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Opinion

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However, if S. 365 and S. 365A are repealed as proposed in the Bill, there will be no legal bar whatsoever for any groups to display their sexual orientation in public without directly engaging in a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

Sri Lanka’s geopolitical positioning for future prosperity

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Kariyawasam

By Chula Goonasekera
For the LEADS Forum (admin@srilankaleads.com)

Sri Lanka’s future prosperity will depend on how effectively it positions itself within an increasingly complex global environment. At a recent LEADS Forum discussion (https://youtu.be/Bbr3e_qU1Fw), veteran diplomat Prasad Kariyawasam, former Secretary to the Ministry of Foreign Affairs, High Commissioner to India, Ambassador to the United States, Ambassador /Permanent Representative to the UN in New York and Geneva —outlined the strategic choices Sri Lanka must make to secure long term stability and economic advancement. Kariyawasam offered a rare blend of historical perspective, diplomatic experience and practical guidance.

His central message was clear: Sri Lanka must exercise strategic agency—engaging all major partners while safeguarding its national interests.

Foreign Policy as an Extension of National Aspirations

Foreign policy, Kariyawasam emphasised, is inseparable from domestic priorities. As your text notes, “foreign relations often reflect the medium- and long-term aspirations of a country’s people and its leadership.” Governments must therefore craft external relations that reflect the public’s economic and social expectations, avoiding short-term political impulses that undermine long-term national interests.

For a small nation, foreign policy cannot be symbolic or personality driven. It must be purposeful, pragmatic and directed towards the security and prosperity of the people.

A History of Global Connectivity

Sri Lanka’s history demonstrates that the island has never been isolated. From ancient ties with India and Southeast Asia to Arab, Persian and Chinese maritime networks, the island prospered when connected to the wider world. We must realise that “geography creates opportunity, but geography alone does not create prosperity.” Institutions, infrastructure and policy determine whether geographic advantage becomes economic success.

Colombo’s emergence as a cosmopolitan trading hub and Galle’s role as a resupply station for Indian Ocean shipping in colonial times , illustrate how deeply Sri Lanka has been embedded in global commerce for centuries.

Lessons from Asia’s High Performers

Kariyawasam highlighted the experiences of Japan, South Korea, Taiwan, Singapore and Vietnam. Their paths differ, but their success rests on common foundations:

• investment in human capital and infrastructure

• merit based institutions

• integration into global markets

• attraction of investment and technology

• export oriented industries

• strategic engagements with both China and Western economies

The lesson for Sri Lanka is not imitation but continuous adaptation and constructive integration with the global economy.

India: Sri Lanka’s Closest Major Partner

India’s transformation into a global economic power presents Sri Lanka with both opportunity and responsibility. India is already Sri Lanka’s largest source of tourists and a major investor. Kariyawasam states, “The larger question is how effectively Sri Lanka can participate in and benefit from India’s growth.”

A partnership should encompass modern, more open pathways for trade, investment, logistics, energy, technology, digital services, education and professional mobility—And asymmetry between the two economies must be handled with maturity and foresight, seeking special and differential treatment .

China and Other Global Partners

China remains a significant economic partner. Sri Lanka must avoid viewing this relationship through a zero sum lens. The goal should be productive and transparent engagement, ensuring better terms of trade and meaningful technology transfer.

Equally Important relations must be nurtured with the United States, European Union, United Kingdom, Japan, Australia, ASEAN and the Gulf.

All these relationships can be vibrant partnerships that does not lead towards , dependency but mutually beneficial pragmatic arrangements .

A Fragmenting International System

Global geopolitics is becoming more volatile. Trade tensions, wars, sanctions, supply chain disruptions, climate change and technological competition increasingly shape national security. We must realise, “foreign policy cannot be separated from economic policy.”

Sri Lanka’s recent economic crisis demonstrated the importance of international confidence, access to finance and resilient supply chains. Energy security, food security, cybersecurity and digital infrastructure are now core elements of national strategy.

