Opinion
Proposed Penal Code amendment and threat of promotion of sexual abuse of children – V
by Kalyananda Tiranagama
Executive Director
Lawyers for Human Rights and Development
(Part IV of this article appeared in The Island of 14 June 2023)
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;
‘‘© 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.’’
(To be continued)
By Dr Upul Wijayawardhana
It is immaterial whether you like him or not but one thing is crystal clear; Donald Trump has shown, very clearly, who is the boss. Surely, presidents of two countries are equal; perhaps, that is the impression Volodymyr Zelensky had when he went to the White House to meet Trump but the hard reality, otherwise, would have dawned on him with his inglorious exit! True, the behaviour of President Trump and VP Vance were hardly praiseworthy but Zelensky did what exactly he should not do. Afterall, he was on a begging mission and beggars cannot be choosers! He behaved like professional beggars in Colombo who throw money back when you give a small amount!!
Despite the risk of belonging to the minority, perhaps of non-Americans, I must say that I quite like Trump and admire him as a straight-talking politician. He keeps to his words; however atrocious they sound! Unfortunately, most critics overlook the fact that what Trump is doing is exactly what he pledged during his election campaign and that the American voters elected him decisively. When he lost to Biden, all political commentators wrote him off, more so because of his refusal to admit defeat and non-condemnation of his supporters who rioted. When he announced his intention to contest, it only evoked pundits’ laughter as they concluded that the Republican Party would never nominate him. Undaunted, Trump got the party to rally round him and won a non-consecutive second term; a feat achieved only once before, by Grover Cleveland around the end of the nineteenth century. His victory, against all predictions, was more decisive as he got more collegiate votes and, even though it does not matter, won the popular vote too which he did not get when he got elected the first term. Even his bitterest critics should accept this fact.
Zelensky was elected the president of Ukraine after the elected pro-Soviet president was deposed by a ‘peoples revolution’ engineered by the EU with the support of USA. After this, the EU attempted to bring Ukraine to NATO, disregarding the Munich agreement which precipitated the Russian invasion. He should have realised that, if not for the air-defence system which Trump authorised for Ukraine during his first term, Russian invasion would have been complete. It may well be that he was not aware as when this happened Zelensky may still have been the comedian acting the part of the president! Very likely, Trump was referring to this when he accused Zelensky of being ungrateful.
Zelensky also should have remembered that he disregarded requests from Trump, after his defeat by Biden, to implicate Biden’s son in some shady deals in Ukraine and that one of the last acts of Biden was to pardon his son and grant immunity to cover the alleged period. Perhaps, actions of the European leaders who embrace him every time they see him, as a long-lost brother, and invitations to address their parliaments has induced an element of the superiority complex in Zelensky that he behaved so combative.
Trump wanted to be the mediator to stop the war and spoke to Putin first. Instead of waiting for Trump to speak to him, egged on by EU leaders Zelensky started criticising Trump for not involving him in the talks. His remark “He should be on our side” demonstrated clearly that Zelensky had not understood the role of a mediator. His lack of political experience was the major reason for the fiasco in the White House and the subsequent actions of Trump clearly showed Zelensky where he stands! PM Starmer and President Macron seem to have given some sensible advice and he seems to be eating humble pie. In the process Trump has ensured that the European nations pay for their defence than piggy-backing on the US, which I am sure would please the American voter. By the way, though Macron talks big about defence France spends less than 2% of GDP. Trump seems vindicated. Of course, Trump could be blamed for being undiplomatic but he can afford to be as he has the upper hand!
Ranil on Al Jazeera
Zelensky has shown what not to do: instead of being diplomatic being aggressive when you need favours! Meanwhile, Ranil has shown what not to do when it comes to TV interviews. God only knows who advised him, and why, for him to go ‘Head to Head’ with Mehdi Hasan on Al-Jazeera. Perhaps, he wanted to broadcast to the world that he was the saviour of Sri Lanka! The experienced politician he is, one would have expected Ranil to realise that he would be questioned about his role in making Sri Lanka bankrupt as well, in addition to raising other issues.
The interview itself was far from head to head; more likely heads to head! It turned out to be an inquisition by Tiger supporters and the only person who spoke sense being Niraj Deva, who demonstrated his maturity by being involved in British and EU politics. The worst was the compere who seems keen to listen his own voice, reminding me of a Sinhala interviewer on a YouTube channel whose interviews I have stopped watching!
Ranil claims, after the interview was broadcast, that it had been heavily edited reduced from a two-hour recording. Surely, despite whatever reason he agreed to, he should have laid ground rules. He could have insisted on unedited broadcast or his approval before broadcast, if it was edited. It was very naïve of Ranil to have walked in to a trap for no gain. Though his performance was not as bad as widely reported, he should have been more composed at the beginning as he turned out to be later. Overall, he gave another opportunity for the Tiger rump and its supporters to bash Sri Lanka, unfortunately.
Medhi Hasan should watch some of David Frost interviews, especially the one with Richard Nixon, and learn how to elicit crucial information in a gentle exploratory manner than shouting with repeated interruptions. He does not seem to think it is necessary to give time for the interviewee to respond to his questions. I will never watch Al-Jazeera’s “Head to Head” again!
Ranil’s best was his parting shot; when asked by Hasan whether he would contest the next presidential election, he said “No, I will retire and watch Al-Jazeera and hope to see you better mannered”!
