Hopeless favouritism or hopeful compassion?

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The Afizal case has the potential to infuse the Malaysian legal system with a compassionate will – one which is not hand-cuffed to legal-technical norms, yet one that can also act decisively against serious criminal acts, writes Alwyn Lau.

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The Sessions Court conviction of national tenpin bowler Noor Afizal Azizan for statutory rape, followed by his release by the Court of Appeal (ostensibly because he has a ‘bright future’) has inevitably churned up much outrage and controversy. Naturally, fears of sending the wrong message or providing criminals with an ‘escape route’ arise. Yet I wonder if this way of reading it is over-simplified. I wonder if we’re missing something.

Everybody knows the ‘rape’ involved is a technicality, yet all of us can’t help raging over the judge’s ‘bright future’ comment. Afizal was barely 18 – but we don’t care. There was probably consensus (and it was likely the furthest thing from a violent sexual offense) – but law is law. Afizal pleaded guilty – he still raped her. No, all that matters is the fellow is guilty of statutory rape which, effectively, means he’s a rapist. Which leads to this conclusion: how dare the Course of Appeal let him go?

By that same logic, every Malaysian who’s ever bought an illegal DVD, run a red light, cheated even a dollar on their taxes or double-parked is a criminal and should be convicted and sentenced. And all those drivers going above 110km per hour on the highway better turn themselves in. Why not, right? Since we’re so obsessed with legal technicalities?

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“Oh, but those are trivial compared to rape!” Of course they are, but the law is the law – isn’t it?

Technicalities are like comedies. If two young people, both a week over 18, did exactly the same thing that Afizal did with the girl, then the law (and many Malaysians) wouldn’t bat an eyelid. In this case, it wouldn’t be a legal problem but a social or moral one which means we wouldn’t much care, which means we won’t be pushing for our pound of flesh. Similar trauma, same immorality – but zero visibility because, well, it’s not ‘rape’.

On the other hand, if a 17-year-old boy a few days before turning 18 happens to beat up and rape a girl, then the guy would only be charged as a minor. Likewise, a 17-year-old girl can ‘fool around’ all she wants and later claim she didn’t give her consent and so on. And, seriously, how many of us can tell a 17-year-old from an 18-year-old?

Like I said, technicalities are often a joke from the standpoint of reality.

Of course, there is the problem of ‘sending the right message’. Many say that the Court of Appeal’s decision will encourage more rapists. My only response is that this isn’t the be-all and end-all of the legal system; why are so many Malaysians against the hudud law? Wouldn’t that send the best message to would-be perps, thieves and what-nots?

And what about the message of second-chances, of compassion? Is that not important too?

I wonder, in other words, if the technicality of this case has blinded us to the need for mercy which, by no means, should be limited only to national sports personalities but should be available for all. In fact, just like how Datuk Lee Chong Wei can lose the gold and yet reap the nation’s love and admiration, court cases can likewise ‘set the guilty free’ without necessarily forsaking justice.

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Would this, however, result in more crimes? Logically, no.

Granting mercy, like giving hugs or throwing thunderbolts, involves the will. Legal decisions, in case we’ve forgotten, are more than the application of legal norms; they always involve a decision which comes from ‘outside’ the norms without transgressing them.

The bottom line is that the Law is not a computer program which mechanically churns out judgments. And if so, then would-be criminals should NOT conclude from the Afizal affair that they happily go along their way wrecking havoc in society and expect to get away with it because, oh, the program is fundamentally lenient and uncaring for victims.

No. The promise is that if the judges can will mercy, discipline can emerge from the same will as well. The Afizal case has, in fact, the potential to infuse the Malaysian legal system with a compassionate will – one which is not hand-cuffed to legal-technical norms, yet one that can also act decisively against serious criminal acts.

This freedom to set free, this inclination to grant a second chance, this power of law that transcends legal norms, is precisely what this case can remind the country of and inspire it towards.

It is not that any criminal with a bright future (i.e. potentially everyone) can expect to escape the full force of the law. It’s that the legal sovereign – in this case, the judges – can ‘scandalously’ take into account the potential of young people who make mistakes and who don’t know what they were doing. (Note: Please don’t tell me that a 13-year-old is legally denied the capacity for consensual sex but that an 18-year-old boy must have been fully aware of his actions – this is almost as outrageous as saying that if my name appears on a Web article I must have absolutely written it.)

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In short, let’s not get charged up over a technicality. Let us reinsert the actual of ethics and life into the abstract of rules and legality – Malaysia’s ‘bright future’ could depend on it.

Alwyn Lau is a lecturer in sociology at a local private college. The views expresses in this commentary are his personal views.

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1 bull
1 bull
21 Aug 2012 10.22am

man greatest need in adversity is HOPE?? do malaysians see HOPE in our nation where all the rubbish are seen daily// no HOPE under the present coalition,, support change– all malaysians — for a better future,, cows are running this nation now

confused
confused
20 Aug 2012 11.44pm

I wonder what would be the judges reaction if the victim is their daughter.

Apollos
Apollos
18 Aug 2012 10.00pm

“By that same logic, every Malaysian who’s ever bought an illegal DVD, run a red light…better turn themselves in”
By that same logic? What logic? You are comparing apples and oranges. Afizal was CAUGHT and he pleaded guilty. He did NOT turn himself in. So, your reasoning is faulty.
After discussing about second chances and mercy, the writer asked “Would this, however, result in more crimes? Logically, no.” Logically? First, the writer did not give us his reasons for his conclusion. Second, no amount of logic/reasoning can lead one to any conclusion either ‘yes’ or ‘no’. A survey among criminals may help.