性別平等联合行动联盟（Joint Action Group for Gender Equality，JAG）表示支持吉隆坡推事庭发布给家暴幸存者 Emilia Hanafi 一份保护令的裁决。该裁决强调了执法当局必须更积极主动地保护妇女和儿童免受侵犯。 国会通过 1994年《家庭暴力法案》以保护家暴幸存者，避免她们继续被加害。因此，法庭必须实践国会通过此法案的用意，执行保护令以避免更多家暴的发生。 2016年5月20日，吉隆坡推事庭颁发了一份保护令给 Emilia Hanafi 以保护她再度被前夫家暴。然而，她的前夫却向法庭申请搁置撤销该保护令。 2016年12月22日，推事法官 Zuhair Rosli 驳回前夫搁置保护令的申请，并确认该保护令将有效至2017年5月。法官的裁决是根据律师呈上的证据：包括三份警察报告和福利局的家暴报告，判断Emilia需要被保护。 根据推事法官 Zuhair的裁决显示，法庭会将警察报告及其他相关事项纳入考量，再决定是否颁布保护令给予受害者。而颁布保护令的决定性因素取决于施暴者再度施暴的机率。 推事法官Zuhair根据警方报告指出，即使Emilia 的家人试图在该暴力事件中保护她免受前夫暴打，她依旧因为该次暴打而造成严重的心灵创伤。因此，Emilia需要保护令来保护她免受伤害，其中也涵盖了情绪上的暴力。 这些法庭公文，包括在调查家暴案件时所颁布的临时保护令(IPO)，和在施暴者被控告上庭后所颁布的保护令(PO)，是为了向幸存者保证执法当局会针对持续性的暴力采取法律行动。IPO 和 PO 并无意侵犯施暴者的权利，因为相关的保护令只是保护家暴幸存者免受进一步的暴力。没有任何人有权利侵犯或欺压任何人。…
Is this the way our society treats underaged girls where an alleged rapist may be allowed to escape jail sentence by promising marriage? Should parents be allowed to marry off their girl-child for reasons such as poverty, culture or tradition? Surely, laws like the Child Act 2001 and the Penal Code are legislated to protect our vulnerable children and the government has a duty to protect them and ensure that justice is being served. When rape happens to a Muslim child, should she be treated differently from a non-Muslim girl?
Last October, Datuk Seri Nazri Abdul Aziz, the Minister in the Prime Minister’s Office, made strong statements about amending criminal laws so that mandatory jail terms will be imposed on those found guilty of statutory rape to address the high incidence of rape involving underaged girls and to protect them against such vulnerability. The government must take action beyond talk to stop alleged rapists and paedophiles manipulating religion and culture to escape jail sentence.
In the Sabah case, since the permission to marry is allegedly pending before the Syariah Court, the issue is whether the Syarie Judge should allow a 40 year old man charged with the serious crime of rape to marry the victim? Secondly, how would a girl-child who is only 13 years old said to be “ready for marriage”? Why is there an exception to the protection accorded to all children in Malaysia, merely because a child is Muslim?
It is well documented that underaged girls who are married off are more likely to face domestic violence and sexual abuse, and that there is an increased risk of death in childbirth for young brides.
At the end of the day when a child needs protection and justice, laws and institutions have failed when a marriage certificate is used to legitimise sex with children. What happens to society when the promise of marriage is a means to escape prosecution of statutory rape? Can we expect an alleged rapist to treat his victim-wife with decency and respect, worse still if she is a child?
The Attorney General’s Chambers and the Syariah Court should exercise their good judgment and discretion to prevent such deplorable acts from continuing, and preventing abusers from manipulating the justice system.
The Joint Action Group for Gender Equality (JAG) unequivocally calls for the following:
- That the Syarie Judge rejects the marriage application for the 13 year old girl, due to her inability to give a valid consent or that she is mentally unfit for marriage.
- The Public Prosecutor to reconsider allowing the withdrawal of rape charges merely due to marriage, based on the existing clear facts of statutory rape, taking note of the huge age gap and the power differentials between the accused and the child.
- The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) prohibits all child marriages and betrothals. As Malaysia has acceded to CEDAW, our government must take action to ensure all Malaysian laws comply with this principle.
- Immediate protection, counselling, support and assistance be provided to the victim and her family by the relevant authorities. The Child Protector should be using the full powers of the Child Act 2001 to intervene for the best interest of the child. Laws and practices that are harmful to children’s well-being must be challenged and rectified. We cannot allow our children to be sexually assaulted and yet do nothing to stop it. Our children need protection and we have a duty and obligation to protect them at all costs.
Loh Cheng Kooi and Melissa Mohd Akhir on behalf of Joint Action Group for Gender Equality (JAG)
JAG includes the following:
Women’s Centre for Change Penang (WCC)
Sabah Women’s Action Resource Group (SAWO)
Women’s Aid Organisation (WAO)
Sisters in Islam (SIS)
All Women’s Action Society (AWAM)
Perak Women for Women (PWW)
Persatuan Sahabat Wanita (PSWS)