Features
Proposed Penal Code amendment and threat of promotion of sexual abuse of children
by Kalyananda Tiranagama
Executive Director
Lawyers for Human Rights and Development
Since 1980s, with economic liberalisation, the opening of the country for tourism, exposure of children to electronic media and the increased migration of mothers for employment as house maids in the Middle East, there has been a continuous, visible increase in the incidents of child sexual abuse and other acts of child abuse in Sri Lanka, which has earned notoriety as a paradise of foreign paedophiles. Incidents of child sexual abuse are frequently reported in the national press. However, prior to 1995, there were no provisions in the Penal Code, which could be effectively used to curb this trend.
In 1995, several amendments were made to the Penal Code with the objective of bringing down the relatively high incidence of sexual abuse of women and children prevailing in the country, by enabling Courts to impose deterrent penalties on persons found guilty of committing sexual offences, and enhancing protection to women and children against abuse, specially sexual abuse.
SLPP MP Premanath C. Dolawatta has presented a Bill in Parliament, seeking the repeal of two important provisions of the Penal Code brought in by 1995 Amendments – S. 365 and S.365A, which were specially enacted to protect children from sexual abuse and punish sexual abusers of children with deterrent penalties. This Bill containing only two clauses has been brought for the purpose of decriminalising LGBTQ sexual activities.
The constitutionality of this Bill has been challenged before the Supreme Court by several petitioners who are concerned about the welfare and protection of children, and the Supreme Court has determined that none of its provisions are inconsistent with the Constitution and therefore the Bill can be passed by a simple majority in Parliament.
In this article, I wish to examine and discuss: (a) the situation that prevailed in this country in relation to sexual abuse of children prior to the enactment of Penal Code Amendments of 1995; (b) the anti-national and anti-Sri Lanka campaigns carried on by the LGBTQ groups and other proponents of this Bill before the UN HRC in Geneva; (c) the role of the international actors in getting LGBTQ sexual conduct decriminalised in Sri Lanka; (d) thinking of political parties in Parliament and their support for the Bill; (e) a comparison of the existing Penal Code provisions and the proposed amendments, and the stand taken by the State before the Supreme Court; and (f) consequences of the passage of the Bill on the country, culture and younger generation.
Situation prior to Enactment of 1995 Penal Code Amendment
It was a time the government was enthusiastically promoting tourism and there was an increase in the number of tourists coming and staying in tourist resorts in the coastal areas of the South and the West. During this period several cases of sexual abuse of male schoolchildren by foreign tourists were reported from several areas in the country.
In 1993, the Police filed several cases in the Balapitiya Magistrate’s Court against some European tourists for sexually abusing several children under 12 years of age studying in a school in Balapitiya. A student over 14 years of age who had got used to this type of conduct earlier, studying in the same school, had procured them for tourists, having brought them to Ambalangoda Rest House premises in the guise of going with them to the seashore. At that time there were no provisions in the Penal Code, specially enacted with the objective of protecting children from sexual abuse by dealing with such offenders with deterrent penalties.
The Police produced the foreign tourists in Court on the allegation of committing an act of gross indecency on the children, an offence punishable under S. 365A of the Penal Code. That was the general practice among the Police. Gross indecency was an offence triable by a Magistrate’s Court and the penalty for the offence was imprisonment for a term which may extend up to two years or with fine or both. The Court had the discretion to release a convicted offender with only a fine without imposing a jail sentence.
The maximum fine a Magistrate’s Court could impose was Rs. 1,500. The Court had the power to impose a lesser fine, even a fine of Rs. 500 is a legal penalty. As those offenders were European tourists, it was most likely that the Court would have released them with only a fine without imposing any jail sentence upon their pleading guilty, or on conviction.
A child rights NGO called ‘‘Protection of Environment and Children Everywhere’’ (PEACE), headed by Maureen Seneviratne, was pursuing the cases looking after the interests of the affected children. At the request of PEACE, I volunteered to appear in those cases to look after the interests of these children.
I appeared in the Balapitiya Magistrate’s Court for the affected children and informed it that there was a need for amending the charge sheet as the offence alleged to have been committed by these suspects – anal sex – was not gross indecency punishable under S. 365A, but a much more serious offence, carnal intercourse against the order of nature with any man, woman or beast, punishable under S. 365 of the Penal Code with imprisonment of either description for a term which may extend to ten years and fine.
It was an indictable offence, triable only by the High Court. Police agreed with my submission. However, a group of lawyers from Balapitiya Bar appearing for the offenders rose up against me, shouting that an outsider had no right to intervene in their cases. The Magistrate accepted my submission and put off the case for necessary action. Making similar submissions, I represented the interests of several children in the Magistrate’s Courts of Kesbewa and Negombo also against foreign paedophiles during that period.
