Malaysia must reject caning, an archaic, inhumane form of punishment

Malaysia must reject caning, an archaic, inhumane form of punishment

The proposal to implement caning on those found guilty of corruption would directly violate the absolute prohibition of torture and other cruel, inhuman or degrading punishment under international law, said the ICJ today.

The Malaysian Anti-Corruption Commission (MACC) called on the Government of Malaysia last week to consider caning as a punishment for those convicted of corruption to underline the efforts of eliminating corruption in the country.

Malaysia currently implements caning in a wide range of offences, including the Immigration Act 1959/63, the Penal Code (rape, criminal breach of trust), and the Dangerous Drugs Act 1952.

At present, under the Malaysian Anti-Corruption Commission (MACC) Act 2009, the punishment for those found guilty of bribery is payment of a fine and imprisonment for up to twenty (20) years.

“Malaysia must immediately and completely abolish caning as a form of punishment.  The proposals to implement caning for those found guilty of corruption, bribery, or any other offence is a significant setback for the country.

If this proposal is implemented, it will violate Malaysia’s obligations to prevent, prohibit and prosecute all forms of torture and other cruel, inhuman or degrading treatment or punishment, as.” said Emerlynne Gil, ICJ’s Senior International Legal Adviser.

After Malaysia’s historic election results on 9 May 2018 and the corruption charges levied against its former Prime Minister, Najib Razak, it would be superficial for Malaysia to view the implementation of severe punishments for the crime of corruption as the panacea to the deeply-rooted culture of corruption among those that have held public office and state authorities.

The ICJ also emphasizes that all forms of torture and other cruel, inhuman or degrading treatment are absolutely prohibited by customary international law, as well as international treaties binding on Malaysia, including the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of Persons with Disabilities (CRPD).

The UN Special Rapporteur on Torture has stated that “any form of corporal punishment is contrary to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment.” It cannot be considered a “lawful sanction” under international law.

The ICJ urges the Government of Malaysia to abandon any proposal to implement caning as a form of punishment for any crime. The ICJ also calls on the Government of Malaysia to immediately abolish the practice of caning as it constitutes a form of cruel, inhuman or degrading punishment prohibited under international human rights law and standards.

Contact:
Emerlynne Gil, Senior International Legal Advisor, International Commission of Jurists,
mobile: +66 840923575, email: [email protected]

Background:

At a press conference on 1 October 2018, Malaysia’s Anti-Corruption Commission’s Chief Commissioner Datuk Seri Mohamad Shukri Abdul had proposed that the Malaysian government consider implementing caning for bribery offenders.

Section 288 of the Criminal Procedure Code states the mode of executing the sentence of ‘whipping’, in Section 288(3) it defines the ‘Rattan used for whipping shall not be more than half of an inch in diameter’ (the word caning is not mentioned), while Section 289 of the Criminal Procedure Code states that the sentence of whipping is forbidden in the case of ‘females’, males sentenced to death and males whom the Court considers to be more than fifty years of age, except males sentenced to whipping under Section 376, 377, 377CA or 377E of the Penal Code.

Singapore: Court of Appeal judgment upholding caning flouts international law prohibiting ill-treatment

Singapore: Court of Appeal judgment upholding caning flouts international law prohibiting ill-treatment

The ICJ today expressed its dismay that the Singapore Court of Appeal, in a judgment issued on 4 March 2015 declined to declare caning, a painful form of corporal punishment, to be unlawful.

The administration of caning violates the absolute prohibition of torture and cruel, inhuman or degrading punishment under international law.

Despite this prohibition, the Court of Appeal determined that any international legal prohibition had no effect on Singapore, since the legislature had not made it part of the country’s domestic law.

The ICJ emphasized that Singapore’s failure to prohibit caning in its own national law in no way makes caning a lawful act.

Under international law, caning remains wrong and illegal, irrespective of the country’s domestic arrangements.

The Court of Appeal also ruled that caning, administered as a form of judicially imposed punishment in Singapore, does not amount to torture.

The Court of Appeal stated that caning did not “breach the high threshold of severity and brutality that is required for it to be regarded as torture.”

The ICJ notes that the international prohibition against ill-treatment extends not only to torture, but also to cruel, inhuman and degrading treatment and punishment.

The ICJ considers that caning constitutes both types of ill-treatment.

The ruling was issued by the Singapore Court of Appeals in the case of Yong Vui Kong, a 26-year old man who appealed against his sentence of 15 strokes of the cane and life imprisonment imposed as a punishment for an offence under the Misuse of Drugs Act.

Upon his conviction in 2011, Yong Vui Kong had initially been sentenced to death.

Following changes in the law and an application for re-sentencing to the High Court, his sentence was modified in 2013 to life imprisonment and ‘15 strokes of the cane’.

In his appeal, which was dismissed by the Court of Appeal, Yong Vui Kong challenged this sentence on several grounds, including that caning constitutes torture, which is prohibited under international law.

“The Court of Appeal’s ruling is out of step with Singapore’s obligations to prevent, prohibit and punish all forms of torture and other cruel, inhuman or degrading treatment or punishment. International human rights bodies have made clear that caning and other forms of corporal punishment violate the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment. As such it must be prohibited,” said Emerlynne Gil, International Legal Adviser for Southeast Asia of the ICJ.

Laws in Singapore that permit the imposition of corporal punishment are inconsistent with Singapore’s obligation to prohibit torture and other ill-treatment at all times and in all circumstances.

Consequently, in 2011 the UN Committee on the Rights of the Child asked Singapore to “prohibit unequivocally by law, without any further delay, all forms of corporal punishment, including caning, in all settings”.

In addition, when Singapore went under the Universal Periodic Review of its human rights record before the UN Human Rights Council in 2011, several States recommended that the authorities abolish all corporal punishment, including caning.

The ICJ also emphasizes that all forms of torture and other cruel inhuman or degrading treatment are absolutely prohibited by customary international law and international treaties binding on Singapore, including the Convention on the Rights of the Child (CRC) and the Convention on the Rights of Persons with Disabilities (CRPD).

The prohibition against torture is also a peremptory norm of international law, as recognized by numerous legal authorities and by all States in repeated UN General Assembly resolutions.

The peremptory character of the norm means that it overrides all other laws, international or domestic. The Court of Appeal dismissed any effect that the peremptory character of the prohibition might have on its administration in Singapore.

The ICJ calls on the lawmakers in Singapore to act without delay to outlaw corporal punishment.

Contact:

Emerlynne Gil, International Legal Adviser for Southeast Asia, t +66840923575 ; e emerlynne.gil(a)icj.org

 

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