Giving torture a sound whipping
James Wong Wing OnPublished: Apr 24, 2001 6:53 PM | Updated: Jan 29, 2008 10:21 AM
Twenty years ago, the late Tun Suffian sitting as the Lord President made the following remarks on the issue of torture in a criminal appeal case: 'The police force exists to protect the public from criminal elements, and are given wide powers of arrest, search, investigate and so on - to detect offenders, to collect evidence against them and to bring them to book.
These powers are to be found in the Criminal Procedure Code and other law enacted by Parliament, and welcome by the people. The police are expected to do their duties energetically and efficiently, and on the whole they do that - as witness the comparative peace and tranquillity that exist in the country.
But one power the police do not have, and it is most unlikely that Parliament and the people will give it to them, and that is the power to assault and torture suspects in their custody, least of all power to kill.
Parliament and the public expect the police to exercise their power in a civilized and humane way. Those who exceed their powers should not expect to be protected by the law.' (1981, 1 MLJ 84) (also quoted in p.588: Tunku Sofiah Jewa, Public International Law - A Malaysian perspective , Pacifica, 1996)
Some 20 years later, the nation and, indeed, the world were and still are shocked by the proven fact that none other than the former deputy prime minister Anwar Ibrahim was severely tortured by none other than the former Inspector-General of Police, while under Internal Security Act (ISA) detention.
Friends, associates and supporters of Anwar Ibrahim also allege to have been tortured physically and psychologically while being held under the ISA.
Civilised police
In view of these disturbing signs and trends, it is indeed pertinent, albeit late, for the Human Rights Commission of Malaysia (Suhakam) to recommend to the government to ratify, among others, The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) and The International Covenant on Civil and Political Rights (1996).
Twenty years ago, the late Tun Suffian sitting as the Lord President made the following remarks on the issue of torture in a criminal appeal case: 'The police force exists to protect the public from criminal elements, and are given wide powers of arrest, search, investigate and so on - to detect offenders, to collect evidence against them and to bring them to book.
These powers are to be found in the Criminal Procedure Code and other law enacted by Parliament, and welcome by the people. The police are expected to do their duties energetically and efficiently, and on the whole they do that - as witness the comparative peace and tranquillity that exist in the country.
But one power the police do not have, and it is most unlikely that Parliament and the people will give it to them, and that is the power to assault and torture suspects in their custody, least of all power to kill.
Parliament and the public expect the police to exercise their power in a civilized and humane way. Those who exceed their powers should not expect to be protected by the law.' (1981, 1 MLJ 84) (also quoted in p.588: Tunku Sofiah Jewa, Public International Law - A Malaysian perspective, Pacifica, 1996)
Some 20 years later, the nation and, indeed, the world were and still are shocked by the proven fact that none other than the former deputy prime minister Anwar Ibrahim was severely tortured by none other than the former Inspector-General of Police, while under Internal Security Act (ISA) detention.
Friends, associates and supporters of Anwar Ibrahim also allege to have been tortured physically and psychologically while being held under the ISA.
Civilised police
In view of these disturbing signs and trends, it is indeed pertinent, albeit late, for the Human Rights Commission of Malaysia (Suhakam) to recommend to the government to ratify, among others, The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) and The International Covenant on Civil and Political Rights (1996).
Whether the recommendation itself would finally be accepted by the government or not, should not deter us from focusing our attention on the grave issue of torture, with the constructive intention to make Malaysia and its police more civilised, both in appearance and in reality.
This brief introduction to the subject of torture under international law is only intended to induce more expert discourses in the open, and to raise public awareness, including the awareness of the police and other public officials.Article 5 of the United Nations (UN) Universal Declaration of Human Rights (1948) states in unambiguous terms that 'no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'.
According to Tunku Sofiah Jewa in the two-volume Public International Law - A Malaysian Perspective (p.466, Pacifica, 1996), '... the Declaration is the basic international statement of the inalienable and inviolable rights of all members of the human family'.
However, it is still not a legally binding treaty in the sense that members of the UN, like Malaysia, have no legal obligation to observe or enforce the provisions. In other words, it is only good as a moral authority on modern human rights in the civilised world.
For human rights such as the freedom from torture and other cruel, inhuman or degrading treatment or punishment to be legally binding, or to be observed and enforced in and by sovereign states, we have first to go to the International Covenant on Civil and Political Rights (1966) which needs to be accepted formally by individual states according to the procedures set out in the Vienna Convention on the Law of Treaty (1960).
Suhakam is now recommending the government to do so. Whether the government would accept the recommendation or not depends, among others, on the will and the preparedness of voters to cast their votes for the freedom from torture and other cruel, inhuman and degrading treatment or punishment.
