Just a short note to say that I enjoyed the article on land reform and the Qazal Bash case, which I came across here http://lumsjournal.blogspot.com/2008/11/land-reform-and-qazalbash-waqf-case.html . The page listed your email address. Would you know who the talented essay writer is?
Best,
Anas Malik
Assistant Professor of Political Science, Xavier University
In this paper, I will explore the legal meaning of the proclaimed ban on the 'cruel, inhuman and degrading punishment' imposed by international human rights law. In particular, I will examine the rulings of various prominent judicial exponents of human rights with regard to two different punishments: imprisonment and lashing. In looking at their rulings, I will try to determine the grounds upon which they distinguish the legal position of these two punishments and try to demonstrate that their reasoning is not consistent. I will then try to reenact their reasoning in a consistent manner and lay out before the reader the true implications that flow from the very same premises enunciated by prominent exponents of human rights.
Finally, I will demonstrate that the practice of imprisonment, conducted squarely within the framework of human rights as articulated by its prominent exponents, in effect, allows for the infliction of cruel inhuman and degrading punishments. In other words, I will try to show that the 'evils' on account of which the punishment of lashing is decried are very much present and flourishing in other penal practices that are widely endorsed. In short, this paper seeks to bring to light fundamental contradictions which underlie the very structure of modern human rights theory. Whether a frank acknowledgment of these fundamental contradictions should or should not erode one's faith in the system of human rights itself is something that the reader is left to think about.
Historical Genesis of the Text
The English Bill of Rights, passed by their parliament in 1689, is generally considered to be the first document of western jurisprudence where a ban on cruel and inhuman punishments is explicitly imposed.[1] In the Bill we find the following words: "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted…" Almost a century later, in 1791, we find the exact same words in the Eighth Amendment to the United States Constitution, which reads: "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." It is interesting to note that while the French Declaration of the Rights of Man, passed in 1793, resembles the American Declaration of Independence in so many other aspects, the French Declaration's provision concerning the limits of punishment contains no reference to the idea of cruelty and unusualness – it only circumscribes punishments within the limits prescribed by law.[2]
In the 20th century we see a profusion of statements to this effect. Article 5 of the Universal Declaration of Human Rights reads: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."[3] The exact same words are repeated in the International Covenant of Civil and Political Rights[4] and the European Convention for the Protection of Human Rights and Fundamental Freedoms.[5]
Interpretation
Statements of human rights law, primarily because of their brevity, become a lot more interesting when they are interpreted by courts and applied to factual scenarios: there it is that one realizes that the devil lies in the details. The provisions of law that I have listed earlier raise some very challenging interpretive questions: while everyone may be agreed that any punishment that involves torture or is degrading or inhuman is impermissible, how do we determine whether any particular punishment amounts to these categories. That is, the question is: What exactly is the meaning of "torture", of "inhuman punishment" and of "degrading punishment"? In fact, deeper reflection upon these questions brings us to some very disturbing conclusions, as I hope to demonstrate with reference to a few actual cases where the courts confronted these questions.
The Case of Lashing: Tyrer V. UK ECHR (1978) and other cases
In the year 1972, one fine morning, in the Isle of Mann, three school boys, including one Mr. Tyrer, perhaps out of sheer playfulness or because of 'the natural perversity of the young of the human species'[6], decided to steel bottles of beer into their school. Such was their misfortune that one of their seniors reported them to the school authorities. The school authorities, being ever diligent in their duties, duly chastised the miscreants by a good, thorough doze of caning. The boys, however, were not quite sanguine about the happenings of the days and Mr. Tyrer, in particular, sought to avenge this betrayal; he assaulted the senior who had reported them. Having done so, however, he only invited further punishment: this time round the juvenile court found him guilty and sentence him to three stripes of birch. Several days later, the sentence was executed, in the manner prescribed by the laws of that small island, which is subject to the jurisdiction of the British Crown. After several appeals, the case found its ways before the Court in Strasborg – the European Court of Human Rights.
The argument of the Appellant was simple: You cant give anyone the punishment of stripes, because such "cruel, inhuman and degrading punishments" are proscribed by Article 3. The issue that the court was essentially being called upon to rule was: "Is the punishment of stripes – lashing or flogging, call it as you may – per se "cruel, inhuman and degrading"?
The answer furnished by a 14-1 majority of the court, not unexpected from a group of time-mellowed scholarly men, is fairly nuanced. In brief, the Court did hold that the punishment of stripes as dealt out to Mr. Tyrer was "degrading". But, in reaching this conclusion, as pointed out in Sir Firtzmaurice's perceptive dissenting note, the court seems to have relied upon two parallel grounds, such that it is impossible to definitively point out the effective ratio decidendi.
