Dolawatte Bill and Children
Lawyer Kalyananda Tiranagama states his opinion
The text below is in English, and it was published into the public domain in 8 installments in a national newspaper in June 2023. The video is in Sinhala. The author, aided in his work by Sahan Weerasooriya and Thilina Walpola, is the Executive Director - Lawyers for Human Rights and Development, Sri Lanka.
Regarding the Chief Justice’s conclusion that the bill to repeal 365 and 365A of the penal code is not unconstitutional, Mr Tiranagama addresses the flaws in the ASG’s submissions and arguments, and opines that these resulted in erroneous an determination by the Supreme Court. He also describes the machinations of foreign governments and NGOs in the breaking apart of the fabric of society - the natural family.
Apart from the Penal Code amendment being a vehicle to privilege LGB, T, Q and the plus, with special equalities, and their behaviour with unnatural dignities based on licentious liberties, Mr Tiranagama is most concerned with the P inside the plus, that is paedophilic acts - sometimes called “minor attracted” behaviour, and at other times referred rightly as the sexual abuse of children, that this bill will sanction - and which this country has experienced particularly with the promotion of “gay tourism” #beachboys.
Proposed Penal Code amendment and threat of promotion of sexual abuse of children
by Kalyananda Tiranagama
Part I - 2023/06/9
https://island.lk/proposed-penal-code-amendment-and-threat-of-promotion-of-sexual-abuse-of-children/
Since 1980s, with economic liberalisation, the opening of the country for tourism, exposure of children to electronic media and the increased migration of mothers for employment as house maids in the Middle East, there has been a continuous, visible increase in the incidents of child sexual abuse and other acts of child abuse in Sri Lanka, which has earned notoriety as a paradise of foreign paedophiles. Incidents of child sexual abuse are frequently reported in the national press. However, prior to 1995, there were no provisions in the Penal Code, which could be effectively used to curb this trend.
In 1995, several amendments were made to the Penal Code with the objective of bringing down the relatively high incidence of sexual abuse of women and children prevailing in the country, by enabling Courts to impose deterrent penalties on persons found guilty of committing sexual offences, and enhancing protection to women and children against abuse, specially sexual abuse.
SLPP MP Premanath C. Dolawatta has presented a Bill in Parliament, seeking the repeal of two important provisions of the Penal Code brought in by 1995 Amendments – S. 365 and S.365A, which were specially enacted to protect children from sexual abuse and punish sexual abusers of children with deterrent penalties. This Bill containing only two clauses has been brought for the purpose of decriminalising LGBTQ sexual activities.
The constitutionality of this Bill has been challenged before the Supreme Court by several petitioners who are concerned about the welfare and protection of children, and the Supreme Court has determined that none of its provisions are inconsistent with the Constitution and therefore the Bill can be passed by a simple majority in Parliament.
In this article, I wish to examine and discuss: (a) the situation that prevailed in this country in relation to sexual abuse of children prior to the enactment of Penal Code Amendments of 1995; (b) the anti-national and anti-Sri Lanka campaigns carried on by the LGBTQ groups and other proponents of this Bill before the UN HRC in Geneva; (c) the role of the international actors in getting LGBTQ sexual conduct decriminalised in Sri Lanka; (d) thinking of political parties in Parliament and their support for the Bill; (e) a comparison of the existing Penal Code provisions and the proposed amendments, and the stand taken by the State before the Supreme Court; and (f) consequences of the passage of the Bill on the country, culture and younger generation.
Situation prior to Enactment of 1995 Penal Code Amendment
It was a time the government was enthusiastically promoting tourism and there was an increase in the number of tourists coming and staying in tourist resorts in the coastal areas of the South and the West. During this period several cases of sexual abuse of male schoolchildren by foreign tourists were reported from several areas in the country.
In 1993, the Police filed several cases in the Balapitiya Magistrate’s Court against some European tourists for sexually abusing several children under 12 years of age studying in a school in Balapitiya. A student over 14 years of age who had got used to this type of conduct earlier, studying in the same school, had procured them for tourists, having brought them to Ambalangoda Rest House premises in the guise of going with them to the seashore. At that time there were no provisions in the Penal Code, specially enacted with the objective of protecting children from sexual abuse by dealing with such offenders with deterrent penalties.
The Police produced the foreign tourists in Court on the allegation of committing an act of gross indecency on the children, an offence punishable under S. 365A of the Penal Code. That was the general practice among the Police. Gross indecency was an offence triable by a Magistrate’s Court and the penalty for the offence was imprisonment for a term which may extend up to two years or with fine or both. The Court had the discretion to release a convicted offender with only a fine without imposing a jail sentence.
The maximum fine a Magistrate’s Court could impose was Rs. 1,500. The Court had the power to impose a lesser fine, even a fine of Rs. 500 is a legal penalty. As those offenders were European tourists, it was most likely that the Court would have released them with only a fine without imposing any jail sentence upon their pleading guilty, or on conviction.
A child rights NGO called ‘‘Protection of Environment and Children Everywhere’’ (PEACE), headed by Maureen Seneviratne, was pursuing the cases looking after the interests of the affected children. At the request of PEACE, I volunteered to appear in those cases to look after the interests of these children.
I appeared in the Balapitiya Magistrate’s Court for the affected children and informed it that there was a need for amending the charge sheet as the offence alleged to have been committed by these suspects – anal sex – was not gross indecency punishable under S. 365A, but a much more serious offence, carnal intercourse against the order of nature with any man, woman or beast, punishable under S. 365 of the Penal Code with imprisonment of either description for a term which may extend to ten years and fine.
It was an indictable offence, triable only by the High Court. Police agreed with my submission. However, a group of lawyers from Balapitiya Bar appearing for the offenders rose up against me, shouting that an outsider had no right to intervene in their cases. The Magistrate accepted my submission and put off the case for necessary action. Making similar submissions, I represented the interests of several children in the Magistrate’s Courts of Kesbewa and Negombo also against foreign paedophiles during that period.
Several foreign pedophiles against whom there were cases pending in our courts fled the country while they were on bail pending trial. A Belgian national Luc Coomens and a Swiss national Armen Paffhauser, against whom there were cases pending in Matara Magistrate’s Court and another Swiss national Thomas Casper, against whom there was a case pending in Kesbewa Magistrate’s Court, were among the foreign child abusers who fled the country after being released on bail. Though their passports were impounded, they managed to flee the country.
Existing Penal Code provisions were hardly adequate to arrest this trend of continuous increase of incidents of sexual abuse of women and children. Sri Lanka ratified the UN Convention on the Rights of the Child in July 1991 and committed to bring about required reforms in the law to protect children from sexual and other forms of abuse. Sri Lanka was required under the Convention to present its first Report to the Child Rights Committee of the UN HRC in 1996 with measures taken in this regard. There was a strong and urgent demand for amendment of the Penal Code with adequate provisions and deterrent penalties that could have the effect of arresting the increasing incidence of sexual abuse of women and children. It was under these circumstances that the Penal Code Amendment Act No. 22 of 1995 was passed.
1995 Penal Code Amendments
The following are the main changes brought about in the law by these amendments:
Creating several new offences such as incest, grave sexual abuse, sexual exploitation of children, procuration and using children for obscene publications;
Providing for enhanced penalties for sexual offences and minimum mandatory jail sentences;
Recognition of persons under 18 years of age as children for the purpose of the offences dealt with by these amendments;
Increasing the age of statutory rape or consent to sex from twelve to sixteen years.
Granting exclusive jurisdiction over child abuse cases to the High Court.
(B) NGO Conspiracy to Prevent Election of Sri Lanka to the UN Human Rights Council
When the UN Human Rights Council in Geneva was established by the United Nations Organization in 2006, Sri Lanka was elected as a member of the inaugural Human Rights Council by the General Assembly of the United Nations. Before the election, several foreign funded NGOs working in the Human Rights field in Sri Lanka jointly with LGBTQ groups carried on a vigorous and vicious campaign to prevent the election of Sri Lanka to the Council. They spread all sorts of false and exaggerated stories on the violations of human rights committed by Sri Lankan government agencies and requested member states not to vote for Sri Lanka. Despite their campaign, with the support of the majority of Asian and African countries, Sri Lanka was elected as a member of the UN Human Rights Council.
