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The Bar Council acknowledges the continued prevalence of rape and incest as part of the rationale behind the strong call by the Deputy Prime Minister Datuk Seri Abdullah Ahmad Badawi and certain other groups for further amendments to the Penal Code to provide for stiffer penalties.

However, the Bar Council is of the view that the Government should not be too hasty to amend the Penal Code again in an immediate response to these calls for stiffer penalties. Despicable and heinous though these crimes may be, the Government should be wary of taking on board public outrage and giving way to what may just be the views of some. The correct, objective approach to take is to allow the amendment to the Penal Code last year to be tested by judicial process before any further amendment is made, otherwise, amending a law which is yet to be implemented will create a strong precedent for piecemeal legislation in future cases. This is an unhealthy approach to legislation which should be avoided as far as possible. In the case of Section 376A, the delay in implementing the amendment earlier and allowing the law to run its course, whatever the reasons may be, has caused unnecessary problems such as this and has put the Government under undue pressure to amending the law on a piecemeal basis . The call for tougher laws in incest cases tantamount to putting the cart before the horse as Section 376A has yet to be even implemented. The Bar Council therefore urges the Government to undertake its proposed 'deep study' seriously and examine the issue from all relevant angles (not just that of public opinion).

The Bar Council wishes to point out that the mandatory minimum sentence is not the only solution to ensure that judges impose the appropriate sentence. Neither is the current proposal by the Government to make it mandatory for courts to mete out the maximum sentence. Justice in sentencing requires that judges be given the discretion to impose a sentence commensurate with the seriousness of the offence. The mandatory minimum and now proposed mandatory maximum sentence conflicts with principles of just sentencing.

The Bar Council is of the view that stiffer penalties may not be the answer to teaching offenders not to commit the same crimes again. If this needs verification, research should be conducted on the effect heavier sentences have had on the propensity to re-commit the offence by convicted rapists. Similarly, once Section 376A has been sufficiently tested, such research should be conducted on persons who have been convicted of incest. If stiffer penalties have failed to prevent the re -commission of such crimes by the same offenders, then there will be no justification to increase the penalties on this ground. The Bar Council advocates that if any further amendment is to be made, compulsory rehabilitive treatment or counselling and regular observation after release from prison should be considered as part of the sentence.

In view of the above, the Bar Council calls upon the Government and other concerned groups to study the effectiveness (or non-effectiveness, as the case may be) of the law governing rape before imposing stiffer penalties. The new law governing incest should be given an opportunity to come into operation and be tested before the penalty is increased.

The Bar Council deprecates the crimes of rape and incest and calls for a pro-active, positive approach in punishing offenders adequately , preventing re-offending and reducing, if not eliminating, the commission of such crimes.