by Vositha Wijenayake and Vidya Nathaniel

Punishing by flogging has come to the forefront of legal and political discussions due to the attention brought to it through the case of Raif Badawi, a Saudi Arabian blogger sentenced to ten years and 1000 lashes for setting up a blog by the name of Saudi Free Liberals Forum which promoted free speech on religion and governance. While world calls for freedom of speech for journalists following the Charlie Hebdo attack in Paris, the conduct of the Saudi government on flogging Badawi has created  a lot of criticism. However the country is not alone in its practice of flogging as a judicial sanction. Other countries such as Singapore, Malaysia, Nigeria, Iran, Maldives, Qatar, Brunei and Indonesia also practice flogging, though it is seen as a form of torture, and a violation of international law.

International Law on Flogging/Flagellation

The terms ‘flogging’ or ‘flagellation’ is not explicitly referred to in the international legislations. However the interpretation of torture provided through many international legislations succeed in bringing it within the acts that are violations of international law. Among these legislations are the Universal Declaration of Human Rights of which Article 5 states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,” as well as the International Covenant on Civil and Political Rights Article 7 which provides, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”.

Prohibition against Torture is well established under customary international law as jus cogens which in turn make it supersede all other treaties and customary law.  Jus cogens are a body of peremptory principles or norms from which no derogation is permitted; those norms recognised by the international community as a whole as being fundamental to the maintenance of an international legal order. Elementary rules that concern the safeguarding of peace and notable those that prohibit recourse to force or the threat of force. Norms of a humanitarian nature are included, such as prohibition against genocide, slavery and racial discrimination. Jus Cogens may therefore operate to invalidate a treaty or agreement between states to the extent of the inconsistency with any such principles or norms.

Convention Against Torture

September 27, 1997 Saudi Arabia acceded to the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture). Article 1 (1)  of this Convention defines torture to be “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.” However the same section provides that torture does not “include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” It is this aspect of the interpretation which is leaves a grey area on how the grievance of victims of state administered torture will be addressed.

Flogging can be easily brought under the definition of torture, as it does cause “severe pain” as well as “suffering”. Badawi is punished for an act he is claimed to have committed. It is also clear that the punishment to be executed in public in front of many on lookers is a form of “intimidating” any other who seeks to challenge the same grounds that Badawi challenged through his blog. Yet the imposing of flogging on Badawi has been done through the judicial system of Saudi Arabia, and as a sanction imposed by the court. Would this in turn evade it constituting torture? And if an act that fits the description of torture is to be removed from constituting torture as it is “arising only from, inherent in or incidental to lawful sanctions,” then would this not provide a free pass to governments to claim that as it is imposed by the country’s judicial system, which in that country is a lawful sanction, making it not an act of torture?

If this argument is to be upheld, then we are facing a grey area where countries are provided the green light to act as they please, and bring it under the loophole of claiming as a lawful sanction. The best way to address this would be to base flogging as a violation of international law under jus cogens. Torture is a violation of jus cogens, and any act that is in violation of it even mandated by any treaty would be invalidated and will be a violation of international law. However cases such as Jones V Saudi Arabia case does not shed positive light as it provides that state immunity takes precedence over torture or any claim in international law which is considered to be jus cogens.

Obligations on Parties to the Convention Against Torture

Article 2 of the Convention Against Torture states, “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction,” which in turn creates the obligation on Saudi Arabia to remove punishments such as flogging from the list of lawful sanctions by their judiciary. The Article further elaborates that “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

Article 4 (1) also provides that “Each State Party shall ensure that all acts of torture are offences under its criminal law,” which creates an ironic situation for Saudi Arabia where there criminal law sanctions such as flogging is an act of torture which needs to be categorized as offences under criminal law.

Flogging as a Punishment in Sri Lanka

In the Penal Code of Sri Lanka, whipping used to be a punishment.  However this has been repealed through Section 3 of the Corporal PunishmentAct No. 23 of 2005 which states “Wherever in any written law, there is included as part of a sentence of whipping, such law shall from and after the date of the coming into operation of this Act, be deemed to be amended by the omission therefrom of such part of such sentence as relates to whipping ”

Further, Children and Young Persons Ordinance Section 29 (1) provides, “Where a child or young person who is a male is found guilty by any court of any offence, the court may, if it is for any reason of opinion that the case is one in which corporal punishment should be inflicted, make order that the child or young person shall receive not more than six strokes with a light cane or rattan,- such strokes to be inflicted in the presence of the court and, if the parent of the child or young person desires to be present, in his presence.” This punishment is no longer practiced by the Sri Lankan judiciary.

Previously, whipping was allowed under the Corporal Punishment Ordinance No. 16 of 1889. According to Section 7 of the Act, the following offences were punishable by whipping:

• Voluntarily causing hurt by dangerous weapons or means, (as defined in Section 315 of Penal Code)
• Voluntarily causing grievous hurt by dangerous weapons or means (as defined in Section 317 of Code)
• Rape and attempting to commit same (as defined in Section 363 of Code)
• Unnatural offences (as defined in Section 365 of Code)
• Theft after preparation for causing death or hurt (as defined in Section 371 of Code)
• Extortion by threat (as defined in Section 377 of Code)
• Putting a person in fear of accusation in order to commit extortion (as defined in Section 381 of Code)
• Robbery (as defined in Section 379 of Code)
• Attempting to commit, robbery (as defined in Section 381 of Code)
• Robbery with attempt to cause death or grievous hurt (as defined in Section 383 of Code)
• Attempting to commit robbery when armed with deadly weapon (as defined in Section 384 of Code)
• Lurking house-trespass or house offenders above the age of sixteen breaking in order to committing of any offence punishable with whipping, (as defined in Section 429 and 431)
• Lurking house-trespass by night or house-breaking by night, in order to commit any offence punishable with whipping under this section (as defined in Section 439 and 432 of Code)

These provisions are only applicable with respect to a male offender above the age of 16 years (Section 7(2) of Corporal Punishment Ordinance). This Act was repealed by the Corporal Punishment (Repeal) Act No. 23 of 2005.

Badawi and the 950 Remaining Lashes

Raif Badawi received his first 50 lashes 9^th January, 2015, and has a remaining 950 lashes of his punishment which is expected to be administered on him in 19 sessions. However following the first execution of his punishment he has been considered as  not been medically fit to undergo the next session of 50 lashes, and the punishment has since been postponed for a third time this week. The global community calls for his pardon, and his release from charges that are viewed a violation of his freedom of expression. How does one justify such inhuman treatment?