Connect with us

Opinion

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

Published

on

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However, if S. 365 and S. 365A are repealed as proposed in the Bill, there will be no legal bar whatsoever for any groups to display their sexual orientation in public without directly engaging in a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

SL CRICKET SAVED BY THE PRESIDENT

Published

on

The President has taken the bold decision to get rid of the office bearers of Sri Lanka Cricket (SLC) and appoint an interim committee till such time suitable persons are elected to run the SLC. All Sri Lankan cricket lovers will applaud and endorse President Anura Kumara Dissanayake’s action as the SLC was one of the most corrupt sports organizations in Sri Lanka for a long time.

The office bearers had organized it in such a manner that no other persons could get elected to this den of thieves. They increased the number of clubs as members to collect their votes. Large amounts of funds were doled out to the clubs to which the office bearers belonged.

All cricket lovers would remember how when a previous Minister holding the Cabinet portfolio pertaining to sports tried to get rid of the corrupt officials which the then Parliament endorsed unanimously and how they manipulated to remain in power and get the President at that time to get rid of the Minister instead of the corrupt officials of the SLC.

They were able to get round the ICC too to get what they wanted. The Minister who was appointed in place of the ousted Minister fell into the pockets of the SLC officials and they continued happily thereafter. The Minister was happy and the corrupt officials were happy!

It is not only the elected officials who have to be removed. There are executive employees and other permanent employees who have to be relieved of their duties as otherwise they could get round the incoming officials, and the activities of the bandwagon could go on.

We would appreciate if the President and the Minister in charge would go the whole hog and relieve the SLC of all corrupt personnel so that Sri Lanka’s cricket could get back to its halcyon days again.

HM NISSANKA WARAKAULLE

Continue Reading

Opinion

Has Malimawa govt. become Yahapalanaya II ?

Published

on

Malimawa government and Yahapalanaya are dissimilar in many respects, the most important being whilst Yahapalanaya had to manage with a balancing act in the parliament, Malimawa has the luxury of a massive parliamentary majority. However, they share one thing in common; the main plank for the election of both presidents Dissanayake and Sirisena was their solemn pledge for the eradication of corruption. It looks as if both have failed miserably, on that count!

It did not take very long for Yahapalanaya’s first act of corruption; the bond scam. COPE, headed by the veteran politician D E W Gunasekara, picked on this but to prevent the presentation of the report, Sirisena dissolved the parliament which was done at the request of the Prime Minister Ranil, to whom Sirisena was obliged for the unexpected bonanza of becoming president. This enabled the second bond scam to take place, also masterminded by Ranil’s friend Mahendran, imported from Singapore!

Malimawa convinced the voters that they are the only group that could get rid of the 76-year curse of corruption and made a multitude of promises, most of which are already broken! What is inexcusable is that, in a short space of time, they seem to have become as corrupt as any previous government and they seem to excel their predecessors in doling out excuses. Of course, they have a band of devoted social media influencers who are very adept at throwing mud at their opponents which they hope would help to cover up their sins. How long this strategy is going to work is anybody’s guess!

Some of these issues were addressed in an article, “Squeaky clean image of JVP in tatters” by Shamindra Ferdinando (The Island, 22 April). I hasten to add that, though some of his supporters are still trying to paint an honest image of AKD, he should be held responsible for many of these misdeeds and irresponsible acts.

One of the first acts of the newly elected president AKD was to appoint two retired police officers, who openly worked for the NPP through the Retired Police Collective, to top posts; Ravi Seneviratne as Secretary to the Ministry of Public Security and Shani Abeysekara as the Director of CID. Both of them held top jobs in the CID when the Easter Sunday attack took place and were blamed, by some, that they too failed to prevent this horrendous act of terrorism. In addition, there was a case against Seneviratne for causing accidents whilst under the influence and Abeysekara was exposed as a ’fixer’ by the infamous Ranjan Ramanayaka tapes. No one would have objected had they been appointed after their names were cleared but AKD’s rash decision to appoint them, disregarding all norms, clearly showed what his long-term strategy was. Was this not political corruption?

Now these two tainted officers are heading the search for the mastermind of the Easter Sunday attacks! Are they being used to divert attention away from Ibrahim’s family that was supposed to have funded the project? After all, Mohamed Ibrahim, the father, was on the national list of the JVP, and the two sons were the leading suicide bombers. It is a matter of great surprise that the Catholic church led by Cardinal Ranjith is not demanding the removal of these two officers from the investigation, who obviously have a conflict of interest. It becomes even more surprising when the demand is made for the Deputy Minister of Defence Aruna Jayasekara to resign, for the same reason; as well stated in the editorial, “Of masterminds” (The Island, 21 April).

The first act of the new parliament was to elect ‘Dr’ Ranwala as the speaker and pretty soon his doctorate was challenged. He stepped down to look for the certificate, which he is still looking for! Though some of the ministers too have admitted that Ranwala may not have a PhD, AKD seems silent. When Ranwala was involved in an RTA, police had run out of breathalyser tubes and blood was taken after a safe period had elapsed. Why has AKD no guts to sack him?

