Photo courtesy of HRW
In 2022 parliamentarian and lawyer Premanath C. Dolawatte presented to parliament a Private Member’s Bill to amend Sections 365 and 365A of the Penal Code of Sri Lanka with the aim of ensuring the rights of the LGBTIQ community. Reflective of its Victorian values, these penal provisions prohibit “carnal intercourse against the order of nature” and “gross indecency,” which is misinterpreted to discriminate, and harass LGBTIQ persons and criminalize same-sex sexual conduct between consenting adults. The former offense, widely understood to apply to sexual acts between same-sex individuals, carries a sentencing of ten years while the latter a two year imprisonment. The Bill proposes to amend Section 365 by limiting the offense to Bestiality and to repeal 365A in its totality. It also states that the intention of the legislature is to no longer punish a person merely because of their sexual orientation.
The Bill was subsequently handed over to President Ranil Wickremesinghe where he stated that the government will not oppose the amendment. Mr. Dolawatte, at a public forum inclusive of major political parties including the Samagi Jana Balawegaya and Ceylon Workers’ Congress, also stated that he was hopeful that a majority of MPs in the House would support his Bill and join the effort to protect the rights of the LGBTIQ community. Earlier this year, the government declared its support for decriminalization. This came as a response to several urges made by the international community during the fourth cycle of the Universal Periodic Review by the UN Working Group.
According to Standing Orders of Parliament, the Bill was referred to the Attorney General’s Department to clarify its consistency with the constitution, was later gazetted and thereafter placed in the order paper of Parliament on April 4. As per Article 121(1) of the Constitution, a Bill can be challenged for its constitutionality in the Supreme Court within 14 days of the Bill being placed on the Order Paper of the Parliament.
A petition was presented to the Supreme Court on April 17 by petitioners Brig. (Rtd) K. Athula H. De Silva, Shenali D. Waduge and Jihan Hameed challenging the constitutionality of the Bill to amend the Penal Code which would decriminalize consensual same-sex sexual conduct among adults. The petition called for a declaration that the Bill would require a two thirds majority in parliament and a public referendum. In support of the Bill, a number of intervenient petitioners filed petitions as well. This included LGBTIQ organizations and activists such as EQUAL GROUND, National Transgender Network, Equité Sri Lanka, Aritha Wickramasinghe and Dr. Visakesa Chandrasekaram. Petitions were also submitted inter alia by the Family Planning Association (FPA), Sri Lanka College of Psychiatrists, Sri Lanka Psychological Association, Centre for Policy Alternatives (CPA), Professor Savitri Goonasekere, Radhika Coomaraswamy, Natasha Balendra, and Dr. Kapila Ranasinghe.
The case against same-sex relations
Counsel for the petitioners and supporting parties firstly argued that decriminalization would affect the wellbeing of children and that the state under Article 12(4) of the constitution has a duty towards the advancement of children. In support of this argument the parliamentary debates (Hansard) that took place in 1995 was illustrated where the above penal sections were amended to encompass the offense if committed against a child below the age of 16, therefore taking into account the best interest of children. Hence, the false narrative that decriminalization would promote LGBTIQ persons who are child molesters and predators was linked here.
Secondly it was argued that legally allowing homosexuality would exacerbate the present situation of HIV/AIDS although this argument was not successfully backed by any statistics during oral submissions. Evidence indicates that criminalization of LGBTIQ persons itself deprives vulnerable victims from accessing basic medical services. This would also mean denying their sexual rights such as freedom, privacy, dignity and accessing the highest standard of health. The National STD/AIDS Control Program in its National HIV/STI Strategic Plan for 2018-2022 – which is also the state policy – very clearly admits that in order to reduce stigma and violence directed towards LGBTIQ persons penal provisions such as Section 365A need to be repealed.
The petitioners reserved their fallback argument to the last: culture of the nation and morality. Here it was argued that the proposed amendment is prejudicial towards the culture. Attention was given to the preamble of the constitution where it refers to attaining “Cultural Order” and directive principles of state policy in Article 27, specifically Article 27(2)(g) where the state should have the objective of “raising the cultural and moral standards of the People.” The religion argument was then taken up specifically focusing on Article 9 of the constitution, i.e., that the state will give prominence to Buddhism. However, the petitioners failed to take into account the restriction placed on Article 9 by the preceding article which provides for freedom of thought, conscience and religion. As held in the case of Ashik v. Bandula & Others (Noise Pollution Case) 2007, “Sri Lanka is a secular State” and as per Article 3 of the constitution sovereignty vests in the people.
