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)
Opinion
Tribute to a distinguished BOI leader
Mr. Tuli Cooray, former Deputy Director General of the Board of Investment of Sri Lanka (BOI) and former Secretary General of the Joint Apparel Association Forum (JAAF), passed away three months ago, leaving a distinguished legacy of public service and dedication to national economic development.
An alumnus of the University of Colombo, Mr. Cooray graduated with a Special Degree in Economics. He began his career as a Planning Officer at the Ministry of Plan Implementation and later served as an Assistant Director in the Ministry of Finance (Planning Division).
He subsequently joined the Greater Colombo Economic Commission (GCEC), where he rose from Manager to Senior Manager and later Director. During this period, he also served at the Treasury as an Assistant Director. With the transformation of the GCEC into the BOI, he was appointed Executive Director of the Investment Department and later elevated to the position of Deputy Director General.
In recognition of his vast experience and expertise, he was appointed Director General of the Budget Implementation and Policy Coordination Division at the Ministry of Finance and Planning. Following his retirement from government service, he continued to contribute to the national economy through his work with JAAF.
Mr. Cooray was widely respected as a seasoned professional with exceptional expertise in attracting foreign direct investment (FDI) and facilitating investor relations. His commitment, leadership, and humane qualities earned him the admiration and affection of colleagues across institutions.
He was also one of the pioneers of the BOI Past Officers’ Association, and his passing is deeply felt by its members. His demise has created a void that is difficult to fill, particularly within the BOI, where his contributions remain invaluable.
Mr. Cooray will be remembered not only for his professional excellence but also for his integrity, humility, and the lasting impact he made on those who had the privilege of working with him.
The BOI Past Officers’ Association
jagathcds@gmail.com
Opinion
When elephants fight, it is the grass that suffers
“As a small and open country, Singapore will always be vulnerable to what happens around us. As Lee Kuan Yew used to say: “when elephants fight, the grass suffers, but when elephants make love, the grass also suffers“. Therefore, we must be aware of what is happening around us, and prepare ourselves for changes and surprises.” – Prime Minister Lee Hsien Loong, during the debate on the President’s Address in Singapore Parliament on 16 May, 2018, commenting on the uncertain external environment during the first Trump Administration.
“When elephants fight, it is the grass that suffers”
is a well-known African proverb commonly used in geopolitics to describe smaller nations caught in the crossfire of conflicts between major powers. At the 1981 Commonwealth conference, when Tanzanian President Julius Nyerere quoted this Swahili proverb, the Prime Minister Lee Kuan Yew famously retorted, “When elephants make love, the grass suffers, too”. In other words, not only when big powers (such as the US, Russia, EU, China or India) clash, the surrounding “grass” (smaller nations) get “trampled” or suffer collateral damage but even when big powers collaborate or enter into friendly agreements, small nations can still be disadvantaged through unintended consequences of those deals. Since then, Singaporean leaders have often quoted this proverb to highlight the broader reality for smaller states, during great power rivalry and from their alliances. They did this to underline the need to prepare Singapore for challenges stemming from the uncertain external environment and to maintain high resilience against global crises.
Like Singapore, as a small and open country, Sri Lanka too is always vulnerable to what happens around us. Hence, we must be alert to what is happening around us, and be ready not only to face challenges but to explore opportunities.
When Elephants Fight
To begin with, President Trump’s “Operation Epic Fury”.
Did we prepare adequately for changes and surprises that could arise from the deteriorating situation in the Gulf region? For example, the impact the conflict has on the safety and welfare of Sri Lankans living in West Asia or on our petroleum and LNG imports. The situation in the Gulf remains fluid with potential for further escalation, with the possibility of a long-term conflict.
The region, which is the GCC, Iraq, Iran, Israel, Jordan, Syria and Azerbaijan (I believe exports to Azerbaijan are through Iran), accounts for slightly over $1 billion of our exports. The region is one of the most important markets for tea (US$546 million out of US$1,408 million in 2024. According to some estimates, this could even be higher). As we export mostly low-grown teas to these countries, the impact of the conflict on low-grown tea producers, who are mainly smallholders, would be extremely strong. Then there are other sectors like fruits and vegetables where the impact would be immediate, unless of course exporters manage to divert these perishable products to other markets. If the conflict continues for a few more weeks or months, managing these challenges will be a difficult task for the nation, not simply for the government. It is also necessary to remember the Russia – Ukraine war, now on to its fifth year, and its impact on Sri Lanka’s economy.
Mother of all bad timing
What is more unfortunate is that the Gulf conflict is occurring on top of an already intensifying global trade war. One observer called it the “mother of all bad timing”. The combination is deadly.