Episode of the release of 323 containers, without the mandatory inspections, seems to be receding to the past and the long-awaited report may be gathering dust in the president’s office! It is very likely due to political intervention and we probably will never know who benefitted.

A minister, who claimed that he is living on his wife’s salary and on the generosity of the party faithfuls, seems to have been able to build a three-storey house in a suburb of Colombo. He claims that when he made that statement, his father was alive but has since died and he has inherited everything as he is the only son! What a shame that Marxists do not believe in sharing the family wealth with sisters? Though the opposite may be true, his explanation that he was able to build a house in Colombo by selling the land in Anuradhapura rings hollow!

The worst of all was the coal scam which would have long lasting consequences on our economy. I do not have to go into details as much has been written about this but wish to point out AKD’s role. In spite of ex-minister Kumara Jayakody being indicted by CIABOC, AKD continued to give unstinted support till it became pretty obvious that he had to go. In fact, he is being charged with an offence which was committed whilst he was serving the Ceylon Fertilizer Company which was under the purview of, guess who? AKD when he was the Minister of Agriculture.

Devastating report from the Auditor General,before Jayakody’s resignation, would not have happened if AKD had his way. He attempted a number of times to get one of his henchmen appointed to this coveted post, overlooking those experienced officers in the department. AKD’s political machinations were thwarted thanks to the integrity of some members of the Constitution Council. If not for them, AKD’s nominee would have been in post and, perhaps, his friend Jayakody would still be the minister.

Malimawa seems to have beaten Yahapalanaya rather than being the second!

By Dr Upul Wijayawardhana

Continue Reading

Opinion

Pot calling the kettle black?

Published

on

Doctor Upul Wijayawardhana (eminent physician), posed a riddle for us. He wrote about that island Sri Lanka as ‘ this little dot in the ocean’ when deriding the remark of President Dissanayake who had said that Sri Lanka was a hunduva , a term that indicated a small volume: me hunduve inna puluvan da? (Can you live in this restricted space?) Most sensible people, even uneducated, judge that the volume of a little drop (of whatever) is smaller than that of a hunduva; so is weight. When the learned doctor emphatically maintains ‘….we are not a hunduva’ but ‘… a little dot in the ocean…’, is the pot calling the kettle black or worse?

Physically and population wise, Sri Lanka is neither ‘a little dot’ nor ‘a hunduva. This is all in the rich imaginations of Dissanayake and Wijayawardhana. I once counted that there were more than 50 members of the UN who were smaller than Sri Lanka in physical and population size. England was a sizeable island with a small population in the northwest corner of Europe in late 18th century when it began to become what China, with 1.3 billion people and jutting out to the Pacific, is now. From about 1850, when the population of Great Britain was about 20 million, less than that of Sri Lanka in 2026, it ruled more than half the world. Besides, do not forget Vanuatu, Kiribati, Cook Islands, Antigua and Barbuda, Barbados, Lesotho and New Zealand (who habitually beats us at cricket). New Zealand with 5 million population played against 1.5 billion population India (1:300) for the T20 cricket championship a few weeks ago. I quietly wished New Zealand would win; so much for crap about dots in the Indian Ocean or the south Pacific.

Dr. Wijayawardhana also wrote about history and about ‘The achievements of Hunduwa’. The massive reservoirs and extensive irrigation systems in rajarata and ruhuna as well as the stupa are indeed tremendous works of irrigation and bear witness to superior ingenuity and organising ability, for the time they were built. They compare very well among structures elsewhere in the ancient world. Terms like ‘granary of the East’ must be taken with more than a grain of salt. Facile use of such terms does not take account of whatever shreds of evidence there is of adversity in those times. Monsoon Asia over the ages has more or less regularly suffered from floods, droughts and consequent famines. The last dire famine was in Bengal in 1944. The irrigation works in Lanka were a magnificent response to those phenomena. The modern response has been scientific agriculture making India a major grain exporter, from near famine conditions in 1973-74. Recall Indira Gandhi’s garibi hatao (eliminate poverty) speech to the General Assembly of the UN, that year.

The bhikkhu who wrote down the tripitaka in aluvihara did so because there was the threat of a severe famine in the course of which learned bhikkhu might have come to harm. Buddhist thought over centuries had been passed from generation to generation vocally (saamici patipanno bhagavato savaka (listener) sangho) and the departure from that tradition must have required a major threat of famine. There are stories of bhikkhu from Lanka fleeing from dire straits. In the same vein, while the mahavamsa speaks of kings and their valiant deeds, there is little account of the large mass of little people who lived then. Sensible teaching of the history of a people must include the history of as much of the people as possible and some idea of the history of other peoples in comparable times to avoid feeling dangerously smug and arrogant, which we have seen many times over.

Usvatte-aratchi

Continue Reading

Trending