On the one hand, the court states: "the very nature of corporal punishment is that it involves one human being inflicting physical violence on another human being. Furthermore, it is institutionalized violence that is in the present case violence permitted by law, ordered by judicial authorities…" These statements suggest that any form of corporal punishment would be inherently illegal under Article 3. On the other hand, the court also states "in order for a punishment to be degrading and in breach of Article 3, the humiliation and debasement must attain a particular level" which suggests that only that form of punishment would be illegal which exceeds a certain level of severity.
What I find remarkable here is that the court unanimously rejects a literal reading of the Article 3 prohibition: it notes, I think in a tone indicating horror, that the said article really contains absolutely no exception. Alarmed, court observes that if the literal import of this very absolute statement is taken, all judicial punishments will end up being declared illegal because they all involve an element of humiliation[7] – a truly radical conclusion with grave social consequences that the courts resist at all costs. To avoid this situation of delegitimizing the whole coercive apparatus of the state, the courts do what they are best at: they perform a brilliant interpretive sleight which only the perceptive reader will detect.
Notice that when the courts says: "in order for a punishment to be degrading … the humiliation and debasement must attain a particular level…", it is in effect setting a hierarchy of terms: the notion inherent here is that degrading is a stronger word whereas debasing and humiliating are weaker expression. This clearly is an abuse of linguistic convention; it is a linguistic heresy. Dictionaries are clear in indicating these three words debasing, humiliating and degrading are synonyms and, in ordinary usage, none is necessarily a stronger term than the other. But by setting up this hierarchy between the terms, the courts conveniently manage to exclude certain forms of punishment from the ambit of Article 3 – presumably because the courts realize that if they were to honestly and literally give effect to the true import of Article 3, the whole coercive apparatus of the state would be delegitimized and society, as we now know it, might crumble.
In Curtis Francis Doebbler v. Sudan[8], another case of lashing done under the law, the African Commission on Human Rights relied upon Tyrer judgment and declared all forms of corporal punishment as illegal because of being cruel, inhuman degrading and because it amounted to torture. The African Commission seems to have adopted a simple and expanded version of the ratio of Tyrer, appearing quite unperturbed by the tensions inherent in that judgment which I pointed out earlier. The Commission state: "There is no right for individuals, and particularly the government of a country to apply physical violence to individuals for offences. Such a right would be tantamount to sanctioning State sponsored torture under the Charter…"
The Case of Imprisonment
The question that we will be looking at in this section is this: Is imprisonment, inherently, a cruel, inhuman or degrading punishment? The unanimous answer in international human rights law seems to be in the negative: while the conditions of imprisonment may amount to cruelty, inhumanness and degradation, it of itself, there is nothing legally reprehensible about imprisonment as a form of punishment. This categorical acceptance, it should be amply clear is the very opposite of the approach that has been adopted towards corporal punishment.
Looking back at the case of Tyrer we find that the test the court applied there was essentially included the following keys elements: a) "institutionalized violence against a person whereby (b) he is treated as "an object in the power of the authorities." If we apply this Tyrer test to practice of imprisonment, we find it fits the test very well – at least as well as lashing, for instance.
Firstly, imprisonment does subject a person to violence – although the violence here takes an intangible form. The term violence has been defined by the Oxford English Dictionary as: "The exercise of physical force so as to inflict injury on, or cause damage to, persons or property; action or conduct characterised by this; treatment or usage tending to cause physical injury or forcibly interfering with personal freedom" It does not make any sense to exclude imprisonment from the ambit of this last sense of term violence: certainly imprisonment, by definition, is a treatment that forcibly interferes with personal freedom. Here our concern is not with the normative moral status of imprisonment; we are only establishing that in terms of the conventions of language, imprisonment, which strips a human being of personal freedoms, should be considered a form of violence – and when it is perpetrated by the state, it would qualify as institutionalized violence, thus satisfying the first tier of the Tyrer test.
Here I would like to argue that although physicality is an important aspect of violence it should not be considered a necessary condition; other more abstract forms of violence can be only as hurtful and damaging as physical violence. This broader view of violence is reinforced when we look at the definition of torture given in the United Nations Convention Again Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which reads: "torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person …" [9] The use of the conjugation "or" between physical and moral indicates that mental pain or suffering, along with other requisite factors is quite enough to constitute torture. And, given that torture is a more severe crime that the others – cruelty, inhumanness, degradation – if physicality is not required for constituting torture, then it cannot be required for the other less serious crimes This in turn reinforces my argument that imprisonment easily satisfies the "institutionalized violence" tier of the Tyrer test.