Part II - 2023/06/12
The election of members for the next Human Rights Council was due to be held in May 2008. Sri Lanka was seeking re-election to the Council. A group of foreign-funded, pro-LTTE, anti-national NGOs and LGBTQ groups commenced, months before the elections, making preparations to carry on a sinister campaign to prevent Sri Lanka’s re-election to the Council. UN Human Rights Council was due to review Sri Lanka’s human rights situation in May 2008.
This review of Sri Lanka’s human rights situation was done on the basis of reports presented by the Government of Sri Lanka, UN representatives and national and international human rights NGOs. January 14, 2008 was the deadline for NGOs to send their reports to the Council. As the first step, these foreign-funded NGOs made an appeal to the UN High Commissioner for Human Rights, Louise Arbour, to extend the deadline for submission of NGO report till February 8, 2008. They conducted a series of meetings and prepared a report titled Joint Civil Society Report for Universal Periodic Review of Sri Lanka – May 2008 and presented it to the Office of the High Commissioner for Human Rights in the name of 39 organizations in Sri Lanka.
This Report had deliberately ignored the violations of human rights committed by the LTTE, including the forcible conscription of children, stating that it had focused on the Government of Sri Lanka (GOSL) as it was a member of the Human Rights Council and subject to the Universal Periodic Review process and it stated that the human rights situation in Sri Lanka had deteriorated since the country became a member of the Human Rights Council in 2006.
This Report was full of lies and distortions intended to tarnish the image of the country. Some of the blatant lies, fabrications and distortions mentioned in this Joint Civil Society Report are mentioned below:
Blatant Lies ·
The establishment of semi-legal vigilante units (so-called Civil Defence Units) terrorizes the civilian population throughout the country.
What a blatant lie this statement is! Civil Defence Force consisting of Gramarakshakas was established to protect the villages and the people in the North and the East in the villages which were vulnerable to terrorist attacks. They were not semi-legal vigilante units. Vigilante groups like Black Cats and Yellow Cats operated during the UNP Rule, from 1988 – 1991. Civil Defence Force was a force officially created by the Government of Sri Lanka and led by Rear Admiral Sarath Weerasekera, former Deputy Chief of the Sri Lanka Navy. Where have they terrorized civilian population? Can these NGOs cite a single incident where the Civil Defence Units have terrorized civilian population?
· Torture and cruel and inhuman treatment is endemic across police stations and detention centres.
· This statement was also highly exaggerated and distorted. There was no doubt that incidents of torture were still reported against some Police Officers and there were complaints of assaults and harassment by the Police. But could one say that torture and cruel and inhuman treatment was endemic across police stations and detention centres in Sri Lanka at that time? About three decades back – during the period from 1989 – 1991 – there was a time when torture was endemic across police stations. The situation had improved much since then.
· In 1994 Torture Act was enacted making torture a criminal offence punishable with a mandatory jail sentence of seven years. In 2000 a special unit was established in the Attorney General’s Department to prosecute perpetrators of torture and since then a large number of Police Officers have been indicted in the High Courts in different areas in the country for torture and some of them were convicted and sent to jail. The Attorney General did not appear for the Police or Army Officers in Fundamental Rights Applications before the Supreme Court where there were allegations of torture. The Supreme Court has continuously taken a very serious view of torture and ordered the State and the individual police officers who were found to be responsible for torture to pay compensation to victims. The policy of zero tolerance of torture, introduced by Dr. Radhika Coomaraswamy as the Chairperson of Human Rights Commission of Sri Lanka (HRC), was continuously being followed by the HRC. The number of complaints of torture coming before the Supreme Court and the HRC had gradually decreased over the years.
· Flagrant violations of International humanitarian law including targeting of civilians, attacks on places of worship, hospitals and schools, and forced resettlement of IDPs.
· This statement was also a blatant lie. This is a Report submitted in February 2008, not after the end of the war in May, 2009. Could they cite a single incident where the GOSL has targeted civilians? They could not. There was not a single incident where the security forces have targeted civilians.
· Were there any incidents where the security forces had attacked places of worship, hospitals and schools? No. There wasn’t any. This statement is also a deliberate lie.
· There were more than a dozen incidents where the LTTE terrorists had attacked civilian targets, killing hundreds of helpless children, women and men and injuring thousands of people. LTTE had attacked several Catholic Churches in Mannar and killed a Hindu priest at Batticaloa and a Buddhist monk at Trincomalee during that period. They used Vakarai Hospital as its base for attacking security forces. When this Report talked of “targeting of civilians, attacks on places of worship, hospitals and schools” without naming the real perpetrator of these crimes – the LTTE – it has made a subtle attempt to put all these crimes committed by the LTTE to the account of the Government of Sri Lanka.
· The Report alleged that there was forced resettlement of IDPs. It is no secret that several NGOs, INGOs and UN Agencies operating in the East at that time tried to obstruct the resettlement of displaced people. They tried to dissuade people from leaving their IDP camps. They wished the IDPs to remain in IDP camps undergoing all sorts of difficulties so that they could continue with their welfare work in IDP camps and carry on their international campaign against Sri Lanka clamouring about displacement of hundreds of thousands of people by war, comparing Sri Lanka’s situation with that of Somalia.
· Women on the plantations also face forced sterilization, promoted in some cases by the management.
· This was also a diabolical lie. There was no forced sterilisation of women anywhere in the country. There had never been. There were two powerful political parties and trade unions looking after the interests of plantation workers in Sri Lanka – the Ceylon Workers’ Congress, led by Mr. Arumugam Thondamon, and the Up-Country People’s Front, led by Mr. P. Chandrasekeran. There were a large number of NGOs working among the plantation workers. There was a Plantation Trust. If there was any attempt at forced sterilization of plantation women, these organizations would not have remained silent.
· This was a sinister attempt made by these NGOs that drafted this Report to tarnish the image of the country and the government of Sri Lanka by spreading the lie that a repressive Sinhala government was forcibly sterilizing Tamil women in the plantation areas, in violation of their human rights and committing genocide.
· Acts of violence against women are growing, as are restrictions on women’s freedom of choice on a range of issues, ranging from form of dress and choice of marriage partner.
· This statement that ‘Acts of violence against women are growing’ was also contrary to facts. Domestic violence is a problem affecting not only our society, but all societies including the West. After a long consultation process with women’s organizations in the country, the Government enacted Domestic Violence Act in 2003 to deal with the problem of domestic violence. Any woman or child affected by domestic violence could obtain a protection order on application to a Magistrate’s Court. The Ministry of Child Development and Women’s Empowerment had taken a special interest in the implementation of the Domestic Violence Act. There were several organizations like the Legal Aid Commission and the Women in Need (WIN) providing counselling and legal support services to women and children affected by domestic violence. In 36 Police Divisions, there were separate Women and Children Units, manned by women Police Officers, with special training to handle cases of violence against women and children.
· Were there any restrictions on women’s freedom of choice of form of dress or choice of marriage partner in Sri Lanka, as claimed by these NGOs? Certainly not. It was a diabolical attempt made to give a gloomy picture of Sri Lanka, to depict Sri Lanka as a country like Afghanistan under a fundamentalist rule.
· LGBT (Lesbian, Gay, Bisexual and Transgender) individuals are denied access to health services, education and employment and the ability to participate in social and public life. Targeting and persecution of LGBT persons have led to several individuals leaving the country to seek asylum elsewhere.
· Was there an iota of truth in this statement? Were Lesbians and Gays denied access to health services in hospitals in Sri Lanka? Were they denied admission to hospitals, government or private, when they fall sick? Were they or their children denied admission to schools, universities or other institutions of higher education, due to the fact that they are lesbians or gays? Were they denied employment? Was there a requirement, legal or otherwise, to disclose whether a person is a homosexual? Were there any restrictions on LGBT persons’ participation in social and public life? Don’t they have voting rights? Were they not allowed to contest elections? It is a well-known fact that a number of leading politicians in this country were/are homo-sexuals or persons who maintained homo-sexual relationships.
· Since the introduction of the Penal Code by the British rulers in 1863, homo-sexual conduct remained a criminal offence in Sri Lanka. Till 1995 only gay relationships or homo-sexual conduct between men was an offence. When the Penal Code was amended in 1995, ensuring gender equality, lesbian relationship was also made a criminal offence. Whether homo-sexual conduct is criminalized or not, Asian culture considers homo-sexuality as a deviation of the normal human sexual conduct.
· As was claimed in this Report, there was no targeting and persecution of LGBT persons in Sri Lanka. No police officer was going to peep into their bedrooms. Only thing they could not promote, openly display or exhibit their conduct. There was no reason for them to leave Sri Lanka and seek asylum elsewhere unless they wished to contract same sex marriages, which they could not do in Sri Lanka.
