Proposed Penal Code amendment and threat of promotion of sexual abuse of children – III

by Kalyananda Tiranagama
Executive Director
Lawyers for Human Rights and Development

(Second part of this article appeared in The Island of 12 June 2023)

Sri Lanka failed to get re-elected to the UN Human Rights Council at the elections conducted on May 21, 2008 despite strong efforts made by our government due to this vicious campaign carried on continuously for several months by a group of International NGOs with the backing of these foreign funded Sri Lankan NGOs to prevent Sri Lanka from being re-elected to the Council.

Sri Lanka’s 1st, 2nd, 3rd and 4th Universal Periodical Report Reviews have taken place in May 2008, October 2012, November 2017 and March 2022. On Each occasion these NGOs have carried on their usual hostile campaign against the country.

Real forces behind move to decriminalize homo-sexual conduct

From the above account it is clear that several foreign funded NGOs were carrying on a continuous campaign through the UN HRC in Geneva for decriminalization of homo-sexual conduct by bringing pressure on the SL Govt.

It is no secret that many of these NGOs actively participated in the Galle Face Aragalaya for the ouster of the former President and that resulted in Ranil Wickremesinghe being appointed as the Prime Minister.

On July 13, 2022 President Gotabaya Rajapaksa resigned and PM Ranil Wickremesinghe was elected by the Parliament as the interim President on July 21, 2022.

It appears that the most urgent task that remained to be addressed immediately by the Govt within one month of the election of the President was the protection of the rights of the LGBTQ communities.

A Presidential Media release issued on 24. 08. 2022 states that a Bill to amend the Penal Code with the aim of protecting the rights of the LGBTQ communities in Sri Lanka was handed over to the President on August 24, 2022 by MP Premanath C. Dolawatta. It has been submitted to the Parliament on the previous day by MP Dolawatta as a Private Member’s Bill.

The Presidential Media release further states: ‘‘The society of this country has an extremely backward notion regarding the LGBTQ community and as a result not only in daily life but even in govt and law enforcement agencies, this community has been subjected various forms of violence, oppression and harassment. At times even their democratic basic rights have been violated.

‘‘Punishment of individuals based on sexual orientation and sexual identification was spread throughout the world by colonial legal systems in the Victorian era, but in modern psychiatry this is not considered a crime or a perversion. Also, developed countries have worked to amend the law that penalize this community and limit their rights.

Having taken these factors into consideration, Parliamentarian Premanath C. Dolawatte has submitted this Private Members Bill.’’

It appears that MP Dolawatte has hurriedly submitted this Private Members Bill to Parliament having taken into consideration the Presidential concerns on the need of protecting the rights of the LGBTQ communities in Sri Lanka.

However, though this Bill has been presented to the President on August 24, 2022, it has not been published in the Govt Gazette till March 22, 2023 and the Bill published in the Gazette has been placed in the Order Paper of Parliament only on April 4, 2023.

According to media reports, when Sri Lanka’s 4th Periodic Report was taken up for consideration at the UN HRC at its Universal Periodic Review Working Group meeting held on February 1, 2023, the UK and the USA have urged Sri Lanka to repeal PTA and to decriminalize same-sex conduct.

(D) Thinking of Political Parties in Parliament on the Bill and their support for it

Discussion hosted by the Canadian High Commission

Within 3 weeks of the UN HRC Working Group Meeting in Geneva, a Panel Discussion on LGBTQ rights has been jointly hosted by the Canadian High Commission in Sri Lanka and NextGenSL. Attorney-at-Law Aritha Wickramasinghe, Equality Director of iProbono has moderated this panel discussion.

David Sood, Counsellor, Political and Trade of the Canadian High Commission in Sri Lanka has delivered the opening remarks while Bhoomi Narendran and Kaushalya Sendanayake, a representative from Equal Ground shared observations from the civil society perspective.

Canada is also a member of the group of ten countries headed by the USA and the UK that brought resolutions against Sri Lanka in the UN HRC, Geneva alleging commission of war crimes and demanding accountability.

A detailed account of the views expressed by the participants at this Discussion was published in the Ceylon Today newspaper of February 20, 2023 under the title ‘‘Key Political figures make historic pledge on LGBTQ rights.’’

Representatives of several major political parties – SLPP MP Premanath Dolawatta, Samagi Jana Balavegaya MP Mayantha Dissanayake, Freedom People’s Congress MP Prof. Charitha Herath and CWC leader Minister Jeevan Thondaman have shared their views at the discussion on non-discrimination of LGBTQ Sri Lankans.

