Statutory Rape Cases and Court’s Discretion

The move by the government to table in Parliament at the next sitting a Bill that will disallow judges from exercising their discretionary powers to reduce the sentence given to statutory rapists has received mixed reaction from the public. The government’s move is clearly in response to the public uproar over the cases in August of former national bowler Noor Afizal Azizan and electrician Chuah Guan Jiu who were merely bound over for five years and three years respectively on a RM25,000 good behaviour bond each after they had been found guilty of statutory rape of their under aged girlfriends.
The Joint Action Group for Gender Equality (JAG) views with concern this hasty attempt to take away the discretion of the Court by the Legislature. Judicial discretion is a power entrusted with the courts to be exercised fairly and within rules of reason, justice and equity and not according to any private opinion or whims or fancy. Further, ability of the judges to exercise discretion fairly in the circumstances of the case, is an aspect of judicial independence that is essential under the doctrine of separation of powers.
JAG maintains that it is not the court’s power of discretion that was the cause of the uproar in the first place but rather the exercise of that discretion, which was seen as lacking in “reason, justice and equity”. Hence, what is needed is not a blanket removal of this important discretionary power of the courts but to address the issue of how judges can be better equipped to use their discretion by providing them with all relevant considerations and what their impact on society will be to enable judges to make better informed decisions.
In the Court of Appeal case of Noor Afizal Azizan, the judges exercised their discretion mainly on the fact that the Noor Afizal was a first time offender and as it was his girlfriend, it was seemingly “consensual” and they did not want to spoil his “bright future” with a custodial sentence. The shock was about the judge’s lack of consideration for the 12 year old girl. Was the court adequately informed of the consequences on the 12 year old girl as well as to society in general? Perhaps, the following quote from a letter written to the STAR newspaper of 31st August 2012, by Dr.Alex Khoo Peng Chuan, a Paediatric Neurologist in Ipoh, on the court’s decision on the Court of Appeal case will give a glimpse on the impact of sex on a 12 year old girl:
“This can only mean that there is a clear lack of understanding of child development and child psychology among the judiciary, and I would like to invite any of our respected learned judges to join us as we go about our business in children’s wards and our clinics attending to our little ones.
Maybe then, when they are on the ground instead of being in a high chair, do they feel the pain that affects us all with their verdict”.
But then we cannot take judges to the ground to see for themselves the impact on victims everytime as that may been seen as interfering with the judge’s independence. In such cases of public importance, one effective way of bringing to the knowledge of judges all relevant considerations is by the filing of Amicus Briefs.
An Amicus Brief is a brief filed in court by an interested group or individual who has a strong interest on the subject matter of an action but is not a party to the action. It comes from the word “Amicus Curiae” which means “friend of the court”. The Amicus Curiae educates the court on issues which the court is in doubt, or raises awareness about issues about the case, etc which otherwise the court might miss. The purpose for the filing of Amicus Briefs is hence to assist judges on relevant issues and considerations which the judges may not have any knowledge of. This hopefully will enable the judges to make better informed decisions.
In the Court of Appeal case of Noor Afizal Afizan, the Attorney General’s Chambers (AGC) has said in a statement reported in “The Malaysia Insider” of 14 October 2012, that “it was considering the use of the court’s inherent power to review the decision in Noor Afizal’s case”.
JAG calls on the AGC to move speedily towards setting up a review of that Court of Appeal decision, and allow for the filing of Amicus Briefs by interest groups in the review. These groups can gather and organise information and provide statistical data too, on the various issues involved in statutory rape cases. That will greatly assist the court to take into consideration all relevant factors and give them due weight in arriving at a decision.
In the meantime, JAG also calls on the government to withdraw its move to table in Parliament the Bill to remove the discretionary power of the courts for sentencing in statutory rape cases. Instead, JAG urges the Minister in the Prime Minister’s Department, Datuk Seri Nazri Aziz to engage with civil society groups for consultation and dialogue on how together we can resolve this issue of statutory rapes in a more comprehensive manner. It is hoped that the said Minister will consult with the Bar Council on any proposed amendments to any laws and also consult with education and healthcare professionals, women’s and children’s welfare organisations and also enforcement agencies for their expertise and input towards improvements to the education system, healthcare facilities, etc on issues regarding statutory rape. Perhaps sex education can be included in the school curriculum for teenagers.
It is high time the government recognised and gave due importance to civil society groups who want to play a more active and effective role in all aspects of the governance of our country. This will pave the way towards better cooperation and collaboration and that in turn will benefit enormously both civil society and the government of the day.

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