· Equal Ground, an NGO campaigning for recognition of LGBT rights and decriminalization of homo-sexuality, was also among the NGOs involved in this campaign.
Any person who is conversant with the situation of this country knows that most of these assertions were blatant lies, half-truths, distortions and fabrications concocted by some of the leaders of these foreign funded NGOs who were hell-bent on serving the agendas of their foreign masters of getting this country opened for foreign intervention.
As the next step of their anti-Sri Lanka campaign, in April 2008, these NGOs had addressed a letter, containing packs of lies and fabrications, to the Member States of the UN General Assembly seeking their support to prevent the re-election of Sri Lanka to the Human Rights Council. In this letter, these NGOs have stated:
“We, the undersigned civil society organizations are gravely concerned by the widening human rights crisis and growing culture of impunity that cripples our country….
” … It is with deep sadness and regret that we have now decided to make this appeal to the members of the United Nations General Assembly to oppose the re-election of Sri Lanka to the Council in 2008…. During Sri Lanka’s two years tenure in the UN Human Rights Council, the human rights situation has worsened. The Government’s unwillingness to take effective measures to address and prevent violations has made clear its inability to fulfill its pledges….
“We appeal to you to consider withholding support for Sri Lanka’s re-election this year. By doing so, your government will send a strong message to the Government of Sri Lanka that it must reform its practices if it wants to continue as an equal partner in international institutions such as the UN ….
“To re-elect Sri Lanka to the Human Rights Council in the present circumstances would amount to support for the undemocratic practices that have become part of our everyday lives. Your rejection of Sri Lanka’s bid for re-election to the Human Rights Council will reaffirm the faith that Sri Lanka civil society has placed in the international community, and could act as a powerful impetus for reforms in the country.” A Sinhala translation of this letter appeared in the Ravaya newspaper of 18. 05. 2008.
Part III - 2023/06/13
Sri Lanka failed to get re-elected to the UN Human Rights Council at the elections conducted on May 21, 2008 despite strong efforts made by our government due to this vicious campaign carried on continuously for several months by a group of International NGOs with the backing of these foreign funded Sri Lankan NGOs to prevent Sri Lanka from being re-elected to the Council.
Sri Lanka’s 1st, 2nd, 3rd and 4th Universal Periodical Report Reviews have taken place in May 2008, October 2012, November 2017 and March 2022. On Each occasion these NGOs have carried on their usual hostile campaign against the country.
Real forces behind move to decriminalize homo-sexual conduct
From the above account it is clear that several foreign funded NGOs were carrying on a continuous campaign through the UN HRC in Geneva for decriminalization of homo-sexual conduct by bringing pressure on the SL Govt.
It is no secret that many of these NGOs actively participated in the Galle Face Aragalaya for the ouster of the former President and that resulted in Ranil Wickremesinghe being appointed as the Prime Minister.
On July 13, 2022 President Gotabaya Rajapaksa resigned and PM Ranil Wickremesinghe was elected by the Parliament as the interim President on July 21, 2022.
It appears that the most urgent task that remained to be addressed immediately by the Govt within one month of the election of the President was the protection of the rights of the LGBTQ communities.
A Presidential Media release issued on 24. 08. 2022 states that a Bill to amend the Penal Code with the aim of protecting the rights of the LGBTQ communities in Sri Lanka was handed over to the President on August 24, 2022 by MP Premanath C. Dolawatta. It has been submitted to the Parliament on the previous day by MP Dolawatta as a Private Member’s Bill.
The Presidential Media release further states: ‘‘The society of this country has an extremely backward notion regarding the LGBTQ community and as a result not only in daily life but even in govt and law enforcement agencies, this community has been subjected various forms of violence, oppression and harassment. At times even their democratic basic rights have been violated.
‘‘Punishment of individuals based on sexual orientation and sexual identification was spread throughout the world by colonial legal systems in the Victorian era, but in modern psychiatry this is not considered a crime or a perversion. Also, developed countries have worked to amend the law that penalize this community and limit their rights.
Having taken these factors into consideration, Parliamentarian Premanath C. Dolawatte has submitted this Private Members Bill.’’
It appears that MP Dolawatte has hurriedly submitted this Private Members Bill to Parliament having taken into consideration the Presidential concerns on the need of protecting the rights of the LGBTQ communities in Sri Lanka.
However, though this Bill has been presented to the President on August 24, 2022, it has not been published in the Govt Gazette till March 22, 2023 and the Bill published in the Gazette has been placed in the Order Paper of Parliament only on April 4, 2023.
According to media reports, when Sri Lanka’s 4th Periodic Report was taken up for consideration at the UN HRC at its Universal Periodic Review Working Group meeting held on February 1, 2023, the UK and the USA have urged Sri Lanka to repeal PTA and to decriminalize same-sex conduct.
(D) Thinking of Political Parties in Parliament on the Bill and their support for it
Discussion hosted by the Canadian High Commission
Within 3 weeks of the UN HRC Working Group Meeting in Geneva, a Panel Discussion on LGBTQ rights has been jointly hosted by the Canadian High Commission in Sri Lanka and NextGenSL. Attorney-at-Law Aritha Wickramasinghe, Equality Director of iProbono has moderated this panel discussion.
David Sood, Counsellor, Political and Trade of the Canadian High Commission in Sri Lanka has delivered the opening remarks while Bhoomi Narendran and Kaushalya Sendanayake, a representative from Equal Ground shared observations from the civil society perspective.
Canada is also a member of the group of ten countries headed by the USA and the UK that brought resolutions against Sri Lanka in the UN HRC, Geneva alleging commission of war crimes and demanding accountability.
A detailed account of the views expressed by the participants at this Discussion was published in the Ceylon Today newspaper of February 20, 2023 under the title ‘‘Key Political figures make historic pledge on LGBTQ rights.’’
Representatives of several major political parties – SLPP MP Premanath Dolawatta, Samagi Jana Balavegaya MP Mayantha Dissanayake, Freedom People’s Congress MP Prof. Charitha Herath and CWC leader Minister Jeevan Thondaman have shared their views at the discussion on non-discrimination of LGBTQ Sri Lankans.
There can be no doubt that any of these MPs have not studied or seen the Bill though they have expressed their support to the Bill at this discussion.
When one examines the sequence of events, inevitably a series of questions will arise in the mind of any rationally thinking person as to what may have actually happened.
This Bill was published in the Gazette of March 22, 2023 and this discussion was conducted more than one month before its publication in the Gazette;
Has the MP Dolawatta had the Bill printed in Sinhala, Tamil and English languages and distributed among all 225 MPs in Parliament at his personal cost before it was published in the Gazette?
What was the need for him to take such a personal interest and do it such a hurry?
This Bill does not mention anything about LGBTQ rights. It only provides for the repeal of two sections in the Penal Code. The entire Bill consisting of one clause with 3 sub-paragraphs is as follows:
Clause 2. (i) S. 365 in the principal enactment is hereby repealed and it is amended by substituting the following section:
‘’Whoever voluntarily has carnal intercourse against the order of nature with an animal, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also liable to fine.’’
(ii) S. 365A in the principal enactment is hereby repealed.
(iii) The intent of the legislature in enacting this legislation must be considered as amending the provisions that makes sexual orientation a punishable offence.
It is strange that none of the four MPs who participated in this discussion has uttered a word about the contents of the Bill or the consequences that would inevitably follow if these two Sections – S. 365 and S. 365A – in the Penal Code enacted in 1995 to protect children from sexual abuse are repealed.
However, when one analyses the views expressed by these MPs, one can gather a lot of information on the stand that will be taken by these political parties when this Bill is taken up for debate in Parliament and the thinking of their Parliamentarians. Let us examine the views expressed by these MPs:
This is what MP Dolawatte has said: ‘‘Consider this as an act of an untamed elephant. I have not spoken to the LGBTQ community nor have I spoken to any foreign mission in SL. I only did my part as a lawmaker, to ensure the rights of citizens of my country.’’
What a great man! Without any communication with the LGBTQ community, he has come forward in defence of their rights. He acts totally independently. He has no dealings with any foreign mission, though he has attended this discussion hosted by the Canadian High Commission.
‘‘I know the ultimate fight should be for non-discrimination and decriminalization of the LGBTQ community is only one aspect of it. But we must start somewhere.’’
