Opinion
Proposed Penal Code amendment and threat of promotion of sexual abuse of children – VII
by Kalyananda Tiranagama
Executive Director
Lawyers for Human Rights and Development
(Part VI of this article appeared in The Island of 19 June 2023)
The Bill proposes to repeal these two Sections. If these two sections in the Penal Code are repealed, then anal sex and homosexual conduct (of male or female) in public or private will no longer be an offence. According to the submissions of the Additional Solicitor General, the repeal of the two provisions will not result in any lacuna in the law, placing the children in a vulnerable situation without any protection against sexual abuse, as the remaining provisions – S. 365B and S. 345 – of the Penal Code will provide adequate protection to the children against sexual abuse.
Let us examine S. 365B and S. 345 – of the Penal Code and see whether they can provide adequate protection to the children against sexual abuse, as submitted by the learned ASG.
S. 365B – Grave sexual abuse:
S. 365B (1) Grave sexual abuse is committed by any person who, for sexual gratification, does any act, by the use of 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, in circumstances falling under any of the following descriptions, that is to say: – (a) without the consent of the other person;
(aa) with or without the consent of the other person when the other person is under sixteen years of age;
(b) with the consent of the other person while such other person was in lawful or unlawful detention or where that consent has been obtained by use of force, or intimidation or threat of detention or by putting such other person in fear of death or hurt;
(c) with the consent of the other person where such consent has been obtained at a time the other person was of unsound mind or was in a state of intoxication induced by alcohol or drugs.
(2) Whoever –
(a) commits grave sexual abuse shall be punished with rigorous imprisonment for a term not less than seven years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person;
(b) commits grave sexual abuse on any person under 18 years of age (on a person between 16 to 18 years – only if committed without consent) shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.
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.
· It is true that, as submitted by the ASG, with regard to any sexual conduct constituting grave sexual abuse, the consent of the child is immaterial where the offence is committed in respect of a child below the age of 16.
· But what about the children in the age group of 16 – 18 years? Are they not children? Are they not entitled to protection by the law against sexual abuse?
· Any person can commit any of the sexual acts mentioned in S. 365B with the consent of any child over 16 years of age.
· S. 365B will not provide any protection to such children and they will be left without any protection and open to abuse.
· Will they get any protection from S. 345 as submitted by the learned ASG. Let us see.
S. 345 – Sexual harassment
S. 345 – Whoever by assault or use of criminal force, sexually harasses another person or by the use of words or actions, causes sexual annoyance or harassment to such other person commits the offence of sexual harassment and shall on conviction be punished with imprisonment of either description for a term which may extend to five years or with fine or both, and may also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.
Explanation: 1. Unwelcome sexual advances by words or action used by a person in authority in a working place or any other place shall constitute the offence sexual harassment.
2. For the purpose of this section an assault may include any act that does not amount to rape under S. 363.
· From the words used in the Section like assault or use of criminal force, sexual annoyance or harassment, unwelcome sexual advances for describing the offence, it is crystal clear that S. 345 is not intended to deal with cases of consensual sexual conduct.
· From the explanation given it clearly appears that it is intended to deal with a different type of offence;
· Even where an offender is convicted the Court has the discretion to release the offender with only a fine imposed, without any jail sentence imposed.
· From the lenient penalty laid down in the Section it clearly appears that it cannot protect children from being subject to grave crimes like anal sex.
· Children will not get any protection from S. 345 against gross acts of sexual abuse as submitted by the learned ASG.
** While making submissions before the Court, the learned ASG had stated: ‘‘Even if S. 365A is 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 Penal Code, without criminalising a person’s sexuality.’’
*** On an analysis of S. 7(1)(b) of the Vagrants Ordinance and S. 261 of the Penal Code, it appears that the submission of the learned ASG is far from the truth.
Vagrants Ord. S. 7(1)(b):
‘any person found committing any act of gross indecency or found behaving with gross indecency, in or about any public place – shall be guilty of an offence and shall be liable on summary conviction to imprisonment of either description for a period not exceeding six months, or to a fine not exceeding one hundred rupees, or to both.
