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This article was previously published on The Malaysian Insider.
‘No one is above the law and everyone is equal before the law regardless of social, economic and political statuses’. – AV Dicey
The Facts of the Case
On the 5th of June 2009, Noor Afizal Azizan, 18, a Malaysian representative for tenpin bowling (henceforth known as the accused) is alleged to have committed statutory rape on a 13 year old girl (henceforth known as the victim). The victim is said to have consented to the sexual act. However, the Malacca High Court sentenced him to a five year jail term. Last Wednesday, a panel led by the Court of Appeal President Tan Sri Raus Md Sharif unanimously overturned the five year jail term imposed on Noor Afizal stating that the panel agreed with the accused’s lawyer that public interest will not be served if he were to be jailed as he was a national athlete with a bright future. The Court of Appeal however upheld the Sessions Court decision to bound over Noor Afizal for good behaviour at RM 25 000 as for the next five years.
Malaysian Criminal Law and the Penal Code
Section 375 (G) expressly states that a man is said to commit “rape” except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following description;
(g) with or without her consent, when she is under sixteen years of age.
The offence enacted under the Penal Code makes it clear without any objection that the age of legal consent in Malaysia is that of sixteen wherein anyone below that age is deemed unable to make an informed decision and appreciate the potential consequence of the decision and that there is consent is deemed to be irrelevant as to the sexual act itself.
Furthermore, Section 375 of the Penal Code on rape or in this case statutory rape provides for a jail term of a maximum 20 years and whipping. The nature of the statute allows the discretion of the judge to decide then on the extent of the punishment and not if the act was to be construed justified or that of weighing public interest.
These in lay terms mean that if the act was construed illegal, it is the courts duty to determine the punishment in alignment to the crime and not to play ‘God’ and determine external factors incorporating moral authority but to question the legality of the act in itself. The very essence of Criminal Law is to protect the spirit of the law intended to remedy a mischief rather than solely for the purpose of the letter or mere words of the law.
The Underlying Issues – Consent and Teenage Love
In reference to this case, the issues brought forth by the accused’s lawyer and later endorsed by the Court of Appeal are that there was consent in the committing of the sexual act, the complex dogma that is ‘teenage love’ and that it would not be fair to punish the accused without considering the extrinsic circumstance where the girl could have perhaps lied about her age or induced the boy into committing the sexual act in itself.
The laws have long since stated that the age of consent be of sixteen years old. The question to be asked is how much difference are thirteen from sixteen and can a teenage girl understand the implications of her act, psychological or pregnancy in the spate of three years where she will not only still be in school but would not be capable of handling any untoward outcome of her actions? The next issue is that of teenage love where society determines it often as the effects of testosterone and oestrogen where it is not in fact love but merely the inquisitive nature on the opposite sex which leads to infatuation.
These matters however remain extrinsic and thus should have relative inconsequence for as the guardian and protector of rights of minors, the courts duty is to uphold and enforce what has already been deemed wrong and not to question the requirements or auxiliary factors as to the crime for that is solely reserved for judicial review or a referendum. There can be no grey areas where the law is concerned for an offence cannot be mitigated on the grounds of personal opinion or that of the benefit to society less it be considered bias and unfair thus being in breach of natural justice. It is thus of relative inconsequence as to what the externalities were and unless the defendant’s mens rea (state of mind) is not present, he is to be found guilty nevertheless.
The Modern Application of the Law – Legality vs. Morality
The modern application of the Law has somewhat altered the paradigm of thought wherein today, it is in fact a reality that you can legislate morality however much we chose to deny otherwise. Morality being that of a question of principle and is often ambiguous and varying considers the right and wrong, the ethical consideration of a matter. It is these that the Law put into legal practice where the law declares what is right behaviour and the other wrong.
Consider this, abortion is often cited as a difference of legal morality between the religious and the liberals. It is where those who advocate pro-life impose on the mother a duty of care whereas those who champion freedom of abortion is in fact advocating for the death of the baby. The religious and liberal views on morality differs but it still is in essence is morality and so then the question that begs to be asked is who is right and who is wrong?
I bring forth the adage that goes as, “religion and morality is considered a man’s genitals; you can be proud of it but please do not stick it down my throat”. It is not of the place of the Courts and that of the Law to determine the morality of an act but rather the legality of the said act. The subject matter at hand is that in accordance to the Penal Code, the accused had in fact breached the law and is guilty as such, there cannot be any grounds in which personal beliefs, morality and external factors play any part in determining the legality of the action.
Court of Appeal’s Decision – Right or Wrong?
The law is the law; there are no grey lines in between the black and the white. We absolutely cannot put our feelings or opinions into the subject matter. And if we are chosen to be the prosecutor, we have the responsibility to put criminals behind bars and most importantly, in the dictionary of a prosecutor, there can be no such thing as innocence.
While some may sympathize with the courts and judges who face the media, public pressure and constant barrage of criticism thus laying blame to personal prejudice and self-righteousness, the independence and sanctity of the courts remain crucial in ensuring natural justice. The cornerstone of an institution deemed to be the apex of protection for minors cannot let itself be influenced or take into consideration the effect of the decision on the accused be it even of detriment to society.
The Court of Appeal in allowing the sentence to be mitigated chose to look at the social standing of the defendant taking into account the inherent potential of the defendant as well as the contributing factor to society but in doing so has gone against the basics and fundamentals of the Rule of Law where the true intention and purpose that the Law was originally construed for has been overlooked and where the overlap of legality and morality causes the decision to be compromised, the Court of Appeal has failed in its duty to uphold and preserve the nature of Law thus providing for a serious perversion and miscarriage of justice.
The law is the law and there can be no two ways about it.
The author thinks that this issue has in fact brought about a benefit to us all where it is time the mentality of the Malaysian parents change and that they begin engaging their children on the subject of sex as to educate and inform them on the potential consequences of their actions and why it is very important that they be able to handle them should it ever arise. He looks forward to the possible backlash this article intended for and you can reach him via Twitter @ VivekV_Velan
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