Early last year, when President Trump announced his intention to weaponise tariffs and use them as bargaining tools for his geopolitical goals, most observers anticipated that he would mainly use tariffs to limit imports from the countries with which the United States had large trade deficits: China, Mexico, Vietnam, the European Union, Japan and Canada. The main elephants, who export to the United States. But when reciprocal tariffs were declared on 2nd April, some of the highest reciprocal tariffs were on Saint Pierre and Miquelon (50%), a French territory off Canada with a population of 6000 people, and Lesotho (50%), one of the poorest countries in Southern Africa. Sri Lanka was hit with a 44% reciprocal tariff. In dollar terms, Sri Lanka’s goods trade deficit with the United States was very small (US$ 2.9 billion in 2025) when compared to those of China (US$ 295 billion in 2024) or Vietnam (US$ 123 billion in 2024).
Though the adverse impact of US additional ad valorem duty has substantially reduced due to the recent US Supreme Court decision on reciprocal tariffs, the turbulence in the US market would continue for the foreseeable future. The United States of America is the largest market for Sri Lanka and accounts for nearly 25% of our exports. Yet, Sri Lanka’s exports to the United States had remained almost stagnant (around the US $ 3 billion range) during the last ten years, due to the dilution of the competitive advantage of some of our main export products in that market. The continued instability in our largest market, where Sri Lanka is not very competitive, doesn’t bode well for Sri Lanka’s economy.
When Elephants Make Love
In rapidly shifting geopolitical environments, countries use proactive anticipatory diplomacy to minimise the adverse implications from possible disruptions and conflicts. Recently concluded Free Trade Agreement (FTA) negotiations between India and the EU (January 2026) and India and the UK (May 2025) are very good examples for such proactive diplomacy. These negotiations were formally launched in June 2007 and were on the back burner for many years. These were expedited as strategic responses to growing U.S. protectionism. Implementation of these agreements would commence during this year.
When negotiations for a free trade agreement between India and the European Union (which included the United Kingdom) were formally launched, anticipating far-reaching consequences of such an agreement on other developing countries, the Commonwealth Secretariat requested the University of Sussex to undertake a study on a possible implication of such an agreement on other low-income developing countries. The authors of that study had considered the impact of an EU–India Free Trade Agreement on the trade of excluded countries and had underlined, “The SAARC countries are, by a long way, the most vulnerable to negative impacts from the FTA. Their exports are more similar to India’s…. Bangladesh is most exposed in the EU market, followed by Pakistan and Sri Lanka.”
So, now these agreements are finalised; what will be the implications of these FTAs between India and the UK and the EU on Sri Lanka? According to available information, the FTA will be a game-changer for the Indian apparel exporters, as it would provide a nearly ten per cent tariff advantage to them. That would level the playing field for India, vis-à-vis their regional competitors. As a result, apparel exports from India to the UK and the EU are projected to increase significantly by 2030. As the sizes of the EU’s and the UK’s apparel markets are not going to expand proportionately, these growths need to come from the market shares of other main exporters like Sri Lanka.
So, “also, when elephants make love, the grass suffers.”
Impact on Sri Lanka
As a small, export dependent country with limited product and market diversification, Sri Lanka will always be vulnerable to what happens in our main markets. Therefore, we must be aware of what is happening in those markets, and prepare ourselves to face the challenges proactively. Today, amid intense geopolitical conflicts, tensions and tariff shifts, countries adopt high agility and strategic planning. If we look at what our neighbours have been doing in London, Brussels and Tokyo, we can learn some lessons on how to navigate through these turbulences.
(The writer is a retired public servant and can be reached at senadhiragomi@gmail.com)
by Gomi Senadhira
Opinion
QR-based fuel quota
The introduction of the QR code–based fuel quota system can be seen as a timely and necessary measure, implemented as part of broader austerity efforts to manage limited fuel resources. In the face of ongoing global fuel instability and economic challenges, such a system is aimed at ensuring equitable distribution and preventing excessive consumption. While it is undeniable that this policy may disrupt the daily routines of certain segments of the population, it is important for citizens to recognize the larger national interest at stake and cooperate with these temporary measures until stability returns to the global fuel market.
At the same time, this initiative presents an important opportunity for the Government to address long-standing gaps in regulatory enforcement. In particular, the implementation of the QR code system could have been strategically linked to the issuance of valid revenue licenses for vehicles. Restricting QR code access only to vehicles that are properly registered and have paid their revenue dues would have helped strengthen compliance and improve state revenue collection.
Available data from the relevant authorities indicate that a significant number of vehicles—especially three-wheelers and motorcycles—continue to operate without valid revenue licences. This represents a substantial loss of income to the State and highlights a weakness in enforcement mechanisms. By integrating the fuel quota system with revenue license verification, the government could have effectively encouraged vehicle owners to regularise their documentation while simultaneously improving fiscal discipline.
In summary, while the QR code fuel system is a commendable step toward managing scarce resources, aligning it with existing regulatory requirements would have amplified its benefits. Such an approach would not only support fuel conservation but also enhance government revenue and promote greater accountability among vehicle owners.
Sariputhra
Colombo 05
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