Certainly! Decriminalization of the LGBTQ community is the first step. They have to move forward step by step. The ultimate fight should be for non-discrimination or legalizing same sex marriages.
‘‘Minister Ali Sabry has assured that the Govt will support the motion. Minister Prasanna Ranatunga also has communicated to me that the ruling party will back the Bill. So, I am hopeful that the motion will secure a majority in Parliament.’’
Great! SLPP Govt is boldly coming forward to achieve what it could not achieve in the first half of its rule. Is this Basil Chinthanaya, Namal Chinthanaya or Ranil Chinthanya? It is more likely to be Ranil Chinthanya.
This is what SJB MP Mayantha Dissanayake has said: ‘‘I am in favour of the Private Member’s Bill presented by Dolawatte. We are a progressive party and we understand the need for change. I briefly spoke to our Party Leader Sajith Premadasa and shared my views on this matter with him. We haven’t made a formal policy statement on this yet, but we are in favour of this because we want to do the right thing by the country.”
How Nice! At last SJB has found one right thing done by the Ranil – SLPP Govt for the good of the country.
Mayantha Dissanayake has come out with the strategy also to overcome resistance to the Bill:
‘’When this Bill is presented to Parliament, there will be stiff resistance from many quarters. That’s something we must expect. But as a Parliamentarian and a person who values human rights, I will champion this cause within my party and within our parliamentary group. There are many countries in the world that have made progressive steps in this regard and we must follow those examples.’’
‘’Addressing the concerns of religious circles will be a critically important task and I am confident that we will be able to convince them by directly engaging with the right information. For instance, this is perfectly in line with the fundamental teachings of Buddhism such as compassion and that should be the basis of our engagement with Buddhist monks. We inherited a country that needed change. We must now deliver,’’ MP Dissanayake said, adding that his traditional upbringing in Kandy would not deter him from supporting this cause.
With a Legislature with this type of bold MPs with a far-sighted vision who are prepared to come forward breaking up all obstacles and traditional barriers, President Wickremesinghe can achieve his goal of converting Sri Lanka into a Western-oriented country with a modern outlook within a very short period of time. He need not wait till 2048.
Part IV- 2023/06/14
Joining the discussion, Freedom People’s Congress MP Prof. Charitha Herath has said that they would support decriminalization of same-sex relations, if and when the Bill is presented to Parliament.
‘‘We must engage with two domains to achieve the desired results. One is the political domain and the other is the cultural domain. We can change old fashioned political and cultural establishments through constant engagement. ‘’
‘’The technical approach alone will not usher in a meaningful change. That is why I highlight the importance of cultural discussions, as well, to overcome the existing barriers. Sometimes, I feel that these cultural platforms are forgotten by the younger generation,’’ Prof. Herath explained.
Minister Jeevan Thondaman countered the argument that culture was a barrier in achieving non-discrimination for the LGBTQ community in SL. He said ‘’ There is more than enough evidence from ancient history that same sex relations existed and they were very much embraced many, many centuries ago.’’ Thondaman pledged support to legislative reforms decriminalizing same-sex relations.
(E) Existing Penal Code provisions compared with Proposed Amendments
S. 365 of the original Penal Code: ‘’ Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.’’
In the Penal Code there is no definition as to what is meant by carnal intercourse against the order of nature. According to Indian cases, acts of anal sex and oral sex were considered as carnal intercourse against the order of nature. The Police had no idea as to what is meant by it. Only where there was a complaint of a person having anal or vaginal sex with an animal, like a cow, goat or a bitch, they acted on it. This happened very, very seldom and this provision remained almost unenforced.
However, with the promotion of tourism in the 1980s, many incidents of foreign tourists having anal sex with male children were reported. The Police used to produce the suspects in courts for committing an offence not under this Section but under S. 365A of the Penal Code, carrying a much less penalty.
By 1995 Amendments, S. 365 was amended by adding a clause making it explicitly applicable to punish sexual abusers of children.
1995 Amendment of S. 365 of the Penal Code –
‘’ Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be punished with fine and where the offence is committed by a person over 18 years of age in respect of a person under 16 years of age, the offender shall be punished with rigorous imprisonment for a term not less than 10 years and not exceeding 20 years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.’’
The new Bill proposes to repeal S. 365 and substitute it with the following section:
‘’Whoever voluntarily has carnal intercourse against the order of nature with an animal, shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also liable to fine.’’
Under the proposed Bill, anal or oral sex with any man, woman or child will no longer be considered as carnal intercourse against the order of nature; it will be considered as normal human sexual behaviour, not an offence punishable under the law.
This new Bill proposes to totally repeal S. 365A of the Penal Code, without any substitution.
S. 365A of the original Penal Code:
‘’Any male person who, in public or private, commits or is a party to the commission of, or procures or attempts to precure the commission by any male person, of any act of gross indecency with another male person shall be guilty of an offence and shall be punished with imprisonment of either description for a term which may extend up to two years or with fine or both, and shall also be liable to be punished with whipping.’’
This provision covered offences committed by male persons only. 1995 Amendment made it applicable to cover offences committed by both male and female persons and made provision for imposing deterrent penalties for offences committed on children.
1995 Amendment of S. 365A of the Penal Code –
‘’Any person who, in public or private, commits or is a party to the commission of, or procures or attempts to precure the commission by any person, of an act of gross indecency with another person is guilty of an offence punishable with imprisonment for a term which may extend up to two years or with fine or both and where the offence is committed by a person over 18 years of age in respect of any person under 16 years of age shall be punished with rigorous imprisonment for a term not less than 10 years and not exceeding 10 years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.’’
The Supreme Court Determination on the Bill…
Three persons had filed an application – SC SD No. 13 / 2023 – in the Supreme Court challenging the constitutionality of this Bill. Fourteen petitions have been filed by persons seeking Court’s permission to intervene in the Application and the Court has allowed their applications. Out of the 14 intervenient applications, intervenient petitioners only in two applications have supported the petitioners opposing the Bill. Intervenient petitioners in 12 intervenient applications have supported the Bill, opposing the petitioners.
Among the Intervenient petitioners who supported the Bill, there were representatives of four foreign-funded NGOs that have played a leading role in the anti-Sri Lanka campaign carried on in the UN HRC in Geneva making wild allegations against the Govt. of Sri Lanka since 2006; representatives of 3 or 4 LGBTQ groups; a former Professor in the Faculty of Law, University of Colombo; a leading NGO figure who has served as the President and two other women who have served as members of the Human Rights Commission of Sri Lanka; a women who has served as the President of the National Child Protection Authority; the person who moderated the discussion at the Canadian High Commission and a major activist in the LGBTQ movement in Sri Lanka.
Having examined and analysed the arguments and submissions of the Counsels for the petitioners, intervenient petitioners, respondents and the Attorney General, the Court has made its determination in a lengthy a Judgement. As mentioned in the Judgement:
This Bill proposes to repeal S. 365A in its entirety. ‘‘It must be reiterated that the cumulative effect of the Bill, as captured in Clause (2) (iii), is that sexual orientation of a person shall no longer be a punishable offence, and any consensual conduct between two adult persons of the same sex, irrespective of whether it takes place in private or public, shall no longer be an offence.’’ – P. 10
‘‘The Counsels who appeared for the petitioners opposing the Bill have presented four arguments in support of their position that the provisions of the Bill are violative of Articles 1,3, 4d, 9, 12(1), 13(4), 27(1), 27(2)(d) and 27(13) of the Constitution…It must, perhaps, be stated at the outset that in our view, ex facie, none of the four arguments impinge upon the provisions of Articles 1, 3, 4d, 12(1) and 13(4) of the Constitution….
‘‘The first argument was that the safeguards provided in Ss. 365 and 365A for the protection of children and those under 16 years of age will be taken away by the amendments proposed by the Bill, thereby creating space for exploitation of children and leaving a lacuna in the enforcement of the law relating to offences against children.
‘‘In this connection it was further submitted that:
exposure to lesbian, gay, bisexual and transgender (LGBT) programmes in schools could impact upon the free decision-making power of children and give rise to transgender children;
the enactment of the Bill would be contrary to the provisions in Article 27(13) which provides that ‘The state shall promote with special care the interests of children and youth, so as to ensure their full development, physical, mental, moral, religious and social, and protect them from exploitation and discrimination.’;
the protection presently afforded to children would be removed, if Ss. 365 and 365A are amended as proposed by the Bill, and that even a person under 16 years of age could engage in sexual activity with a person over 18 years of age.
