Malaysia Supports Torture
Datuk Seri Saifuddin Nasution Ismail, Home Minister in Parliament
A controversial take that is comparable and equivalent to what the Minister of Home Affairs, Saifuddin Nasution Ismail position when asked about Malaysia’s ratification of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).
What is UNCAT?
UNCAT is simple and straightforward. Torture is universally condemned, and we should rid it from the world. This means no government; no country should have the power to inflict pain and suffering for whatever aims they have. UNCAT itself explicitly excludes lawful sanction in the definition of torture under Article 1.
Key to this all is an intention for any ratifying country to combat and outlaw the use of torture, especially by state authorities. This is not so different from our law, where law enforcement causing hurt can be prosecuted under the penal code. Police officers are also bound by the Inspector-General of Police Standing Orders (IGSO) when it comes to the use of force.
Mind you, I am not saying we are perfect, but in principle, at least those written in theory, we are not that far off from the spirit of UNCAT. Explicitly saying we are not in alignment on this would imply that ‘We want to be able to legally torture others!’.
Torture for Madani?
To be fair to the good minister, that is not what he is implying. He was merely parroting a preference for inflicting pain within enforcement authorities. The position he espoused is much more refined and foundational than torture. We don’t have a need and want to torture, it is just incidental to the fundamental urge we have to inflict pain.
I won’t point to any specific agencies because any and every agency would immediately deny any suggestion that they aspire to inflict pain while continuing to espouse policies that seek to achieve nothing but pain.
What am I talking about? Let’s look at Malaysia's response to the world during the Universal Periodic Review, where Malaysia conveniently commented on the use of corporal punishment.
“Corporal punishment is a form of punishment provided for under existing laws in Malaysia. It is only imposed on serious offences and is only carried out pursuant to the order of the courts. Malaysia does not share the view that equates torture, cruel, inhuman or degrading treatment and punishment with corporal punishment which is a legal form of punishment and strictly applied in Malaysia.”
I do agree corporal punishment is a legal form of punishment and is strictly applied in Malaysia. The mandatory nature of corporal punishment under our law is a sight to behold. If you look at any of the cases where a death row inmate is resentenced to life imprisonment, the court metes out a mandatory 12 lashes of whipping for them. The only exemption comes if they are a woman or above the age of 50. Anything in between, the courts are bound by the mandatory sentencing imposed upon them.
If you are 24 hours shy of age 50, you will be whipped. If you are disabled? You will still be sentenced to whipping (but we’ll see what the doctor prescribes down the road to see if you get a pass!). Diabetic and can’t risk an open wound? Too bad, sentenced to 12 lashes!
Sounds terrible, why do we do it? Conveniently, the government provided an explanation for caning in school that can help enlighten us on our principles of inflicting pain.
“Malaysia underlines that caning in schools is not a form of abuse but a form of education, and is not carried out arbitrarily but based on strict and non-injurious procedures. Canning should be regarded as the last resort and a form of instilling discipline to a pupil when all other efforts and administrative measures do not seem to provide a positive behavioural change to pupils involved.”
As a dutiful student who has been subjected to varying degrees of caning in school – (thank you SJK(C)), I was told caning was because they cared, and we needed the pain to learn the lesson. It most certainly was not the final option; it was the first option. Exactly like how our criminal law works! It matters not you are a first-time offender or if there is a good reason why you committed a crime, if the law says you shall be whipped, you will be.
I hope that was educational.
I thought you wanted to talk about torture.
Oh, was I? I must have been sidetracked like the minister. Yes, UNCAT is designed and intended to challenge the use of torture and outlaw it in all its forms. Even without the UNCAT, international law explicitly forbids the use of torture in any and all context, UNCAT is merely a formality.
If Malaysia in principle opposes the use of torture, that should be our first and only consideration towards ratification of UNCAT. Combating torture, an act that is universally condemned is the priority, not the bits on lawful punishment we are obsessed with.
How would Anwar feel if we were to tell him in 1998, “YB, we oppose torture, but you know lah, we need caning in schools and penal code, we cannot ratify UNCAT, the whole thing about you being assaulted and abused in custody have to give way to caning.”.
Iconic photo of Anwar Ibrahim after his arrest in 1998
How would any of the surviving victims of torture feel when they hear the news that Malaysia refuses to sign an international treaty outlawing torture because we have a need to protect our practice of caning and whipping?
Is UNCAT the solution?
Unfortunately, no, it is not. It is merely a declaration of our intent and maybe a degree of leeway for the judiciary to interpret our laws. What we need is not mere declaration but conviction and willingness to combat and prevent torture.
I can understand why the government hesitated to ratify UNCAT, but what is stopping them from expanding the penal code to include torture as an explicit crime? It was not fair for police officers involved in N. Dharmendran to be charged with murder, I am certain that was never their intent. Neither was it fair for the victims and their families for the perpetrators to be merely prosecuted and convicted for assault like in A Kugan’s.
I don’t want to know what the government cannot do, I want to know what the government can and intends to do to criminalize torture.
And caning?
I want to know how Indonesia, Oman, Saudi Arabia, Qatar, and many other countries with caning and whipping for both criminal and Syariah laws are able to ratify UNCAT while we can’t. Caning and whipping were not a stumbling block for these countries to ratify UNCAT.
Why is it ours?
Dobby Chew is the Chief Executive Officer at HAYAT
