Article 1: Definition of torture

1. 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.

… any act which causes severe pain, whether physical or mental, to any other person, being an act which is - (a) done for any of the following purposes that is to say -(i) obtaining from such other person or a third person, any information or confession; or (ii) punishing such other person for any act which he or a third person has committee, or is suspected of having committed ; or (iii) intimidating or coercing such other person or a third person; or done for any reason based on discrimination, and being in every case, an act which is done by, or at the instigation of, or with the consent or acquiescence of, a public officer or other person acting in an official capacity.

67. The restrictive definition of torture in CATA: Since its enactment, various bodies have pointed to the problems with the definition of torture as set out in the CATA. In 1995 the UN Human Rights Committee in its concluding observations to the State Party Sri Lanka noted the restrictive nature of the definition and recommended the State party to amend the act to bring it in conformity with article 7 of the ICCPR.^[13] The Committee against Torture also urged the State Party Sri Lanka to bring the CATA in full compliance with the CAT in its 1990 concluding observations.^[14] Most recently, the Human Rights Committee in its 2003 concluding observations reiterated its concerns that the restrictive definition of torture in CATA continues to raise problems in the light of article 7 of the ICCPR.^[15]

68. Article 7 of the ICCPR states:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” (emphasis added)

69. Furthermore, the Human Rights Committee's General Comment 20 regarding article 7 of the ICCPR states that the prohibition of torture relates not only to that that cause physical pain but also to acts that cause mental suffering to victims. CATA confines the definition to “causing of severe pain” only and causing suffering as well as inhuman or degrading treatment or punishment are both notably absent from it. In a number of reports the Sri Lankan state has mentioned that judicial interpretation would take into account any suffering, physical or mental.^[16] However, given the severity of the crime of torture there need to be explicit and clear definition in the CATA itself to apply such provisions without leaving any room for ambiguity. The fact that “causing of severe pain” and “suffering” are mentioned explicitly in the CAT shows that these are two different things. If the drafters of CAT have retained word “suffering” as an important element in defining torture. For example one can say that sleep deprivation or prolonged exposure to bright light does not amount to “causing severe pain” but it certainly amount to causing suffering on a person.

70. This restricted definition of torture in the CATA completely leaves the matter on the hands of the judiciary to interpret it. The non-action on the part of the Sri Lankan State to amend the CATA to bring it in full conformity with the CAT, despite continuous calls from the Committee against Torture and the Human Rights Committee confirms the non-commitment of the State towards the elimination of torture. In fact there is no such draft law before the Law Commission in Sri Lanka.

71. In addition, subsection (3) of Article 2 of CATA stipulates that "the subjection of any person on the order of a competent court to any form of punishment recognized by written law shall be deemed not to constitute an offence" under the CATA. This means that courts can impose cruel, inhuman or degrading punishments under the Penal Code and the Children and Young Persons Ordinance 1939. The latter provides that courts can impose whipping on male children as an additional punishment for certain offences.

72. Conflicting constitutional provisions: Article 11 of the Constitution of Sri Lanka states, “no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This denotes the absolute prohibition of torture.^[17] However, according to Article 16, any law passed after legal procedure may not be challenged as being against fundamental rights as stated in the Constitution, and this gives room for legislation to inflict torture. Therefore, there is a need to remove this conflict by way of making Article 11 non-derogable.^[18]
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Notes:
[13] CCPR/C/79/Add.56; A/50/40, paras 436-478
[14] A/53/44, paras. 243-257
[15] CCPR/CO/79/LKA
[16] CAT/C/48/Add.2, Second periodic reports of States parties due in 1999, SRI LANKA, para 78
17] Dias, Noel, “The implementation of the anti-torture convention in Sri Lanka,” Protection & Participation – South Asia Legal Reforms and Human Rights, Volume 2, No. 1, Asian Human Rights Commission, Hong Kong SAR, 2005, pp. 5-6.
[18] Ibid.