Kumpulan gesa mansuh hukuman sebat
SEKUMPULAN 25 pertubuhan masyarakat sivil menggesa kerajaan memansuhkan hukuman sebat atau rotan.
Mereka berkata bentuk hukuman ini tidak berperikemanusiaan, menjatuhkan maruah dan melanggar hak asasi manusia.
Mereka juga berkata sebat atau rotan wujud sebagai hukuman bagi lebih 50 kesalahan jenayah yang berbeza, dan banyak kali sebagai hukuman mandatori, di Malaysia.
“Sebatan keseksaan adalah jauh lebih teruk daripada hukuman rotan yang biasa dikenakan oleh undang-undang Islam di Malaysia.
“Warga asing dan/atau pekerja asing yang miskin dan/atau pekerja asing adalah mangsa terbesar sebatan di Malaysia,” kata CSO dalam satu kenyataan hari ini.
Menurut mereka bentuk hukuman ini mula diperkenalkan oleh British pada abad ke-19.
“Banyak negara telah pun memansuhkan hukuman sebat sebagai hukuman daripada undang-undang mereka, seperti India dan United Kingdom. Pada April 2020, dilaporkan bahawa Arab Saudi juga memansuhkan sebatan sebagai satu bentuk hukuman,” kata kumpulan itu.
Bagaimanapun di Malaysia ia masih digunakan secara meluas termasuk sebagai hukuman mandatori, tambah mereka.
Kumpulan itu memberi contoh Akta Imigresen yang dipinda pada 2002 untuk memasukkan hukuman sebat bagi pendatang tanpa izin, selain hukuman penjara dan denda.
Mereka menambah Akta Pemansuhan Hukuman Mati Mandatori 2023 yang diluluskan baru-baru ini yang memperuntukkan alternatif kepada hukuman mati kini juga telah mengukuhkan hukuman dengan sebat.
“Ini bermakna jika seseorang itu tidak dijatuhkan hukuman mati, tetapi dipenjarakan maka hakim tidak mempunyai pilihan selain menjatuhkan hukuman sebat sekurang-kurangnya 12 kali.
“Parlimen menghapuskan budi bicara hakim untuk tidak menjatuhkan hukuman sebat dengan menjadikan hukuman itu mandatori.”
CSO berkata gesaan untuk pemansuhan sebat sebagai hukuman telah lama dibuat di Malaysia, termasuk oleh Suruhanjaya Hak Asasi Manusia Malaysia.
Malahan Ahli parlimen Pasir Gudang Hassan Karim, telah menggesa hukuman rotan “sadis, primitif dan tidak berperikemanusiaan” dimansuhkan, kata kumpulan itu.
“Kami meminta kerajaan perpaduan pimpinan Pakatan Harapan yang dipimpin oleh Perdana Menteri Anwar Ibrahim, jika komited terhadap hak asasi manusia, akan segera memansuhkan sebat dan hukuman dera di Malaysia, yang merupakan bentuk penyeksaan diiktiraf di peringkat antarabangsa,” kata mereka.
Kata mereka sebagai permulaan, kerajaan boleh mengenakan moratorium serta-merta ke atas hukuman sebat sementara menunggu pemansuhan.
Kumpulan itu juga menyeru Malaysia untuk meratifikasi Konvensyen PBB menentang Penyeksaan dan Layanan atau Hukuman Lain yang Kejam, Tidak Berperikemanusiaan atau Menghina.
Kumpulan terbabit adalah:
- Aliran
- Malaysians Against Death Penalty and Torture
- Guatemala-based Association of Domestic and Maquila Workers
- Australians Against Capital Punishment
- Black Women for Wages for Housework
- International Building and Wood Workers International
- German Coalition to Abolish the Death Penalty
- Global Women’s Strike
- Haiti Action Committee
- International Women’s Rights Action Watch
- Japan Innocence and Death Penalty Information Centre
- India-based Lawyers Collective
- UK-based Legal Action for Women
- Malaysian Physicians for the Prevention of War
- Migrant Care
- MAP Foundation (Thailand)
- North South Initiative
- Payday men’s network (UK/US)
- Malaysian Academic Movement
- Redemption (Pakistan)
- Sabah Plantation Industry Employees Union
- Sarawak Dayak Iban Association
- Women of Colour/Global Women’s Strike (AS)
- Workers Hub For Change. – 28 Julai, 2023.- Malaysian Insight, 28/7/2023
Media Statement – 28/7/2023
Abolish Whipping, a Cruel, Inhumane and Degrading Penal Punishment in Malaysia
We, the undersigned 27 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 sentences for more than 50 different criminal offences, and many times as a mandatory sentence, in Malaysia.