S. 261 of the Penal Code:
A person is guilty of a public nuisance who does any act or is guilty of an illegal omission, which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
· After S. 365A is repealed, gross indecency will no longer be an offence. There is no definition of gross indecency in any penal law. At present the Police can act under S. 7(1)(b) of the Vagrants Ordinance, arrest and prosecute a person committing any act of gross indecency in any public place because gross indecency is an offence punishable under S. 365A of the Penal Code. After S. 365A is repealed, when gross indecency is no longer an offence, how can the Police arrest and prosecute a person under S. 7(1)(b) of the Vagrants Ordinance?
· The Police may end up as respondents in Fundamental Rights Applications for committing an illegal arrest.
· Vagrants Ordinance is not a law enacted to deal with this type of issues; Vagrants Ordinance was enacted in 1841, to deal with problems created by labourers brought from South India to work temporarily in upcountry plantations, who had run away and taken shelter in various places to escape from being sent back to India after their period of work was over. This Ordinance has been amended 11 times before the Independence in 1948.
· It is an Ordinance enacted to deal with following categories of persons: (a) persons behaving riotously or disorderly in public streets; (b) persons who are deemed idle and disorderly persons; (c) persons who are deemed to be rogues and vagabonds; and (d) persons who are deemed to be incorrigible rogues.
· Having no income whatsoever, women belonging to these categories were soliciting men and engaging in prostitution to earn their living. S. 7 of the Vagrants Ordinance is intended to deal with them:
S. 7(1)(a) – any person in or about any public place soliciting any person for the purpose of the commission of any act of illicit sexual intercourse or indecency, whether with the person soliciting or with any other person, whether specified or not;
(b) any person found committing any act of gross indecency or found behaving with gross indecency, in or about any public place.
·Often these acts were committed in public toilets or other places close to bus stands or railway stations or road sides; this term ‘gross indecency’ is used here to cover all types of sexual acts – vaginal sex, anal sex, oral sex, or any other sexual act.
· Generally, it is under S. 7(1) of the Vagrants Ordinance the Police act for arresting street prostitutes and other women loitering at the bus stands and railway stations at night soliciting men for sexual activities and producing them in Courts.
** S. 261 of the Penal Code appears to be equally inapplicable to cover this situation. Only an act which causes any common injury, danger or annoyance to the public or to the people in general dwelling in the vicinity or an act which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right amounts to a public nuisance under this Section.
· Display of a person’s sexual orientation will not necessarily cause injury, obstruction, danger or annoyance to the public.
· If any person engages in sexual intercourse, anal sex, oral sex or any other sexual act or displaying their sexual organs openly in a public place that may necessarily lead to public annoyance.
· No person in his or her senses will engage in sexual intercourse, anal sex, oral sex or any other sexual act or display their sexual organs openly in a public place.
(To be concluded)
Opinion
The policy of Sinhala Only and downgrading of English
In 1956 a Sri Lankan politician riding a great surge of populism, made a move that, at a stroke, disabled a functioning civil society operating in the English language medium in Sri Lanka. He had thrown the baby out with the bathwater.
It was done to huge, ecstatic public joy and applause at the time but in truth, this action had serious ramifications for the country, the effects have, no doubt, been endlessly mulled over ever since.
However, there is one effect/ aspect that cannot be easily dismissed – the use of legal English of an exact technical quality used for dispensing Jurisprudence (certainty and rational thought). These court certified decisions engendered confidence in law, investment and business not only here but most importantly, among the international business community.
Well qualified, rational men, Judges, thought rationally and impartially through all the aspects of a case in Law brought before them. They were expert in the use of this specialised English, with all its meanings and technicalities – but now, a type of concise English hardly understandable to the casual layman who may casually look through some court proceedings of yesteryear.
They made clear and precise rulings on matters of Sri Lankan Law. These were guiding principles for administrative practice. This body of case law knowledge has been built up over the years before Independence. This was in fact, something extremely valuable for business and everyday life. It brought confidence and trust – essential for conducting business.
