Statutory rape: Nazri is wrong; laws need review

Dato Seri Nazri Aziz says he doesn't see anything wrong with laws pertaining to sexual assault and rape. As such, he says, there is no need to review or amend them.

With respect, I don't agree.

Section 376 of the Penal Code makes mandatory the punishment for statutory rape. It is imprisonment for a period of not less than 5 years to a maximum of 20 years. Despite this, the courts still bind over persons found guilty under this section.

The question for Nazri is therefore this. Does binding over in cases like these meet with the express intentions of Parliament in making sentences mandatory?

It is nonsensical to suggest that Parliament intended for there to be a choice for offences of the same kind. A minimum of 5 years and maximum of 20 years to express the seriousness of the crime but also a choice to bind over if the accused has, for example, a 'bright future'?

I have earlier asked the AG to file an application for a review in the case of the national bowler. The reason for this is simple. The decision has set a precedent binding the lower courts which must be set aside before one is to expect other courts to act otherwise.

There is a good chance that the Court of Appeal will dismiss the application for review. This is because the courts have the power to order a binding over, given the current interpretation of the relevant provisions applicable.

It will also be an indication by the Courts that there are cases where offences like these are committed which do not warrant a minimum 5 year imprisonment sentence.

If this be the case then the problem needs to be taken back to Parliament to be resolved.

The real problem with the section seems to be the minimum 5 year imprisonment requirement. This needs to be discussed.

The main reason why the courts resort to binding over sentences in cases of statutory rape is because judges don't find it just in some cases to hand down a minimum 5 year custodial sentence.

Take for instance a case where the accused is also very young as is the victim and it is truely the case that they made a mistake, having not realized it was an offence and its consequences.

It is in cases like these that the courts find it difficult to hand down minimum 5 year imprisonment terms. That is why resort is made to binding over.

But that does not reflect the true intention of Parliament, does it?

So here lies the problem in Dato Seri Nazri Aziz's argument that there is no problem with the laws.

That is why the matter should be reconsidered in the Court of Appeal. Does the section make it mandatory for offences of this nature? If it does, the problem ends there. If the Courts find that it doesn't, despite the express mandatory wordings of the section, then Parliament should decide.

If Parliament thinks it should be mandatory, then the section should be amended to exclude the application of binding over sentences.

If Parliament feels that a 5 year minimum term is too harsh in some cases, then the minimum period should be reconsidered and adjusted accordingly.

This must then be a matter which must be carefully considered and debated in Parliament, taking into account all views expressed by all quarters concerned.

But whatever the case may be, the Courts must thereafter apply the law as expressed by Parliament.

I have raised the matter in my questions in Parliament. I challenge Dato Seri Nazri Aziz to a debate upon it in Parliament. I am certain I will be able to make him see the logic of it all then, if he hasn't already hereafter.

In the meanwhile, I reiterate my call upon the AG to file a review in the Court of Appeal and to also consider the need to move Parliament for an amendment to these laws if necessary.