On 9 May, the Minister of Women, Child Affairs, and Social Empowerment presented the Gender Equality Bill, which had been published in the gazette on 17 April. The bill was subsequently challenged in the Supreme Court and on 7 June, the Supreme Court declared that the bill was inconsistent with the Constitution as a whole and stipulated that it should be enacted only with a two-thirds majority in Parliament and the approval of the people through a referendum.

The Supreme Court has determined that the Gender Equality Bill is inconsistent with Article 12 of the Constitution. The court ruled that the bill cannot be enacted into law unless the proper procedures outlined in Articles 83 and/or 84, read in conjunction with Article 80 of the Constitution, are followed. This procedure requires a two-thirds majority vote from the entire number of Members of Parliament (including those not present) in addition to approval through a referendum.

Challenging the bill in court 

Given that the bill was challenged on the last day – since the time to challenge bills tabled in Parliament lapses after 14 days – the Supreme Court conducted the hearing on the 15th day. On this occasion, unfortunately, no intervening petitioners were within time to intervene.

Sharing his thoughts on the matter, counsel for the intervening petitioner Attorney-at-Law Thishya Weragoda said: “I also do not fault the court on it in any sense because, at the end of the day, it is the argument that has been presented. Therefore, if anyone wanted to show that this bill was good, had nothing wrong with it, and was constitutional, intervention should have been made at the right time because when we intervened, the court said that we were out of time in our intervention. That is exactly what Justice Padman Surasena says about my application. 

“The problem was that 14 days had elapsed and the court had fixed the matter on the 15th day. The intervenient should have paid more attention to the date; the proponent of the bill should have been more vigilant because if it is important to you, then you should have been ready and waiting,” he said.

Weragoda filed an intervening petition on behalf of Equal Ground Executive Director Rosanna Flamer-Caldera. Speaking about the outcome of events, she said: “We are extremely disappointed about the determination given by the Supreme Court as the Gender Equality Bill was set to make provisions for the implementation of gender equality.”

With regard to Equal Ground, she said: “Our mission is ‘equality for all sexual orientations and gender identities; human rights for all’. We have been advocating for equal rights for two decades and understand the importance of a comprehensive policy on gender. 

“As the petitioner in the landmark case Rosanna Flamer-Caldera vs. Sri Lanka before the Committee on the Elimination of Discrimination against Women (CEDAW), the committee held that my rights had been violated by penal laws that criminalise consensual same-sex sexual relationships between women and that it also violated my rights to non-discrimination. The CEDAW also urged that I be protected from gender-based violence, allowed participation in public and political life, and entitled to equality before the law and family rights.”

“We were hoping that this extremely progressive bill would further guarantee equal rights of all genders,” she added. 

President’s Office Legal Advisor Aritha Wickramasinghe, who was also instrumental in bringing forth this bill, shared: “There is a whole concept behind intervening petitioners, something that courts have accepted throughout since the enactment of this Constitution. Despite this two-week deadline, intervening petitioners have always been allowed to come in after a challenging petition. 

“In this situation, if you are preventing the intervention, you are actually preventing the other side from being heard. That itself is a violation of natural justice and you are basically leaving room for abuse, which happened in this case when they filed a petition on the very last day to oppose the bill. 

“What happens at that stage? The intervening petitioners can only come in after it has been challenged. The same happened when the Penal Code Amendment Bill was challenged, but intervening petitions were filed on the day of the hearing.”

About the determination 

Sharing his thoughts with regard to the determination, Wickramasinghe added: “The purpose of this bill was to achieve equality primarily between men and women. The majority in this country are women, but despite this, they are marginalised and do not have the same opportunities as men. They are often discriminated against and it is unfortunate that the bill was looked at as something for LGBTQIA+ people. 

“While yes, there are LGBTQIA+ women, this bill was about everyone’s right to equality being protected. Those women would have also benefited along the way. What happens is that people use their bigotry against the LGBTQIA+ community to deny equality for women, even their identity as women – this biologically-defined woman. That is what is unfortunate.”

Wickramasinghe also noted: “Unlike other bills, they did not propose any amendments; they note what is unconstitutional but they have not proposed any amendments as such.”

Weragoda also shared his thoughts on the determination, stating: “You don’t test future legislation by the fact that there are inconsistent laws in existence; you test constitutionality as at date and bills of this nature are to be assessed in lieu of contemporaneous community standards, not by what was said 80 years ago or when the Penal Code was drafted and Article 365 was brought in.” 

He added: “In any event, one of the things I noticed is that there was very little reliance on the Supreme Court determination of the private member’s bill to repeal Article 365. The jurisprudence of that determination was not properly assessed. There is also the determination from the Indian Supreme Court with regard to the repeal of India’s Penal Code. It feels unfortunate that these matters were not considered.”

“What the court is saying is that we already have the laws in place for gender equality,” Weragoda further said, pointing out that Article 12 categorically notes that there can be no discrimination based on ‘any such other grounds’ and that the Constitution is not exhaustive. “Here, the Supreme Court was concerned about how this future law would create a situation where ‘anything could go,’” he said. 

Given that the bill in its entirety has been declared unconstitutional, it requires amendments if it is to be passed. Following the Supreme Court determination, the Women Parliamentarians’ Caucus expressed its support for the Government’s efforts to pass the legislation through Parliament. 

Speaking to Brunch, Women Parliamentarians’ Caucus Chairperson MP Dr. Sudarshini Fernandopulle said that it was up to the Government to decide on the future course of action. She added, however, that the caucus would extend its fullest support to take action in order to ensure the bill’s passage in Parliament.