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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.


‘‘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)

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Sri Lanka cricket: what ails thou?



By a Sports Aficionado

This cricket-mad nation was appalled by the pathetic and blatantly disgraceful performance of its National Cricket Team at the premier event of the game, the World Cup. Even before the event ended, heads rolled over here on the cricket board. Such action should have been taken long ago but what we need now is an honest analysis of the debacle and the remedial measures that need to be taken.

One of the root causes of the problem is that there is far too much money in the game at present. Even in the face of the current economic crisis the money that has been remorselessly thrown around cricket is totally unbelievable. The amount of money that has been paid out to the so-called ‘support staff’ is absolutely mind-boggling. For what, pray we ask? To repeatedly lick the sporting wounds inflicted even by lesser mortals? Shame on the Cricket Board that seems to have completely wasted all that money for years in the past. In recent years we have not gained even an iota of returns for all the money spent on locals and foreigners to supposedly elevate the performance levels.

What we are not told are the most likely princely sums paid out to the players by the Cricket Board. If we are to judge that by the amounts paid to the support staff, the amounts paid to the players must be in a celestial planetary orbit. Those amounts are most likely to be astronomical. It is also a certainty that the Cricket Board Staff too have been at the receiving end of even cosmological amounts. The beneficiaries in the Cricket Board also include various types of managers and other assorted executives and supervisors. Then for good measure, add overriding perpetual corruption and you have the recipe for the disaster that it was. The current situation is nothing new., it has been there for quite a while.

So, for a start, trim down the expenses and most definitely the amounts paid to all and sundry through the Cricket Board. We do not need all kinds of suddhas in the supporting staff brigade to resurrect the game. We have locals who could do even a better job for much less payment. Just take a chapter from the book of India, the nation that is flying sky-high in cricket at present. They do not have foreign managers, foreign coaches, or any other foreign white-skinned ‘experts’ to guide their players. What they have is a home-grown well-knit team of local experts who work behind the scenes to produce the results that they consistently provide. They also have a local medical team that can hold its own against the very best in the world. Their players will interact beautifully with the local experts quite unlike our players who would even venerate the ground those so-called foreign experts walk on, but look down practically murderously at local experts. Our players might even refuse to play if a local expert is put in charge of guiding them.

A good start for enhancing performance up to the highest levels is to have a reasonable monthly retainer for players contracted to the Cricket Administration and to that add appearance fees for matches and substantial rewards for good performance in the field. These could be payments for individual achievements as well as stellar successes by the team to be shared equally amongst the players. There is no harm in paying dearly for proven successes.

Our cricket team is so very poor in adjusting to various situations mentally. In any sport, there are ups and downs. It is only the mentally strong who will be able to come through the setbacks and shine. A sportsperson should first learn to handle defeat before he or she can savour the joys of victory. A winner is just the one who can convert fear into confidence, setbacks into comebacks, excuses into firm decisions and mistakes into learnings. Any sporting person or team needs to adjust to the mental strains of intense competition. A person who can help in such situations is a Sports Psychologist. We have never had a dedicated Sports Psychologist for our cricket team. Apparently, the players are totally against using the services of a Sports Psychologist. They are probably of the mistaken belief that psychologists are needed only by the mentally deranged. The end result is that they become perpetual losers who continue to earn loads of dough. Little do they realise that Sports Psychologists are part and parcel of top-class teams of any sport and even individual high-flying performers.

To add salt to the wounds of our cricket team, many and varied injuries are a real bane for consistent performance at the highest levels by our cricketers. Our players get all the possible injuries in the book., some getting the same injury repeatedly. It has been very clearly demonstrated that in any sport, including those that do not involve muscular exertion, physical fitness is of the utmost importance for stellar performance. It is not necessary to delve too deeply into this as far as our cricket team is concerned. They are probably the most unfit team in the flock of teams playing international cricket. They have only to look at the training programme of 35-year-old Virat Kohli to see what needs to be done. He works extremely hard at his physical fitness and the results are there for all to see. In addition to being a classy batsman, his running between the wickets, together with his fielding and catching are the greatest hallmarks of the cricketer.

There is no proper medical team led by a qualified Sports Team Physician who is in charge of all medical matters related to training, diagnosis of injuries and appropriate management. Unfortunately, it is the physiotherapists and physical trainers who seem to be doing all of that in our cricket team and running the show. When a player gets injured on the field, it is a physiotherapist or a trainer who runs onto the field. It should be a properly qualified sports doctor who should be doing that with the other ancillary service providers following behind him or her. Our players have come to a stage where they trust the ancillary service providers rather than properly qualified sports doctors. Those providers speak a kind of high-flown language that impresses the players. However, those words would fail them miserably if they were to be confronted by properly qualified medical personnel.

The woes of our national cricket scenario are multifactorial. Yet for all that people who are selected to represent our country in cricket should realise what an honour and a privilege it is to represent our country. They should take tremendous pride in that. Then they should try always to give of their best to our beautiful country. There are no simple solutions to the problems of Sri Lankan cricket. The talent is there for all to see. It just needs to be properly nurtured and harnessed. It would be pertinent here to echo the words of the 36-year-old champion tennis player Novak Djokovic after winning the most recent Paris Masters Tournament: “Either you let the circumstances and the feelings that you have at that moment master you or you try to master them in a way. There is no in-between. You either fold, retire, or simply give away the match, or you try to draw the energy from the adrenaline that you are feeling from the crowd, from the momentum that you are feeling on the field.”

Need we say more? With proper guidance and classy management, our cricketers need not be the perpetual losers.

