Features
Proposed Penal Code amendment and threat of promotion of sexual abuse of children
by Kalyananda Tiranagama
Executive Director
Lawyers for Human Rights and Development
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. (To be continued)
Features
Trump’s tariffs, AKD’s gazette and Sri Lanka’s diplomatic slumber
“We are rather respectable in Colombo. We go to bed fairly early, and we remain there till morning. “
According to Sri Lanka’s diplomatic folklore, the late S.W. R. D. Bandaranaike uttered these words while explaining the reasons for Sri Lanka’s abstention on the UN resolution condemning the Soviet invasion of Hungary. Apparently, SWRD’s foreign ministry officials were asleep at home when the diplomatic cable seeking instructions was received from New York. In those days, there were no cell phones, Internet, or even fax or telex machines. The diplomatic cables were sent through post offices. Decoding them was a slow and time-consuming process. Thus, the government could not provide appropriate instructions to our mission in New York in time, and the Sri Lankan delegation abstained on that sensitive UN vote.
Sri Lanka’s Absence from Section 301 Consultations
But then, how does one explain Sri Lanka’s absence from the crucial bilateral consultation held in Washington by the Office of the United States Trade Representative (USTR) during March-April on “Forced Labour” under the Section 301 of the US Trade Act of 1974? Didn’t our foreign and trade ministries send appropriate instructions to Washington in time? Even if the instructions from the foreign ministry were transmitted to our embassy in Washington by pigeon carriers, there was enough time for Sri Lanka to participate in those meetings.
In March, the USTR initiated these 301 investigations on 60 trading partners, and invited all of them for confidential consultations. Out of the 60, 46 participated in these consultations. Sri Lanka was not one of them. Other countries that didn’t participate in these consultations included China, Russia, and Venezuela! In addition to that, the Section 301 Committee conducted a public hearing with interested parties on April 28 and 29. Washington-based diplomats, representatives from few trade ministries as well as representatives from many foreign trade associations and chambers participated in these hearings. Sri Lanka was once again conspicuously absent.
As a result, when the USTR published the proposed forced labour tariffs on June 2nd, Sri Lanka ended up with a 12.5% duty. Pakistani and Indonesian diplomats participated in these consultations and took appropriate follow-up measures, and managed to enter the 10% duty category. As even a threat of a modest tariff hike could disrupt supply chains and reduce competitiveness, particularly in an industry such as garments, I discussed this issue on 15 June and underscored the importance of Sri Lanka’s participation at the next hearing, which was scheduled to be held from July 7th .
Awakening from Diplomatic Slumber and AKD’s Gazette
Fortunately, Sri Lanka finally awoke from weeks of diplomatic slumber, and Ambassador Mahinda Samarasinghe participated in the public hearing on 9 July, and promised, “…. · We have agreed to the text in our negotiations with the USTR on forced labour, …. The gazette as we speak is being printed and I’m getting the gazette tomorrow morning, and the gazette will be shared with USTR as I get it“.
As promised, President Anura Kumara Dissanayake issued a gazette on 10 July banning the imports of goods produced by forced labour. These new regulations are very similar to what Pakistan and Indonesia enacted in April, after their consultations with USTR in March. Why couldn’t we do it in April? Why did we wait till the very last minute?
Challenges ahead
“War is too important to be left to generals alone,” is a famous saying attributed to former French Premier Georges Clemenceau. Similarly, monitoring our main markets is too important to be left to diplomats alone. The United States is the largest single-country market for Sri Lanka. Therefore, Sri Lankan trade chambers and associations should become more proactive in these markets and participate in these events. For example, the chairman of the Pakistani apparel exporters association participated in the April hearings. Similarly, representatives from the Indian Agricultural and Processed Food Products Export Development Authority, the Federation of Indian Chambers of Commerce and Industry, the Confederation of Indian Industry, and Reliance Industries also participated in July hearings. At an event where each speaker is given only five minutes (strictly enforced), having a number of speakers from a country is an advantage. The presence of industry representatives in these kinds of events also help them understand the market dynamics and the future challenges. This is important, particularly because there will be many more challenges with Trump’s tariffs.
With the gazette issued on 10 July, Sri Lanka has imposed a prohibition on the importation of goods produced with forced labour. Now, the challenge will be to effectively enforce the prohibition. And what are the goods produced with forced labour? The USTR list only focuses on aluminum, cotton, electronics, lithium-ion batteries, rice, and tobacco. However, according to the U.S. Department of Labour, the list is much longer. Hence, this list may change continuously during the next two years and tariffs may fluctuate once again.
So, this is definitely not the time to slumber.