Strategic Agency: The Guiding Principle

Sri Lanka must avoid becoming an arena for great power competition. Strategic agency means making decisions based on national interest, expanding Sri Lanka’s choices, not restricting them.

India is essential. China is important. The United States, Europe, Japan, Australia, ASEAN and the Gulf are important. The objective is a web of partnerships that strengthens resilience and autonomy.

Sri Lanka’s Strategic Assets

1. Location: Sri Lanka’s geography is a long standing advantage. Ports such as Colombo, Hambantota, Trincomalee and Galle can become specialised hubs—if connected to logistics, manufacturing, services and exports.

2. Digital Connectivity: Submarine cables, data centres, cloud services and cybersecurity are now as important as physical geography. Sri Lanka can turn its location into both a maritime and digital advantage.

3. Tourism and Natural Heritage: The focus should shift from tourist numbers to value creation—wellness, heritage, ecotourism, cruise tourism, education and MICE tourism.

4. Human Resources and Demographics: High literacy is no longer enough. Skills in technology, engineering, AI, logistics and advanced manufacturing are essential, especially with an ageing population.

5. Migrant Workforce: Migrant workers are a strategic asset, not merely a source of remittances. Bilateral labour agreements, skills recognition and diaspora engagement should be central to foreign policy.

Requirements for Sustained Prosperity

Sri Lanka’s future depends on:

• peace and security

• access to international markets

• productive investment

• a skilled, productive workforce

• modernised agriculture

• higher value tourism

• demographic preparedness

• climate resilience

• strong, predictable institutions

Please note that “foreign policy can open doors. Domestic institutions determine whether we can walk through them.”

The Role of the State

Sri Lanka does not need a larger state—only a more capable one. Policy continuity, professional institutions, predictable regulation and reduced corruption are essential. Geography does not change; long-term national interests do not change. Intentional relationships built over decades should not be reinvented with each election cycle.

Building Trust Internationally

Trust is a strategic asset. Sri Lanka must be known as a country that honours commitments and maintains predictable policies. This is vital not only for diplomacy but also for investment and long term partnerships.

Avoiding Zero Sum Geopolitics

Sri Lanka does not need to choose between India and China, or between Asia and the West. The task is to identify what each relationship can contribute to national development while protecting sovereignty and freedom of decision making.

Sri Lanka’s geography is an inheritance, but prosperity is not guaranteed. The world is changing rapidly—great-power competition, technological disruption, and climate vulnerability demand a foreign policy that is pragmatic, adaptive, and anchored in national interest.

Sri Lanka must build partnerships without dependencies, maintain strategic agency without isolation, and integrate with the global economy while strengthening domestic capacity.

“We cannot change where Sri Lanka is. We can, however, determine what Sri Lanka becomes because of where it is”

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Opinion

A tariff deal with the US? Make haste slowly

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by Gomi Senadhira

Sri Lanka’s former ambassador to the United States Mahinda Samarasinghe is back in Sri Lanka lobbying for speedier finalisation of a new tariff deal with the United States. According to news reports, delivering the keynote address at the Sri Lanka Institute of Directors’ Annual Meeting last week, he stated, “I have recommended very strongly to the government that we need to conclude the agreement so that we can lock in the very favourable tariff rate that Sri Lanka has got up to now“.

I do not understand why the former ambassador is urging the government to expedite the finalisation of a new tariff deal or what is “the very favourable tariff rate” he refers to in his speech. However, given the ongoing terrible tariff turbulence in the United States and the fragile economic situation in Sri Lanka, I believe, this is not the right time to rush into finalising any trade agreement with the United States. I am also of the opinion that at this juncture Sri Lanka should maintain strategic patience and explore all available options.