Defining torture
Article 7 of the International Covenant on Civil and Political Rights (1966) states that 'No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment', and also that, 'In particular, no one shall be subjected without his free consent to medical or scientific experimentation.'
But what is the definition of torture? In Steven Wheatley's SWOT International Law (Blackstone, 1996) for novices of the subject, torture, under international law, is simply: 'An act by which severe pain or suffering, physical and mental, is intentionally inflicted on a person for such purposes as obtaining information or confession.' (p.124)
A more formal definition of torture is stated in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984):
'For the purpose of this Convention the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain and suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity". (see p.710: D.J.Harris, Cases and Materials on International Law, fifth edition, Sweet & Maxwell, 1998)
Although Article 1 also qualifies that torture, 'does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions', the pain and suffering caused by 'lawful sanctions' are to be limited 'to the extent consistent with the United Nations' Standard Minimum Rules for The Treatment of Prisoners'. (see p.715: D.J.Harris, Cases and Materials on International Law, fifth Edition, Sweet & Maxwell, 1998)
Given the definition of torture, Article 2 of the 1984 Convention proceeds to state that:
(1) Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction;
(2) No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture;
(3) An order from a superior officer or a public authority may not be invoked as a justification of torture.
Obeying orders
Article 2(3) is particularly noteworthy. It is derived from, among others, the principle established in the International Military Tribunal of Nuremburg (Germany) or commonly known as the Nuremburg Trials from 1945-1946 where Nazi police and military officers were charged and tried for war crimes and other crimes against humanity, including torture.
The principle states that 'crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provision of International law be enforced' and that 'International law imposes duties and liabilities upon individuals as well as upon State'.
The same principle was also applied in the International Military Tribunal of Tokyo in 1948 against Japanese fascists who rampaged across Asia committing murders, rapes and tortures in the Pacific War (1941-1945). (Quoted in pp.54-55: I.A.Shearer, Starke's International Law, 11th edition, Butterworth, 1994).
It means that, according to its strict interpretation, no public official, including the police and the military can claim innocence with the defence of 'merely following or obeying orders given by superiors or 'mplementing government's policies'.
Article 4 of The 1984 Convention obliges governments that accept it to make torture, a criminal offence that must be punished, while Article 10 states that:
1). Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment and
2). Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person.
Other noteworthy provisions and stipulations of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) include:
Sacrilegious challenge
Article 11: 'Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.'
Article 12: 'Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.'
Article 13: 'Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against ill-treatment or intimidation as a consequence of his complaint or any evidence given.'
Article 14: 'Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to a fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.'
Article 15: 'Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.'
However, while discoursing the finer points of law and waiting for the government to do what is self-evidently right and civilised, let us condemn torture as a sacrilegious challenge to God.
Let us also pray that our fathers, mothers, brothers, sisters, husbands, wives and children who are in uniform and in other public offices would not be torturers or insolent patrons of torture even for a second. Let us ask God to have mercy on their souls and psychological well-being
JAMES WONG WING ON is a former member of parliament (1990-1995) and also a leading Mandarin-Chinese opinion writer and columnist. He read economics and political science at the Monash University in Australia from 1983 to 1986. All views expressed herein are his own, and are open to criticisms and debates.
These powers are to be found in the Criminal Procedure Code and other law enacted by Parliament, and welcome by the people. The police are expected to do their duties energetically and efficiently, and on the whole they do that - as witness the comparative peace and tranquillity that exist in the country.
But one power the police do not have, and it is most unlikely that Parliament and the people will give it to them, and that is the power to assault and torture suspects in their custody, least of all power to kill.
Parliament and the public expect the police to exercise their power in a civilized and humane way. Those who exceed their powers should not expect to be protected by the law.' (1981, 1 MLJ 84) (also quoted in p.588: Tunku Sofiah Jewa, Public International Law - A Malaysian perspective, Pacifica, 1996)
Some 20 years later, the nation and, indeed, the world were and still are shocked by the proven fact that none other than the former deputy prime minister Anwar Ibrahim was severely tortured by none other than the former Inspector-General of Police, while under Internal Security Act (ISA) detention.
Friends, associates and supporters of Anwar Ibrahim also allege to have been tortured physically and psychologically while being held under the ISA.
Civilised police
In view of these disturbing signs and trends, it is indeed pertinent, albeit late, for the Human Rights Commission of Malaysia (Suhakam) to recommend to the government to ratify, among others, The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) and The International Covenant on Civil and Political Rights (1996).