English had been developed into a precise tool for analysing and understanding a problem, a matter, or a transaction. Words can have specific meanings, they were not, merely, the play- thing of those producing “fake news”. English words as used at that time, had meaning – they carried weight and meaning – the weight of the law!
Now many progressive countries around the world are embracing English for good economic and cultural reasons, but in complete contrast little Sri Lanka has gone into reverse!
A minority of the Sinhalese population, (the educated ones!) could immediately see at the time the problems that could arise by this move to down-grade English including its high-quality legal determinations. Unfortunately, seemingly, with the downgrading of English came a downgrading of the quality of inter- personal transactions.
A second failure was the failure to improve the “have nots” of the villagers by education. Knowledge and information can be considered a universal right. Leonard Woolf’s book “A village in the Jungle” makes use of this difference in education to prove a point. It makes infinitely good politics to reduce this education gap by education policies that rectify this important disadvantage normal people of Sri Lanka have.
But the yearning of educators to upgrade the education system as a whole, still remains a distant goal. Advanced English spoken language is encouraged individually but not at a state level. It has become an orphaned child. It is the elites that can read the standard classics such as Treasure Island or Sherlock Holmes and enjoy them.
But, perhaps now, with the country in the doldrums, more people will come to reflect on these failures of foresight and policy implementation. Isn’t the doldrums all the proof you need?
by Priyantha Hettige
Opinion
GOODBYE, DEAR SIR
It is with deep gratitude and profound sorrow that we remember Mr. K. L. F. Wijedasa, remarkable athletics coach whose influence reached far beyond the track. He passed away on November 4, exactly six months after his 93rd birthday, having led an exemplary and disciplined life that enabled him to enjoy such a long and meaningful innings. To those he trained, he was not only a masterful coach but a mentor, a friend, a steady father figure, and an enduring source of inspiration. His wisdom, kindness, and unwavering belief in every young athlete shaped countless lives, leaving a legacy that will continue to echo in the hearts of all who were fortunate enough to be guided by him.
I was privileged to be one of the many athletes who trained under his watchful eye from the time Mr. Wijedasa began his close association with Royal College in 1974. He was largely responsible for the golden era of athletics at Royal College from 1973 to 1980. In all but one of those years, Royal swept the board at all the leading Track & Field Championships — from the Senior and Junior Tarbat Shields to the Daily News Trophy Relay Carnival. Not only did the school dominate competitions, but it also produced star-class athletes such as sprinter Royce Koelmeyer; sprint and long & triple jump champions Godfrey Fernando and Ravi Waidyalankara; high jumper and pole vaulter Cletus Dep; Olympic 400m runner Chrisantha Ferdinando; sprinters Roshan Fernando and the Indraratne twins, Asela and Athula; and record-breaking high jumper Dr. Dharshana Wijegunasinghe, to name just a few.
Royal had won the Senior & Junior Tarbats as well as the Relay Carnival in 1973 by a whisker and was looking for a top-class coach to mould an exceptionally talented group of athletes for 1974 and beyond. This was when Mr. Wijedasa entered the scene, beginning a lifelong relationship with the athletes of Royal College from 1974 to 1987. He received excellent support from the then Principal, late Mr. L. D. H. Pieris; Vice Principal, late Mr. E. C. Gunesekera; and Masters-in-Charge Mr. Dharmasena, Mr. M. D. R. Senanayake, and Mr. V. A. B. Samarakone, with whom he maintained a strong and respectful rapport throughout his tenure.
An old boy of several schools — beginning at Kandegoda Sinhala Mixed School in his hometown, moving on to Dharmasoka Vidyalaya, Ambalangoda, Moratu Vidyalaya, and finally Ananda College — he excelled in both sports and studies. He later graduated in Geography, from the University of Peradeniya. During his undergraduate days, he distinguished himself as a sprinter, establishing a new National Record in the 100 metres in 1955. Beyond academics and sports, Mr. Wijedasa also demonstrated remarkable talent in drama.