Lessons from the countries that rushed for trade deals

To better comprehend this, let’s look at experiences of the countries that rushed to conclude tariff deals with the United States after President Donald Trump declared his “reciprocal tariffs” under the International Emergency Economic Powers Act (IEEPA) in April 2025. As Samarasinghe stated in his keynote, “The bottom line on all these negotiations was that every country that finally agreed to sign the agreement had to give either complete duty-free access for American exports into those markets, or near complete duty-free access.” In exchange for these tariff concessions and other market access commitments these countries managed to get the newly introduced country specific “reciprocal tariffs” reduced.

However, in February 2026, the Supreme Court of the United States (SCOTUS) struck down these “reciprocal tariffs” under the IEEPA. With that, the market access gains these countries received in exchange for complete duty-free access for American exports into their markets evaporated under U.S. domestic law. By moving too fast to conclude bilateral tariff agreements with the United States these countries are now bound to strict obligations whereas the benefits they bargained from the U.S. administration are not worth the paper those were written on.

Sri Lanka’s experience

In April 2025, President Trump declared his “reciprocal tariffs” and labelled Sri Lanka as the worst offender, imposing one of the highest additional duties at 44%. Since then, Ambassador Samarasinghe and other negotiators have managed to negotiate this down to 20%. I do not know what the deal was through which Sri Lanka managed to reduce the 44% tariff to 20% or what we gave in return for this “concession.” However, what we received in return has absolutely no value after the decision by the SCOTUS.

Current state of US tariffs

After the decision by SCOTUS, the U.S. administration introduced a temporary 10% additional tariff on all countries for 150 days. At the end of that period, this 10% tariff was replaced by a new “forced labor tariff ” of 10% to 12.5% on all trading partners under Section 301 of U.S. trade law. Twenty-five U.S. states and several small businesses have already filed lawsuits against these tariffs in U.S. courts. This new “forced labour tariff ” on Sri Lanka was first fixed at 12.5%. Later, after President Anura Kumara Dissanayake issued a gazette notice prohibiting the importation of goods produced using forced labour, it was reduced to 10%. That means Sri Lanka has already made a substantial commitment to receive this “tariff concession,” and I presume our negotiators understand the implications of this commitment.

Make haste slowly

After President Trump imposed 44% “reciprocal tariffs” on Sri Lanka, through an article published in The Island on 25th April 2026 (), I urged the government to engage immediately with the US administration on these tariffs. However, I also emphasised that the best way to move forward was to make haste slowly.

Two millennia ago, Augustus Caesar, the first emperor of Rome, frequently used the phrase, “make haste slowly”, because he detested rashness and haste in his military commanders. It was the recurring guiding maxim that he emphasised throughout his 40-year imperial rule. After 2000 years, this classical oxymoron remains a definitive golden rule for professional trade negotiators. More importantly it is the exact blueprint required when navigating turbulence in trade negotiations with the Trump administration.

The endgame – The most dangerous moment in trade negotiation

Samarasinghe has also stated the agreement is 90% complete. Any experienced trade negotiator should know that the final 10% contains high-stakes provisions and is the most dangerous moment in a trade negotiation. A single misplaced comma or ambiguous product description in a tariff schedule can cost millions through unintended loopholes. Rushing this last stretch to secure a deal can permanently expose Sri Lanka to sudden shifts in American trade policy, heavy compliance costs, or strict enforcement under Section 301 regarding supply-chain labour standards. Hence, this is the time for strategic patience.

(The writer can be reached at senadhiragomi@gmail.com)

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Opinion

Buddhist law and constitutional amendments

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Upon reading the article titled “Prof. Pieris says Buddha Dhamma recognized as source of law under Constitution” (Island, September 12, 2026), the classical Sinhala idiom “Yanne Koheda? Malle Pol” immediately comes to mind. The expression, translating literally to answering “I have coconuts in my bag” when asked “Where are you going?”, underscores a complete disconnect in logic. Because it is uncertain whether the article accurately represents the professor’s precise words, the following critique addresses the contents of the report rather than the speaker himself.