Whether the recommendation itself would finally be accepted by the government or not, should not deter us from focusing our attention on the grave issue of torture, with the constructive intention to make Malaysia and its police more civilised, both in appearance and in reality.
This brief introduction to the subject of torture under international law is only intended to induce more expert discourses in the open, and to raise public awareness, including the awareness of the police and other public officials.Article 5 of the United Nations (UN) Universal Declaration of Human Rights (1948) states in unambiguous terms that 'no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'.
According to Tunku Sofiah Jewa in the two-volume Public International Law - A Malaysian Perspective (p.466, Pacifica, 1996), '... the Declaration is the basic international statement of the inalienable and inviolable rights of all members of the human family'.
However, it is still not a legally binding treaty in the sense that members of the UN, like Malaysia, have no legal obligation to observe or enforce the provisions. In other words, it is only good as a moral authority on modern human rights in the civilised world.
For human rights such as the freedom from torture and other cruel, inhuman or degrading treatment or punishment to be legally binding, or to be observed and enforced in and by sovereign states, we have first to go to the International Covenant on Civil and Political Rights (1966) which needs to be accepted formally by individual states according to the procedures set out in the Vienna Convention on the Law of Treaty (1960).
Suhakam is now recommending the government to do so. Whether the government would accept the recommendation or not depends, among others, on the will and the preparedness of voters to cast their votes for the freedom from torture and other cruel, inhuman and degrading treatment or punishment.
Defining torture
Article 7 of the International Covenant on Civil and Political Rights (1966) states that 'No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment', and also that, 'In particular, no one shall be subjected without his free consent to medical or scientific experimentation.'
But what is the definition of torture? In Steven Wheatley's SWOT International Law (Blackstone, 1996) for novices of the subject, torture, under international law, is simply: 'An act by which severe pain or suffering, physical and mental, is intentionally inflicted on a person for such purposes as obtaining information or confession.' (p.124)
A more formal definition of torture is stated in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984):
'For the purpose of this Convention the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain and suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity". (see p.710: D.J.Harris, Cases and Materials on International Law, fifth edition, Sweet & Maxwell, 1998)
Although Article 1 also qualifies that torture, 'does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions', the pain and suffering caused by 'lawful sanctions' are to be limited 'to the extent consistent with the United Nations' Standard Minimum Rules for The Treatment of Prisoners'. (see p.715: D.J.Harris, Cases and Materials on International Law, fifth Edition, Sweet & Maxwell, 1998)
Given the definition of torture, Article 2 of the 1984 Convention proceeds to state that:
(1) Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction;
(2) No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture;
(3) An order from a superior officer or a public authority may not be invoked as a justification of torture.
Obeying orders
Article 2(3) is particularly noteworthy. It is derived from, among others, the principle established in the International Military Tribunal of Nuremburg (Germany) or commonly known as the Nuremburg Trials from 1945-1946 where Nazi police and military officers were charged and tried for war crimes and other crimes against humanity, including torture.
The principle states that 'crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provision of International law be enforced' and that 'International law imposes duties and liabilities upon individuals as well as upon State'.
The same principle was also applied in the International Military Tribunal of Tokyo in 1948 against Japanese fascists who rampaged across Asia committing murders, rapes and tortures in the Pacific War (1941-1945). (Quoted in pp.54-55: I.A.Shearer, Starke's International Law, 11th edition, Butterworth, 1994).
It means that, according to its strict interpretation, no public official, including the police and the military can claim innocence with the defence of 'merely following or obeying orders given by superiors or 'mplementing government's policies'.
Article 4 of The 1984 Convention obliges governments that accept it to make torture, a criminal offence that must be punished, while Article 10 states that:
1). Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment and
2). Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person.
Other noteworthy provisions and stipulations of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) include:
Sacrilegious challenge
Article 11: 'Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.'
Article 12: 'Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.'
Article 13: 'Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against ill-treatment or intimidation as a consequence of his complaint or any evidence given.'
Article 14: 'Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to a fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.'
Article 15: 'Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.'
However, while discoursing the finer points of law and waiting for the government to do what is self-evidently right and civilised, let us condemn torture as a sacrilegious challenge to God.
Let us also pray that our fathers, mothers, brothers, sisters, husbands, wives and children who are in uniform and in other public offices would not be torturers or insolent patrons of torture even for a second. Let us ask God to have mercy on their souls and psychological well-being
JAMES WONG WING ON is a former member of parliament (1990-1995) and also a leading Mandarin-Chinese opinion writer and columnist. He read economics and political science at the Monash University in Australia from 1983 to 1986. All views expressed herein are his own, and are open to criticisms and debates.
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