Sunday September 9, 2012
The judges, not the laws, are responsible for sentencing
CONTROVERSIAL legal cases require rational analysis, but often get emotional reactions instead.
Take the recent cases of statutory rape where the perpetrators were widely seen to have received inordinately light sentences.
Some critics insist on changing the laws for harsher penalties for the crimes. Others say the laws are fine, it is only the sentencing that is at issue.
We have argued in these pages why these sentences were deplorably inadequate. They neither reflected the gravity of the crimes nor sufficiently weighed the impact of the sentences on the minors and society.
Statutory rape is still rape even with the minor's “consent”, because minors are not considered capable of providing meaningful consent vis-a-vis adult rapists. Coercion, pressure, deception and manipulation are among the likely tools wielded by the adult over the child even where physical force is absent.
The emotional clamour for legislative changes applies on two levels: legislation, and how courts choose to interpret the laws in the course of sentencing.
In legislation, harsher sentences are already available to presiding judges. It is their prerogative to exercise their discretion in opting for whichever sentence they deem appropriate.
In interpreting the laws, that has been and should remain the jurisdiction of the judiciary. Different judges may interpret the same laws differently, sometimes vastly so, in formulating the sentences they mete out.
Where sentences stray beyond the pale, society should make a principled stand on the basis of sound argument, not fiery sentiment. There can be recourse to amendments to the Criminal Procedure Code, without necessarily tinkering with existing laws when these are not pertinent to the issue.
One such amendment is the victim impact statement (VIS), available in Malaysian courts since June this year. It allows for victims to address the judge, between conviction and sentencing, to relate directly their experience of the crime in the interests of a more just sentence.
The VIS gives a human touch to an otherwise cold process, helping to temper the law with justice and to inform the sentencing with the material circumstances of the case. Such amendments, along with possible sentencing guidelines for judges, are reasonable avenues for more consistent and appropriate judicial decisions.
However, such options may be meaningful only if victims are fully apprised of them, which still may not happen.