Decision by the Court of Appeal has opened a dangerous precedent
The decision by the Court of Appeal to uphold the decision of a Session Court in the case of Noor Afizal Azizan and bound him over for good behaviour for five years, in a sum of RM25,000 for committing statutory rape, has opened a dangerous precedent which has gone against the public interest. We can now see the aftermath of this decision of which a Session Court in Georgetown had passed a similar decision on a case of statutory rape on a 12 years old girl by a technician.
It is pertinent on the Attorney General Chambers to file a Judicial Review in the case of Noor Afizal Azizan so that the lower Court will not be bound by the Court of Appeal’s decision.
Under the principle of Stare decisis of which judges are obliged to respect the precedent established by prior decisions, the decision by the Court of Appeal is binding on the subsequent lower court decision and this is exactly what happened in the second case of statutory rape in the Georgetown matter. This again shows the seriousness of the Court of Appeal’s decision in the case of Noor Afizal Azizan, which had not only gone against the victim’s rights in Noor Afizal Azizan’s case, but also affects the rights of other underaged victims to come, thus opening a floodgate for other similar cases.
The provision for statutory rape is clear as provided in S. 375(g) of the Penal Code which reads:
A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions:
… (g) (g)with or without her consent, when she is under sixteen years of age.
It is totally immaterial and irrelevant whether or not there was consent from the girl if she is under the age of 16. The purpose of this provision, which was originated from the Indian and English penal law, is to protect under-aged girls as to not make any wrong moves while they are still too young to think wisely for their future.
One of the reasons given by the Court of Appeal for the lenient sentence was that the case did not involve violence and it happened with the consent of the girl. Similar reason was put forward by the Session Court case in Georgetown. When the judges opted to rely on these grounds as a mitigating factor, it had totally gone against the true spirit of the provision for the protection of under aged girls for the offence of statutory rape.
When similar offences are becoming more rampant nowadays, the public interest indeed requires the Court to pass a deterrence sentence rather than opting for a lenient sentence.
We can see the seriousness of the Court of Appeal precedence in the case of Georgetown Session Court matter. We do not want to see repetitions of similar sentences for a third, fourth or fifth case. The spirit of S.375(g) of the Penal Code will become meaningless and the rights of the women will be seriously affected in the event the Court of Appeal decision is maintained at the current situation.
