Torture

Right To Life
O Article 3 UDHR- Everyone has the right to
life, liberty and security of a person
O Article 6 ICCPR- Every human being has the
inherent right to life. This shall be protected
by law.
O Why was the word inherent used?
O I has been suggested that the term inherent
suggests that framers of ICCPR regarded the
right to life as part of international
customary law. (Y Dinstrein,1981)
 TORTURE
O Fundamental human right that must be
protected under all circumstances.
O It is an atrocious violation of human dignity
because it inflicts individual suffering and
dehumanises both victim and perpetrator.
O Destroys:
Individuals physically and emotionally
Dignity and will of entire communities
 TORTURE
O The prohibition against torture is a bedrock
principle of international law. Torture, as well
as cruel, inhuman or degrading treatment, is
banned at all times, in all places, including
in times of war. No national emergency,
however dire, ever justifies its use. No one
may ever be returned to a place where they
would face torture. Many countries and
armed groups nonetheless have engaged in
torture.
O Torture is prohibited by the 1948 Universal
Declaration of Human Rights and by the 1966
International Covenant on Civil and Political
Rights. Torture is also listed as one of the
crimes that constitute a “grave breach” of the
1949 Geneva Conventions on the treatment of
victims of war. Like slavery, fundamental
freedoms, and many due process
concerns, torture was readily identified as a
human rights problem that belonged in the basic
human rights standards developed after World
War II
The Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or
Punishment (the “Torture Convention”)
O as adopted by the General Assembly of the
United Nations on 10 December 1984
(resolution 39/46). The Convention entered
into force on 26 June 1987 after it had been
ratified by 20 States.
O The Torture Convention was the result of
many years’ work, initiated soon after the
adoption of the Declaration on the
Protection of All Persons from Being
Subjected to Torture and Other Cruel,
Inhuman or Degrading Treatment or
Punishment (the “Torture Declaration”) by
the General Assembly on 9 December 1975
(resolution 3452 (XXX)).
O In fact, the Torture Declaration was intended to be the
starting-point for further work against torture. In a second
resolution, also adopted on 9 December 1975, the General
Assembly requested the Commission on Human Rights to
study the question of torture and any necessary steps for
ensuring the effective observance of the Torture Declaration
(resolution 3453 (XXX)).
O Two years later, on 8 December 1977, the General
Assembly specifically requested the Commission on Human
Rights to draw up a draft convention against torture and
other cruel, inhuman or degrading treatment or punishment,
in the light of the principles embodied in the Torture
Declaration
O The prohibition of torture is not a new concept
but it is a fundamental part and one of the key
principles of international law. This can be
illustrated in the case where the House of Lords
in A (FC) and others (FC) v Secretary of State for
the Home Department (2004), stated that: “the
international prohibition of the use of torture
enjoys the enhanced status of a jus cogens or
peremptory norm of general international law”.
O 139 suspected migrant grave sites found in
28 human-trafficking camps along the Thai
border- there were signs of torture. (Source:
the telegraph)
 Definition: Torture
O The definition of torture which appeared in
the Torture Declaration was considered not
to be precise enough and was criticized on
various points. The discussions resulted in a
more elaborate – and also more complex –
definition which appears in article 1,
paragraph 1, of the Torture Convention
Article 1: Torture Convention
O For the purposes of this Convention, the term "torture"
means 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.
Supervision: The Committee
Against Torture
O As the effectiveness of the Torture Convention, like that of many other
human rights conventions, would depend to a large extent on the
supervision system, the implementation at the international level gave
rise to extensive discussions. It was finally decided that a Committee
against Torture would be set up (article 17 of the Torture Convention)
with the following tasks:
O (i) To receive, study and comment on periodic reports from the States
parties on the measures they have taken to give effect to their
undertakings under the Convention (article 19);
O (ii) To initiate an investigation when there is reliable information which
appears to contain well-founded indications that torture is being
systematically practised in the territory of a State party (article 20);
O (iii) To receive and examine complaints by one State party of violations
of the Convention by another State party (article 21); and
O (iv) To receive and examine applications by individuals claiming to be
victims of a violation of the Convention by a State party (article 22)
 The Committee
O The Committee against Torture The Committee
against Torture holds two annual sessions. At each
session, the Committee examines reports from a
number of States parties. Each report is examined
orally in the presence of one or more representatives
of the State concerned. Each State whose report is to
be examined at a session is informed in advance of
the main questions the Committee wishes to be
discussed.
O After the examination of each report the Committee
adopts its conclusions and recommendations. The
Committee may also adopt general comments on
specific provisions of the Convention or issues
related to their implementation.
 The Optional Protocol An
Optional Protocol to the
Torture Convention
O was adopted by the General Assembly of the United
Nations on 18 December 2002 (resolution 57/199).
The Optional Protocol, which entered into force on 22
June 2006, establishes a system of regular visits by
international and national bodies to places of
detention in order to prevent torture and other cruel,
inhuman or degrading treatment or punishment.
O A Subcommittee on Prevention of Torture and Other
Cruel, Inhuman or Degrading Treatment or
Punishment has been set up to carry out such visits
and to support States parties and national
institutions in performing similar functions at the
national level.
Forms of Torture: First form
O First form: refers to the infliction of extreme
pain and suffering by victimiser who
dominates and controls.
O The pain may have either physical or
psychological elements or a combination of
both.
O May occur in places of detention- police
station, prison, military campy, secret
detention centres, hospitals, mental
institutions
O May occur when victim has not been
formally arrested, charged or sentenced._
home, village, street
 Forms of Torture: Second
Form
O More restrictive legal definition which
includes official State sanction and/or
participation
O Eg: police or official security practices
invoked for the purpose of obtaining a
confession or perhaps a distinction form of
State-sponsore terrorism and repression.
 2nd Form:Torture
Convention:Act of Torture
O May be extracted from Article 1(ref prev
slide)
Three main elements:
It constitutes acute suffering;
It is inflicted for a purpose(did not happen by
accident)
It is inflicted by a public official or other official
acting in an official capacity, or at his/her
instigation or with his/her consent
 Article 7 of ICCPR
O Different from Torture Convention
O In which, torture can be inflicted by people
acting in their official capacity, outside their
official capacity or in private capacity
Torture: Mental Anguish
O Greek Case (1969) 12 Ybk 186
“ the notion of inhuman treatment covers at
least such treatment as deliberately causes
severe suffering, mental or physical, which in
the particular situation unjustifiable”
O East African Asians Case (1981) EHHR 76,
O the principle has been extended whereby
the submission that degrading treatment
referred only to physical acts was rejected
and to the contrary it was emphasised that
“even in the case of torture and inhuman
treatment such physical element is not
essential”
O Campbell and Cosans v The UK (Application
No 7511/76, Judgment 1982), Soering v
The UK (Application No 25803/94,
Judgment 1999)
Subsequent case law confirms that degrading
and/or inhuman treatment may be involved if
psychological anguish reaches a sufficiently
intense and serious level.
 Malaysia: Torture
O Freedom from torture not mentioned in the
Federal Constitution??
O Hence, such right does not exists??
GoM& Ors v Loh Wai Kong
[1979] 2 MLJ33
O The court had to interpreted the meaning of
personal liberty under Article 5 of FC
O Court drew inspiration from an Indian
Case(SC)- AK Gopalan v State of Madras.
AK Gopalan v State of Madras