(The writer, a retired public servant, can be reached at senadhiragomi@gmail.com)
by Gomi Senadhira ✍️
Features
Tales of Mystery and Suspense 10 Casino for Sale
After the overwhelming grotesquerie of J K Rowling’s latest Cormoran Strike novel (written, I should have noted, as the others were, under the pseudonym Robert Galbraith), I thought I should return to the world of fun, and also a much shorter description since this thriller moves quickly without the layers of detail that Rowling engages in.
I then move to the second comic thriller by Caryl Brahms and S J Simon. This, their second story to feature Vladimir Stroganoff and Adam Quill, was Casino for Sale, as lunatic a romp as the first, though without the emphasis on the ballet that characterized A Bullet in the Ballet.
This one begins with the impresario Stroganoff buying a casino cheap from Baron Sam de Rabinovich, only to find that it was a rundown place, not the grand casino of La Bazouche, a resort on the Frenc+h Riviera, as he had initially thought. The grand one belonged to Lord Buttonhooke, and Stroganoff could not compete, until he thought of bringing the Ballet Stroganoff to the casino – which of course leads to Buttonhooke deciding to have ballet performances in his Casino too.
Stroganoff invites Quill to visit him, which Quill decides to do since he has left Scotland Yard, having come into a legacy. No one believes this, and he has to face questions as to what he did to have been sacked, with sympathy for having been found out.
The day he arrives in La Bazouche there is a murder, of a vitriolic critic called Citrolo, in Stroganoff’s office. He had been going to write a damning review of the opening night of the ballet and Stroganoff, when he realizes Citrolo cannot be swayed, drugs him and dictates the review himself to the papers. He leaves Citrolo sleeping and finds him shot the next morning, whereupon he decides to muddy the waters and leave a suicide note and lots of other murder weapons. So much overkill, as it were, of course ensures that he is arrested.
But the excitable French detective who makes the arrest follows up his suggestion that Buttonhooke was also involved, and so the two casino owners find themselves in cells next door to each other, with the detective Gustave quite happy to provide creature comforts for a fee.
Quill decides he must investigate, and finds Gustave most cooperative, since he has a laid back attitude to work. So it is Quill that finds a notebook which makes it clear Citrolo is an accomplished blackmailer, and that there are lots of possible murderers, including Stroganoff’s croupier, who was crooked, Rabinovich, who was now working for Buttonhooke, a confidence trickster called Kurt Kukumber, whose prospectus for a dud gold mine was found in the office and Prince Alexis Artishok who was engaged in a deal to buy diamonds from the ballerina Dyra Dyrakova.
Stroganoff had been trying to get Dyrakova to dance for him, but having done so previously she had refused. But then to Stroganoff’s chagrin she agreed to dance for Buttonhooke. The clearly crooked Artishok had told Buttonhooke’s mistress Sadie Souse, who was not very bright, that Dyrakova possessed diamonds she was willing to sell cheap, and Sadie was determined to have them.
Quill meanwhile finds out that there was a secret passage to Stroganoff’s office, the obvious solution to what had begun as a locked room mystery, and that this was known by almost everyone apart from Stroganoff himself. And then Rabinovich is murdered, just after Gustave had released his two original suspects, leading him to blame Quill for having insisted on that and thus allowing them to kill again.
Soon afterwards Dyrakova arrives, and the town is full of posters announcing that she will appear in the casinos, elaborate posters for either one, since Stroganoff is determined that she will dance for him, and if she does not come willingly, he has devised a scheme to make her do so unwillingly. So, though Buttonhooke has her taken off to his yacht immediately she arrives at the station, Quill along with Arenskaya gets her into a launch and to Stroganoff’s casino, where she performs to tumultuous applause, not knowing for whom she is dancing.
When Quill asked her about the diamonds, she said she had sold them long ago, and that gave Quill the solution to the mystery. Rabinovich had known about this, and Artishok had killed him to prevent Sadie learning it from him, he had killed Citrolo who had recognized him for an accomplished card sharper, not a Russian prince at all. But before he is arrested, he gets away in a boat, and the police launch that pursues him is on the point of catching him up when it runs out of petrol.
Again, lots of excitement, and entertaining references – Gustave grows marrows – and if not quite as brilliant as its predecessor, Casino was certainly a delightful read.
Features
The challenge of being positive about SAARC
It was a few years back that a former President of Sri Lanka took it on himself to pronounce SAARC ‘dead’. Since then there have been other sections of Sri Lankan opinion that have joined the critics of SAARC and taken the solemn stance that SAARC has indeed died what may be called a natural death.
Their fatalism is understandable. SAARC has failed to meet at heads of government or state level for the past several years to take the SAARC process notably forward. Regional cooperation has more or less been only an appealing idea. No substantive concrete projects have taken off to make the idea a hard reality. ‘Inner paralysis’ seems to be SAARC’s lot. Hence the fatalism in these circles.