Several foreign pedophiles against whom there were cases pending in our courts fled the country while they were on bail pending trial. A Belgian national Luc Coomens and a Swiss national Armen Paffhauser, against whom there were cases pending in Matara Magistrate’s Court and another Swiss national Thomas Casper, against whom there was a case pending in Kesbewa Magistrate’s Court, were among the foreign child abusers who fled the country after being released on bail. Though their passports were impounded, they managed to flee the country.
Existing Penal Code provisions were hardly adequate to arrest this trend of continuous increase of incidents of sexual abuse of women and children. Sri Lanka ratified the UN Convention on the Rights of the Child in July 1991 and committed to bring about required reforms in the law to protect children from sexual and other forms of abuse. Sri Lanka was required under the Convention to present its first Report to the Child Rights Committee of the UN HRC in 1996 with measures taken in this regard. There was a strong and urgent demand for amendment of the Penal Code with adequate provisions and deterrent penalties that could have the effect of arresting the increasing incidence of sexual abuse of women and children. It was under these circumstances that the Penal Code Amendment Act No. 22 of 1995 was passed.
1995 Penal Code Amendments
The following are the main changes brought about in the law by these amendments:
Creating several new offences such as incest, grave sexual abuse, sexual exploitation of children, procuration and using children for obscene publications;
Providing for enhanced penalties for sexual offences and minimum mandatory jail sentences;
Recognition of persons under 18 years of age as children for the purpose of the offences dealt with by these amendments;
Increasing the age of statutory rape or consent to sex from twelve to sixteen years.
Granting exclusive jurisdiction over child abuse cases to the High Court.
(B) NGO Conspiracy to Prevent Election of Sri Lanka to the UN Human Rights Council
When the UN Human Rights Council in Geneva was established by the United Nations Organization in 2006, Sri Lanka was elected as a member of the inaugural Human Rights Council by the General Assembly of the United Nations. Before the election, several foreign funded NGOs working in the Human Rights field in Sri Lanka jointly with LGBTQ groups carried on a vigorous and vicious campaign to prevent the election of Sri Lanka to the Council. They spread all sorts of false and exaggerated stories on the violations of human rights committed by Sri Lankan government agencies and requested member states not to vote for Sri Lanka. Despite their campaign, with the support of the majority of Asian and African countries, Sri Lanka was elected as a member of the UN Human Rights Council. (To be continued)
by Dr Gotabhya Ranasinghe
Senior Consultant Cardiologist
National Hospital Sri Lanka
When we sought a meeting with Hon Dr. Ramesh Pathirana, Minister of Health, he graciously cleared his busy schedule to accommodate us. Renowned for his attentive listening and deep understanding, Minister Pathirana is dedicated to advancing the health sector. His openness and transparency exemplify the qualities of an exemplary politician and minister.
Dr. Palitha Mahipala, the current Health Secretary, demonstrates both commendable enthusiasm and unwavering support. This combination of attributes makes him a highly compatible colleague for the esteemed Minister of Health.
Our discussion centered on a project that has been in the works for the past 30 years, one that no other minister had managed to advance.
Minister Pathirana, however, recognized the project’s significance and its potential to revolutionize care for heart patients.
The project involves the construction of a state-of-the-art facility at the premises of the National Hospital Colombo. The project’s location within the premises of the National Hospital underscores its importance and relevance to the healthcare infrastructure of the nation.
This facility will include a cardiology building and a tertiary care center, equipped with the latest technology to handle and treat all types of heart-related conditions and surgeries.
Securing funding was a major milestone for this initiative. Minister Pathirana successfully obtained approval for a $40 billion loan from the Asian Development Bank. With the funding in place, the foundation stone is scheduled to be laid in September this year, and construction will begin in January 2025.
This project guarantees a consistent and uninterrupted supply of stents and related medications for heart patients. As a result, patients will have timely access to essential medical supplies during their treatment and recovery. By securing these critical resources, the project aims to enhance patient outcomes, minimize treatment delays, and maintain the highest standards of cardiac care.