‘‘ It is in this background that this Court was urged as the upper guardian of children to act in the best interests of the child and declare that the Bill is violative of Article 12(1).
The Stand taken by the State…
‘‘The learned Additional Solicitor General Haripriya Jayasundara, PC, submitted that women and children were the focus of the amendments introduced to the PC in 1995, and that while Ss. 365 and 365A were amended by increasing the punishment where one party was a person below the age of sixteen, S. 365B introduced a new offence titled ‘grave sexual abuse.’ It was further submitted by the Additional Solicitor General that the amendment introduced to S, 365B by the Penal Code Amendment Act No. 29 of 1998 specifically provides that consent with regard to any sexual conduct constituting grave sexual abuse is immaterial where the offence is committed in respect of a child below the age of 16. – vide S. 365B(1)(aa). It was her position that in the event the conduct of any person does not fall within the definition contained in S. 365B, S. 345 of the PC which deals with sexual harassment could be resorted to in order to protect children against any unwelcome sexual advances by words or action. Thus, the contention of the petitioners is unfounded and without any legal basis.’’
It appears that the Court has come to this conclusion on the basis of the submission made by the learned Additional Solicitor General. However, her submission is far from correct. It does not appear from the Judgement as to whether the Counsels of the petitioners made any attempt to show the fallacy of the submissions made by the learned ASG.
‘‘The second argument of the Counsels of the petitioners was that the impugned amendment will dilute the Rule of the Law and result in the life and liberty of the citizens being at risk. This argument is even more tenuous and the petitioners have not been able to connect passing of this Bill to any violation of the Rule of the Law.
‘‘The third argument was that a majority of those with HIV and Aids have history of male or bisexual exposure and that decriminalization of same-sex relationships will give rise to an increase in the number of persons infected with HIV and Aids. It was further submitted that this would have an adverse impact on national security by destroying individuals, families, communities, economic and socio-political institutions, and the military police forces, and that the protection granted by the Chapter on fundamental rights cannot be truly enjoyed without the provision of a safe, secure and protective environment in which a citizen of Sri Lanka may realize the full potential of his existence.
‘‘However, little to nothing has been submitted to this court in support of this proposition other than a singular point that HIV and Aids affect those engaging in same-sex intercourse more than those engaging in hetero-sexual intercourse. Hence, the material placed before this Court by the petitioners does not support their position that HIV and Aids are only prevalent in homo-sexuals or that the proposed amendment will result in an increase in the number of persons afflicted with HIV and Aids.
‘‘Counsels for some of the intervenient petitioners presented three important arguments. The first was that it is not only homo-sexual males who contract HIV, but female sex workers, returnee migrant workers and those who use or inject drugs. The second is that criminalization of homo-sexual conduct between two consenting adult males has only resulted in such persons being marginalised from society and thereby being deprived to access of proper health care which if available would address the spread of HIV and Aids among those persons. The third is that the amendment of S. 365 and S, 365A would facilitate the outreach to individuals and groups at a heightened risk of infection. The intervenient petitioners and the ASG agree on the point that the perception that HIV is disproportionately higher in homo-sexuals is due to the social stigma caused by the criminalization of their relationships…..The Counsels of petitioners did not adduce any scientifically acceptable evidence in support of this line of thinking.
The fourth and final argument was that ‘‘homo-sexual activity is contrary to the principles of Buddhism and therefore violates Article 9 of the Constitution…. The petitioners did not explain the manner in which the decriminalization of one’s sexual orientation derogates from the State’s duty protect and foster Buddha Sasana nor the point of how the proposed amendments are prohibited by or contrary to Buddha Sasana, except to state that it is an offence (parajika) for a Buddhist priest to have sexual relations with another, irrespective of whether the other person is of the same sex or opposite sex.
‘‘On the contrary, Mr. Sanjeewa Jayawardana, PC and Mr. Prasantha Lal de Alwis, PC, appearing for some of the intervenient petitioners submitted that: (a) Bhikkus and Bhikkunis have a separate code of conduct (Vinaya rules) and lay persons are not governed by the rules in the said code; (b) none of the ‘sutras’ focussed on the conduct of lay persons condemn homo-sexuality; (c) while the basic tenets of all religions are that all human beings should be treated fairly and equally irrespective of their circumstances, the fundamental teachings of Buddhism includes tolerance towards and equal treatment of all human beings and that Buddhism does not discriminate persons whose sexual orientation is anything other than hetero-sexual; (d) from whatever parity of reasoning, it would be outrageous for the petitioners to allege that a law which decriminalises homosexuality would result in the undermining of the Buddha Sasana.
‘’We are of the view that the final argument of the petitioners too lacks merit.
‘‘Most of the arguments put forward by and in support of the petitioners are largely based on speculation and may be disposed of summarily. For instance, the argument that children would be harmed by the passing of this Bill or the argument that there shall be an increase in the number of those afflicted with HIV and Aids is specious.’’ – P. 17
Part V- 2023/06/15
Dolawatta’s counsel Sanjeewa Jayawardane’s argument: ‘‘SC cannot impose upon a law a moral standard or moral point of view or social morality, with regard to a Bill that offends no provision of the Constitution. Even if the Court was of the view that repealing S. 365A would encourage persons of whatever sexual orientation to behave in an indecent manner in public and whether such conduct is, in the view of the Court, is morally repugnant and against the social and cultural ethic of this country, that would not be a matter for this Court but one that is entirely left at the door step of the Legislature. ’’ – P. 19
‘‘The real issue before this Court in connection with this Bill is: Whether there exists any constitutional impediment to the repeal of identified criminal offences?… Parliament’s power to decriminalize activities is significantly broader as restriction or abridgement of fundamental rights are less likely to occur in such instances. …. P. 22
‘‘Thus, a petitioner who seeks to claim that decriminalisation of an act violates the Constitution must demonstrate that the Constitution imposes a requirement for the act to continue to be criminalised. This is a high burden. … In this determination we are tasked with the question of whether the repeal of laws which criminalise intimate acts between consenting adults is unconstitutional. Naturally, the burden is even higher for the petitioners as the original law had been introduced to further certain ‘moral’ norms as opposed to protecting the life, limb or property of persons. This leads us to the question of whether there is any constitutional prohibition decriminalising an offence that seeks to impose moral standards.
Case of the 2nd respondent and other supporting intervenient petitioners: ‘‘(a) the cumulative effect of the Bill, as captured in Clause (2) (iii), is that sexual orientation of a person shall no longer be a punishable offence, and any consensual conduct between two adult persons of the same sex, irrespective of whether it takes place in private or public, shall no longer be an offence;
‘‘(b) the Bill seeks to catapult Sri Lanka from the latter part of the anachronistic Victorian era firmly into the 21st century with contemporary social mores, and thereby restore the Rule of the Law which facilitates equality, liberty and dignity in all its facets for those whose sexual orientation is different from the majority;
‘‘c) pursuant to decriminalising homosexuality by way of the Sexual Offences Act, the UK has called upon other members of the Commonwealth to follow suit. – P.
Other intervenient petitioners supporting the Bill: ‘‘Approximately 12% of the citizens of this country belong to the homosexual community and they live in constant fear of the possible use of S, 365A against them, purely based on their sexual orientation. The mere existence of S. 365A has a ‘chilling effect’ on an individual’s wellbeing and even though such an individual is subject to discrimination, seeking redress is nearly impossible because any disclosure of such discrimination based on sexual orientation can result in prosecution. The Bill seeks to remove the discrimination and the discrimination attached to the sexual orientation of a group of persons, restore, enhance and protect the FR guaranteed to such group by the Constitution.
‘‘Counsel drew our attention to certain documented incidents of harassment and humiliation that members of the LGBT community have had to undergo due to the presence of S. 365 and S. 365A simply due to their sexual orientation. It is perhaps relevant to state that as provided in the Code of Criminal Procedure Act, a person suspected of an offence under S. 365 and S. 365A can be arrested without a warrant and that both offences are non-bailable.
‘‘The continued maltreatment of individuals on the basis of their sexual orientation, including unnecessary and forced anal and vaginal examinations and arrests made based merely on appearance constitute an assault to the dignity of these individuals who undergo severe mental/psychological suffering as a result, thus attracting the provisions in Article 11, a non-derogable and entrenched provision.