The Ajahn Brahm Society of Sri Lanka (ABSSL) is pleased to announce that Ajahn Brahm will be visiting Sri Lanka for a short stay in May this year. Many, both Buddhists and non-Buddhists, know him and have listened to his addresses made on earlier visits, including his 2023 public talk at the BMICH, which was attended by over 4,000 people.
Ajahn Brahmavamso, popularly known as Ajahn Brahm, is the Head Abbot of Bodhinyana Monastery in Serpentine, Perth. He was a pupil of the famous Thai forest monk Ajahn Chah, considered the best Theravada meditation teacher in the last century. By his own choice, Ajahn Brahmavamso shortened his name and was extra pleased that the initials represent the major religions of the world. He is renowned world-wide as an outstanding meditation bhikkhu, teacher and instructor, guiding thousands of practitioners.
As in previous visits, Ajahn Brahm’s schedule will be packed with addresses, meetings with senior professionals, business leaders, and researchers. This year, a special session has been included for teenagers and young adults.
The agenda planned for him includes:
·
Public address at the BMICH to all irrespective of religion and age; then to a younger audience.
· Exclusive Leadership Forum for senior professionals and business leaders.
· Forum with academics engaged in research at the Centre for Meditation Research, University of Colombo.
· A week-long meditation retreat for the Ven Sangha and experienced lay meditators.
Public Addresses
The public addresses will be on Sunday, May 18, 2025, from 7:00 am to 11:00 am, at the BMICH Main Hall and Sirimavo Halls; Ajahn Brahm moving from one hall to another so the entire audience sees him. Each hall will be well equipped with audio and video presentation. The first address: The Art of Meaningful Living, is designed for all, age notwithstanding, offering wisdom and practical insights for a fulfilling life. The second: Coping with Life Transitions and Emotional Challenges, is a special session tailored for teens and young adults, addressing key challenges faced by them in today’s fast-paced, competitive world. Both talks will be in English, with concise translation to Sinhala by Ven Damita Thera.
Exclusive Forums
On Saturday, May 17, 2025, two exclusive forums will be held at the BMICH Committee Room, Jasmine Hall. The first such session will be with eighty invited Sri Lankan academics and scientists engaged in research on meditation at the Centre for Meditation Research of the University of Colombo. This will be followed in the evening by an interactive session for a hundred invited senior professionals and business leaders, featuring a talk on leadership followed by a Q&A session.
Meditation Retreat
The most significant item on Ajahn Brahm’s programme will be a week-long meditation retreat at the Barberyn Waves Ayurveda Resort in Weligama. Focus is intended to be on the fifty members of the Ven Sangha. A limited number of experienced lay meditators will also have the opportunity to participate.
Participation & Registration
Those interested in attending the public talks at the BMICH are kindly advised to register at to secure free passes. For further information, please contact the Ajahn Brahm Society of Sri Lanka at .
We grew up cleaning teeth using ground charcoal readily available in most households as ordinary people used firewood for cooking. Then came a noticeable uplift in our living standards when my father finally gave in to Amma’s constant complaining to buy a kerosene cooker! All siblings were pretty excited even to brag about it to classmates! Charcoal gave way to an Indian pink tooth powder called Gopal coming in packs. Notwithstanding the “primitive” stuff, our culture stressed the importance of oral hygiene! It meant just cleaning your teeth itself wasn’t good enough – cleaning your tongue was just as important! I recall my father asking to look into his mouth whether tongue was clean enough after almost making himself sick constantly poking his fingers in the process!
White people are not accustomed to it! No one in the family would be allowed the customary morning cup of black coffee until we have been put through the ablution! Having milk in coffee became possible when Milk Board opened a stall opposite Moratuwa Railway station which meant me trek a good five miles to fetch a bottle! It was 55 cents! All these rituals were in sharp contrast to British culture – cup of tea or coffee is given priority over oral hygiene! I still look down upon this habit though keep my opinion to myself.
After half a century of living in the U.K., I admit to using knife and fork as a force of habit now, though white people think using your fingers is “filthy”! Well, if you cannot trust your own fingers for cleanliness and hygiene as opposed to cutlery, there is something wrong somewhere in your logic!
In all fairness to British strict table etiquette, you are not supposed to talk while eating! More to the point, it’s common sense – we could spit unintentionally especially if we have gaps in our teeth! I am no exception. Also, you should not leave the table until everyone has finished. If you must, excuse yourself.
Something totally hilarious and very embarrassing happened to me in the Majestic shopping mall in Colombo long time ago – my wife and daughter were still enjoying the food when I had to excuse myself to go into the washroom mainly to rinse my mouth as I have gaps in my teeth. There was a row of wash hand basins and a “long mirror” I presumed above.
So, I was busy looking myself in the “mirror” mouth wide open. My wife and daughter not least others were shocked and hugely embarrassed! Not to me as I thought it was simply a reflection from the “mirror”. Need I say walking back to the table wasn’t fun!
Reverting back to Suddhas ways, it is not uncommon to see them giving their dinner plates with leftovers to the pet dogs to finish it off! All these in sharp contrast to their customs saying “Oh, pardon me when you sneeze”, and you are supposed to “Bless you!” Anyway, let me conclude on a happier note, Cheers! Bacchus was the Roman god of wine, fertility, and revelry! My mother enjoyed Southern comfort during our regular visits, saying “Comfort, comfort!”
Saturday 08th March marked our beloved Amma’s death anniversary! May she attain Nibbana! She visited us in UK three times, my father did so twice.
Sunil Dharmabandhu
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