The issue of “public indecency”
During the Supreme Court hearing of the intervenient petitioners’ case the judges raised an issue as to whether repealing Section 365A on “acts of gross indecency among persons” that are committed in public would leave a lacuna in the law, therefore if it should be amended instead. However, as argued by EQUAL GROUND’s senior counsel Mr. Thishya Weragoda, repealing a provision in the law – in this case Section 365A – does not violate any provision of the constitution and that every repealing statute does not require to make provision for a replacement. Moreover, Section 7 of the Vagrants Ordinance provides for the offense of “indecency” in public with imprisonment up to six months. Public indecency is similarly dealt with within Section 261 of the Penal Code where it states that any person who does an act causing public nuisance will be found guilty.
It was also reiterated to court that the jurisdiction of the Supreme Court in this matter is to only review its constitutionality. Parliament exercising its legislative power can decide whether any penal offense is no longer required or otherwise.
Another argument put forward by Counsel Luwie Ganeshathasan appearing for the Centre for Policy Alternatives was that Section 365A criminalizes all other offenses that fall short of “carnal intercourse” in Section 365. This offense has always been associated with criminalizing a sexual activity that does not conform to gender stereotypes. Amending the offense would not deprive the offense of its homophobic nature. Although the section was made “gender neutral” by the 1995 Amendment, the said section has been continuously used to criminalize, terrorize and marginalize the LGBTIQ community by law enforcement authorities and not heterosexual persons who engage in such conduct.
Dignity as a core right
States derive their legal obligations towards protecting sexual minorities through existing laws, international human rights instruments and constitutional values such as human dignity. One could argue that enacting LGBTIQ-specific rights or new international human rights standards are unnecessary to protect LGBTIQ people from violence and discrimination as what is required is respect for existing rights. Nevertheless, as long as these offenses are part of our legal system it allows for misinterpretation and invites law enforcement officials to harass, degrade, and discriminate against a particular group in our society.
As held in the Committee on the Elimination of Discrimination against Women (CEDAW) case Rosanna Flamer-Caldera v. Sri Lanka (2022) “criminalization brings consensual private activity into the public domain and thus violates the rights to privacy, dignity and personal integrity” of LGBTIQ persons. The Indian SC case of Navtej Singh Johar v. Union Of India (2018) (Johar)read down Section 377 of the Indian Penal Code, identical to Section 365 above, thereby decriminalizing all consensual sex among adults. It held that Section 377 thus violated human dignity which forms the core of the Indian Constitution. The petitioners in that case submitted that persons of different sexual orientations are eligible in law to express their consent, which is neither a mental nor a physical disease and criminalizing such expressions violates individual dignity and autonomy.
Moreover, the UN Charter and the Universal Declaration of Human Rights (UDHR) reflect the concept of dignity as a core value. Jeremy Waldron argues that dignity is itself a ground of rights.[1] The preamble of Sri Lanka’s constitution also recognise the concept of dignity and well-being of the people as a fundamental value as held in the more recent Supreme Court case Rathnayake Tharanga Lakmali v Officer-in-Charge, Crime Branch, Embilipitiya Police Station and others (2019).
Caveat by the international community
During several occasions the international community has urged the government to decriminalize consensual same-sex sexual conduct between individuals having passed the age of consent. CEDAW in its case recommended this measure to the state. Moreover, many international funding bodies now have in place the precondition of decriminalization for Sri Lanka prior to extending any lending arrangements during the economic crisis of the country. For instance, in 2021 the European Union Parliament adopted a resolution with regard to the withdrawal of Sri Lanka’s GSP+ status given their concern over Sections 365 and 365A of the Penal Code that criminalize individuals with diverse sexual orientations and gender identities.
According to EQUAL GROUND’s mapping study in 2021, approximately 12% of the Sri Lankan population identify themselves as LGBTIQ. Continuing to preserve Victorian, homophobic laws that penalizes individuals for who they are and/or for choosing a same-sex partner, violates their human rights as citizens of this country and drives the minority community to live in constant fear. The Indian case of Johar in this context carries immense persuasive value against Sri Lanka that still continues to criminalize consensual sexual relationships between adults. Thus, these laws can no longer be viewed with the moral standards that existed during the time of creation but in line with the modern day community standards based on principles of human dignity.
[1] ‘How Law Protects Dignity’ (2011) Public Law & Legal Theory Research