Though proudly an Anandian, he became equally a Royalist through his deep association with Royal’s athletics from the 1970s. So strong was this bond that he eventually admitted his only son, Duminda, to Royal College. The hallmark of Mr. Wijedasa was his tireless dedication and immense patience as a mentor. Endurance and power training were among his strengths —disciplines that stood many of us in good stead long after we left school.
More than champions on the track, it is the individuals we became in later life that bear true testimony to his loving guidance. Such was his simplicity and warmth that we could visit him and his beloved wife, Ransiri, without appointment. Even long after our school days, we remained in close touch. Those living overseas never failed to visit him whenever they returned to Sri Lanka. These visits were filled with fond reminiscences of our sporting days, discussions on world affairs, and joyful moments of singing old Sinhala songs that he treasured.
It was only fitting, therefore, that on his last birthday on May 4 this year, the Old Royalists’ Athletic Club (ORAC) honoured him with a biography highlighting his immense contribution to athletics at Royal. I was deeply privileged to co-author this book together with Asoka Rodrigo, another old boy of the school.
Royal, however, was not the first school he coached. After joining the tutorial staff of his alma mater following graduation, he naturally coached Ananda College before moving on to Holy Family Convent, Bambalapitiya — where he first met the “love of his life,” Ransiri, a gifted and versatile sportswoman. She was not only a national champion in athletics but also a top netballer and basketball player in the 1960s. After his long and illustrious stint at Royal College, he went on to coach at schools such as Visakha Vidyalaya and Belvoir International.
The school arena was not his only forte. Mr. Wijedasa also produced several top national athletes, including D. K. Podimahattaya, Vijitha Wijesekera, Lionel Karunasena, Ransiri Serasinghe, Kosala Sahabandu, Gregory de Silva, Sunil Gunawardena, Prasad Perera, K. G. Badra, Surangani de Silva, Nandika de Silva, Chrisantha Ferdinando, Tamara Padmini, and Anula Costa. Apart from coaching, he was an efficient administrator as Director of Physical Education at the University of Colombo and held several senior positions in national sporting bodies. He served as President of the Amateur Athletic Association of Sri Lanka in 1994 and was also a founder and later President of the Ceylonese Track & Field Club. He served with distinction as a national selector, starter, judge, and highly qualified timekeeper.
The crowning joy of his life was seeing his legacy continue through his children and grandchildren. His son, Duminda, was a prominent athlete at Royal and later a National Squash player in the 1990s. In his later years, Mr. Wijedasa took great pride in seeing his granddaughter, Tejani, become a reputed throwing champion at Bishop’s College, where she currently serves as Games Captain. Her younger brother, too, is a promising athlete.
He is survived by his beloved wife, Ransiri, with whom he shared 57 years of a happy and devoted marriage, and by their two children, Duminda and Puranya. Duminda, married to Debbie, resides in Brisbane, Australia, with their two daughters, Deandra and Tennille. Puranya, married to Ruvindu, is blessed with three children — Madhuke, Tejani, and Dharishta.
Though he has left this world, the values he instilled, the lives he shaped, and the spirit he ignited on countless tracks and fields will live on forever — etched in the hearts of generations who were privileged to call him Sir (Coach).
NIRAJ DE MEL, Athletics Captain of Royal College 1976
Deputy Chairman, Old Royalists’ Athletics Club (ORAC)
Opinion
Why Sri Lanka needs a National Budget Performance and Evaluation Office
Sri Lanka is now grappling with the aftermath of the one of the gravest natural disasters in recent memory, as Cyclone Ditwah and the associated weather system continue to bring relentless rain, flash floods, and landslides across the country.
In view of the severe disaster situation, Speaker Jagath Wickramaratne had to amend the schedule for the Committee Stage debates on Budget 2026, which was subsequently passed by Parliament. There have been various interpretations of Budget 2026 by economists, the business community, academics, and civil society. Some analyses draw on economic expertise, others reflect social understanding, while certain groups read the budget through political ideology. But with the country now trying to manage a humanitarian and economic emergency, it is clear that fragmented interpretations will not suffice. This is a moment when Sri Lanka needs a unified, responsible, and collective “national reading” of the budget—one that rises above personal or political positions and focuses on safeguarding citizens, restoring stability, and guiding the nation toward recovery.
