Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) defines the term “torture” as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.
While most countries have condemned and criminalised torture, Malaysia remains one of the very few countries yet to commit to becoming a torture-free nation.
In Malaysia caning is used as a judicial punishment for criminal offences. Amnesty International estimates that as many as 10,000 people each year are subjected to caning in Malaysia, and many of them are foreign nationals. The Malaysian government does not punish officials for these actions. On the contrary, it trains officers how to conduct caning and pays them a bonus for each stroke. Some of these officers also seem to augment their income by soliciting bribes from caning victims, who pay them to miss strokes on purpose. Less brutal forms of caning are practiced in schools and, to a lesser extent, for certain offences under Islamic law (Shari’a), whose application varies by state in Malaysia.
Police have persisted in violating the right to life and to freedom from torture and other cruel, inhuman or degrading treatment or punishment (other ill-treatment). In March 2017, in response to a Parliamentary question, the Home Minister stated that 1,654 cases of death in custody were recorded in Malaysia between 2010 and February 2017. Out of the 1,654 people, 1,037 were Malays, 222 were ethnic Chinese, 185 foreigners, 182 ethnic Indians, and the remaining 28 were from other ethnicities.
Amnesty International believes that the reasons why torture and other ill-treatment continues to occur includes the failure of the government to ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT); failure to put in place robust safeguards to protect detainees; and a culture of impunity within the police with a lack of accountability for numerous cases of deaths in custody, unlawful killings, and torture and other ill-treatment over the last decade
Though the Enforcement Agency Integrity Commission, established in 2011, has the mandate to investigate cases of death in custody, torture and other ill-treatment by authorities and make disciplinary recommendations, it does not have the authority to impose penalties. Any prosecutorial power falls within the ambit of the Attorney General’s Chambers and disciplinary agencies. Moreover, criminal prosecution for cases of this nature rarely lead to conviction.
- Ensure prompt and effective investigations by independent and impartial bodies into all complaints and reports of torture and other ill-treatment by police and any other officials; and ensure that those against whom credible, admissible evidence is found are prosecuted in proceedings which meet international standards of fairness;
- Establish an independent external police oversight body to oversee complaints on police misconduct and a code of practice relating to the arrest and detention of persons;
- Ratify the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the ICCPR;
- Enact immediately a moratorium on caning as a punishment in all cases, with a view to its abolition;
- Amend legislation to treat immigration violations as administrative offences rather than crimes punishable by prison or corporal punishment.