Photo courtesy of Roar LK
The basis and the procedure of the criminal law in Sri Lanka was derived from English law. After Sri Lanka was colonised by the British, British laws were gradually applied throughout the nation. These laws reflected their Victorian values during 1883 and some of these rules criminalised same-sex relations between two consenting adults. Although the UK decriminalised same-sex relations between men in 1967 under the Sexual Offences Act, Sri Lanka continues to criminalise same-sex sexual activity by retaining the laws even after independence. We must note that these criminal offences are not limited to men but also towards women who engage in same-sex relations.
Sri Lanka is one of the few countries that criminalises same-sex relations between women. Sections 365 and 365A of the Penal Code prohibit “carnal intercourse against the order of nature” and “gross indecency between persons.” The lack of classification and definition of the terms used in the sections has left space to open interpretations of the law as one pleases and is often used against the LGBTIQ (Lesbian, Gay, Bisexual, Transgender, Intersex, Questioning/Queer) community because of the stigmatic prejudiced opinions prevailing in society. There were and still are many incidents where the police use Sections 365 and 365A as a yardstick to act upon criminal offences targeting the LGBTIQ community in the country.
Petition filed against Ama Dissanayake and Sri Lanka police
In September 2021, EQUAL GROUND Executive Director Rosanna Flamer-Caldera along with nine others filed a petition to the Court of Appeal seeking a mandate in the nature of a Writ of Prohibition against the police in facilitating the conduct of training sessions by Ama Dissanayake or any such programmes that discriminates or makes remarks that are erroneous towards the LGBTIQ community. YouTuber Dissanayake, a purported mental health counsellor, therapist and a trainer in positive thinking, in July 2021 conducted a training programme for officers attached to the police where derogatory statements were made against the LGBTIQ community.
The petition states that Dissanayake has a demonstrable record and history of making derogatory and malicious statements against the LGBTIQ community and yet the police deliberately invited her to train police officers. During this training Dissanayake inaccurately attributes the offence of subjecting a minor child to sexual advances from the LGBTIQ community with no credible evidence. The Court of Appeal on December 8, 2021 granted leave to proceed after the case was supported by President’s Counsel Mr. Sanjeewa Jayawardena, counsel for the petitioners and ordered notices to be sent to the respondents.
The case CA/ WRIT/ 425/21 was concluded on January 26, 2023 before the Court of Appeal and the court ordered that Police Circular No. 2740/2022 dated 27.12.2022 be filed of record. The court further made an observation that the second respondent to the case – Ms. Dissanayake – was bound by the circular.
Private Member’s Bill to amend criminalisation of the LGBTIQ community
Recently parliamentarian and member of the Sri Lanka Podujana Peramuna (SLPP), lawyer Premanath C. Dolawatte presented a Private Member’s Bill to parliament to amend the Penal Code Sections 365 and 365A. Commenting on the Bill in The Morning, Minister of Foreign Affairs Ali Sabry stated that the government would support its position of decriminalising same-sex relationships given the consensus regarding it, however, it would not legalise same-sex marriages. Mr. Dolawatte further stated, that the draft Bill to amend Sections 365 and 365A of the Penal Code by decriminalising the offences had been referred to the Attorney General’s Department to clarify its consistency with the Sri Lanka Constitution.
While this action sparks small hope for the queer community, it remains rather sceptical as in the past, attempts to urge the government to decriminalise has turned on deaf ears. Since 2008, EQUAL GROUND has highlighted the issues faced by the LGBTIQ community through the UN Treaty Bodies such as Universal Periodic Review (UPR), the International Covenant on Civil and Political Rights (ICCPR), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention on the Rights of the Child (CRC) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) and has urged the government to decriminalise adult same sex relationships. In 2017 it urged the EU’s GSP+ to provide the government with conditions that included decriminalisation and LGBTIQ protective policies to no avail. The lack of will on the part of the government to decriminalise same sex relationships has been apparent even while soft pedalling on this issue at the UN. Recently, at the UPR review of Sri Lanka, several countries such as the UK, USA, Norway and Canada, urged the government again to decriminalise and grant equality to all its citizens including the LGBTIQ community.
