The Regulations Surrounding Gun Possession
In Malaysia, the right to keep and bear arms, like in many countries around the world, is subject to significant government regulation. The Federal Firearms (Control of Malaysia) Order 1972 (FO) is the primary law governing gun ownership, which falls under the purview of the Ministry of Home Affairs (MOHA). The FO was formulated with the aim of curbing gun-related crimes, including robbery and the thriving black market for illegal firearms. Along with the Weapons of Mass Destruction and Anti-Proliferation Act 2010, these laws afford law enforcement officials the necessary investigative powers to curb the problem of gun-related crimes in the country. Without these laws, officers would be limited in their ability to effectively evaluate the scope of such crimes as citizens with unlicensed firearms would naturally be reluctant to come forward with evidence .
Except for those firearms listed in paragraph 3(1)(b) of the FO, any person who desires to import, export, manufacture, sell, transfer, lease or issue firearms must first apply for a licence to do so from the MOHA. The FO is structured around three specific areas pertaining to the licensing of firearms: For its part, MOHA has an online platform called the Firearms Licensing System Information System (FALIS), which allows for the submission of online applications in relation to permits, licences, registrations, amendments and status checks for guns. In addition, the Firearms Licensing Unit in MOHA is in charge of registering, inspecting, and seizing firearms. It is also responsible for verifying applications for firearm licences, and issuing these licences.
Firearm Classes and Licenses
Malaysia categorises firearms into three categories; Pistol, Revolver and Rifle. This is in accordance with Section 2 of the Act. The firearms are then further categorised into various subcategories. For a person to possess a firearm licence, he or she must apply for it with a number of authorities. The applications can be made to the Ministry of Home Affairs, the Chief Police Officer of every State or Federal Territory. The application shall be supported by the certificate from the local police station. These authorities shall then consider approval or otherwise. Possession of an unlicensed firearm allows the police officer to arrest the person without a warrant. The penalties may extend to death depending on type of offence that is committed.
Qualifying for Gun Ownership
The Malaysian government maintains stringent requirements for individuals interested in obtaining a gun license. Generally, the person seeking the license must be a minimum of 21 years old and a citizen of Malaysia. The individual must also possess suitable mental competence as well as a valid reason for wishing to obtain the fire arm. Any criminal history could lead to a denial of the license. Individuals looking to obtain a gun license must pass a practical examination with course of fire involving 20 rounds of ammunition. After passing the practical exam, the person must pass a written examination. A course of fire must be completed each year.
Obtaining a Gun License
The process by which a gun license is applied for and obtained is clearly stipulated under the Act. All applications for a gun license must be made to the legal and policy department of the commercial crime investigation division of the police force under section 3 of the Act. However, in the case the application involves a security company, the application for a gun license must be made to the Commissioner of Police of the state in which the application was made and further submitted to the secretary to the Commissioner of Police for administration to the department of police for action. It is important to note that the officers of the police force will only grant a full license after it has been satisfied to do so. In order to be satisfied of such circumstances to issue a full license, officers of the police force may request a statement from the applicant or call up the applicant for questioning after requiring the applicant to give such information as may be necessary for the purpose of the investigation. The requirements to apply for a gun license are as such: In terms of the police departments in furtherance of a gun license application, the police force requires on the form to supply the state in which the applicant wishes to be issued a license. For the purposes of the license application, both the license application and notification form must be filled with details of the applicants address found in that state. In terms of the use of firearms, firearms can only be used when in the course of employment. Saving this circumstance the use of firearms and ammunition is an offence under the Act.
Legal Applications of Firearms
Under the Private and Public Defence laws of Malaysia, members of the public can only possess weapons such as swords, air guns, knives or stun guns for self-protection, sport or hobby and shall only use such weapons for the purpose, affording only reasonable protection to themselves.
It would be an offence for anybody to use any weapon unless such weapons were a last resort where their life or the life of other(s) is/are at risk or as a means of protection only of their property. In such circumstances and under attack members of the public are urged to keep their cool, and administer such force as is necessary to repel the attack: but no more. For example, if assailants are approaching with knives, the affected party shall not discharge his firearm taking aim at any part of the assailant, instead he should fire "in the air" to scare off, or incapacitate the attackers. The principle is to use reasonable force and that "reasonable" means "proportional and justifiable".
Misuse of such weapons or any weapons in retaliation is strictly prohibited and a crime against the state. Members of the public are cautioned that the Courts do not look favourably upon anybody seeking to take the law into their own hands. With that said, if there are any questions on what can be used in self-defense, look to disperse any potential threat first and at all times provide notice of the intention to do so before resorting to defence with weapons. Notwithstanding no duty whatsoever to retreat, this is the best way to ensure one does not incur liability in the course of defence.
Contrary to Article 6 of the Federal Constitution, under any Islamic law including Syariah law, "al-Dharar" jurisdiction has been exercised to protect the sanctity of Islam and Muslims in Malaysia. The very same principle enshrined in the Federal Constitution has been used to curtail the sale , possession or carrying of weapons of any kind to protect the peace in society.
