• Human rights lawyers and LGBTQIA+ activists on the important ruling

The Supreme Court of Sri Lanka on 9 May ruled that the petition filed against a Private Members Bill to decriminalise homosexuality was fanciful and had no merit, and the decision is being considered a green light from the highest court of the country to pass the Bill presented by Member of Parliament (MP) and attorney Premnath C. Dolawatte asking for the amendment of sections 365 and 365A of the Penal Code.

The decision is considered to be a significant win by the LGBTQIA+ community in Sri Lanka and must be seen in the same light by society in general. As the Supreme Court ruling is being celebrated, human rights lawyers and LGBTQIA+ activists took the time on 10 May to address the media and share the importance of the ruling as well as what the passing of Dolawatte’s Private Members Bill could mean to the LGBTQIA+ community. The event was held at the Women and Media Collective, which was represented at the press briefing by Dr. Sepali Kottegoda, the Director Programmes – Women’s economic rights and media.

The Supreme Court decision

Human rights lawyer and activist Ambika Satkunanathan explained that the Bill sought to repeal Section 365A and amend Section 365 of the Penal Code. Section 365, on unnatural offences, states: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

Meanwhile, Section 365A states: “Any male 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 male person of, any act of gross indecency with another male person, shall be guilty of an offence, and shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both, and shall also be liable to be punished with whipping.”

These offences criminalise homosexuality and have been used to violate the rights of the LGBTQIA+ community in the country.

Satkunanathan spoke about the importance of the Supreme Court decision, saying: “Three persons challenged this Bill in the Supreme Court saying that it violates provisions of Sri Lanka’s Constitution, namely the fundamental rights provisions. And they said that this Bill, if it is made into law, would result in child abuse, undermine the rule of law, lead to the increase of HIV infections, threaten national security, and undermine the place of Buddhism.”

However, the Supreme Court determination stated that these arguments were fanciful and without merit.

“The Supreme Court determination has reaffirmed human dignity. It says that by criminalising same-sex relations, we are undermining the dignity of these people. It has reaffirmed the right to privacy and to have a private life,” Satkunanathan explained.

She went on to say that the petitioners claimed the repeal proposed by the Bill would undermine Article 12(1) of the Constitution, which states that everyone is equal before the law and that everyone has the equal protection of the law. However, the Supreme Court stated that on the contrary, these amendments would seek to “reaffirm the right to equality and the right to equal treatment before the law because LGBTQIA+ persons suffer persecution, prosecution, discrimination, violence and harassment in Sri Lanka” and would decriminalise same-sex relationships.

More importantly, she added, the Supreme Court decision also refers to international human rights standards and law, like the Universal Declaration of Human Rights, as well as progressive decisions from India and South Africa.

Court’s response to petitioners’ arguments

Providing a more detailed account of the arguments made by the petitioners and the ruling by the Supreme Court was lawyer, filmmaker and Colombo University Lecturer Dr. Visakesa Chandrasekaram. Speaking about the offences the Private Members Bill addresses, Dr. Chandrasekaram said: “One offence in the 1883 penal code introduced by the British to Sri Lanka is unnatural offences or unnatural sexual acts. Along with this is acts of gross indecency, which was introduced later. These two offences result in the LGBTQIA+ community facing severe violence and oppression.”

Dr. Chandrasekaram said that the petitioners made four arguments, the first being that the adoption of the Bill would endanger children. However, those arguing against the petition presented evidence, especially on behalf of the Attorney-General, to show that there were sufficient provisions for the protection of minors in Sri Lanka’s Penal Code. The petitioners’ argument was rejected by the Supreme Court.

The second argument was that the repeal of the offences could threaten society. No evidence was presented to back this claim, and it was rejected.

“Thirdly, they argued that the removal could cause a severe spread of HIV, creating a serious threat to the law enforcement as well as national security. No evidence was presented to support this claim, but lawyers representing intervening petitioners presented a large volume of evidence to say that the passing of this Bill could lead to a curtailing of HIV infections. The Supreme Court rejected the petitioners’ argument,” Dr. Chandrasekaram shared.

