Article contributed by Andrew Khoo Chin Hock, Co–Chairperson, Bar Council Human Rights Committee; and photo contributed by SUHAKAM
Most of us have a “gut” idea of what torture means. Most of us would have watched enough movies or television programmes, or viewed, read or listened to sufficient news reports, to have come across allegations of torture carried by these diverse media channels.
There is, however, a formal definition of “torture”. It is to be found in the United Nations Convention against Torture, an international treaty adopted by the United Nations on 10 Dec 1984 that came into force on 26 June 1987.
Pursuant to the Convention against Torture, the term “torture” is defined in Article 1 to mean “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 or 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. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.”
Although the definition is long and possibly somewhat confusing, it can be broken down into three parts, as follows:
(1) Intentional infliction of severe physical or mental pain or suffering;(2) for any one of the following purposes:
(2.1) obtain information or a confession from the subject or a third person; or(2.2) punish the subject for something he/she or a third person did or is supposed to have done; or(2.3) any reason based on discrimination of any kind;
(3) by or at the instigation of a public official or other person acting in an official capacity or with the consent or acquiescence of a public official or other person acting in an official capacity.
Naturally, there will be questions about who is a “public official” or what constitutes “an official capacity”. Suffice to say that this relates to a person holding an official position, ie a governmental one. It could be a federal, state, or local government.
The intention underlying the definition is to make any acts of torture by the government, or persons acting for or on behalf of government, unlawful. This is because persons acting for or on behalf of government usually enjoy some sort of exemption from prosecution for things done in their official capacity. The purpose of the Convention against Torture is to make it clear that such exemption should not cover acts of torture.
The other assumption is that for persons not acting for or on behalf of government, the ordinary criminal law should be sufficient to cater to situations akin to torture. In other words, acts of “torture” inflicted by a private citizen on another should, in usual circumstances, be prosecuted using the criminal law that covers offences against the person.
Article 1, however, provides an exception. It states as follows:
It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.
There has been debate about the exact meaning of this provision. What is clear is that, for example, having to live with restrictions in your lifestyle while serving a jail sentence, which may cause mental anguish, does not constitute “torture”. Such suffering is inherent in or incidental to, being sentenced to jail. Opinion is less united about the pain and suffering that a convicted person would have to face if he is sentenced to solitary confinement, hard labour, corporal punishment, or death. Countries like Malaysia (which in any event is one of only a small number of countries that has still not acceded to the Convention against Torture despite the passage of 30 years) say that any punishment set out in a law that has been properly passed by Parliament is a “lawful sanction”. This includes whipping and hanging. Other countries hold the view that “lawful sanction” must mean a type of punishment that is approved by international human rights norms and standards, which would exclude solitary confinement, hard labour, corporal punishment, and death sentences.
It should, however, be borne in mind that the full title of the Convention against Torture is the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”. So there is a second part to this Convention that deals with “other cruel, inhuman or degrading treatment or punishment”. In essence, this is to cover situations where a particular act would not come within the definition of “torture” in the Convention. Article 16(1) of the Convention against Torture states the following:
Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
Again, it can be seen here that an alleged act of cruel, inhuman or degrading treatment or punishment must have been done “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”.
In this regard, there are some minimum standards of practice and treatment that the Malaysian Government has adopted, independent of the Convention against Torture. The police, for example, have the Inspector General’s Standing Orders as their standard operating procedures. They also have the Lock–Up Rules, which set out the prescribed treatment for persons detained by the police. There are also standard operating procedures for prisons and authorised places of detention. The question here is whether these domestic rules conform to internationally accepted norms and standards.
In 2015, the Bar Council Human Rights Committee, together with the National Human Rights Commission of Malaysia (“SUHAKAM”), Amnesty International Malaysia, Lawyers for Liberty, and Suara Rakyat Malaysia (“SUARAM”), launched the #ACT4CAT campaign.
The primary aim of the #ACT4CAT campaign is to persuade the Malaysian Government to accede to the Convention against Torture, and make its provisions part of Malaysian law. This is to ensure that acts of torture are not condoned, but are instead actively investigated, prosecuted, and punished. Additionally, the minimum standards of practice and treatment of law enforcement authorities in Malaysia currently in operation will need to be reviewed and, where necessary, either drafted (if none exists in certain areas) or updated so as to reflect international norms and standards.
The campaign partners have held various events in Kuala Lumpur and Penang in conjunction with the campaign.
Please visit and “like” the campaign’s dedicated FaceBook page entitled “ACT4CATMalaysia”. Tweet your support for the campaign using either of the two hashtags: #ACT4CAT (Act for the Convention against Torture) and #HENTISEKSA (“Stop Torture”, in Bahasa Malaysia).
Campaign partners are also selling t–shirts to promote the campaign. The t–shirts, which are available in white or black colours and in various sizes, can be purchased for RM 22 each, at the Bar Council Secretariat (Ground Floor), 15 Leboh Pasar Besar, 50050 Kuala Lumpur, and at the offices of the other campaign partners.
Let us work together to stop torture and cruel, inhuman or degrading treatment or punishment, both in Malaysia and around the world.