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Proposed Penal Code amendment and threat of promotion of sexual abuse of children – VIII

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by Kalyananda Tiranagama
Executive Director
Lawyers for Human Rights and Development
(Part VII of this article appeared in The Island of 20 June 2023)

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However, if S. 365 and S. 365A are repealed as proposed in the Bill, there will be no legal bar whatsoever for any groups to display their sexual orientation in public without directly engaging in a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)



Opinion

What not to do

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Trump and Zelensky arguing in the White House

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”!

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Opinion

Ajahn Brahm to visit SL in May 2025

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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 .

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Opinion

Fingers or forks?

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Parents of the writer

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

Wales, UK

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