Whipping judgment: Prisoners' counsel, dissenting judge should be commended

 

 In a majority ruling yesterday, the Federal Court upheld the constitutionality of judicial whipping for men under penal laws.

The decision followed a legal challenge by four prisoners who sought to set aside their whipping sentences.

They argued that the punishment violates Articles 5 and 8 of the Federal Constitution, which protect the right to life, personal liberty, and equality before the law.

The case has piqued my interest, and it is particularly fascinating because the dissenting judge Lee Swee Seng grounded his reasoning in Article 5 of the Universal Declaration of Human Rights (UDHR), which declares that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Notably, the judge asserted that Malaysia is legally bound by these international norms, even when they have not been formally codified into domestic law.

I would like to commend both the legal team representing the prisoners and Lee for approaching this issue through the lens of international law. Kudos to them.

Landmark UN declaration

It is perfectly understandable for Lee to undergird his reasoning by citing Article 5 of the UDHR. After all, UDHR is a milestone document in the history of human rights.

Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the declaration was proclaimed by the United Nations General Assembly (UNGA) in Paris on Dec 10, 1948, as a common standard of achievements for all peoples and all nations.

As the UDHR is not a treaty, it does not require ratification by any country. Instead, it is a declaration adopted by the UNGA. Being a UN member state, Malaysia has duly affirmed its acceptance of the UDHR.

The UDHR was adopted as a "common standard of achievement" rather than a legally binding document. Since it is a mere declaration and not a convention or covenant, there is no formal "ratification" process.

Under international law, there are, however, two specific international treaties which categorically deal with the issue of torture, namely the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) and the International Covenant on Civil and Political Rights (ICCPR).

International legal standards on torture are defined by the two key treaties. As of April 2026, Malaysia has yet to ratify either one.

Govt’s refusal to ratify

The Home Ministry has maintained that ratifying UNCAT and the ICCPR is not currently feasible because it would require repealing or significantly amending several core national laws, such as the laws that legalise whipping.

Minister Saifuddin Nasution Ismail argued that ratifying the UNCAT and ICCPR would require the removal of whipping as a punishment for crimes like rape (Penal Code) and drug offences (Dangerous Drugs Act 1952).

He further noted that because syariah courts also mandate lashings, ratifying these treaties would necessitate amending state syariah enactments that currently provide for whipping.

Home Minister Saifuddin Nasution Ismail

With due respect, the minister's argument conveniently overlooks the fundamental differences between civil and syariah whipping.

While punishments under the Penal Code or Dangerous Drugs Act are designed to inflict severe physical pain - often crossing the line into what is considered torture, cruelty, or degrading treatment - the syariah approach is conceptually different, focusing on religious discipline rather than bodily harm.

While ratifying UNCAT and ICCPR would likely force changes to civil criminal laws, I contend that existing syariah enactments could remain unchanged, as their specific form of whipping does not align with the treaties' definitions of torture or cruel punishment.

Finally, under the dualist conception, international obligations would effectively only gain the status of domestic law upon the actual incorporation of such international obligations into the domestic system.

This is because a dualist system always treats the international and domestic systems of law as separate and independent. And Malaysia is adhering to the dualist conception.

Be that as it may, even if Malaysia ratifies UNCAT and ICCPR, such international obligations still have to pass through a "domestic filter" to attract the status of enforceability in the local legal order.

Besides, international law highly values the sovereignty of any state. Hence, each state has the sovereign right to decide upon its social and economic structures, and to lay down laws that will influence the national character of the state and of life within it. - Mkini

HANIPA MAIDIN is a former deputy minister of law.

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.