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Unshackling the freedom of sexual orientation

2 years ago

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  • Analysis of Wimalasiri vs. Maradana Police Station OIC and AG

  The Supreme Court (SC) of Sri Lanka, not exactly known as the “bastion of liberty” leading the charge for the freedoms of sexual minorities, may have, however, in a recent decision provided more than a ray of hope to those fighting for the rights of certain types of sexual orientation. Through this precedent, it has also perhaps signalled a progressive approach to be adopted with regard to possible future jurisprudence concerning the unshackling of the freedom of sexual orientation. The 2016 verdict of the SC in the case Wimalasiri vs. Officer-in-Charge (OIC), Police Station, Maradana, and the Attorney General (AG) could have far-reaching implications on the future of the rights of sexual minorities in Sri Lanka. Whilst acknowledging that the offence of gross indecency was very much part of the local law, the SC also noted that the rationale behind the repeal of buggery, gross indecency, and sodomy, as offences in England, may have been the contemporary thinking developed over the years that consensual sex between adults should not be policed by the State and should not be grounds for criminalisation. The unanimous opinion of the judgment given was written by Justices Buwaneka Aluwihare PC, Shanthi Eva Wanasundera PC, and Anil Gooneratne PC in agreement in the case (SC Appeal Number 32/11) – Galabada Payagalage Sanath Wimalasiri vs. OIC, Police Station, Maradana, and the AG. Wimalasiri was the accused-appellant-petitioner while the Maradana Police OIC was the complainant-respondent-respondent and the AG was the respondent of the case. As per the facts of the case, Wimalasiri was initially charged along with another (R. Jeganathan) before the Maligakanda Magistrate’s Court by the Maradana OIC over allegedly committing an act of gross indecency in terms of Section 365A of the Penal Code (as amended). In the instant case, the alleged act of gross indecency was one of oral sex between two consenting (as determined by the SC) adult males inside a van (in the rear seat) parked at a vehicle park. Section 365A of the Penal Code states: “Any person who, in public or private, commits, or is a party to the commission of or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be guilty of an offence.” The punishment upon conviction for the offence between adults (18 years and above) is to be sentenced to a maximum term of imprisonment of two years and/or a fine. The trial magistrate having found the accused parties guilty had convicted the duo and imposed a term of imprisonment (one year and a default sentence of six months) and a fine (Rs. 1,500). Wimalasiri had then appealed to the Provincial High Court (HC), where it had upheld both the conviction and the sentence by the magistrate’s court. Afterwards, Wimalasiri had appealed to the SC. Regarding the offence in Section 365A of the Penal Code, Justice Aluwihare explained: “This offence deals with the offences of sodomy and buggery which were a part of the law in England and is based on public morality. The Sexual Offence Act repealed the sexual offences of gross indecency and buggery in 2004 and not an offence in England now. The contemporary thinking that consensual sex between adults should not be policed by the state nor should it be grounds for criminalisation appears to have developed over the years and may be the rationale that led to repealing of the offence of gross indecency and buggery in England. The offence, however, remains very much a part of our law.” (The full verdict can be read at It must be noted that it is this very law which incorporated legal values of the early English common law, which the British introduced to Sri Lanka as part of their colonial enterprise, and one that even at the time bore every trace of the stench of the excesses of hypocrisy and folly, that England has since repealed and apologised for. Most sections of the UK’s Sexual Offences Act of 1956 were repealed by the Sexual Offences Act of 2003 which came into effect in May 2004. The Sexual Offences Act of 1967 decriminalised homosexual acts done in private between two male adults (in the latter case above 21 years). Returning to the instant case, Justice Aluwihare, though affirming the conviction of the magistrate which was upheld by the HC Judge, noted that since Wimalasiri and the other accused did not have any prior conviction or criminal history, to impose “a custodial term of imprisonment does not appear to be commensurate with the offence, considering the fact that the act was consensual”, and that therefore such is unwarranted. The SC thus “set aside the sentence of the one-year term of imprisonment and substituted the same with a sentence of two years of rigorous imprisonment”, but “suspended the operation of the term of imprisonment for a period of five years effective from the date the sentence was pronounced by the magistrate.” At the time of deciding the case, it had been 13 years since the incident took place. The SC then dismissed Wimalasiri’s appeal. In Sri Lanka, certain types of sexual orientation are criminalised under the archaic and draconian Section 365 of the Penal Code which (albeit ambiguously and vaguely, even though an explanation is provided in that “penetration is sufficient to constitute the carnal intercourse necessary to the offence”) defines “unnatural offences” as being “whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal”. This is an offence which, if involving adults (in this case, over 18 years), upon a guilty conviction carries a penalty of a maximum term of imprisonment of 10 years and a fine. Ultimately, even though in the instant case the SC did not consider the offence under Section 365 of the Penal Code but instead considered Section 365A of the Penal Code, since the facts of the case concerned two consenting adult males engaging in an act of fellatio (the males in question could be homosexual or bisexual), Justice Aluwihare’s perceptive observation that “the contemporary thinking that consensual sex between adults should not be policed by the State nor should it be grounds for criminalisation appears to have developed over the years and may be the rationale that led to the repealing of the offence of gross indecency and buggery in England” may prove, hopefully in Sri Lanka, prescient. Jurist and Emeritus Professor of Law Savitri Goonesekere, in a compendium on law, gender-based violence, and reproductive rights, noted with regard to this case that “the approach of the court supports a review of the policy of criminalising adult consensual same-sex conduct” and therefore the need for a policy change in this area. Furthermore, she noted that the selective administration of criminal justice is an infringement of the rights pertaining to sexual health and wellbeing, bodily integrity, and the right to equality and freedom from discrimination, the latter two rights of which are not only standards of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), but are also guaranteed in Article 12 of the Constitution. In Sri Lanka, however, in addition to the discretionary application by the Police of Sections 365 and 365A of the Penal Code, the Police has taken the initiative to exercise their discretion to use yet another accursed heirloom of colonial munificence – the statute titled the Vagrants Ordinance No. 4 of 1841 (as amended) – in order to, as also noted by Prof. Goonesekere, harass, arrest, and prosecute such conduct that occurs in public places. The time is, therefore, nigh for this law too to be repealed along with the aforementioned provisions of the Penal Code. In connection to this, the Human Rights Committee, which is the treaty body under the ICCPR that is tasked with monitoring the progress of the implementation of the said covenant, in its concluding observations on the fifth periodic report of Sri Lanka (CCPR/C/LKA/CO/5) on 21 November 2014, states that the State Party should amend the Penal Code's provisions criminalising homosexuality and introduce a constitutional amendment to explicitly prohibit discrimination on the grounds of sexual orientation and gender identity. Saliya Pieris PC, who was the counsel who appeared for Wimalasiri, said that even though the SC cannot strike down laws, Justice Aluwihare’s observation of the changes that have taken place in England is a pointer to the direction that should rightly be taken in this regard. Citing the Report of the Departmental Committee on Homosexual Offences and Prostitution, also known as the “Wolfenden Report”, as evidence, he pointed out that the State should not intervene if it doesn’t affect public order or doesn’t bring harm to people. The said report recommended that since “it is not the function of the law to intervene in the private life of citizens or to seek to enforce any particular pattern of behaviour, homosexual behaviour between consenting adults in private should no longer be a criminal offence”. Pieris PC also advanced the novel argument as to whether what is meant by “against the order of nature”, as stated in Section 365 of the Penal Code, could be scientifically established. When pointed out that “against the order of nature” involved a fallacious moral presupposition, he concurred, saying that individuals have different orientations.

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