‘‘The importance of the above analysis is that a law will face a stiff burden if it were to impinge upon human dignity of a person in criminalising offences to safeguard morality. It would be even more difficult to argue that such a law must be maintained and cannot be repealed. We are of the view that the decriminalisation of sexual activity amongst consenting adults irrespective of their sexual orientation only furthers human dignity and as such this cannot be considered as being an offence that must be maintained in the statute book. – P. 30
‘‘ASG submitted that it is ironic for the petitioners to claim that the provisions of the Bill are violative of Article 12(1) when the very essence of the Bill is to ensure that all persons are equal before the law and are afforded the equal protection of the law. – P. 32
‘‘Having carefully considered the submissions of the Counsel, we are of the view that the removal of criminalization of intimate acts between consenting adults, which crime was based on moral imperatives of a bygone Victorian era, would be in conformity with the Article 12(1) and would uphold the dignity of human beings. This Court has no mandate to interfere with such a decision, which is the prerogative of Parliament. – P. 36
‘‘Given that the right to privacy is a facet of the right to live with dignity, there is simply no basis for this Court to come to the conclusion that there is a constitutional obligation to criminalise homosexual activities engaged in private by consenting adults, as that is a matter that is inherently private and intimate. If Parliament wishes to decriminalise such activities this Court cannot stand in its way. – P. 40
‘‘There is one other matter that we must advert to. This Court inquired from Mr. Jayawardana, PC the necessity to delete S. 365A in its entirety and whether it would suffice if the word ‘private’ is deleted, given that paragraph (iii) of Clause 2 specifically states that ‘‘ The intent of the legislature in enacting this legislation must be considered as amending the provisions that makes sexual orientation a punishable offence.’’ His response was twofold. The first was that this is a matter that is entirely for Parliament to decide. The second was that in the absence of a definition of ‘any act of gross indecency’ in S. 365A, the said provision is not only vague, overbroad and subjective but can be arbitrary in its implementation, thus violating Art. 12(1). Mr. Hewamana has presented affidavits of 3 persons who have been subjected to harassment, humiliation and degrading treatment at the hands of their own families as well as by law enforcement authorities due to their sexual orientation, in order to support the position that due to its vague and overbroad nature, S. 365A can be arbitrary in its implementation.
‘‘ASG submitted further that even if S. 365A deleted in its entirety, behaving indecently in public can still be addressed under S. 7(1)(b) of the Vagrants Ordinance as well as S. 261 of the PC, without having to criminalise one’s sexual orientation. – P 41
‘‘It must perhaps be reiterated that the intent of the Legislature in enacting the Bill is to repeal the laws that make sexual orientation a punishable offence. That does not mean that men or women or for that matter transgender persons can frequent public places in a manner that creates a nuisance to others using such public places, or that they can engage in any other illegal acts or behave in a manner that affects the rights, health or property of others. However, we must reiterate that this is a matter that comes within the legislative policy of the State which shall be guided by the provisions of Articles 27 and 75. It is a matter that is within the legislative power of the People which shall be exercised by Parliament in trust for the People.
Conclusion
‘‘The provisions of the Bill would in fact ensure that all persons shall be equal before the law and be entitled to equal protection of the law irrespective of their sexual orientation, and the Bill would in fact enhance their fundamental rights guaranteed to them under the Constitution and enable them to live in society with dignity. We are of the view that the submissions of the Petitioners are in fact fanciful hypotheses, and have no merit.
‘‘In the above circumstances, we are of the view that the Petitioners have failed to establish that (a) the repeal (in the manner proposed in the Bill) of Ss. 365 and 365A of the Penal Code which criminalise intimate acts between consenting adults is unconstitutional;
(b) the Bill as a whole or any Clause therein is inconsistent with any provision of the Constitution.
‘‘We are of the opinion that the Bill as a whole or any provision thereof is not inconsistent with the Constitution.’’
Part VI – 19jun23
Fallacy of the Argument raised by the State in support of the Bill
The main argument raised by the petitioners against the Bill was: (a) that the amendments proposed by the Bill would result in removing the safeguards provided in Ss. 365 and 365A for the protection of children and those under 16 years of age, thereby creating space for exploitation of children and leaving a lacuna in the enforcement of the law relating to offences against children; (b) the enactment of the Bill would be contrary to the provisions in Article 27(13) which provides that ‘The state shall promote with special care the interests of children and youth, so as to ensure their full development, physical, mental, moral, religious and social, and protect them from exploitation and discrimination.’; (c) as the upper guardian of children, the Court is required to act in the best interests of the child declaring that the Bill is violative of Article 12(1).
In response to the arguments of the petitioners’ Counsel, the Additional Solicitor General Haripriya Jayasundara, PC, submitted (a) that women and children were the focus of the amendments introduced to the PC in 1995; (b) while amending Ss. 365 and 365A by increasing the punishment where one party was a person below the age of sixteen, with S. 365B it has introduced a new offence titled ‘grave sexual abuse; (c) that the amendment introduced to S, 365B by the Penal Code Amendment Act No. 29 of 1998 specifically provides that consent with regard to any sexual conduct constituting grave sexual abuse is immaterial where the offence is committed in respect of a child below the age of 16; (d) that in the event the conduct of any person does not fall within the definition contained in S. 365B, S. 345 of the PC dealing with sexual harassment could be resorted to in order to protect children against any unwelcome sexual advances.
Her position was that no lacuna in law will be caused by the amendments proposed in the Bill, as the remaining provisions – S. 365B and S. 345 – of the Penal Code will provide adequate protection to the children against sexual abuse.
In coming to any decision, any Court will act on the material placed before the Court by the parties. It appears that the Court has acted on the submissions made by the Additional Solicitor General, unchallenged by the Counsels of the petitioners, when it came to the conclusion that ‘‘the contention of the petitioners is unfounded and without any legal basis.’’
Let us examine the amendments brought to the Penal Code in 1995 for the protection of children from sexual abuse and see whether what was submitted by the Additional Solicitor General (ASG) was the true state of the law.
This is the original S. 365 of the Penal Code: ‘’ Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.’’
· This was amended in 1995 by adding the clause shown below in italics, making it explicitly clear to the Police who are enforcing the law that it covers not only sexual acts conducted with animals, but also with men and women, and enhancing the penalties where the offence is committed on a child under 16 years.
Amended S. 365 of the Penal Code: ‘’ Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be punished with fine and where the offence is committed by a person over 18 years of age in respect of a person under 16 years of age, the offender shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.’’
· Increasing the punishment where one party was a person below the age of sixteen is not the only amendment introduced into S. 365 and S. 365A by the 1995 Amendments as submitted by the ASG. Two more practically important amendments were made in the law while increasing the penalties.
· The phrase ‘having carnal intercourse against the order of nature with any man, woman, or animal’ in S. 365 is intended to deal with persons having anal sex with any man, woman, or animal. As there was no definition of the offence in the Penal Code, and as the complaints of persons having carnal intercourse against the order of nature with animals or men were very rare, the Police who were enforcing the law had no clear idea about it.
· Prior to 1995, even in cases where foreign tourists had sexually abused children having anal sexual intercourse with them, the Police had filed action against them for committing acts of gross indecency, an offence punishable under S. 365A, and not for having carnal intercourse against the order of nature with them, an offence punishable under S. 365 of the Penal Code.
· The amendment brought to S. 365 of the Penal Code had the effect not only of increasing the penalties that can be imposed on offenders but also enabling the Police to understand that persons having carnal intercourse against the order of nature not only with animals, but also with other men and women can also be dealt with deterrent penalties under the provisions of S. 365.
· While enhancing the penalties for offences committed on persons under 16 years of age, the 1995 Penal Code Amendment made a significant change in the law, by making S. 365A gender neutral. Earlier only male persons committing an act of gross indecency on another male person was liable; S. 365A was amended by deleting the word male. Now both male and female persons committing an act of gross indecency on another male or female person is liable to be punished with the penalty laid down for the offence.
· In both offences – carnal intercourse against the order of nature under S. 365 and gross indecency under S. 365A – the act itself is an offence. Consent of the person on whom the act is committed or the participants in the act is immaterial.
The original S. 365A of the Penal Code:
‘’Any male person who, in public or private, commits or is a party to the commission of, or procures or attempts to precure the commission by any male person, of any act of gross indecency with another male person shall be guilty of an offence and shall be punished with imprisonment of either description for a term which may extend up to two years or with fine or both, and shall also be liable to be punished with whipping.