Secondly, it should be clear that the prisoner, perhaps more than anyone else in the society, becomes an object in the power of the authorities of the state. The graphic resemblance between the image of the prison and the animal cages supports this claim. Indeed, modern advancements in prison technology (close circuit cameras etc.) .have made today's prisons far more secure and severe than ever before and have, as though, transformed them into Bentham's Panopticon. These advancements have enhanced the power of the jailer to monitor and control the life of the jailed, who have been virtually reduced to objects. Indeed, when we look at the state of the imprisoned, we can find a perfect example of people who have been turned from free citizens into "objects in the power of authorities".
The upshot of the foregoing discussion should be clear: if we are to consistently apply the Tyrer test, it seems logical to conclude that imprisonment just like lashing is a degrading punishment that would be proscribed by Article 3 of ECHR and other such provisions in international law. Nevertheless, the fact that the courts have not held it thus is also understandable when we consider the line of political thought which posits that the whole structure of the society is held together by violence.[10] Thus, given the critical role that it plays, the courts are not willing to dispense with it entirely, even if one reading of the law seems to demand just that. Instead, the courts adopt a logically inconsistent approach whereby they outlaw almost all traditionally practiced forms of punishment but retain just one: imprisonment. It is this process which primarily explains the unprecedented rise of imprisonment as the modern world's foremost method of punishment[11].
Final Summary of the Argument:
In short, what I have tried to argue in this paper so far is this: that lashing, per se, has repeatedly been held to be 'cruel, inhuman and degrading' while imprisonment, per se, has not been declared to be so. This, I have shown, is not a logical and necessary outcome of the relevant legal texts; indeed, the logical and necessary outcome of the relevant texts, if any, seems to be that both lashing and imprisonment are inherently cruel, degrading and inhuman – a conclusion that the courts have painstakingly avoided, sometimes by being linguistically heretical and sometimes by being logically inconsistent. Nonetheless, I have shown that if we are to consistently apply the courts reasoning in the 'lashing cases' to the 'imprisonment case' we are brought to a realization that the most prevalent and widely acceptable form of punishment in the world today – imprisonment – violates the right to bodily integrity and its entailments, including the right not to be subjected to cruel, inhuman and degrading punishments. That is, even in the so-called human rights compliant jurisdictions, the menace which human rights jurisprudence claims to eradicate is both present and flourishing – under the interpretive mantle of human rights. This realization of a deep structural contradiction becomes even more disturbing when we try to imagine the alternative: if we remove the contradiction and apply human rights consistently – by abolishing imprisonment and all other forms of 'institutionalized violence' – we are quite likely to see society crumble into anarchy. That is, the choice the confronts us seems to be that between adopting a strategically hypocritical but workable notion of human rights – status quo – and, on the other hand, adopting a consistent but notion which is, however, unworkable.
Bibliography
African Charter of Human and People's Rights
Constitution of the Islamic Republic of Pakistan
Constitution of the United States of America
United Nations Convention Again Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
European Convention of Human Rights
International Covenant of Civil and Political Rights
Oxford English Language Dictionary
The French Declaration of the Rigths of Man and the Citizen
Universal Declaration of Human Rigths
Cases
Curtis Francis Deobbler v. Sudan. African Commission on Human and People's Rights Application 236/2000 (May 2003)
Tyrer V. UK ECHR (1978) and other cases
[1] This does not, however, allow us to draw the conclusion that the idea of the impermissibility of such punishments did not exist before the Bill of Rights: legal ideas often predate their textual articulation. It is also important to acknowledge that this claim is limited to western legal discourse and does not take into account other legal traditions like the Islamic legal tradition of the Chinese legal tradition.
[2] . It reads: "The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offense." The statement in French Declaration is much closer to the corresponding provision in Constitution of the Islamic Republic of Pakistan, 1973 which reads: "12. No law shall authorize the punishment of a person…(b)… by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.
[3] Article 4 of the same Declaration, which I will later weave into the fabric of my argument, reads: "No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms."
[4] Article 7, ICCPR
[5] Article 3,
[6] This phrase is quoted from the dissenting judgment of Sir Gerald Fitzmaurice who, however, uses it in a somewhat different context. I have appropriated it only as a token of appreciation of His Lordship's well-crafted prose.
[7] There are clear reasons why one would expect all punishments to involve an element of humiliation: traditionally, the notion was that the purpose of punishment was to redeem its recipient through suffering; in other words, its purpose to cleanse him through the physical pain that might be caused to him, and through the suffering that he might endure because of public humiliation, restriction of liberty or violation of the body and other such ordeals.
[8] Curtis Francis Deobbler v. Sudan. African Commission on Human and People's Rights Application 236/2000 (May 2003)
[9] The complete provision reads: "For the purposes of this Convention, 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. "
[10] Thomas Hobbes and Immanuel Kant, for instance, hold this view.
[11] There are, for instance, 2.1 million prisoners in the United States. Also, there are more people in prisons today than there ever were in the whole of recorded history.