Upon its fruition, this monumental building will serve as a beacon of hope and healing, symbolizing the unwavering dedication to improving patient outcomes and fostering a healthier society.We anticipate a future marked by significant progress and positive outcomes in Sri Lanka’s cardiovascular treatment landscape within the foreseeable timeframe.
by Fr. Emmanuel Fernando, OMI
Jesuit Fr. Aloysius Pieris (affectionately called Fr. Aloy) celebrated his 90th birthday on April 9, 2024 and I, as the editor of our Oblate Journal, THE MISSIONARY OBLATE had gone to press by that time. Immediately I decided to publish an article, appreciating the untiring selfless services he continues to offer for inter-Faith dialogue, the renewal of the Catholic Church, his concern for the poor and the suffering Sri Lankan masses and to me, the present writer.
It was in 1988, when I was appointed Director of the Oblate Scholastics at Ampitiya by the then Oblate Provincial Fr. Anselm Silva, that I came to know Fr. Aloy more closely. Knowing well his expertise in matters spiritual, theological, Indological and pastoral, and with the collaborative spirit of my companion-formators, our Oblate Scholastics were sent to Tulana, the Research and Encounter Centre, Kelaniya, of which he is the Founder-Director, for ‘exposure-programmes’ on matters spiritual, biblical, theological and pastoral. Some of these dimensions according to my view and that of my companion-formators, were not available at the National Seminary, Ampitiya.
Ever since that time, our Oblate formators/ accompaniers at the Oblate Scholasticate, Ampitiya , have continued to send our Oblate Scholastics to Tulana Centre for deepening their insights and convictions regarding matters needed to serve the people in today’s context. Fr. Aloy also had tried very enthusiastically with the Oblate team headed by Frs. Oswald Firth and Clement Waidyasekara to begin a Theologate, directed by the Religious Congregations in Sri Lanka, for the contextual formation/ accompaniment of their members. It should very well be a desired goal of the Leaders / Provincials of the Religious Congregations.
Besides being a formator/accompanier at the Oblate Scholasticate, I was entrusted also with the task of editing and publishing our Oblate journal, ‘The Missionary Oblate’. To maintain the quality of the journal I continue to depend on Fr. Aloy for his thought-provoking and stimulating articles on Biblical Spirituality, Biblical Theology and Ecclesiology. I am very grateful to him for his generous assistance. Of late, his writings on renewal of the Church, initiated by Pope St. John XX111 and continued by Pope Francis through the Synodal path, published in our Oblate journal, enable our readers to focus their attention also on the needed renewal in the Catholic Church in Sri Lanka. Fr. Aloy appreciated very much the Synodal path adopted by the Jesuit Pope Francis for the renewal of the Church, rooted very much on prayerful discernment. In my Religious and presbyteral life, Fr.Aloy continues to be my spiritual animator / guide and ongoing formator / acccompanier.
Fr. Aloysius Pieris, BA Hons (Lond), LPh (SHC, India), STL (PFT, Naples), PhD (SLU/VC), ThD (Tilburg), D.Ltt (KU), has been one of the eminent Asian theologians well recognized internationally and one who has lectured and held visiting chairs in many universities both in the West and in the East. Many members of Religious Congregations from Asian countries have benefited from his lectures and guidance in the East Asian Pastoral Institute (EAPI) in Manila, Philippines. He had been a Theologian consulted by the Federation of Asian Bishops’ Conferences for many years. During his professorship at the Gregorian University in Rome, he was called to be a member of a special group of advisers on other religions consulted by Pope Paul VI.
Fr. Aloy is the author of more than 30 books and well over 500 Research Papers. Some of his books and articles have been translated and published in several countries. Among those books, one can find the following: 1) The Genesis of an Asian Theology of Liberation (An Autobiographical Excursus on the Art of Theologising in Asia, 2) An Asian Theology of Liberation, 3) Providential Timeliness of Vatican 11 (a long-overdue halt to a scandalous millennium, 4) Give Vatican 11 a chance, 5) Leadership in the Church, 6) Relishing our faith in working for justice (Themes for study and discussion), 7) A Message meant mainly, not exclusively for Jesuits (Background information necessary for helping Francis renew the Church), 8) Lent in Lanka (Reflections and Resolutions, 9) Love meets wisdom (A Christian Experience of Buddhism, 10) Fire and Water 11) God’s Reign for God’s poor, 12) Our Unhiddden Agenda (How we Jesuits work, pray and form our men). He is also the Editor of two journals, Vagdevi, Journal of Religious Reflection and Dialogue, New Series.
Fr. Aloy has a BA in Pali and Sanskrit from the University of London and a Ph.D in Buddhist Philosophy from the University of Sri Lankan, Vidyodaya Campus. On Nov. 23, 2019, he was awarded the prestigious honorary Doctorate of Literature (D.Litt) by the Chancellor of the University of Kelaniya, the Most Venerable Welamitiyawe Dharmakirthi Sri Kusala Dhamma Thera.