Amended S. 365A
of the Penal Code : ‘’Any person who, in public or private, commits or is a party to the commission of, or procures or attempts to precure the commission by any person, of an act of gross indecency with another person is guilty of an offence punishable with imprisonment for a term which may extend up to two years or with fine or both and where the offence is committed by a person over 18 years of age in respect of any person under 16 years of age shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.’’
· There is no definition of any of these two offences in the Penal Code. However, one can get an idea about the comparative gravity of these two offences from the penalties laid down in the law. In the eyes of the law, acts of carnal intercourse against the order of nature is a much more serious, condemnable offence punishable with imprisonment for a term extending up to ten years and a fine.
· Compared with the offence of carnal intercourse against the order of nature, gross indecency is a much less serious offence punishable with imprisonment for a term extending up to two years or with a fine. The court can release a convicted offender with a fine only, without imposing any jail sentence.
The four sections – S. 365, S. 365A, S. 365B and S. 345 – are intended to deal with four different types of acts of sexual conduct.
(a) S. 365 deals with acts of carnal intercourse against the order of nature with any man, woman, or animal. S. 365 is intended to deal with anal sex or sexual acts of similar nature.
(b) S. 365A deals with acts of gross in decency committed by a person with another person, in public or private. S.365A is intended to deal with normal male or female homosexual acts.
Part VII – 20jun23
The Bill proposes to repeal these two Sections. If these two sections in the Penal Code are repealed, then anal sex and homosexual conduct (of male or female) in public or private will no longer be an offence. According to the submissions of the Additional Solicitor General, the repeal of the two provisions will not result in any lacuna in the law, placing the children in a vulnerable situation without any protection against sexual abuse, as the remaining provisions – S. 365B and S. 345 – of the Penal Code will provide adequate protection to the children against sexual abuse.
Let us examine S. 365B and S. 345 – of the Penal Code and see whether they can provide adequate protection to the children against sexual abuse, as submitted by the learned ASG.
S. 365B – Grave sexual abuse:
S. 365B (1) Grave sexual abuse is committed by any person who, for sexual gratification, does any act, by the use of his genitals or any other part of the human body or any instrument on any orifice or part of the body of any other person, being an act which does not amount to rape under S. 363, in circumstances falling under any of the following descriptions, that is to say: – (a) without the consent of the other person;
(aa) with or without the consent of the other person when the other person is under sixteen years of age;
(b) with the consent of the other person while such other person was in lawful or unlawful detention or where that consent has been obtained by use of force, or intimidation or threat of detention or by putting such other person in fear of death or hurt;
(c) with the consent of the other person where such consent has been obtained at a time the other person was of unsound mind or was in a state of intoxication induced by alcohol or drugs.
(2) Whoever –
(a) commits grave sexual abuse shall be punished with rigorous imprisonment for a term not less than seven years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person;
(b) commits grave sexual abuse on any person under 18 years of age (on a person between 16 to 18 years – only if committed without consent) shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.
Grave sexual abuse dealt with by S. 365B is an act committed by any person, for sexual gratification, using his genitals or any other part of the human body or any instrument on any orifice or part of the body of any other person, being an act which does not amount to rape under S. 363 of the Penal Code.
· Unlike in the case of carnal intercourse against the order of nature and gross indecency, in grave sexual abuse the act itself is not an offence. It becomes an offence only where it is committed (a) with or without consent on a person under 16 years of age; or (b) without consent of the person; or (c) with the consent of the person obtained while such other person was (i) in lawful or unlawful detention or (ii) by use of force, or intimidation or threat of detention or by putting such other person in fear of death or hurt; (iii) with the consent obtained at a time the other person was of unsound mind or was in a state of intoxication induced by alcohol or drugs.
· It is true that, as submitted by the ASG, with regard to any sexual conduct constituting grave sexual abuse, the consent of the child is immaterial where the offence is committed in respect of a child below the age of 16.
· But what about the children in the age group of 16 – 18 years? Are they not children? Are they not entitled to protection by the law against sexual abuse?
· Any person can commit any of the sexual acts mentioned in S. 365B with the consent of any child over 16 years of age.
· S. 365B will not provide any protection to such children and they will be left without any protection and open to abuse.
· Will they get any protection from S. 345 as submitted by the learned ASG. Let us see.
S. 345 – Sexual harassment
S. 345 – Whoever by assault or use of criminal force, sexually harasses another person or by the use of words or actions, causes sexual annoyance or harassment to such other person commits the offence of sexual harassment and shall on conviction be punished with imprisonment of either description for a term which may extend to five years or with fine or both, and may also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.
Explanation: 1. Unwelcome sexual advances by words or action used by a person in authority in a working place or any other place shall constitute the offence sexual harassment.
2. For the purpose of this section an assault may include any act that does not amount to rape under S. 363.
· From the words used in the Section like assault or use of criminal force, sexual annoyance or harassment, unwelcome sexual advances for describing the offence, it is crystal clear that S. 345 is not intended to deal with cases of consensual sexual conduct.
· From the explanation given it clearly appears that it is intended to deal with a different type of offence;
· Even where an offender is convicted the Court has the discretion to release the offender with only a fine imposed, without any jail sentence imposed.
· From the lenient penalty laid down in the Section it clearly appears that it cannot protect children from being subject to grave crimes like anal sex.
· Children will not get any protection from S. 345 against gross acts of sexual abuse as submitted by the learned ASG.
** While making submissions before the Court, the learned ASG had stated: ‘‘Even if S. 365A is deleted in its entirety, behaving indecently in public can still be addressed under S. 7(1)(b) of the Vagrants Ordinance as well as S. 261 of the Penal Code, without criminalising a person’s sexuality.’’
*** On an analysis of S. 7(1)(b) of the Vagrants Ordinance and S. 261 of the Penal Code, it appears that the submission of the learned ASG is far from the truth.
Vagrants Ord. S. 7(1)(b):
‘any person found committing any act of gross indecency or found behaving with gross indecency, in or about any public place – shall be guilty of an offence and shall be liable on summary conviction to imprisonment of either description for a period not exceeding six months, or to a fine not exceeding one hundred rupees, or to both.
S. 261 of the Penal Code:
A person is guilty of a public nuisance who does any act or is guilty of an illegal omission, which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
· After S. 365A is repealed, gross indecency will no longer be an offence. There is no definition of gross indecency in any penal law. At present the Police can act under S. 7(1)(b) of the Vagrants Ordinance, arrest and prosecute a person committing any act of gross indecency in any public place because gross indecency is an offence punishable under S. 365A of the Penal Code. After S. 365A is repealed, when gross indecency is no longer an offence, how can the Police arrest and prosecute a person under S. 7(1)(b) of the Vagrants Ordinance?
· The Police may end up as respondents in Fundamental Rights Applications for committing an illegal arrest.
· Vagrants Ordinance is not a law enacted to deal with this type of issues; Vagrants Ordinance was enacted in 1841, to deal with problems created by labourers brought from South India to work temporarily in upcountry plantations, who had run away and taken shelter in various places to escape from being sent back to India after their period of work was over. This Ordinance has been amended 11 times before the Independence in 1948.
· It is an Ordinance enacted to deal with following categories of persons: (a) persons behaving riotously or disorderly in public streets; (b) persons who are deemed idle and disorderly persons; (c) persons who are deemed to be rogues and vagabonds; and (d) persons who are deemed to be incorrigible rogues.
· Having no income whatsoever, women belonging to these categories were soliciting men and engaging in prostitution to earn their living. S. 7 of the Vagrants Ordinance is intended to deal with them:
S. 7(1)(a) – any person in or about any public place soliciting any person for the purpose of the commission of any act of illicit sexual intercourse or indecency, whether with the person soliciting or with any other person, whether specified or not;
(b) any person found committing any act of gross indecency or found behaving with gross indecency, in or about any public place.
·Often these acts were committed in public toilets or other places close to bus stands or railway stations or road sides; this term ‘gross indecency’ is used here to cover all types of sexual acts – vaginal sex, anal sex, oral sex, or any other sexual act.
· Generally, it is under S. 7(1) of the Vagrants Ordinance the Police act for arresting street prostitutes and other women loitering at the bus stands and railway stations at night soliciting men for sexual activities and producing them in Courts.
** S. 261 of the Penal Code appears to be equally inapplicable to cover this situation. Only an act which causes any common injury, danger or annoyance to the public or to the people in general dwelling in the vicinity or an act which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right amounts to a public nuisance under this Section.
· Display of a person’s sexual orientation will not necessarily cause injury, obstruction, danger or annoyance to the public.
