Home Civil Society Voices Abolish whipping – cruel, inhumane, degrading penal punishment – in Malaysia

Abolish whipping – cruel, inhumane, degrading penal punishment – in Malaysia

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We, the undersigned 25 groups, call on Malaysia to abolish the sentence of whipping or caning, which is an inhumane, degrading and cruel form of penal punishment.

Whipping, is a corporal punishment, that is a violation of human rights. In Malaysia, it exists as a sentence for over 50 different criminal offences, and many times as a mandatory sentence in Malaysia.

In Malaysia, whipping as a penal statute was first introduced by the British in the 19th Century, first codified under the 1871 Penal Code Ordinance of the Straits Settlements, and it is retained in many laws and is a sentence for more than 50 offences.

The Criminal Justice Act 1953, Section 4 stated:

No person shall be sentenced by a court to whipping with a cat-o’-nine tails; and every law conferring power on a court to pass a sentence of whipping with a cat-o’-nine tails, or whipping, shall be construed as conferring power to pass a sentence of whipping with a rattan.

Using a rattan does not diminish the fact that it is still cruel and inhumane. Penal whipping is so much worse that the caning normally imposed by Islamic law in Malaysia. Poor undocumented foreigners and migrant workers are the biggest victims of whipping in Malaysia.

Many countries have already abolished whipping as a punishment from their statutes, such as India and the UK, pursuant to the Indian Abolition of Whipping Act 1955 and the Criminal Justice Act 1948 respectively. In April 2020 it was reported that Saudi Arabia also abolished flogging as a form of punishment.

Whipping – a mandatory sentence

The Immigration Act 1959/63 was amended and as of August 2002, the sentence of whipping was introduced for undocumented migrants, who if convicted shall be liable to a fine not exceeding RM10,000 or to imprisonment for a term not exceeding five years or both, and they shall also be liable to whipping of not more than six strokes.

To date, Malaysian law still does not recognise asylum seekers or refugees, and as such they are considered ‘illegal’ or undocumented foreigners or migrants and are at risk of being whipped.

“According to Prisons Department records, 47,914 foreigners were found to have violated the Immigration Act from 2002 to 2008. Of these, 34,923 were caned or whipped.”

The trend continues, and undocumented migrants in Malaysia may likely make up the majority of those being whipped.

The Abolition Of Mandatory Death Penalty Act 2023 now provides for an alternative to death penalty, ie a 30 to 40-year sentence of imprisonment, “and if not sentenced to death, shall also be punished with whipping of not less than twelve strokes”.

This means that if someone is not sentenced to death but to imprisonment, then judges have no choice but to also sentence the person to be whipped at least 12 times. Parliament removed the judge’s discretion not to impose the whipping sentence by making the sentence mandatory.

Experience of victims

In all cases, the whipping is inflicted on the buttocks of the offender by specially trained officers using a “rattan used for whipping shall be not more than half an inch in diameter”.

“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. It’s 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. – Extract from preamble of the 2007 Malaysian Bar resolution for the abolition of corporal punishment of whipping

Sabri Umar, the wrongly convicted documented Indonesian migrant worker, who was a legal migrant worker, had this to say about his experience of being unlawfully whipped:

… Sabri Umar said all the inmates were asked to strip with only a piece of cloth to cover their private parts.

“We took turns to step onto a wooden frame and our legs were spread apart but not bound. Our hands were spread upward and tied to the frame we were standing on.

“They untied us after the caning and told us to put on our shirts back while we waited in a group and watched others being caned,” described the 31-year-old, his voice quavered as if he was reliving the horror again.

“Many of them screamed and cried, but those who were stronger didn’t cry. I remember one person receiving 10 strokes that day.

“After being caned, I immediately felt drained of all my energy. The cane tore the skin on my buttocks and I started to bleed after a few minutes.

“I could not sit for the next 10 days and I slept facing down to avoid making my wounds worse,” Sabri recalled. 

Sabri Umar was unlawfully whipped as his appeal was pending, and the law specifically prohibits whipping until appeals are over.

Dangerous and risky

Without a doubt, whipping is excruciatingly painful and could result in extensive soft tissue injury and possibly other injuries, possibly even permanent.