Fr. Aloy continues to be a promoter of Gospel values and virtues. Justice as a constitutive dimension of love and social concern for the downtrodden masses are very much noted in his life and work. He had very much appreciated the commitment of the late Fr. Joseph (Joe) Fernando, the National Director of the Social and Economic Centre (SEDEC) for the poor.
In Sri Lanka, a few religious Congregations – the Good Shepherd Sisters, the Christian Brothers, the Marist Brothers and the Oblates – have invited him to animate their members especially during their Provincial Congresses, Chapters and International Conferences. The mainline Christian Churches also have sought his advice and followed his seminars. I, for one, regret very much, that the Sri Lankan authorities of the Catholic Church –today’s Hierarchy—- have not sought Fr.
Aloy’s expertise for the renewal of the Catholic Church in Sri Lanka and thus have not benefited from the immense store of wisdom and insight that he can offer to our local Church while the Sri Lankan bishops who governed the Catholic church in the immediate aftermath of the Second Vatican Council (Edmund Fernando OMI, Anthony de Saram, Leo Nanayakkara OSB, Frank Marcus Fernando, Paul Perera,) visited him and consulted him on many matters. Among the Tamil Bishops, Bishop Rayappu Joseph was keeping close contact with him and Bishop J. Deogupillai hosted him and his team visiting him after the horrible Black July massacre of Tamils.
Sri Lanka-Singapore Free Trade Agreement
By Gomi Senadhira
senadhiragomi@gmail.com
“You might tell fairy tales, but the progress of a country cannot be achieved through such narratives. A country cannot be developed by making false promises. The country moved backward because of the electoral promises made by political parties throughout time. We have witnessed that the ultimate result of this is the country becoming bankrupt. Unfortunately, many segments of the population have not come to realize this yet.” – President Ranil Wickremesinghe, 2024 Budget speech
Any Sri Lankan would agree with the above words of President Wickremesinghe on the false promises our politicians and officials make and the fairy tales they narrate which bankrupted this country. So, to understand this, let’s look at one such fairy tale with lots of false promises; Ranil Wickremesinghe’s greatest achievement in the area of international trade and investment promotion during the Yahapalana period, Sri Lanka-Singapore Free Trade Agreement (SLSFTA).
It is appropriate and timely to do it now as Finance Minister Wickremesinghe has just presented to parliament a bill on the National Policy on Economic Transformation which includes the establishment of an Office for International Trade and the Sri Lanka Institute of Economics and International Trade.
Was SLSFTA a “Cleverly negotiated Free Trade Agreement” as stated by the (former) Minister of Development Strategies and International Trade Malik Samarawickrama during the Parliamentary Debate on the SLSFTA in July 2018, or a colossal blunder covered up with lies, false promises, and fairy tales? After SLSFTA was signed there were a number of fairy tales published on this agreement by the Ministry of Development Strategies and International, Institute of Policy Studies, and others.
However, for this article, I would like to limit my comments to the speech by Minister Samarawickrama during the Parliamentary Debate, and the two most important areas in the agreement which were covered up with lies, fairy tales, and false promises, namely: revenue loss for Sri Lanka and Investment from Singapore. On the other important area, “Waste products dumping” I do not want to comment here as I have written extensively on the issue.
1. The revenue loss
During the Parliamentary Debate in July 2018, Minister Samarawickrama stated “…. let me reiterate that this FTA with Singapore has been very cleverly negotiated by us…. The liberalisation programme under this FTA has been carefully designed to have the least impact on domestic industry and revenue collection. We have included all revenue sensitive items in the negative list of items which will not be subject to removal of tariff. Therefore, 97.8% revenue from Customs duty is protected. Our tariff liberalisation will take place over a period of 12-15 years! In fact, the revenue earned through tariffs on goods imported from Singapore last year was Rs. 35 billion.
The revenue loss for over the next 15 years due to the FTA is only Rs. 733 million– which when annualised, on average, is just Rs. 51 million. That is just 0.14% per year! So anyone who claims the Singapore FTA causes revenue loss to the Government cannot do basic arithmetic! Mr. Speaker, in conclusion, I call on my fellow members of this House – don’t mislead the public with baseless criticism that is not grounded in facts. Don’t look at petty politics and use these issues for your own political survival.”
I was surprised to read the minister’s speech because an article published in January 2018 in “The Straits Times“, based on information released by the Singaporean Negotiators stated, “…. With the FTA, tariff savings for Singapore exports are estimated to hit $10 million annually“.
