What Is Freedom From Inhuman Treatment Under Section 36?

Most rights in the Constitution can be limited by a law that satisfies section 38. Section 36 cannot. It sits in Subdivision B, it contains no proviso, and it is protected by the three-quarters absolute majority requirement in section 17(3).

Three prohibitions, not one

The section catches three distinct things, and a claim need only establish one:

1. Torture — expressly including mental torture. Threats, prolonged terror, mock executions and sustained psychological pressure fall within the section as squarely as physical violence.
2. Cruel or otherwise inhuman treatment or punishment — a lower threshold than torture, and the limb most often engaged in custody cases.
3. Treatment inconsistent with respect for the inherent dignity of the human person — the widest limb. It reaches degrading conditions and humiliating treatment that may involve no violence at all.

What “absolute” means in practice

• There is no public interest justification. Defence, public safety, public order, the seriousness of the suspected offence — none of it is a defence.
• Emergency powers do not displace it. Section 40 preserves emergency laws but requires them to be applied so as not to derogate a right more than reasonably necessary; and Part X.5 restricts what may be done even under internment. Section 58(2) expressly contemplates damages for infringements caused by derogation of the internment restrictions.
• Consent is irrelevant. The prohibition protects a status — the inherent dignity of the person — not merely an interest that can be waived.
• It applies between individuals, through section 34, as well as against the State.

Section 36(2) — lawful execution

The killing of a person in circumstances in which section 35(1)(a) applies does not of itself contravene section 36(1) — although the manner or the circumstances of the killing may contravene it.

The qualification is the substance. A lawfully imposed sentence does not authorise a cruel or degrading method of carrying it out, nor the conditions surrounding it.

Where section 36 usually arises

In practice the section is most often invoked in relation to police custody, corrective institutions and remand. It works alongside several subsections of section 37:

• s 37(17) — all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person;
• s 37(18) — accused persons shall be segregated from convicted persons and subject to separate treatment appropriate to their status as unconvicted persons;
• s 37(19) — persons under voting age in custody shall be separated from other persons in custody and accorded treatment appropriate to their age;
• s 37(20) — an offender shall not be transferred away from where their relatives reside except for security or other good cause, and the reason must be endorsed on the offender’s file.

What a court can do

A section 36 breach is enforceable under section 57, in the Supreme Court or the National Court, on the court’s own initiative or on the application of any person with an interest — including a person acting on behalf of someone who cannot fully and freely act for themselves. That last route matters when the victim is still in custody.

Section 58 then provides for reasonable damages and, if the court thinks it proper, exemplary damages. Damages may be awarded against the individual who committed or was responsible for the infringement, against the governmental body to which they were responsible, or against both, with apportionment.