Caning of prisoners is constitutional, Court of Appeal rules

Caning of prisoners is constitutional, Court of Appeal rules

Caning of convicted prisoners is constitutional, the Court of Appeal ruled yesterday, dismissing a challenge by Malaysian drug trafficker Yong Vui Kong against the legality of the punishment in Singapore.

The ruling is the latest chapter in a long-running case in which the 27-year-old Yong made several bids to quash his original death sentence in 2008 for heroin trafficking.

In 2013, his death sentence was commuted to a life term and 15 strokes of the cane, making him the first drug trafficker to be spared the gallows under new laws that give judges wider sentencing discretion.

Last year, he appealed to quash his caning sentence. His lawyer M. Ravi argued that caning is unconstitutional as it is discriminatory - meted out only to men under the age of 50 - and amounts to torture.

Yesterday, a three-judge appeal court held that the caning regime here was not a form of torture, nor was there impermissible discrimination against men under the age of 50.

The court examined cases from Europe, Africa and elsewhere, in which acts carried out on victims were found to constitute torture. The court found the pain and suffering inflicted in these cases far exceeded that endured by prisoners who were caned.

Most of the foreign cases were abusive acts carried out by public officers to extract information from individuals in custody, or war crimes committed during times of upheaval.

In contrast, caning is a punishment for selected crimes prescribed by law and is carried out in accordance with legal requirements and safeguards.

Even assuming that caning amounts to torture, the court rejected Mr Ravi's arguments that it is unconstitutional because torture is prohibited by international law and common law.

Chief Justice Sundaresh Menon, giving the court's decision, said international law and domestic law are separate systems.

A state cannot rely on domestic legislation to justify a breach of its international obligations. And in the same way, a domestic court cannot strike down a piece of domestic legislation just because it is incompatible with international law norms.

The court also disagreed that torture is unconstitutional because of a common law prohibition on torture that has been imported into Singapore law.

CJ Menon noted that the prohibition covers only the torture of suspects or witnesses for the purpose of extracting evidence and confessions.

In any event, Parliament's decision to mandate caning for certain crimes overrides any enactment of the prohibition, he said.

The court said the exclusion of women and men over 50 from caning is not inconsistent with the constitutional right of equal treatment before the law. The different treatment is permissible as the classification by gender and age is meant to ensure caning is carried out only on the physically fit, said the court.

Mr Ravi, who is suspended from practice but was in court to listen to the judgment, said in his capacity as a human rights activist that the ruling has "put us back to the Middle Ages".

selinal@sph.com.sg


This article was first published on March 5, 2015.
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