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

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

Although there is no public annoyance, under S. 63 (j) of the Police Ordinance any Police officer has the power to arrest without a warrant ‘any person who wilfully and indecently exposes his person or any offensive deformity or disease’ in any street or road, thoroughfare or passage within the limits of any town, if the offence was committed within his view.

However, if S. 365 and S. 365A are repealed as proposed in the Bill, there will be no legal bar whatsoever for any groups to display their sexual orientation in public without directly engaging in a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

S. 365A of the Penal Code dealt not only with persons committing acts of gross indecency, but also with any person who procures or attempts to precure the commission by any person, of an act of gross indecency with another person. With the repeal of S. 365A, procuration of a child above 16 years of age to another person for commission of an act of carnal intercourse against the order nature or gross indecency or grave sexual abuse will no longer be an offence.

Tourism can be promoted with children, both male and female, above the age of 16 years procured for engaging in sexual acts with foreign tourists, without any fear of being prosecuted.

LGBT persons will be able to openly display their sexual orientation by engaging in acts preliminary to having carnal intercourse. For instance, two men or two women can publicly embrace each other intimately, touching their bodies and kissing each other. It may not cause any public annoyance, according to the proposed law. Other than the LGBT groups, there may be others who are dreaming of western moral values on Sri Lankan society appreciating.

Though there is no legal bar, it will certainly have a pernicious influence on children on the younger generation causing, an irreparable harm.

Inevitable Consequences of the Passage of the Bill – Promotion of Sexual Abuse of Children and Youth

Let us see what will be the plight of children and youth of this country if this Bill is passed by Parliament:

When S. 365 of the Penal Code dealing with the offence of carnal intercourse against the order of nature (anal sex and oral sex) with any man or woman and S. 365A dealing with the offence of gross indecency (acts of same-sex of men and women both) are repealed, making these sexual activities no longer offences punishable under the law, it will result in the removal of protection afforded to children by these two Sections against sexual abuse in respect of these offences.

The ASG had submitted to Court that no lacuna in law will be caused by the amendments proposed in the Bill, as S. 365B of the Penal Code dealing with the offence of grave sexual abuse will provide adequate protection to the children against sexual abuse.

On an analysis of S. 365B, it clearly shows that S. 365B will not provide any protection to children in the most vulnerable age group against sexual abuse.

Grave sexual abuse dealt with by S. 365B is an act committed by any person, for sexual gratification, using his genitals or any other part of the human body or any instrument on any orifice or part of the body of any other person, being an act which does not amount to rape under S. 363 of the Penal Code.

Unlike in the case of carnal intercourse against the order of nature and gross indecency, in grave sexual abuse the act itself is not an offence.

It becomes an offence only where it is committed (a) with or without consent on a person under 16 years of age; or (b) without consent of the person; or (c) with the consent of the person obtained while such other person was (i) in lawful or unlawful detention, or (ii) by use of force, or intimidation or threat of detention or by putting such other person in fear of death or hurt; (iii) with the consent obtained at a time the other person was of unsound mind or was in a state of intoxication induced by alcohol or drugs.

This section provides protection against sexual abuse only to children under 16 years of age. What is the protection available for children in the age group of 16 – 18? Any person can commit any of the sexual acts mentioned in S. 365B – anal sex, oral sex, fingering, homosexual acts – with any child over 16 years of age with the consent of the child.

Under the Convention of the Rights of the Child (CRC) ratified by Sri Lanka in 1991, every person under 18 years of age is a child entitled to all the rights guaranteed by the Convention including the right to protection from sexual abuse. The Penal Code (Amendment) Act No. 22 of 1995 and the Penal Code (Amendment) Act No. 16 of 2006 provide protection to all children under 18 years of age against abuse sexual or otherwise in respect of most of the offences dealt with by them: – S. 286A – Using children for obscene or indecent publications or shows; S. 286B – Duty of a person providing computer services to prevent sexual abuse of a child; S. 286C – Duty to inform use of premises for child abuse; S. 308A – Cruelty to children; S. 360B – Sexual exploitation of children; S. 360C – Trafficking of children; S. 360E – Soliciting a child. In all these sections the word ‘child’ is defined to mean a person under 18 years of age.

The International Convention on Civil and Political Rights (ICCPR) Act No. 57 of 2007, while recognising a person under 18 years of age as a child, by S.5(1)© has guaranteed the rights of every such child to be protected from abuse.

