4) of the Child Act and section 34 of the Penal Code:

Section 83(4) of the Child Act (in part):

"A charge made jointly against a child and a person who has attained the age of eighteen years shall be heard by a Court other than a Court For Children..."

Section 34 of the Malaysian Penal Code:

When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone.

Whether or not the death penalty will be applied to the minors if found guilty is a topic on it's own, since the Child Act still provides certain protection to minors even if they are tried in "regular" courts. You can read this article by The Malay Mail Online which interviews senior lawyers for their opinion on the topic.


There are no also laws against cyber-bullying (yet)

Image credit: World Pulse


Not all bullying happens in person or at the school’s compound. Instead, they can happen on the internet, outside the public eye. As technology advances, these acts known as cyber bullying escalate.Statistics reveal that 33% of Malaysian students have suffered cyber bullying while 15% have committed cyber bullying acts.

At present, Malaysia does not have any laws to take action against online harassers, but given the widespread plague of cyber bullying and the anonymity of the internet, laws to punish cyber bullies are being drafted.

However, other laws in Malaysia provide some protection from online dangers. Sending threatening messages could be a criminal offence under Malaysia’s Communications & Multimedia Act 1998 or Section 503 of Malaysia’s Penal Code dealing with intimidation.

[Read more: Will Malaysian laws protect you against rape or death threats on Whatsapp?]


Bullying should never be ignored

Bullying is a serious offence. It is not something we should just shrug off as something to "toughen the children up". Even though bullying is generally not a criminal offence, parents and teachers should be vigilant about the well-being of the children and make sure that it doesn't go unnoticed - even a word with the bullies or their parents can go a long way.

If you are a victim of bullying or know someone who is a victim, help is available from the anti-bullying hotline: Talian Aduan Disiplin 1800-88-4774 or email adudisiplin@moe.gov.my

You may also call 15999 (Childline) to report incidences of bullying.

This article is for informational purposes only and should not be taken as legal advice. Every situation is unique and dependent on the facts (ie, the circumstances surrounding your individual case) so we recommend that you consult a lawyer before considering any further action. All articles have been scrutinized by a practicing lawyer to ensure accuracy.
Tags:
Aa308b90 0fa3 40a5 b9fe ce1bde4ba73d

1

Shares