O In ordinary language, “personal liberty” means liberty

relating to or concerning the person or body of
individual, and “personal liberty” in this sense is the
antithesis of physical restraint or coercion. According
to Dicey, who is an acknowledge authority of subject,
“personal liberty” means a personal right not to be
subjected to imprisonment, arrest or other physical
coercion in any manner that does not admit of legal
justification: vide Dicey on Constitutional Law, Edition
9, pages 207, 208. It is, in my opinion, this negative
right of not being subjected to any form of physical
restraint or coercion that constitutes the essence of
personal liberty.
Interpretation of Judgment
It is clear that no person can torture person
because that action constitutes an
infringement of personal liberty.

Nobody can be injured save in accordance

with law – Only after fair trial (as part of
punishment) – FC founded on Westminister
model
Suzana bt Md Aris v DSP Ishak
bin Hussain & Ors
O The fundamental liberties in Part II of FC are
human rights referred to in HRCA 1999.
O In carrying out the purpose of the Act, The
Commission shall have regards to UDHR to the
extent that it is not inconsistent.
O Article 3 of UDHR- right to life, liberty and
security
O Article 5 of UDHR- no one shall be subjected to
torture or cruel, inhuman or degrading treatment
or punishment
O The UDHR is part of our jurisprudence
unless it is inconsistent with our
constitution.
O For the State to deprive medical treatment
promptly when a person is in police custody,
especially when the person is in pain and
has just vomited blood, is to subject the
person to torture, cruel, inhumane or
degrading treatment by default though not
deliberately designed.
 Practices/Examples
O 1 June 2013, P. Karuna Nithi, aged 42, died
in police custody in the Malaysian state of
Negeri Sembilan.
Family members told Amnesty International
that his body showed signs of beatings, with
blood coming out from the back of his head.
An autopsy report revealed 49 injury marks
on his body.
 Risk of Torture
O The authorities continued to use the
Prevention of Crime Act (PCA) and the
Security Offences (Special Measures) Act to
arbitrarily arrest and detain scores of
individuals suspected of criminal activities.
The PCA, which was amended in 2013,
allows for indefinite, preventive detention
without charge or trial and undermines key
fair trial rights. (source: Amensty)
 Risk
O Student activist Ali Abdul Jalil was beaten up
by prison officers in Malaysia and is facing
charges under the country’s draconian
Sedition Act. (source: Amensty)
O As confirmed in Parliament recently, a total
of 259 deaths in police custody have been
investigated from 2000 to mid-2015,
signalling a serious problem, including a
widespread perception of negligence and
systemic failures in police
custody, institutional violence, inhuman
treatment and human rights abuses
O What are the possible challenges in
implementing the Torture Convention?
O What are the alternatives available to
interrogation and corporal punishment?