By Ariffin Sha
On 22 August, a constitutional challenge against judicial caning was heard in Singapore’s highest court, the Court of Appeal.
It was filed by lawyer M. Ravi on behalf of his client, Yong Vui Kong.
Yong was sentenced to death in 2009 for drug trafficking, but this was commuted to life imprisonment and 15 strokes of the cane in 2013.
While Mr Ravi is acting on behalf of his client, the constitutional challenge itself questions the legality of judicial caning as a practice and policy in Singapore.
Overview of argument
In court, Mr Ravi argued that judicial caning was unconstitutional for three main reasons. Namely, that one, it is a form of torture or inhuman punishment that contravenes Article 9(1) of the Constitution which says no one should be deprived of life or liberty except in accordance with the law.
He also argued that the practice of caning contravenes Article 9 of the Constitution for its arbitrariness, as its stated legislative objective of criminal deterrence has not only never been proved or substantiated by the Government, but has in fact been conclusively disproved.
Thirdly, Mr Ravi argues that the scheme contravenes Article 12 of the Constitution because it represents a form of discrimination against men between ages 16-50. Caning is disallowed to be carried out on anyone outside of this age range. Women are not allowed to be caned.
Mr Ravi also said that besides the prohibitions in Singapore’s Constitution, Singapore also had to adhere to international obligations it has committed itself to.
The Court of Appeal had previously held that “as far as possible, domestic law, including the Singapore Constitution, should be interpreted in line with Singapore’s international legal obligations.”
UN Convention on the Rights of Persons with Disabilities
Singapore is, for example, a signatory to the UN Convention on the Rights of Persons with Disabilities.
Article 15(1) of the Convention provides:
“No one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment.”
Mr Ravi said that Singapore has full control over which treaties it signs and it retains the power to reject individual articles a la carte. In fact, Singapore has made reservations to three of the Articles within the Convention but no reservations or declarations were made regarding Article 15(1).
It is thus clear that Singapore’s legal obligations include a prohibition on torture and inhuman punishment.
It would be appropriate to interpret the Constitution consistently with these expressly ratified international obligations, Mr Ravi said.
Therefore, torture is in conflict with not only international obligations but also the Constitution, the supreme law of the land.
Judicial caning amounts to torture or inhuman punishment
Mr Ravi argued that the Geneva Convention Act, which is a Singaporean statute, provides that corporal punishment generally is a form of torture or inhuman punishment:
“Collective punishment for individual acts, corporal punishment, imprisonment in premises without daylight and, in general, any form of torture or cruelty, are forbidden”.
Mr Ravi also argued that the court should have reference to the authoritative definition of torture in the UN Convention on Torture and Other Cruel, Unusual or Inhuman Punishment, even though Singapore is not a signatory to this Convention.
This Convention defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person…”.
To the claim by the Attorney General’s Chambers in court that Singapore’s Constitution “does not forbid torture”, Mr Ravi cited the UN Special Rapporteur who had clarified that it is wrong to deem “acts which would be unquestionably unlawful in, say, the context of custodial interrogation—can be deemed lawful simply because the punishment has been authorized in a procedurally legitimate manner, i.e. through the sanction of legislation, administrative rules or judicial order.”
The Rapporteur added: “To accept this view would be to accept that any physical punishment, no matter how torturous and cruel, can be considered lawful, as long as the punishment had been duly promulgated under the domestic law of a State. Punishment is, after all, one of the prohibited purposes of torture.”
Thus, Mr Ravi argued, caning as implemented in Singapore satisfies all the above definitions of torture.
It is therefore prohibited by Article 9(1) of the Constitution.
Judicial caning does not serve a rational purpose, contrary to Article 9(1)
Mr Ravi also argued that judicial caning violates Article 9(1) in that it does not serve a rational purpose.
The stated legislative objective of judicial caning is that of criminal deterrence.
In a Second Reading of the Punishment of Vandalism Bill in August 1966, then Prime Minister Lee Kuan Yew argued:
“A fine will not deter the type of criminal we are facing here… but if he knows he is going to get three of the best, I think he will lose a great deal of enthusiasm, because there is little glory attached to the rather humiliating experience of having to be caned.”
However, Mr Ravi argued that bare assertions that caning is an effective deterrent punishment with no studies or research to back them up fall significantly short of proving a necessity to infringe upon a person’s constitutional right to liberty.
Ravi said that academic consensus has conclusively proved, contrary to what the government claimed, that judicial caning has little to no effect on deterrence.
No information is available about the impact of caning on criminal deterrence in Singapore, but the concept has been disproved all across the globe, he said. This was a point which the Constitutional Court in South Africa reiterated in a 1995 judgment.
“No clear evidence has been advanced that juvenile whipping is a more effective deterrent than other available forms of punishment.”
The “overwhelming weight of evidence”, Mr Ravi said, showed that the stated objective of caning in Singapore is arbitrary.
The Government has provided little more than bare assertions which have no evidential foundation, Mr Ravi said.
Original Legislative Object of Caning was Racist
Mr Ravi also asked the court to consider the original objective of the law , which he said was based on British racism towards the Chinese at the time.
In the Legislative debates on the introduction of caning in 1872, the British government had referred to Chinese rioters as the “riff-raff and scum of China.”
Today, almost 150 years later, should the original attitudes which informed decisions on the basis of whipping men should still hold sway?
Ravi submitted that the answer is a resounding “no”.
The Court of Appeal has reserved judgement and will give its decision at a later date.
The details of how judicial caning is carried out in Singapore are shrouded in mystery. However, one website gives some insights to how the punishment is carried out.
The Corpun website says:
“The prisoner is stripped naked and shackled by strong leather straps to a trestle or A-frame. In Singapore and Brunei he is held down in a bent-over position with his buttocks protruding. In Malaysia he stands upright at the A-frame to which he is tied.
“He is then punished by a well-built warder wielding a four-foot long length of flexible rattan which has been soaked in water.”
Below is a video purportedly of a judicial caning carried out in Malaysia. (Graphic images, viewer discretion is advised)