defence of provocation

III.        THEORETICAL ARGUMENTS

An objective standard is important because the law is supposed to be fair and just. As such, like cases should be treated alike, with offenders being subject to the same criteria and being punished to the same degree.

A.        GRAVITY OF PROVOCATION

However, in today’s multi-cultural societies, people are not as alike as they used to be when societies were more homogenous in nature. While all people are still bonded by a common humanity, they are fundamentally different by reason of race or culture, which “plays a key role in determining how any provocative insult is viewed”, usually increasing the ‘sting’ of the provocation. Equality between individual cases is important, but so is equality between different sections of society. If the law was not to recognise ethnicity in criminal defences, it is essentially a tyranny of the majority, with society passing a value judgement on the race or culture of the accused and “penalis[ing] the minority groups for being different”. This would result in cases like PP v. Somwang Phatthanasaeng, in which the gravity of the provocation was assessed on how it would be perceived by a reasonable man, rather than a reasonable North-eastern Thai. This could lead to friction between different races, especially in a world where globalisation has resulted in increasingly diverse societies.

Recognising ethinic characteristics would also be in line with provocation being a concession to human frailty, an excuse which focuses on the actor and not the act. The actor’s culture is an intrinsic part of the actor, as he views all things through the lens that his culture provides him with, and should be recognised by the courts.

The incorporation of racial or cultural characteristics would not necessarily allow accused persons to exploit them to escape justice; after all, provocation is but a partial defence, and the burden of proof is high. Not only must the defendant prove it on the balance of probabilities, he must also show that “an ordinary person from the same background could have lost self-control in the circumstances”, as well as a loss of actual self-control. Ethnicity thus would not allow an accused to escape justice that easily.

 However, as much as we aspire towards respecting the ethnic practices of other groups, there are times when such practices conflict with common humanity. One example is ‘honour killing’, in which “men kill female relatives to redeem the family’s name”, usually because the female relative committed adultery, engaged in pre-marital sex, or was raped. This occurs in conservative Muslim nations in the Middle East, and the law is faced with a dilemma when such conservative Muslims immigrate to Western nations and engage in the practice there. The law finds the practice difficult to condemn, lest it commit cultural imperialism, but also finds it difficult to tolerate, because ‘honour killing’ so conflicts with the idea of a common humanity. Here, even cases like Ghulam Mustafa Gahno v. Emperor would not help, because the practice does indeed involve killing, and not merely beating, as a Baluchi would do to a wife who showed him a booja.

Another grey area surfaces when certain aspects of cultures are diametrically opposed to each other. The Jyllands-Posten Muhammad cartoons controversy saw a clash of two world-views: that of the Danish Muslims who were incensed by the blasphemous portrayal of the Prophet Muhammad and driven to riot, and the Danish supporters of the cartoons, who saw it as an exercise of their right to freedom of speech, which is highly valued in Denmark, and who claimed that the cartoons merely contributed to the discussion of the tendency towards self-censorship in Islam.  As such, it is difficult to reconcile the two clashing cultural outlooks in such cases should the law consider the ethnicity of the accused rioters.

B.        POWER OF SELF-CONTROL

An even more contentious area in which ethnicity might be considered is in determining the power of self-control of the reasonable person. It is argued that people of different cultures “have already been deeply conditioned by [their] customs and traditions… [which] would have moulded his emotions and personality to such a degree that altering them in any significant manner would be extremely difficult”. Scientific understanding of human behaviour supports this and courts in Papau and New Guina, Western Samoa and New Zealand have recognised certain tendencies towards quicker or slower passion inherent in certain ethnicities of their countries. This argument is particularly compelling in Singapore, where “a significant proportion of the murder cases involve foreign victims and assailants” and it might be fairer to the accused if the courts were to consider their racial and cultural characteristics in determining the level of self-control the accused should have shown.

However, such a concession would also perpetuate racist stereotypes such as “the emotionally volatile Latino or the particularly aggressive Vietnamise”. The thesis was later amended to consider the response pattern of a typical person of an ethnicity, such as the length of time to cool off and the mode of retaliation. It seems that this narrows the class of people who can rely on ethnicity affecting self-control, and thus may be considered more acceptable to the courts, who might be wary of another broad allowance since racial characteristics already affect the gravity of provocation.

III.        PRACTICAL DIFFICULTY TO THE COURTS

However, there is practical difficulty in allowing ethnic characteristics to figure in provocation. Judges may not share the cultural heritage of the accused, and thus require expert witnesses, but the rules of evidence may restrict the presence of such a witness.  If allowed, an expert witness’ testimony may not be accurate when dealing with persons who have undergone “a high degree of integration and assimilation” with society. Questions may be raised as to how accurate this testimony may be when dealing with someone who has been partially integrated, for example, a foreign worker who has lived in Singapore for five years but who largely interacts with his community of foreign workers.

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IV.        CONCLUSION

It is fitting that the law strives towards objectivity to achieve equality before the law. However it should not forget that equality is also in considering the differences between ethnicities. Despite the grey areas and practical difficulties, the overarching principle of incorporating racial and cultural characteristics into the defence of provocation should still be endorsed, or we risk the injustice of holding defendants to standards they might not even comprehend.

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