Defence of provocation

Lady Justice is typically depicted blindfolded. This is symbolic of the objectivity that the law aspires towards: justice dispensed regardless of the wealth, status, race or culture of the persons who come before the court. This essay will focus on the defence of provocation, and examine the application of the subjective characteristics of race and culture in determining both the gravity of the provocation, as well as the power of self-control of the reasonable person.

It will be argued that an objective standard is important, but needs to be tempered with subjective racial and cultural characteristics, because people are fundamentally different as a result of different backgrounds. However, even in the less contentious area of gravity of provocation, there are grey areas in which the law will find it difficult to uphold the interests of society while still respecting different cultures, such as in the cases of 'honour killing' and the Jyllands-Posten Muhammad cartoons controversy.

Incorporating ethnicity in determining the power of self-control may perpetuate racist stereotypes, and courts may also have practical difficulty in incorporating such characteristics. Nevertheless, it is still necessary for the law to take into account racial or cultural characteristics of accused persons to avoid injustice. II. OVERVIEW OF THE CURRENT LAW ON PROVOCATION Provocation is a partial defence to murder under Exception 1 to s. 300 of the Penal Code. It is also a significant mitigating factor in sentencing for other offences.

To prove provocation, the accused must prove (i) an actual loss of self-control (ii) as a result of a "grave and sudden provocation". The test of a "grave and sudden 'provocation" is described in the Indian Supreme Court decision in Nanavai v. State of Maharashtra1, which has been followed in Singapore2: "whether a reasonable man, belonging to the same class of society to which the accused belongs, and placed in the situation in which the accused was placed, would be so provoked as to lose his self-control.

" The racial and cultural characteristics of the accused are incorporated into the test, but only if they affect the gravity of the provocation. Singapore law recognises only age and sex as characteristics that may affect the power of self-control of a reasonable person3. As Chan Wing Cheong puts it, "an individualised standard is used to judge the meaning of the provocation, but a generalised standard is used for judging the adequacy of the power of self-control exercised by the offender and whether the homicidal reaction deserves condemnation as murder"4. 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"5, 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"6. This would result in cases like PP v. Somwang Phatthanasaeng7, 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 Thai8.

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"9, 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"10, 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 there11.

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. Emperor12 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.