In Malaysia, whipping is penal statutes, was first introduced by the British in the 19th century, first codified under the 1871 Penal Code Ordinance of the Straits Settlements, and is still retained in many laws and is a sentence for more than 50 offences.
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/or 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 United Kingdom, pursuant to the Indian Abolition of Whipping Act 1955 and the Criminal Justice Act 1948, respectively. On April 2020, it was reported that Saudi Arabia also have abolished flogging as a form of punishment.
Whipping – a mandatory sentence in laws
Immigration Act 1959/63 was amended and as of August 2002, and the sentence of whipping was introduced for undocumented migrants, who if convicted shall be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both, and shall also be liable to whipping of not more than six strokes. To date, Malaysian law still does not recognize asylum seekers or refugees, and as such they are considered illegal or undocumented foreigners/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.
Abolition Of Mandatory Death Penalty Act 2023 now provides for an alternative to death penalty, being a 30-40 years 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 one is not sentenced to death, but to imprisonment then judges have no choice but to sentence to be whipped at least 12 times. The Parliament removed the judge’s discretion not to sentence whipping by making the sentence mandatory.
Whipping – Experience of Victims
In all cases, the whipping is inflicted on the buttock 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. (Malaysiakini, 17/8/2022). Sabri Umar was unlawfully whipped as his appeal was pending, and the law specifically prohibits whipping until appeals are over.
Whipping is dangerous and can cause permanent harm
Without a doubt, whipping is excruciatingly painful which would result in extensive soft tissue injury and possibly other injury, 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 in the Prime Minister’s Department (Parliament and Law) Datuk Seri Wan Junaidi Tuanku Jaafar “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 eighteen and below the age of twenty-one). 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 fifty years of age cannot be punished with whipping. (Sec. 289, CPC.
Abolition Call by SUHAKAM, Malaysian Bar, previous PN government, …
Noting also that the immediate past Perikatan Nasional government, before the last General Elections, had said on 6/9/2022 via 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 10th October, Parliament was dissolved making way for the General Elections.
We ask that the current Pakatan Harapan-led unity government of Prime Minister Anwar Ibrahim, if committed to human rights, will speedily abolish whipping and corporal punishment in Malaysia, which is internationally acknowledged form of torture.
The Malaysian Bar, SUHAKAM(Malaysian Human Rights Commission) and many others have called for the abolition of whipping. On 23/8/2022, ‘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 3/4/2023, government backbencher, Hassan Karim also called the abolition of the “sadistic, primitive and inhumane” caning punishment.
The Human Rights Measurement Initiative’s (HRMI) Rights Tracker 2023, measured…Malaysia 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. (Malay Mail, 23/6/2023)
Therefore, we
a) Call on Malaysia to speedily abolish whipping as a sentence in all laws;
b) Call for an imposition of an immediate moratorium on whipping pending abolition;
c) 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 Abolition of Mandatory Death Penalty Act 2023, where if sentence is not death, the judge ‘…shall also be liable to whipping of not more than six strokes…’ and
d) 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 27 organisations
MADPET (Malaysians Against Death Penalty and Torture)
Association of Domestic and Maquila Workers (ATRAHDOM), Guatemala Central America
AACP (Australians Against Capital Punishment)
Black Women for Wages for Housework, International
Building and Wood Workers International (BWI) Asia Pacific Region
German Coalition to Abolish the Death Penalty (GCADP)
Global Women’s Strike, UK
Haiti Action Committee
International Women's Rights Action Watch Asia Pacific
Japan Innocence and Death Penalty Information Center
Lawyers Collective, India
Legal Action for Women, UK
Malaysian Physicians for the Prevention of War
Migrant Care, Indonesia
MAP Foundation, Thailand
North South Initiative
Payday men’s network (UK/US)
Pergerakan Tenaga Akademik Malaysia (GERAK)
Redemption, Pakistan.
Sabah Plantation Industry Employees Union (SPIEU)
Sarawak Dayak Iban Association
Union of Domestic and Maquila workers (SITRADOM), Guatemala
Women of Color/Global Women’s Strike, US
WH4C (Workers Hub For Change)
Persatuan Sahabat Wanita Selangor,Malaysia
JALA PRT (National Network. For Domestic Workers Advocacy) Indonesia
.
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