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Going ritual mode



A representational image

The article titled “The distortion of Buddhism and the rise of meaningless rituals” written by ‘Member of the silent majority’, which appeared in The Sunday Island of November 26 is a bold explication of Buddhists’ going ritual mode, which most of them seem to feel as the highpoint of living a Buddhist life. The writer comments on the wanton waste in terms of money, resources and time on revelries that pass as demonstrations of religious fervour: “All this excess is expressed in the form of Katina pinkamas that we are witnessing right now. They may be described as carnivals, not religious practices.” This is the unadorned truth of the matter. What is more harmful is that this sort of ritualistic routine helps perpetuate nothing but mass excitement unwittingly construed as the most certain indication of living a Buddhist life and protecting Buddhism.

It is this very skewed attention to the habitual rites that prevents us from seeking the meaning and, more importantly, the applicability of even the religion’s basic teachings in practical life. Unfortunately, the more festive and adorned our outward expressions of religion are, the more easily we tend to think that festivals are the most reliable guarantors of our religion.

Our elites, who are skilled in the delicate art of exploiting the religious sentiments of people for ensuring self-gain and political stability, make a big fuss about ‘protecting religion’ thereby, wittingly or unwittingly, sowing the seeds of divisive feelings of “self” and “other”. This is a grand way of making Buddhists feel that Buddhism is, more than anything else, something to be protected like personal property. Stating that Buddha discourages rituals, the writer goes on to say that Buddha extolled the practice of virtue: “The path which is simple and direct, is clearly stated by the Buddha, namely: the practice of generosity, virtue and mindfulness for lay people; and the practice of virtue, concentration and wisdom for the monks.” Our rulers seem to continuously maintain that if anyone wishes to ‘protect Buddhism’, he has to protect it from any ‘harm’ coming from outside. The writer challenges this when he says, “The Buddha predicted that the decline of Buddhism would indeed be caused by its corruption from within.”

However, the problem is, for the people, be they Buddhists, Christians, Muslims, etc. there is no escape from the political, economic and social forces that determine their entire outlook on life. The good values like generosity, empathy, tolerance, etc., which are not the exclusive preserve of one religion but virtues that promote the wellbeing of all societies, will remain just rarefied notions in the air until the root causes of greed, corruption and mindless competition propelled by consumerism continue to constitute our criteria of progress.

Most ‘development’ projects that hide corrupt deals bringing enormous jackpots to the elites begin with loud religious ceremonies that help maintain the collective myth of preserving religion. The more we start any programme: opening ceremony, construction project, shramadana, funeral, community meeting and whatnot, the more intense our feeling of religiosity becomes, and the more assured we are of ‘preserving’ our religion. In other words, what we are strongly convinced of as the preservation of our religion is the routine observance of the relevant set of rituals. ‘Protecting’ religion, in this sense is the name of the game and all devotees feel happy that ‘our religion’ is ‘protected’. The whole caravan of religions moves forward satisfying the weekly, monthly or seasonal outpouring of our sense of ‘spirituality’ and our sense of religiosity is well taken care of.

It is this kind of cosmetic religiosity that is easily hijacked by political leaders who never miss a chance of showing their religious fervour whenever there are TV cameras around them. And they are the very people who, unluckily, get exposed at regular intervals for their connivance in all kinds of scams. However, we rarely find time to question how these self-professed guardians of religion have benefitted from being publicly religious and swearing to protect religion.

It would be more beneficial to society if people start asking themselves whether it is possible to envision a good society without religious branding. After all, what everyone wants is a good society where all can live peacefully and work productively for the well-being of all- where ‘peace’ cannot be sold as an election promise.

It matters little whether you label your society as Buddhist, Christian, Hindu, Moslem, multi-religious or secular.

Susantha Hewa

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LIFE IS A FROLIC…. Goolbai Gunasekara’s latest book of humour



Published by BAYOWL Press Sam and Hussein Publishing House

Versatile author, Goolbai Gunasekara’s books are always eminently readable whether they be on History, Education or Humour. Her latest book is hilarious from beginning to end and all Sri Lankan readers will relate to her amusing anecdotes, relationships, and laughable incidents told with a personal chuckle and a genuine sense of laughter.

“Humour is only amusing when you can laugh at yourself” says Goolbai. You must never laugh at other people by saying anything hurtful.” She quotes, “My mother used to tell me never to write about someone who cannot hit back. I have tried to follow this advice and although humour is sometimes exaggerated to make it funnier it is never offensive.”

I recall the KitKat stories of her granddaughter which were such a hit years ago. KitKat was actually a composite of ALL children of that age. Today, Goolbai’s humour ranges over every known topic against a back drop of modern doings The Social life 65 years (ago as a school girl) is compared to social life today. The difference if mind boggling. Visits to the Dentist are particularly funny as one of my best friends is a Dentist. Goolbai asks how a Dentist expects a patient to answer with his mouth open, but still manages to carry on, cheerfully, with his monologue anyway!

Weddings of yesterday are compared to weddings of today. One story ends with a father viewing the unfolding expenses with horror and telling his bridesmaid daughter, “Darling, when you want to marry, do me a favour and elope.”

The story “Bicycle Boom” describes “Our lovely Mayor Rosy” and the Dutch Ambassador (of some time ago,) trying to popularize the use of the bike to help traffic. Another pithy comment describes the place ‘Clothes and Shoe Brands’ have in the life of a complete philistine (herself) who hardly recognizes a Nike from a Bata.

Nothing Goolbai says can ever cause offence. She is witty and kind in all the 58 short episodes and I am both entertained and fascinated by the versatility of this well-known authoress who writes books on Education with the same panache and sense of humour as LIFE IS A FROLIC.

I cannot end these few comments without reference to the drivers of long ago. They were better than Mosad agents in keeping beady eyes on unwanted male attention and were thoroughly trusted by suspicious parents.

Read this book as a complete Mood Lifter. You can’t go wrong

Sandra Gomes

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