· If any person engages in sexual intercourse, anal sex, oral sex or any other sexual act or displaying their sexual organs openly in a public place that may necessarily lead to public annoyance.
· No person in his or her senses will engage in sexual intercourse, anal sex, oral sex or any other sexual act or display their sexual organs openly in a public place.
Part VIII – 21jun23
Although there is no public annoyance, under S. 63 (j) of the Police Ordinance any Police officer has the power to arrest without a warrant ‘any person who wilfully and indecently exposes his person or any offensive deformity or disease’ in any street or road, thoroughfare or passage within the limits of any town, if the offence was committed within his view.
However, if S. 365 and S. 365A are repealed as proposed in the Bill, there will be no legal bar whatsoever for any groups to display their sexual orientation in public without directly engaging in a sexual act.
S. 365A of the Penal Code dealt not only with persons committing acts of gross indecency, but also with any person who procures or attempts to precure the commission by any person, of an act of gross indecency with another person. With the repeal of S. 365A, procuration of a child above 16 years of age to another person for commission of an act of carnal intercourse against the order nature or gross indecency or grave sexual abuse will no longer be an offence.
Tourism can be promoted with children, both male and female, above the age of 16 years procured for engaging in sexual acts with foreign tourists, without any fear of being prosecuted.
LGBT persons will be able to openly display their sexual orientation by engaging in acts preliminary to having carnal intercourse. For instance, two men or two women can publicly embrace each other intimately, touching their bodies and kissing each other. It may not cause any public annoyance, according to the proposed law. Other than the LGBT groups, there may be others who are dreaming of western moral values on Sri Lankan society appreciating.
Though there is no legal bar, it will certainly have a pernicious influence on children on the younger generation causing, an irreparable harm.
Inevitable Consequences of the Passage of the Bill – Promotion of Sexual Abuse of Children and Youth
Let us see what will be the plight of children and youth of this country if this Bill is passed by Parliament:
When S. 365 of the Penal Code dealing with the offence of carnal intercourse against the order of nature (anal sex and oral sex) with any man or woman and S. 365A dealing with the offence of gross indecency (acts of same-sex of men and women both) are repealed, making these sexual activities no longer offences punishable under the law, it will result in the removal of protection afforded to children by these two Sections against sexual abuse in respect of these offences.
The ASG had submitted to Court that no lacuna in law will be caused by the amendments proposed in the Bill, as S. 365B of the Penal Code dealing with the offence of grave sexual abuse will provide adequate protection to the children against sexual abuse.
On an analysis of S. 365B, it clearly shows that S. 365B will not provide any protection to children in the most vulnerable age group against sexual abuse.
Grave sexual abuse dealt with by S. 365B is an act committed by any person, for sexual gratification, using his genitals or any other part of the human body or any instrument on any orifice or part of the body of any other person, being an act which does not amount to rape under S. 363 of the Penal Code.
Unlike in the case of carnal intercourse against the order of nature and gross indecency, in grave sexual abuse the act itself is not an offence.
It becomes an offence only where it is committed (a) with or without consent on a person under 16 years of age; or (b) without consent of the person; or (c) with the consent of the person obtained while such other person was (i) in lawful or unlawful detention, or (ii) by use of force, or intimidation or threat of detention or by putting such other person in fear of death or hurt; (iii) with the consent obtained at a time the other person was of unsound mind or was in a state of intoxication induced by alcohol or drugs.
This section provides protection against sexual abuse only to children under 16 years of age. What is the protection available for children in the age group of 16 – 18? Any person can commit any of the sexual acts mentioned in S. 365B – anal sex, oral sex, fingering, homosexual acts – with any child over 16 years of age with the consent of the child.
Under the Convention of the Rights of the Child (CRC) ratified by Sri Lanka in 1991, every person under 18 years of age is a child entitled to all the rights guaranteed by the Convention including the right to protection from sexual abuse. The Penal Code (Amendment) Act No. 22 of 1995 and the Penal Code (Amendment) Act No. 16 of 2006 provide protection to all children under 18 years of age against abuse sexual or otherwise in respect of most of the offences dealt with by them: – S. 286A – Using children for obscene or indecent publications or shows; S. 286B – Duty of a person providing computer services to prevent sexual abuse of a child; S. 286C – Duty to inform use of premises for child abuse; S. 308A – Cruelty to children; S. 360B – Sexual exploitation of children; S. 360C – Trafficking of children; S. 360E – Soliciting a child. In all these sections the word ‘child’ is defined to mean a person under 18 years of age.
The International Convention on Civil and Political Rights (ICCPR) Act No. 57 of 2007, while recognising a person under 18 years of age as a child, by S.5(1)© has guaranteed the rights of every such child to be protected from abuse.
If any person commits an act of grave sexual abuse with a person over 16 years of age with consent obtained by adopting any of the methods mentioned in the Section such as use of force, intimidation, or threats or while in a state of intoxication, then it becomes an offence punishable under the law.
What is the position if consent is obtained through deceit or offering some benefits or presents or some promises? There are numerous other ways to obtain the consent of children and youth, inexperienced in life, for committing sexual acts with them such as developing a close friendship, or offering some presents like a mobile phone or offer of a foreign trip or other deceitful conduct. Then it will not be an offence punishable under S. 365B.
S. 365B will not provide any protection to children belonging to the age group of 16 to 18 years and they will be left without any protection and open to abuse.
Who are these children belonging to the age group of 16 to 18 years? They are mostly children studying in O Level and Advanced Level Classes in schools. In any given year there are more than 500,000 thousand students studying in these classes. They belong to the most vulnerable age group, amenable to the influence of social and other media promoting this type of conduct. All this time these activities remained grave crimes, punishable with deterrent penalties. When this Bill becomes law, when these activities are decriminalised, as persons over 16 years of age they will be able to openly and freely discuss about these things and freely engage in any of these activities of their choice.
Within a few years of the passage of the Bill, it will be almost impossible to maintain discipline in schools and other higher education institutes. It is no secret that homosexual connections are observed to certain extent among students in hostels in schools and universities. At present it is frowned upon as conduct illegal and unacceptable. When homosexuality is legalised, one can see the number of human rights violation applications coming before the Human Rights Commission of Sri Lanka against the hostel Wardens and heads of institutions who try to maintain discipline in them.
It will certainly result in two or three-fold increase in the number of complaints of sexual abuse of children which remains continuously increasing over the years.
It will result in the destruction of moral, cultural and ethical base of our society.
Duty and Responsibility of Parliament to Protect the Rights of all Children
Even Sanjaya Jayawardana, PC, appearing for the proponent of the Bill MP Dolawatta admitted in his submissions that even if the Court was of the view that repealing S. 365A would encourage persons of whatever sexual orientation to behave in an indecent manner in public and whether such conduct is, in the view of the Court, morally repugnant and against the social and cultural ethic of this country, that would not be a matter for the Court but one that is entirely left to the Legislature.
The Supreme Court has expressed its opinion on this matter in the Determination on the Bill in these terms: ‘‘That does not mean that men or women or transgender persons can frequent public places in a manner that creates a nuisance to others using such public places, or that they can engage in any other illegal acts or behave in a manner that affects the rights, health or property of others. However, we must reiterate that it is a matter that comes within the legislative policy of the State which shall be guided by the provisions of Art. 75 and 27. It is a matter that comes within the legislative power of the people which shall be exercised by Parliament in trust for the People.’’
Under Article 75, the Parliament has the power to enact or repeal any law; In enacting laws the Parliament is exercising the legislative power of the people in trust for the People. Article 27 contains the Directive Principles of State Policy that shall guide the Parliament in the enactment of laws. In the enactment of this Bill the Parliament should be guided by the Directive Principles in Article 27 (12) and (13): 27(12) The State shall recognize and protect the family as the basic unit of society. 27(13) – The State shall promote with special care the interests of children and youth, so as to ensure their full development physical, mental, moral, religious and social and to protect them from exploitation and discrimination.
Instead of promoting with special care the interests of children and youth, this Bill has the effect of jeopardising the interests of children and youth exposing them to sexual abuse and retarding their physical, mental, moral, religious and social development.
Every Member of Parliament must understand that it is their duty and responsibility to exercise their legislative power entrusted to them by the People with due diligence in the best interests of the people and the country, protecting and promoting the rights of vulnerable groups like women and children, without carrying out foreign agendas and being moved away by slogans.
(Concluded)