The fourth argument was that the Bill threatened Buddhism. “Here, lawyers argued that the Theravada Buddhism practised in Sri Lanka does not in any way discriminate against LGBTQIA+ persons and that anything preventing sexual relationships were if at all for the clergy and not laypersons, so the Supreme Court rejected this argument as well.”

Dr. Chandrasekaram went on to say that the Supreme Court considered two concepts: The right to privacy and the right to dignity. The first considered the right to a private life, and not having the State interfere with what does in the privacy of a bedroom. With regard to the concept of dignity, Dr. Chandrasekaram said Indian and South African rulings were considered here, with the Supreme Court considering in depth the enabling of LGBTQIA+ persons to live with dignity.

“Here, the Supreme Court stated that human dignity is the basis of the fundamental human rights included in our Constitution. Due to this, the LGBTQIA+ community’s right to live with dignity is protected by Sri Lanka’s Constitution. This is extremely important as for the first time the LGBTQIA+ community in Sri Lanka is being considered as a people who have the right to live with the same dignity and right to equality as other communities in the country,” Dr. Chandrasekaram explained.

What does the ruling really mean?

According to Dr. Chandrasekaram, the petitioners argued that the proposals made by the Bill were in violation of the Constitution, and would thus need a 2/3 majority vote and perhaps even a referendum. However, the Supreme Court’s ruling means that a Parliamentary majority, or over 50%, was sufficient to pass the Bill.

“We say this Bill should be passed. There is no barrier to it being adopted. The Supreme Court says the LGBTQIA+ community must be treated with equality. Any Members of Parliament, whether pro-Government or in the Opposition, who do not support this Bill have no ethical right to do so, since the Supreme Court is clear about its ruling. Not supporting this Bill translates as those MPs not being ready to recognise us as equal citizens,” Dr. Chandrasekaram emphasised.

What comes next?

As Dr. Chandrasekaram said, this is the first step towards decriminalising homosexuality. The fight doesn’t end here as there are other provisions in the Penal Code that lack clear definitions and are thus misused by law enforcement to discriminate against LGBTQIA+ persons.

“The offences don’t have a clear definition, and the existence of such offences in the Penal Code allows the law to be interpreted at will by law enforcement. What is an unnatural offence? No lawyer in the Supreme Court was able to find a proper definition. What is an act of gross indecency? No one could find a definition,” Dr. Chandrasekaram said.

He added: “A community in the country being violated due to laws without a clear definition goes against Article 12 of the Constitution, which states that all citizens are equal before the law.”

This Bill, if passed, will protect LGBTQIA+ persons’ right to privacy. “However, these are all acts that take place in private spaces, like our homes or hotel rooms. If they take place in public spaces, the Penal Code has clear provisions that allow for the arrest of those who engage in indecent behaviour in public.”

“The question is whether LGBTQIA+ people will have sex in public. This is preposterous. This will never happen in a society. And there are already public nuisance laws for such events,” Dr. Chandrasekaram said.

In terms of other provisions without clear definitions, Dr. Chandrasekaram spoke about the Vagrants Ordinance, which he said was introduced to ensure the State had security of labour in industries and estates.

“We want the Vagrants Ordinance also to be repealed because the Vagrants Ordinance was also brought about by the British. Gross indecency is not defined and now, they use the Vagrants Ordinance to arrest LGBTQIA+ people, sex workers and so on,” Satkunanathan said, adding that sex work is not criminalised in Sri Lanka, but law enforcement uses the Vagrants Ordinance to arrest sex workers.

“The Vagrants Ordinance was brought about by the British with other intentions, like stopping people from protesting and to control the natives,” she said, adding that it restricts rights and controls populations.

These laws being Victorian is an argument made by human rights lawyers and activists, but Satkunanathan shared that in its ruling, the Supreme Court too, referred to the laws as Victorian. “These laws are not, contrary to what people claim, part of our culture. These were imposed upon us during the period we were colonised by the British. Although Britain has repealed its provisions, in Sri Lanka, we retain them and falsely claim that they are part of our culture,” she added.