The law acknowledges the health risk that comes with whipping, and as such requires the presence of a medical officer.

Section 2 of the Criminal Procedure Code:

(1) The punishment of whipping shall not be inflicted unless a Medical Officer is present and certifies that the offender is in a fit state of health to undergo such punishment.

(2) If, during the execution of a sentence of whipping, a Medical Officer certifies that the offender is not in a fit state of health to undergo the remainder of the sentence the whipping shall be finally stopped…

No sentence of whipping shall be executed by instalments, and that means once stopped, it cannot be later resumed on another day.

The then minister responsible for Parliament and law, Wan Junaidi Tuanku Jaafar, said: “Personally, I view whipping as very brutal and violent and simply inhumane… most offenders suffer open wounds with many fainting after three strokes.”

By law, whipping cannot be affected in the same way on youthful offenders (who above the age of 18 and below 21). For youthful offenders, whipping shall be inflicted in the way of school discipline with a light rattan. Women, males sentenced to death and generally males whom the court considers to be more than 50 years of age cannot be punished with whipping (Section 289, Criminal Procedure Code).

Abolition calls

Noting also that the immediate past Perikatan Nasional government, before the last general election, had said on 6 September 2022 through the minister in charge of Parliament and law, that Malaysia will abolish the mandatory death and whipping sentences by next year, with amendments to the laws to be tabled in Parliament next month. (Malay Mail). On 10 October Parliament was dissolved, making way for the general election.

We ask the current Pakatan Harapan-led unity government of Prime Minister Anwar Ibrahim, if committed to human rights, to speedily abolish whipping and corporal punishment in Malaysia, which is an internationally acknowledged form of torture.

The Malaysian Bar, Suhakam (the Malaysian human rights commission) and many others have called for the abolition of whipping.

On 23 August 2022, Suhakam urged the government to prohibit corporal punishment by abolishing all domestic laws warranting the imposition of corporal punishment such as whipping and caning, which are all inconsistent with international human rights principles.

On 3 April government backbencher, Hassan Karim also called for the abolition of the sadistic, primitive and inhumane caning punishment.

The Human Rights Measurement Initiative’s (HRMI) Rights Tracker 2023, measured Malaysia as having the lowest score for the right to freedom from torture and ill-treatment, at 4.9 out of 10.  Malaysia remains one the rare democracies that has not yet ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 

Therefore, we

  • Call on Malaysia to speedily abolish whipping as a sentence in all laws
  • Call for an imposition of an immediate moratorium on whipping pending abolition
  • Call for the abolition of the mandatory sentence of whipping, that removes judge’s discretion to not sentence a person to be whipped, as is also found in the Abolition of Mandatory Death Penalty Act 2023, where if the sentence is not death, “shall also be liable to whipping of not more than six strokes”
  • Call on Malaysia to ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Charles Hector

Fpr and on behalf the following 25 organisations

  1. Aliran
  2. Malaysians Against Death Penalty and Torture (Madpet)
  3. Association of Domestic and Maquila Workers (Atrahdom), Guatemala, Central America
  4. Australians Against Capital Punishment (AACP)
  5. Black Women for Wages for Housework, International
  6. Building and Wood Workers International (BWI) Asia Pacific region
  7. German Coalition to Abolish the Death Penalty (GCADP)
  8. Global Women’s Strike, UK
  9. Haiti Action Committee
  10. International Women’s Rights Action Watch Asia Pacific
  11. Japan Innocence and Death Penalty Information Center
  12. Lawyers Collective, India
  13. Legal Action for Women, UK
  14. Malaysian Physicians for the Prevention of War
  15. Migrant Care, Indonesia
  16. MAP Foundation, Thailand
  17. North South Initiative
  18. Payday men’s network (UK/US)
  19. Pergerakan Tenaga Akademik Malaysia (Gerak)
  20. Redemption, Pakistan
  21. Sabah Plantation Industry Employees Union (SPIEU)
  22. Sarawak Dayak Iban Association
  23. Union of Domestic and Maquila workers (Sitradom), Guatemala
  24. Women of Color/Global Women’s Strike, US
  25. Workers Hub For Change (WH4C)

 

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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