While rights activists and advocates have commended the recently-gazetted bill to decriminalise homosexuality, questions remain on the Parliament’s response, as only the National People’s Power (NPP) has thus far decided to support the proposed legislation.
In August 2022, Sri Lanka Podujana Peramuna (SLPP) MP Premnath C. Dolawatte introduced a Private Members’ Bill to amend Sections 365 and 365A of the Penal Code and decriminalise homosexuality.
The proposed decriminalisation of same-sex relationships would help reduce discrimination against the LGBTIQ (Lesbian, Gay, Bisexual, Transgender, Intersex, Questioning/Queer) (LGBTQ+) community, which has long been a goal of activists.
The marginalisation of this community has left them vulnerable and subjected to unfair treatment, resulting in limited access to healthcare, justice, and equitable opportunities in the workplace.
The proposed bill aims to address these issues and promote greater equity for members of the LGBTQ+ community. The recently gazetted version of the bill to amend the Penal Code, if enacted, would effectively decriminalise same-sex relations among consenting adults.
However, questions remain over the possibility of promoting paedophilia due to the non-inclusion of children in the bill. The original act reads: “Whoever voluntarily has carnal intercourse against the order of nature with a man, woman, or animal shall be punished.” However, “carnal intercourse against the order of nature” has not been defined.
The language of the proposed bill implies that carnal intercourse against the order of nature refers to an act done with an animal, since the bill now states “whoever voluntarily has carnal intercourse against the order of nature with an animal,” removing any mention of “with a man or woman”.
Groundless fears of paedophilia
EQUAL GROUND Executive Director Rosanna Flamer-Caldera affirmed that the new bill met the requests of the LGBTQ+ community: “The gazetted bill repeals both Sections 365 and 365A, so it meets the expectations of the LGBTQ+ community. The initial bill basically needed the two laws – 365 and 365A – to be amended. The new bill that has been gazetted repeals both laws and decriminalises adult same-sex relationships.”
She asserted that the claims that this would propagate paedophilia was a farce and a last-ditch attempt to derail the progress made in terms of decriminalising homosexuality.
“There’s discourse that the protection of children will go out the window and that this would give carte blanche for the entire gay community to molest kids. Firstly, it is absolutely incorrect to assert that the LGBTQ+ community molests kids – there are always bad apples in every bunch.
“The laws of Sri Lanka provide for the protection of children in a different Penal Code. So, to allay the fears of people who think that decriminalising homesexuality will cause LGBTQ+ people to go crazy – I think that’s just archaic thinking.
“Wherever decriminalisation has taken place in many jurisdictions in the world, these things that they are afraid of happening have not happened and never will. Laws are specific and there are specific laws to deal with paedophilia. The laws on sexual offences in Sri Lanka should be changed in a way that protects children even more.”
Doing the right thing
She said that it was now up to the Government to do the right thing and ensure that this bill was passed as soon as possible.
“We are vigilant about the fact that we can’t trust the Government to do the right thing just by thinking that it will do the right thing. We are very vigilant about that. Although the President has said the Government will not oppose decriminalisation and the Samagi Jana Balawegaya (SJB) has also expressed support, we are very apprehensive because there is a lot of nonsense on social media and various other avenues, where people who are adamantly against the LGBTQ+ community are lobbying against this bill.”
She added that the religious community must move away from its archaic mindset, stressing that the LGBTQ+ community would not be deterred in its endeavours.
“I think the clergy should look at themselves and judge their behaviour, without trying to put down other people’s behaviour. Being from the LGBTQ+ community is like being a straight person – that’s just the way you are born. You can’t suddenly just change and do things against your nature. There will obviously be pushback, but other countries have faced pushback and done the right thing. It’s all about doing the right thing here.”
ICJ position
International Commission of Jurists (ICJ) National Legal Advisor in Sri Lanka Mathuri Thamilmaran said that the requests of the LGBTQ+ community to actually repeal and not amend the clauses had been met with the new gazetted version of the bill.
“I think the demands of the community have been answered in the bill that has been gazetted. However, we have to see what happens in Parliament. From what I understand, there is a provision that it has to go to the Justice Ministry for approval, so I don’t know how that procedure will be done. I think many are concerned about this. ICJ’s advocacy is for decriminalisation and for reform of the law, as well as to protect the LGBTQ+ community from human rights violations.”
She pointed out that the focus would now be on Parliament and on how MPs voted.
“The main concern is of course how Parliament will respond to this, because reactions so far have been very muted. There has been no public outcry against or support for it from parliamentarians or other institutions other than LGBTQ+ organisations.
“Parliament should pass this because it’s long overdue. This law is a colonial import and decriminalisation is ongoing throughout the region, because there is acceptance that this is something that was imported by the British, that the situation has now changed, and that we have to get rid of such a colonial law. It is time that Sri Lanka also follows.”
She noted that Sri Lanka was obliged to the international community to decriminalise homosexuality. “It is also in violation of international human rights law obligations, because the Sri Lankan Government has been asked again at the UN Human Rights Council by the UN Human Rights Committee about decriminalisation.”
A further incentive for politicians, she noted, was that the LGBTQ+ community was a considerable voter base to tap into.
“All those in the LGBTQ+ community are voters as well and they make up a considerable segment of the population. I believe an EQUAL GROUND survey revealed that around 10-18% of the population belong to the LGBTQ+ community or identify as belonging to the community. So the number is quite high, being at least more than 10% of the population, and they are all voters.”
Political parties’ stance
Meanwhile, the NPP said that it would support the bill outright. “We will support it. We are yet to see the bill, but homesexuality is natural and as a policy, our party supports decriminalisation,” NPP stalwart MP Vijtitha Herath said.
SJB General Secretary Ranjith Madduma Bandara said that the party would discuss the bill in the coming days. “We have to see the bill and our party must discuss this and come to a consensus. We will come to a decision as a group. As a policy, our party believes that the LGBTQ+ community must be looked after.”
SJB MP Dr. Harsha de Silva said that his personal stance was to support the bill. “Personally, I will support the bill. We are yet to discuss this as a party.”
Pivithuru Hela Urumaya Leader MP Udaya Gammanpila said that their group of Government MPs sitting independently in the Opposition would be meeting on Monday (17) to discuss the bill.
“It is yet to be discussed by our group. Without having an internal discussion, I don’t want to express my personal views. We will be discussing this on Monday and taking a collective decision.”
Tamil National Alliance MP M.A. Sumanthiran said that while he personally supported the decriminalisation of homosexuality, his party would need to meet on the matter.
“Our party has not discussed it yet. I don’t think we’ve ever had a discussion on these issues, as our party does not discuss anything other than the ethnic issue. Therefore, we will have to discuss and take a stance. My personal view is that it need not be a criminal offence.”
SLPP General Secretary MP Sagara Kariyawasam said that while no decision had been taken regarding the party’s stance on the matter, he was confident that there would be no opposition to passing the bill from within the party.
“We haven’t had a special discussion as a party on this. We will get all our members to vote according to their conscience, but I don’t see any reason to oppose this bill.”
Considering that most developed countries, including our immediate neighbour India, have already decriminalised homosexuality, it is in the best interests of the Government and the country to have this legislation passed as soon as possible.