Budget 2026 is unique for several reasons. To understand it properly, we must “read” it through the lens of Sri Lanka’s current economic realities as well as the fiscal consolidation pathway outlined under the International Monetary Fund programme. Some argue that this Budget reflects a liberal policy orientation, citing several key allocations that support this view: strong investment in human capital, an infrastructure-led growth strategy, targeted support for private enterprise and MSMEs, and an emphasis on fiscal discipline and transparency.
Anyway, it can be argued that it is still too early to categorise the 2026 budget as a fully liberal budget approach, especially when considering the structural realities that continue to shape Sri Lanka’s economy. Still some sectors in Sri Lanka restricted private-sector space, with state dominance. And also, we can witness a weak performance-based management system with no strong KPI-linked monitoring or institutional performance cells. Moreover, the country still maintains a broad subsidy orientation, where extensive welfare transfers may constrain productivity unless they shift toward targeted and time-bound mechanisms. Even though we can see improved tax administration in the recent past, there is a need to have proper tax rationalisation, requiring significant simplification to become broad-based and globally competitive. These factors collectively indicate that, despite certain reform signals, it may be premature to label Budget 2026 as fully liberal in nature.
Overall, Sri Lanka needs to have proper monitoring mechanisms for the budget. Even if it is a liberal type, development, or any type of budget, we need to see how we can have a budget monitoring system.
Establishing a National Budget Performance and Evaluation Office
Whatever the budgets presented during the last seven decades, the implementation of budget proposals can always be mostly considered as around 30-50 %. Sri Lanka needs to have proper budget monitoring mechanisms. This is not only important for the budget but also for all other activities in Sri Lanka. Most of the countries in the world have this, and we can learn many best practices from them.
Establishing a National Budget Performance and Evaluation Office is essential for strengthening Sri Lanka’s fiscal governance and ensuring that public spending delivers measurable value. Such an office would provide an independent, data-driven mechanism to track budget implementation, monitor programme outcomes, and evaluate whether ministries achieve their intended results. Drawing from global best practices—including India’s PFMS-enabled monitoring and OECD programme-based budgeting frameworks—the office would develop clear KPIs, performance scorecards, and annual evaluation reports linked to national priorities. By integrating financial data, output metrics, and policy outcomes, this institution would enable evidence-based decision-making, improve budget credibility, reduce wastage, and foster greater transparency and accountability across the public sector. Ultimately, this would help shift Sri Lanka’s budgeting process from input-focused allocations toward performance-oriented results.
There is an urgent need for a paradigm shift in Sri Lanka’s economy, where export diversification, strengthened governance, and institutional efficiency become essential pillars of reform. Establishing a National Budget Performance and Evaluation Office is a critical step that can help the country address many long-standing challenges related to governance, fiscal discipline, and evidence-based decision-making. Such an institution would create the mechanisms required for transparency, accountability, and performance-focused budgeting. Ultimately, for Sri Lanka to gain greater global recognition and move toward a more stable, credible economic future, every stakeholder must be equipped with the right knowledge, tools, and systems that support disciplined financial management and a respected national identity.
by Prof. Nalin Abeysekera ✍️
-
Features5 days agoFinally, Mahinda Yapa sets the record straight
-
News7 days agoOver 35,000 drug offenders nabbed in 36 days
-
News6 days agoCyclone Ditwah leaves Sri Lanka’s biodiversity in ruins: Top scientist warns of unseen ecological disaster
-
News7 days agoRising water level in Malwathu Oya triggers alert in Thanthirimale
-
Features5 days agoHandunnetti and Colonial Shackles of English in Sri Lanka
-
Business3 days agoCabinet approves establishment of two 50 MW wind power stations in Mullikulum, Mannar region
-
Business7 days agoSri Lanka betting its tourism future on cold, hard numbers
-
News7 days agoJetstar to launch Australia’s only low-cost direct flights to Sri Lanka, with fares from just $315^