As the annual tariff savings (that is the revenue loss for Sri Lanka) calculated by the Singaporean Negotiators, Singaporean $ 10 million (Sri Lankan rupees 1,200 million in 2018) was way above the rupees’ 733 million revenue loss for 15 years estimated by the Sri Lankan negotiators, it was clear to any observer that one of the parties to the agreement had not done the basic arithmetic!
Six years later, according to a report published by “The Morning” newspaper, speaking at the Committee on Public Finance (COPF) on 7th May 2024, Mr Samarawickrama’s chief trade negotiator K.J. Weerasinghehad had admitted “…. that forecasted revenue loss for the Government of Sri Lanka through the Singapore FTA is Rs. 450 million in 2023 and Rs. 1.3 billion in 2024.”
If these numbers are correct, as tariff liberalisation under the SLSFTA has just started, we will pass Rs 2 billion very soon. Then, the question is how Sri Lanka’s trade negotiators made such a colossal blunder. Didn’t they do their basic arithmetic? If they didn’t know how to do basic arithmetic they should have at least done their basic readings. For example, the headline of the article published in The Straits Times in January 2018 was “Singapore, Sri Lanka sign FTA, annual savings of $10m expected”.
Anyway, as Sri Lanka’s chief negotiator reiterated at the COPF meeting that “…. since 99% of the tariffs in Singapore have zero rates of duty, Sri Lanka has agreed on 80% tariff liberalisation over a period of 15 years while expecting Singapore investments to address the imbalance in trade,” let’s turn towards investment.
Investment from Singapore
In July 2018, speaking during the Parliamentary Debate on the FTA this is what Minister Malik Samarawickrama stated on investment from Singapore, “Already, thanks to this FTA, in just the past two-and-a-half months since the agreement came into effect we have received a proposal from Singapore for investment amounting to $ 14.8 billion in an oil refinery for export of petroleum products. In addition, we have proposals for a steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million), sugar refinery ($ 200 million). This adds up to more than $ 16.05 billion in the pipeline on these projects alone.
And all of these projects will create thousands of more jobs for our people. In principle approval has already been granted by the BOI and the investors are awaiting the release of land the environmental approvals to commence the project.
I request the Opposition and those with vested interests to change their narrow-minded thinking and join us to develop our country. We must always look at what is best for the whole community, not just the few who may oppose. We owe it to our people to courageously take decisions that will change their lives for the better.”
According to the media report I quoted earlier, speaking at the Committee on Public Finance (COPF) Chief Negotiator Weerasinghe has admitted that Sri Lanka was not happy with overall Singapore investments that have come in the past few years in return for the trade liberalisation under the Singapore-Sri Lanka Free Trade Agreement. He has added that between 2021 and 2023 the total investment from Singapore had been around $162 million!
What happened to those projects worth $16 billion negotiated, thanks to the SLSFTA, in just the two-and-a-half months after the agreement came into effect and approved by the BOI? I do not know about the steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million) and sugar refinery ($ 200 million).
However, story of the multibillion-dollar investment in the Petroleum Refinery unfolded in a manner that would qualify it as the best fairy tale with false promises presented by our politicians and the officials, prior to 2019 elections.
Though many Sri Lankans got to know, through the media which repeatedly highlighted a plethora of issues surrounding the project and the questionable credentials of the Singaporean investor, the construction work on the Mirrijiwela Oil Refinery along with the cement factory began on the24th of March 2019 with a bang and Minister Ranil Wickremesinghe and his ministers along with the foreign and local dignitaries laid the foundation stones.
That was few months before the 2019 Presidential elections. Inaugurating the construction work Prime Minister Ranil Wickremesinghe said the projects will create thousands of job opportunities in the area and surrounding districts.
The oil refinery, which was to be built over 200 acres of land, with the capacity to refine 200,000 barrels of crude oil per day, was to generate US$7 billion of exports and create 1,500 direct and 3,000 indirect jobs. The construction of the refinery was to be completed in 44 months. Four years later, in August 2023 the Cabinet of Ministers approved the proposal presented by President Ranil Wickremesinghe to cancel the agreement with the investors of the refinery as the project has not been implemented! Can they explain to the country how much money was wasted to produce that fairy tale?
It is obvious that the President, ministers, and officials had made huge blunders and had deliberately misled the public and the parliament on the revenue loss and potential investment from SLSFTA with fairy tales and false promises.
As the president himself said, a country cannot be developed by making false promises or with fairy tales and these false promises and fairy tales had bankrupted the country. “Unfortunately, many segments of the population have not come to realize this yet”.
(The writer, a specialist and an activist on trade and development issues . )
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