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, the International Commission of Jurists has said.
The Malaysian Anti-Corruption Commission recently called on the government 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 for 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 Act 2009, the punishment for those found guilty of bribery is payment of a fine and imprisonment for up to 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,” 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 who have held public office and state authorities.
The ICJ also emphasises 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, the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of Persons with Disabilities.
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 to abandon any proposal to implement caning as a form of punishment for any crime. The ICJ also calls on the government 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.
At a press conference on 1 October 2018, Malaysia’s Anti-Corruption Commission’s chief commissioner 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’. Section 288(3) defines the “Rattan used for whipping shall not be more than half of an inch in diameter” (the word caning is not mentioned).
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 50 years of age, except males sentenced to whipping under Section 376, 377, 377CA or 377E of the Penal Code.