If any person commits an act of grave sexual abuse with a person over 16 years of age with consent obtained by adopting any of the methods mentioned in the Section such as use of force, intimidation, or threats or while in a state of intoxication, then it becomes an offence punishable under the law.

What is the position if consent is obtained through deceit or offering some benefits or presents or some promises? There are numerous other ways to obtain the consent of children and youth, inexperienced in life, for committing sexual acts with them such as developing a close friendship, or offering some presents like a mobile phone or offer of a foreign trip or other deceitful conduct. Then it will not be an offence punishable under S. 365B.

S. 365B will not provide any protection to children belonging to the age group of 16 to 18 years and they will be left without any protection and open to abuse.

Who are these children belonging to the age group of 16 to 18 years? They are mostly children studying in O Level and Advanced Level Classes in schools. In any given year there are more than 500,000 thousand students studying in these classes. They belong to the most vulnerable age group, amenable to the influence of social and other media promoting this type of conduct. All this time these activities remained grave crimes, punishable with deterrent penalties. When this Bill becomes law, when these activities are decriminalised, as persons over 16 years of age they will be able to openly and freely discuss about these things and freely engage in any of these activities of their choice.

Within a few years of the passage of the Bill, it will be almost impossible to maintain discipline in schools and other higher education institutes. It is no secret that homosexual connections are observed to certain extent among students in hostels in schools and universities. At present it is frowned upon as conduct illegal and unacceptable. When homosexuality is legalised, one can see the number of human rights violation applications coming before the Human Rights Commission of Sri Lanka against the hostel Wardens and heads of institutions who try to maintain discipline in them.

It will certainly result in two or three-fold increase in the number of complaints of sexual abuse of children which remains continuously increasing over the years.

It will result in the destruction of moral, cultural and ethical base of our society.

Duty and Responsibility of Parliament to Protect the Rights of all Children

Even Sanjaya Jayawardana, PC, appearing for the proponent of the Bill MP Dolawatta admitted in his submissions that even if the Court was of the view that repealing S. 365A would encourage persons of whatever sexual orientation to behave in an indecent manner in public and whether such conduct is, in the view of the Court, morally repugnant and against the social and cultural ethic of this country, that would not be a matter for the Court but one that is entirely left to the Legislature.

The Supreme Court has expressed its opinion on this matter in the Determination on the Bill in these terms: ‘‘That does not mean that men or women or transgender persons can frequent public places in a manner that creates a nuisance to others using such public places, or that they can engage in any other illegal acts or behave in a manner that affects the rights, health or property of others. However, we must reiterate that it is a matter that comes within the legislative policy of the State which shall be guided by the provisions of Art. 75 and 27. It is a matter that comes within the legislative power of the people which shall be exercised by Parliament in trust for the People.’’

Under Article 75, the Parliament has the power to enact or repeal any law; In enacting laws the Parliament is exercising the legislative power of the people in trust for the People. Article 27 contains the Directive Principles of State Policy that shall guide the Parliament in the enactment of laws. In the enactment of this Bill the Parliament should be guided by the Directive Principles in Article 27 (12) and (13): 27(12) The State shall recognize and protect the family as the basic unit of society. 27(13) – The State shall promote with special care the interests of children and youth, so as to ensure their full development physical, mental, moral, religious and social and to protect them from exploitation and discrimination.

Instead of promoting with special care the interests of children and youth, this Bill has the effect of jeopardising the interests of children and youth exposing them to sexual abuse and retarding their physical, mental, moral, religious and social development.

Every Member of Parliament must understand that it is their duty and responsibility to exercise their legislative power entrusted to them by the People with due diligence in the best interests of the people and the country, protecting and promoting the rights of vulnerable groups like women and children, without carrying out foreign agendas and being moved away by slogans.

(Concluded)



Opinion

Who actually was ‘the first Sri Lankan Buddhist monk in 105 years to join Oxford University’?

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Ven. Wadigala Samitaratna Thera

by Rohana R. Wasala

Reading the detailed news article under the title ‘First Sri Lankan Buddhist monk in 105 years joins Oxford for MPhil in Buddhist Studies’ (The Island/December 6, 2024) was a refreshing experience for me, as it should’ve been for others among the readers who feel concerned about the future of the young bhikkhu community of the country. No one else but the young bhikkhus themselves can play the leading role that has been historically assigned to the Maha Sanga over the millennia in safeguarding our invaluable but currently threatened Buddhist cultural heritage in these swiftly changing modern times. There is much to be reformed in the Buddhist Order to ensure its survival into the future, but the key to that long overdue, potentially convoluted process, is the proper education of young monks. It is in that context that I wholeheartedly congratulate Ven. Wadigala Samitharathana Thero on his many scholastic achievements.