The central premise of the report concerns a statement delivered by the Chief Justice regarding a petition filed against the 22nd Amendment to the Constitution. According to the report, the Chief Justice’s observation that the determination would be made strictly on the basis of established law rather than Buddhist teachings was characterised as a “cavalier dismissal” of the Buddha Dhamma. This assertion carries a host of unexamined assumptions. Had the writer specified precisely which tenets of the Buddha Dhamma were violated, a direct legal or philosophical evaluation could take place. However, no specific Buddhist tenet or law was identified as having been transgressed, and for good reason: no such statutory legal framework exists within the Buddha’s teachings.

To understand the flaw in this argument, one must examine the constitutional context alongside the canonical meaning of the terms involved. Article 9 of the 1978 Constitution of Sri Lanka mandates that the Republic shall give Buddhism the foremost place and that it shall be the duty of the State to protect and foster the Buddha Sasana, while guaranteeing the fundamental rights of all religions under Articles 10 and 14(1)(e).

While “Buddhism” and “Buddha Dhamma” are frequently used as interchangeable terms in casual dialogue, they represent distinct concepts. “Buddhism” is an umbrella term coined by 19th-century Western scholars to classify the global institutionalised religion, incorporating its diverse sects, cultural traditions, rituals, and socio-political histories. Conversely, Sasana is the ancient term designating the structural framework established by the Buddha to preserve and transmit his teachings, comprising the monastic order (Sangha) and its supporting institutions.

In classical Theravada commentarial literature, the Sasana operates as a functional three-tiered structure. It encompasses Pariyatti Sasana, the preservation and study of sacred texts; Paṭipatti Sasana, the practical execution of the doctrine through ethical conduct and meditation; and Paṭivedha Sasana, the direct experiential realization of ultimate truth, or enlightenment. This structural breakdown raises fundamental questions about state capacity. While a state can readily support Pariyatti Sasana through academic institutions, textual preservation, and educational funding, it cannot legislate or enforce Paṭipatti or Paṭivedha. Practical engagement and spiritual realisation are inherently internal, first-person experiences. Expecting the state to codify or guarantee enlightenment is a conceptual impossibility.

Furthermore, the Buddha Dhamma refers specifically to the unconditioned truths of existence and the teachings imparted to realize them, including the Four Noble Truths, the Eightfold Path, and Dependent Origination. As the late Venerable Professor Kotagama Wachissara Thera observed, there is no rigid ideologue or “ism” in the core Dhamma. The teachings do not constitute a system of divine commandments or a legal statute enforced through reward and punishment. Rather, Buddhist ethics function as self-directed guidelines for psychological clarity and moral inquiry. Even the Vinaya Pitaka, which contains explicit rules of conduct, functions as an internal monastic code rather than a civil or criminal law intended for the laity.

Throughout the Pali Canon, guidance regarding governance focuses on the moral character of leadership and the social duties of statecraft rather than rigid legal codification. In discourses such as the Cakkavatti Sihanada Sutta (DN 26), the Buddha observes that social instability and crime cannot be eliminated solely through punitive measures, emphasising instead that states must provide economic opportunities, fair wages, and resource distribution to maintain societal balance. Crucially, in the Maha Parinibbana Sutta (DN 16), the Buddha explicitly highlights the importance of respecting established laws and traditions rather than enacting arbitrary regulations.

The natural laws articulated in the Dhamma, such as the law of cause and effect or the three characteristics of existence, govern all phenomena universally, regardless of legal statutes or personal belief. They are not human laws to be applied or suspended by a court of law. Therefore, characterizing the Chief Justice’s adherence to constitutional jurisprudence over religious doctrine as a “cavalier dismissal” lacks logical and textual foundation. Framing the judiciary’s adherence to legal precedent as an attack on the Dhamma distracts from fundamental constitutional principles and risks misguiding the public for political ends.

Geewananda
Gunawardana,
Ph.D.

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