However, being one of the worst cash-strapped regions of the world and a teemingly populated one with people virtually left to their devices, what choices do the ‘SAARC Eight’ have other than to try their best to band together and continue with their cooperation efforts, however small they may be?
There is no escaping the mounting debt trap for many of these countries and bankrupt Sri Lanka is a glaring example, but ‘throwing in the towel’ and abandoning themselves entirely to the diktats of the strongest economies and their agencies will prove a ‘living death’ for many countries in the SAARC fold.
The gains may be meagre but giving-up on SAARC cooperation in full would prove self-defeating for the organization and South Asia. Right now, the collective intention ought to be to salvage what the region could from the tenuous cooperative efforts. Moreover, such initiatives could go some distance to generate a degree of goodwill among the Eight and help in sustaining a dialogue process.
Given this backdrop it proved ‘a stich in time’ for the Regional Centre for Strategic Studies (RCSS), Colombo, to recently host the SAARC Secretary General Ambassador Md. Golam Sarwar to a round table discussion on the unifying potential of SAARC and its future possibilities, besides other related issue areas.
Held on June 24th and moderated by RCSS Executive Director and former ambassador Ravinatha Aryasinha, the forum brought together a vibrant, wide ranging audience comprising academicians, diplomats, senior public servants, civil society activists and many others. Following the presentation by Ambassador Golam Sarwar titled, ‘Reigniting SAARC: Achievements, Challenges and the Way Ahead’, a lively Q&A followed.
The above forum could be described as an act of lighting the proverbial ‘candle’ rather than ‘cursing the darkness.’ It surely is a ‘darkness’ that could be seen as daunting considering that the region’s pivotal powers, India and Pakistan, are failing to act in a spirit of accord but are engaged in bitter finger-pointing on a number of questions of vital importance to SAARC.
On the other hand, what is the rest of the region doing to bring the above sides together? It is disappointing that to date the rest of SAARC has failed to launch a major diplomatic drive to bring peace between the feuding regional heavyweights. It needs to act without delay and establish its earnestness and this effort would need to prove SAARC’s staying power in the unfolding months and even years.
In assessing SAARC’s seeming failure local opinion in particular has failed to factor in what could be described as weak leadership. Since Sheikh Mujibur Rahman of Bangladesh, the founding father of SAARC, the region has failed to produce a visionary leader who could advance the SAARC cause with charisma and drive.
Among other reasons, weak leadership accounts considerably for the faltering and stuttering status, as it were, of SAARC. Badly needed are leaders who could go the extra mile, think less of narrow national interests and work diligently towards the collective well being of the region but SAARC’s millions of ordinary people have been made to wait in vain for leaders of such stature. Instead, they have been burdened with politicians who seem to be relishing the apparently moribund state of SAARC.
Looking back, it could be said that it was the dynamic leadership factor that led to the launching of the Non-Aligned Movement and for its sustenance for a few decades. True, it could be seen in some quarters that NAM is no more, but as in the case of SAARC, the former too has been unfortunate to be burdened over the years with politicians who lack the vision and drive to unflaggingly advance the fortunes of the South. NAM and SAARC lack the dynamism and vision of leaders of the stature of Jawaharlal Nehru, for example, to give them the required guidance and intellectual depth.
The reasons are complex for there not being among us currently political leaders with the vision and the steadfast commitment to advance the legitimate interests of the South. However, it could be stated with conviction that the majority of Southern leaders have too easily caved in to the demands of the global North and its financial agencies.
These leaders have failed to see, for instance, that the largely market economy oriented Northern governments would not view with favour a centrist economic model that attaches priority to the interests of the dis-empowered publics of the South. This realization ought to have dawned on the current government in Sri Lanka, for instance, some while ago but it has no choice but to abide by IMF dictates since economic survival at present is unthinkable without the latter’s succour.
Accordingly for SAARC this should be the time for some soul-searching. Priority needs to be attached to ending the feuding between India and Pakistan since at present the material fortunes of the region hinge largely on these regional giants giving peaceful relations among them a try. This is no easy challenge to meet but some daring, visionary diplomacy needs to take hold among the rest of SAARC.
There is some sense in SAARC bringing the peoples of the region together through programs that address their best collective interests. A meeting of minds among SAARC nations could enable SAARC and its agencies to build a region-wide people’s movement for progressive political and economic change that could in turn lead to the region’s political leaders sensitizing themselves more to the neglected needs of their publics.
However, the time is ‘now’ for the initiation of these progressive changes and the voice of SAARC well wishers would need to drown out those of their critics.
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