MALAYSIAN BAR RESOLUTION FOR THE ABOLITION OF CORPORAL PUNISHMENT OF WHIPPING (passed unanimously at the 61st AGM of the Malaysian Bar on 17/3/2007)
1. In recent times, authorities are clamping down with greater brutality on migrants who are deemed “illegal” under the Immigration Act. The increasing demonisation of foreigners in the media as criminals and trouble makers failed to acknowledge that very often these persons are in fact undocumented persons, asylum seekers, migrant workers and refugees who have endured unspeakable horrors escaping conflict stricken territories, and /or suffered at the hands of ruthless agents, traffickers and authorities.
2. Upon arrest, they end up spending long and indeterminate periods in remand, in overcrowded detention centres and under deplorable conditions. Common and recurring accounts given by these immigration detainees indicate that they are subjected to physical and emotional trauma , given stale food, live under conditions of poor sanitation and hygiene, and are not provided with adequate or prompt medical treatment.
3. Upon being brought to Court they often do not know what charges are brought against them. They are not informed of their right to legal representation, and in any event, are not provided with a reasonable opportunity to seek help. The lack of interpretation in appropriate languages renders the whole legal process a complete travesty of justice and human rights.
4. Invariably these migrants are induced and / or threatened with prolonged and indefinite detention to elicit guilty pleas, the full implications of which are neither properly explained nor fully understood by them.
5. Most alarming of all these violations is that the punishment of whipping is meted out without mercy and restraint.
6. Whipping is clearly intended to be a humiliating experience as it will produce huge red welts and permanent scars. It is also said to have caused impotence. The cane marks are permanent and these will be a source of humiliation to the prisoner for the rest of their lives. New Zealander, Aaron Cohen who received six strokes in 1982 for drug-trafficking recalled his ordeal :-
“I got six. Its just incredible pain. More like a burning - like someone sticking an iron on your bum. That’s the sort of feeling. Pain - just ultimate pain. The strokes come at a rate of one a minute - but it seemed like a lifetime to me. I waited and waited for the first one and as soon as I let my breath out - “baam”. Afterwards my bum looked like a side of beef. There was three lines of raw skin with blood oozing out.”
7. Where is the sense in imposing this brutal punishment on offenders of a victimless irregularity like a lack of appropriate documentation? Are Malaysians subjected to atrocities like this when they are found to be in breach of immigration laws abroad?
8. International organisations such as Amnesty International and the UN Human Rights Committee have condemned whipping and other forms of corporal punishment as cruel, inhumane or degrading punishment and contrary to human rights law. The UN Committee against Torture has called for the abolition of corporal punishment and the UN Special Rapporteur on Torture has stated that “corporal punishment” is inconsistent with the prohibition of torture and other cruel, inhuman and degrading treatment or punishment.
9. It is therefore unsurprising that the World Refugee Survey in 2005 placed Malaysia as one of the worst offenders of refugee rights documenting cruel and inhumane treatment in our prisons and detention camps.
10. Whipping has also been imposed in a discriminatory manner because the Criminal Procedure Code permits the use of “light rattan” for the whipping of those convicted of “white collar” crimes notwithstanding the embezzlement of millions of ringgit.
It is hereby resolved:-
1. That we the Malaysian Bar, declare that the corporal punishment of whipping is cruel, inhumane and degrading.
2. That we the Malaysian Bar call for the abolition of the whipping sentence as prescribed by any legislation and particularly as against offenders of the immigration act.
3. That the Malaysian Bar leads public opinion rejecting and denouncing the sentence of whipping as it is anachronistic and inconsistent with a compassionate society in a developed nation.
4. That whipping has failed as a retributory and deterrent sentence and that it is time for Malaysia to subscribe to Article 5 of the Universal Declaration of Human Rights i.e. “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and reject it altogether as a form of sentencing in our country.