There can be no doubt that any of these MPs have not studied or seen the Bill though they have expressed their support to the Bill at this discussion.

When one examines the sequence of events, inevitably a series of questions will arise in the mind of any rationally thinking person as to what may have actually happened.

This Bill was published in the Gazette of March 22, 2023 and this discussion was conducted more than one month before its publication in the Gazette;

Has the MP Dolawatta had the Bill printed in Sinhala, Tamil and English languages and distributed among all 225 MPs in Parliament at his personal cost before it was published in the Gazette?

What was the need for him to take such a personal interest and do it such a hurry?

This Bill does not mention anything about LGBTQ rights. It only provides for the repeal of two sections in the Penal Code. The entire Bill consisting of one clause with 3 sub-paragraphs is as follows:

Clause 2. (i) S. 365 in the principal enactment is hereby repealed and it is amended by substituting the following section:

‘’Whoever voluntarily has carnal intercourse against the order of nature with an animal, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also liable to fine.’’

(ii) S. 365A in the principal enactment is hereby repealed.

(iii) The intent of the legislature in enacting this legislation must be considered as amending the provisions that makes sexual orientation a punishable offence.

It is strange that none of the four MPs who participated in this discussion has uttered a word about the contents of the Bill or the consequences that would inevitably follow if these two Sections – S. 365 and S. 365A – in the Penal Code enacted in 1995 to protect children from sexual abuse are repealed.

However, when one analyses the views expressed by these MPs, one can gather a lot of information on the stand that will be taken by these political parties when this Bill is taken up for debate in Parliament and the thinking of their Parliamentarians. Let us examine the views expressed by these MPs:

This is what MP Dolawatte has said: ‘‘Consider this as an act of an untamed elephant. I have not spoken to the LGBTQ community nor have I spoken to any foreign mission in SL. I only did my part as a lawmaker, to ensure the rights of citizens of my country.’’

What a great man! Without any communication with the LGBTQ community, he has come forward in defence of their rights. He acts totally independently. He has no dealings with any foreign mission, though he has attended this discussion hosted by the Canadian High Commission.

‘‘I know the ultimate fight should be for non-discrimination and decriminalization of the LGBTQ community is only one aspect of it. But we must start somewhere.’’

Certainly! Decriminalization of the LGBTQ community is the first step. They have to move forward step by step. The ultimate fight should be for non-discrimination or legalizing same sex marriages.

‘‘Minister Ali Sabry has assured that the Govt will support the motion. Minister Prasanna Ranatunga also has communicated to me that the ruling party will back the Bill. So, I am hopeful that the motion will secure a majority in Parliament.’’

Great! SLPP Govt is boldly coming forward to achieve what it could not achieve in the first half of its rule. Is this Basil Chinthanaya, Namal Chinthanaya or Ranil Chinthanya? It is more likely to be Ranil Chinthanya.

This is what SJB MP Mayantha Dissanayake has said: ‘‘I am in favour of the Private Member’s Bill presented by Dolawatte. We are a progressive party and we understand the need for change. I briefly spoke to our Party Leader Sajith Premadasa and shared my views on this matter with him. We haven’t made a formal policy statement on this yet, but we are in favour of this because we want to do the right thing by the country.”

How Nice! At last SJB has found one right thing done by the Ranil – SLPP Govt for the good of the country.

Mayantha Dissanayake has come out with the strategy also to overcome resistance to the Bill:

‘’When this Bill is presented to Parliament, there will be stiff resistance from many quarters. That’s something we must expect. But as a Parliamentarian and a person who values human rights, I will champion this cause within my party and within our parliamentary group. There are many countries in the world that have made progressive steps in this regard and we must follow those examples.’’

‘’Addressing the concerns of religious circles will be a critically important task and I am confident that we will be able to convince them by directly engaging with the right information. For instance, this is perfectly in line with the fundamental teachings of Buddhism such as compassion and that should be the basis of our engagement with Buddhist monks. We inherited a country that needed change. We must now deliver,’’ MP Dissanayake said, adding that his traditional upbringing in Kandy would not deter him from supporting this cause.

With a Legislature with this type of bold MPs with a far-sighted vision who are prepared to come forward breaking up all obstacles and traditional barriers, President Wickremesinghe can achieve his goal of converting Sri Lanka into a Western-oriented country with a modern outlook within a very short period of time. He need not wait till 2048.

(To be continued)