However, the claim that Ven. Wadigala Samitharathana Thero has become the first Sri Lankan Buddhist monk in 105 years to study at Britain’s University of Oxford is not quite correct. The late great scholar monk Ven. Dr Labuduwe Siridhamma Thero, the then Chief Incumbent (1957-1985) of Getambe Sri Rajopawanaramaya temple near Peradeniya, had earned his PhD from Oxford University, UK. This fact I know because I used to see Dr Siridhamma’s official letterheads printed with his name followed by ‘PhD (Oxon)’. He was reputed to have been a supreme master of five languages including English. It was he who founded the Dharma Chakra Vidya Peetaya closely connected to the monastery that became an internationally known centre of higher education for young local and foreign bhikkhus. It even catered to secular intellectuals from around the world who took an interest in Buddhist philosophy and meditation.

The venerable monk as a young English tutor from the nearby Peradeniya University at his initiation, and was given the honour to briefly work with him more than fifty years ago. He was a very dedicated educator of Buddhist monks and a strict disciplinarian. This was in the late 1970s, only about two years into late president J.R. Jayewardene’s first term.  Dr Siridhamma requested me to train a class of some young monks who already had a fairly good knowledge of English (at least two of them were assistant lecturers in the Arts Faculty of the Peradeniya University, where I taught at the sub department of English) in speaking and writing English and in translating Dhamma passages into English. I fondly remember now how I arranged and moderated debates in English between teams of monks, and sometimes was required to mediate when tempers flared up during heated exchanges. As these were all in English, the occasional lapses in language usage provided some diversion and lighter moments.

That was a little digression. Let’s get back to the subject.  Ven. Siridhamma told me that he wanted these monks to be able to engage in Buddhist missionary work abroad. He himself had connections with foreign universities. I occasionally saw him conducting meditation classes and leading Dhamma discussions with some European participants. My own English classes with the young monks continued only for a short few months, however.

A few years later, while abroad, I heard that Ven. Siridhamma was facing the wrath of the then president over some severely critical remarks the monk had made against the latter concerning the way he handled the Tamil separatist problem at the time. It was suggested in the media that the president’s animosity resulted in certain impediments being placed on the fortunes of Sri Rajopawanaramaya and the functioning of the Dharma Chakra Vidya Peetaya. The venerable monk was presumably quite advanced in age, I think, though I didn’t notice it during the brief period I associated with him. Not long after the above incident, it was reported that Siridhamma Thera was taken ill suddenly and died. This was probably in 1985. I don’t know anything about the present situation of his legacy at Sri Rajopawanaramaya. Strangely, Wikipedia offers little or no information about this renowned scholar monk, though his name is mentioned in connection with a school named after him established a decade later iin his native village Labuduwa, Galle.

This is Siridhamma Vidyalaya/Siridhamma College at Labuduwa in the Akmeemana electorate, ceremonially opened by the then Prime Minister Sirimavo Bandaranaike at the invitation of the then minister of education Richard Pathirana on February 6, 1995. The information I gleaned from Wikipedia about this school mentions Ven. Dr Siridhamma as the first Buddhist monk to graduate from Oxford University. This seems to overlook the fact that Ven. Suriyagoda Sumangala got admission to Oxford University in 1919 and thus became the first Lankan Buddhist monk to do so. This is according to the December 6th article to which I am responding here. So, it is clear that the distinction of being the first Buddhist monk to study at Oxford goes to Suriyagoda Sumangala Thera, and not to Labuduwe Siridhamma Thera, who undoubtedly followed him many years later. In other words, Ven. Labuduwe Siridhamma Thera was the first Buddhist monk to enter Oxford University, and Ven. Wadigala Samitharathana Thera only the second to do so, in 105 years.

Isn’t the mysterious consignment of Dr Siridhamma Thera, a renowned national figure, to near oblivion food for thought for those young and old Sri Lankans concerned with the future of their country? Danno danithi (it is no secret to the informed).

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Opinion

Sally Hulugalle

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Sally Hulugalle

Sally Hulugalle was a vibrant presence, and I am only sorry that I got to know her only over the last fifteen years or so. This was because her husband, Arjuna Hulugalle, who was distantly connected to my family through a Kurunegala link, got in touch with me in the aftermath of the war, for he was involved in various projects to help the people of the north.