In addition, specific to the instrument or weapon in question and depending on the scenario the example below is to show how the law is applied to the usage of any weapons:
In the above, it would appear "reasonable" to consider the argument that in such circumstances, a victim is legally permitted to possess the weapon and/or area of land and to defend himself/dwelling/land and/or use more force than necessary for such defence. Hence, the dismissal of the Plaintiff’s claim as a result of the defence. Additionally, the Malaysian Police would most likely not press charges in such context.
With Air Guns, BB Guns and Paintball Guns, no one can legally possess a BB Gun unless he/she has a valid Firearm Certificate issued upon the Minister of Internal Affairs and the authorization of a competent authority. In addition, Air Pistols/BB Guns that shoot pellets and Paintball Guns for Paintball competitions can only be bought, sold and carried openly if under the instruction and direction of Paintball Center management and or organized sports competitions and tournaments with a local or international governing authority. In this legal context, "traditional" paint-ball games would engage any dispute that a game outside of the traditional brand of Paintball (whether of lasers etc.) and sports tournaments and competitions do not fall under such legal ambit with the former too.
There are a wide range of sporting and hunting guns such as shotguns or rifles and competitive pistols in Malaysia. All firearms must be affixed with a unique serial number and fire a type of projectile (in particular bullets) capable of causing serious injury or death. Further there are a number of different types of firearms, air guns and pistols that are regulated by our laws in Malaysia.
Military firearms and their use is a subject covered by laws of a different nature.
Punishments for Unlawful Possession
The illegal possession and/or misuse of firearms in Malaysia carries severe consequences, with the law imposing heavy penalties on those found guilty of such offences. Besides the stringent licensing requirement imposed on citizens and foreign nationals in Malaysia, the Severe Crimes Act 2013 specifically criminalises both ‘possession’ and ‘use’ of arms in Malaysia.
According to section 4(1) of the Act, a person who commits any of the following acts shall be punished, upon conviction, with death or imprisonment for a term not less than five years:
a. establishes or operates certain firearms or ammunition factory;
b. manufactures, sells, exposes or offers in sale illegally acquired arms or ammunition;
c. disguised weapons to appear as toy-like articles;
d. any person who has in his possession prohibited weapons, ammunition or explosives as specified by the law;
e. uses or causes to use prohibited weapons, ammunition or explosives;
f. accessory after the fact to any of the acts above.
The possession and/or use of firearms in Malaysia is primarily regulated under the Arms Act, 1960 (Act 207). An offence committed under this act is punishable with either imprisonment or fine or both.
In the case of an unlicensed firearm, a person convicted of possessing the firearm commits an offence and shall be liable on conviction to imprisonment for a term which may extend to seven years, or to a fine which may extend to RM 10,000.00.
However, in the case where the offence of possession is aggravated by the fact that the person was in possession of a firearm of .22 or smaller bore or designed or adapted for the discharge of missiles of any kind, the penalty is reduced to imprisonment for a term which may extend to three years, or to a fine which may extend to RM 5,0000.00.
It is also an offence against the act if a person without a licence or special permit carries a firearm in a public place. Again, the punishment means imprisonment for a term which may extend to seven years or to a fine which may extend to RM 10,000.00.
An individual who carries an ammunition in a public place without a licence is liable on conviction to imprisonment for a term which may extend to three years, or to a fine which may extend to RM 3,000.00.
Every person who sells, transfers, purchases or obtains from any person not authorised to dispose of the same any firearm, ammunition or imitation firearm commits an offence and shall upon conviction be liable to imprisonment for a term which may extend to five years, or to a fine which may extend to RM 10,000.00.
Latest Developments and Revisions
In recent years, Malaysia has seen a number of legislative reforms and legal developments concerning gun ownership rights. While the trend is undeniably towards stronger regulations and controls, there have been significant efforts both by the government and the courts to clarify and standardize the regulations. One of the most significant legislative changes came in 2017, when the government announced an increase in penalties for illegal possession of firearms. Under the newly amended Firearms Act, mandatory death by firing squad was proposed for anyone found guilty of possessing or smuggling in prohibited firearms, while those found guilty of using a firearm that results in death may be sentenced to hang or life imprisonment. A notable case in 2018 is the Court of Appeal decision in the case of Public Prosecutor v Samyu Lal (2018) where the appellant was convicted under Firearms (Increased Penalties) Act 1971 and sentenced by the Learned Trial Judge to undergo the mandatory death penalty pursuant to Section 3(a) of the Firearms (Increased Penalties) Act 1971 . On appeal, the appellant was convicted under the provision as charged but instead of the mandatory death sentence, the court held that a sentence of imprisonment of 30 years was more proportionate for his offence. The local courts have been active in assessing the constitutionality of specific provisions of the Firearms Act and the increased penalties imposed therein. In Tan Ah Yoon & Anor v Koperasi Angkatan Tentera Malaysia Berhad (2019), the Federal Court ruled that several provisions of the Firearms Act which prescribe mandatory penalties for certain offences to be unconstitutional. The court struck down the mandatory penalties for firearm offences under the Act as unconstitutional as it violated Article 8(1) (right to equality before the law) for guaranteed fundamental liberties as enshrined in Part II of the Federal Constitution.