For a very long time now, LGBTIQ rights have been a tool of party politics. It is interesting to note that the Private Member’s Bill was put forward soon after the first discussion the government had with the IMF. The international community, particularly donors and friendly countries, are very much in favour of LGBTIQ rights and the upholding of human rights of all citizens, something that has been sorely lacking in the last 75 years since independence. With local elections around the corner, many community members, activists and allies remain sceptical about this Bill. Some even wonder if this is another act put on by the government to throw the UN off the trail and collect votes for the ruling party.
In 2016 State Minister Wasantha Senanayake and UNP MP Hirunika Premachandra addressed the High-Level Dialogue on Human Rights and Constitutional Reforms under the UNDP Bangkok Regional Multi Country South Asia Global Fund programme and pledged that they would take fellow MPs to task on LGBTIQ rights. Unsurprisingly, their words have remained just words. In January 2017, the EU included recommendations to uphold LGBTIQ rights in their strategic plan proposed for regranting GSP+ but these recommendations were dropped at the urging of President Maithripala Sirisena saying the Human Rights Action Plan more than covered this area. Unfortunately, at the confirmation of the action plan, President Sirisena deemed it to be “culturally inappropriate.” The discussion of amending the sections 365 and 365A to decriminalise against the LGBTIQ community comes up on the stage but the majority of the lawmakers have shown no unwavering stance in achieving LGBTIQ rights.
Out of the three main political parties – UNP, SLFP and the JVP – only the JVP has publicly stated that they will not discriminate against the LGBTIQ community in Sri Lanka. In November 2018, MP Anura Kumara Dissanayake stated that “Sexual orientation is a private matter of an individual. We may have different divisions in our society, based on language, religion, culture. But as JVP we believe all of these communities including LGBTIQ+ communities have equal rights and equal recognition…We are a movement of equal rights.” However Mr. Dolawatte, attending a recent discussion with representatives from major political parties and members of the community on non-discrimination of LGBTQ people, said he was hopeful that the majority of MPs would support and join the effort to protect the rights of the LGBTQ community. Minister Jeevan Thondaman, Mayantha Dissanayake and Prof. Charitha Herath have also stated that their respective parties would support the Bill if and when it reaches parliament.
The amendment coming into effect without much delay is important as Sections 365 and 365A violate the freedom of thought and conscience guaranteed under Article 10 of the constitution, and freedom of expression guaranteed in Article 14(1)(a). However, since broader sexual offences provisions in the Penal Code are outdated, amending the provision that criminalises same-sex sexual relationships between consenting adults does not solve the problem. Human rights activist, Ambika Satkunanathan, pointed out in one of her tweets, “making minor amendments to laws that violate human rights, does little to address the problem.”
Despite the murky timing of the Private Bill, the action to amend criminalisation of the LGBTIQ community has shed a positive light on the issue. If promises are turned into actions, then it is truly a win for the LGBTIQ community and a small step towards its journey to ensure rights for all. However, the government should repeal these colonial, ambiguous laws to ensure the human rights of all its citizens as archaic discriminatory legal provisions and practices are being used to discriminate and validate violence against its citizens.
EQUAL GROUND is a non-profit organisation seeking economic, social, cultural, civil, and political rights for the Lesbian, Gay, Bisexual, Transgender, Intersex and Questioning/Queer (LGBTIQ) community of Sri Lanka. It is committed to creating a safe space for all LGBTIQ individuals and to providing opportunities for self-help including mental well-being, economic, social, and political empowerment, access to health, education, housing, and legal protection for the LGBTIQ community. Founded in 2004 EQUAL GROUND is also the oldest organisation of this nature functioning in the country.