I was able to get for his very worthy initiatives a lot of support, all on a small scale, from the Japanese government, through their hyper-active Deputy Ambassador, Mr Ishizuka, with whom I had bonded well from the time I took over the Peace Secretariat.

I would visit Arjuna at his house, and there I met his wife Sally, the daughter of a Civil Servant whose distinguished children included Barbara Sansoni. Sally was dedicated to social service, and was deeply concerned about the plight of women and children who suffered from neglect.

Having seen the appalling conditions at Mulleriyawa, where many women were incarcerated arbitrarily, given abuse of the Vagrants’ Ordinance, she set up NEST along with my old friend Kamini de Soysa. It worked at what is called the half way house for women meant to be released, but who rarely were, because they had nothing to go to. NEST gave them occupational therapy which provided a purpose in lives that were otherwise empty.

NEST also set up centres round the country which provided support to women and children in need. There were four of these when I first found out about them, though the one in Galle had to close. The other three, in Hendala and Dumbara and Kahatagasdigiliya, continue to provide yeoman service, the first two in houses belonging to NEST, the one in Dumbara having been set up after Sally received a cash prize from Norway for her work. Using what was given to her personally for those less fortunate was second nature to her.

Sally understood, in a way many of those in government responsible for those who fall through the net do not, the need for counseling, for listening to people in need, and for providing often very little things that made a substantial difference to their lives. She participated readily in the committees I set up when I was Adviser on Reconciliation to look into the plight of women and children, our recommendations extending to the rest of the country too, for I realized that government had not tried to coordinate the work of social service officials at divisional levels, and a few simple guidelines would have worked wonders.

But Mahinda Rajapaksa was not really interested in my advice and, though we had a thoughtful Ministry Secretary, Eric Illapayarachchi, he had to work with a neanderthal Minister who could not care less for the deprived. I could only think it sheer wickedness, that those in authority would not work swiftly to get rid of the Vagrants Ordinance, an archaic British law, which I was told was the only way prostitution could be stopped. That other women were swept into the net, and the way to stop prostitution was to make it illegal, not take in anyone on suspicion, were concepts beyond them.

I had another chance to make a difference when, as Chairman of the Tertiary and Vocational Education Commission, I set up a Health Sector Council. That did good work, under Dr Narme Wickremesinghe, but when I was sacked it, though it did much for nursing and pharmacology, lost interest in the counseling component of its brief, and Sally and her great friend Kusala Wettasinghe ceased to go to meetings. And since I lost my position on the National Education Commission, the efforts I had been making through the Sub-Committee on General Education to develop counseling in schools also came to naught.

But when I reflect on the failure of these efforts, I think too of the great work done by private initiatives, and how the intensity of Sally’s commitment has made such a difference to so many. This year, seeing the work of the centres at Hendala and at Kahatagasdigiliya, and the devotion of the staff to her memory, I was struck again by the way she transformed her passion for social welfare into practical support for so many. She will be greatly missed by hundreds outside the charmed circle in which she was born.

Rajiva Wijesinha

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Opinion

Blueprint for economic empowerment in Sri Lanka’s gig economy

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“Creating 300,000 Online Jobs:

By Dammike Kobbekaduwe,
FIPM (SL), Member-CIPM-SL, MBA(HRM)

Objectives of the Article

Assess

the viability and economic impact of creating 300,000 online jobs in Sri Lanka.

Present

a bankable business plan for investment support from financial institutions.

Outline

a detailed cost-benefit analysis, supported by viability ratios for funding eligibility.

Establish

a sustainable financial and operational model for building a skilled gig workforce.

Sri Lanka’s gig economy presents a compelling solution for youth employment, targeting 300,000 online jobs for young people, particularly those who completed GCE OL. With a goal of generating substantial monthly income streams, this project seeks to address the country’s economic challenges and stimulate growth through digital employment. While a monthly earning a realistic starting income of $300–$500 is achievable and scalable, infusing approximately $50 million monthly into the economy once the workforce reaches full capacity.

To ensure financial viability and attract investment, we conduct a comprehensive economic analysis. This document highlights key investment metrics, including viability ratios, projected cash flow, and a cost-benefit breakdown to support the proposal as a bankable doEconomic Analysis and Viability

This project’s financial feasibility and appeal for funding rely on assessing profitability and return potential. Calculations are based on the cost of infrastructure, worker setup costs, and recurring expenses.

1. Capital and Operational Costs

Capital Setup Per Worker

Laptop (16GB RAM):

LKR 300,000 (one-time purchase)

Data Plan:

LKR 8,000 per month

Electricity:

LKR 8,000 per month (solar option as a long-term cost-saving measure)

Annual Cost Per Worker

One-time Equipment Cost:

LKR 300,000

Recurring Monthly Costs:

LKR 192,000 (LKR 16,000 x 12)

Total Yearly Cost Per Worker

Year 1:

LKR 492,000

Year 2+ (Excluding Laptop):

LKR 192,000 per year

Total Initial Investment for 300,000 Workers

Laptops:

LKR 90 billion

Year 1 Recurring Costs:

LKR 57.6 billion

Initial Year Investment Requirement:

LKR 147.6 billion

2. Projected Revenue and Cash Injection

A monthly earning potential of $300–$500 per worker in Sri Lanka’s gig market (based on average entry-level online job earnings globally) provides realistic targets for cash generation.

Monthly Cash Injection at Full Capacity

Minimum Revenue Goal (300,000 workers at $300):

$90 million/month

Maximum Revenue Goal (300,000 workers at $500):

$150 million/month

Expected Economic Contribution:

$50 million/month as a sustainable average.

3. Viability Ratios and Business Metrics

To validate the project’s financial health, banks and investors can consider the following key metrics:

A. Return on Investment (ROI)

The ROI assesses the profitability relative to costs.

See FIG 1

For Year 1 (Initial setup + recurring costs):

Total Annual Revenue:

$90 million * 12 months * 300,000 = LKR 324 billion (at $300/month per worker) See FIG 2

Interpretation:

A 119.5% ROI suggests strong profitability, with returns significantly outpacing the initial investment within the first year, making it attractive for lenders and investors.

B. Break-even Point (BEP)

The BEP indicates when revenue will cover initial costs.

See FIG 3

For a $50 million monthly injection:

Interpretation: A break-even within three months reflects a rapid recovery period, underscoring the project’s viability. See FIG 4

C. Debt-Service Coverage Ratio (DSCR)

To ensure sufficient earnings to cover debt obligations, DSCR is critical for bank funding. See FIG 5

Assuming monthly operating income of LKR 3.24 billion and an estimated debt service of LKR 1.5 billion:

Interpretation:

With a DSCR above 2, the project is well-positioned for loan approval, demonstrating strong debt repayment capacity. See FIG 6

Implementation Plan for the National Gig Workforce

Phase 1: Training and Equipment Setup

Digital Literacy Programs:

Partner with local institutions to offer foundational training.

Laptop Financing:

Government-backed financing for laptops and solar installations for sustainable power solutions.

Phase 2: Skill Development and Placement

Skill Development Centers:

Partner with international e-learning platforms and host training boot camps.

Placement Programs:

Establish online job-matching platforms to connect workers with international clients.

Phase 3: Scaling and Economic Integration

Tax Incentives:

Offer tax breaks to local businesses hiring from the gig workforce.

Freelancer Support Network:

Create a national freelancer association for continued training and mentorship.

Resources Required For Workers:

Training:

Digital and language skills to enter global markets.

Equipment:

Laptops with financing options.

Connectivity:

Affordable data plans or subsidies.

For Stakeholders:

Government Initiatives:

Funding for training and incentives.

Private-Sector Partnerships: Skill development programs and job portals.

Financial Institutions: Loan products tailored for workers’ needs.

Conclusion

This plan offers a scalable solution to Sri Lanka’s unemployment crisis, particularly for young people with limited formal education. By creating 300,000 online jobs and targeting a monthly cash inflow of $50 million, the initiative supports economic resilience while empowering youth with valuable skills. A financial model based on solid viability ratios makes this project attractive to lenders, ensuring a rapid return on investment and sustainable growth.

References

International Labour Organization. (2023). The Gig Economy: Opportunities and Challenges for Youth Employment in Developing Economies. Available at: https://www.ilo.org/

Upwork. (2023). Freelancer Earnings and Trends Report. Available at: https://www.upwork.com/research

World Bank. (2022). Digital Jobs and Economic Growth:

A Guide for Developing Nations. Washington, DC: World Bank Publications.

Fiverr. (2023). Freelancer Earnings and Skill Development:

A Global Perspective. Available at: https://www.fiverr.com/research

Coursera. (2023). Skill Trends in the Digital Economy:

A Report on Online Education in Emerging Markets. Available at: https://www.coursera.com/research

Sri Lanka Department of Census and Statistics. (2023). Youth Unemployment and Educational Attainment: Annual Report.

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