Redoubtable ‘wisdom’ of our lawmakers

In a move of unadulterated foolhardiness, the powers-that-be published a gazette notification recently to revise Sections 363 and 364 of the Sri Lankan Penal Code. It attempted to lower the girls’ age of consent for sexual intercourse to 14 years and the punishment to be levied to the accused male who has engaged in such sexual activity to be considerably reduced if the accused male is under 22 years of age.

This initiative on the part of the government, set in motion a flurry of heavy and resounding protests by the general public, women’s organisations, and medical professional institutions, against this contemptible attempt to amend the Penal Code by publishing the gazette notification. All these protesting groups have made it very clear that this move is a very retrograde step and does not stand up to any kind of reason or wisdom. Confronted by an avalanche of such drastic objections and protests, the government has given in and withdrawn the said offensive piece of legislation. However, there was a vague suggestion that the ministry concerned would initiate discussions with all the stakeholders on this matter.

It must be pointed out that there is no universally recognised international upper cut-off age limit when a person stops being considered a child. The definition of a child varies across different contexts, cultures, and legal systems right around the globe.

However, the United Nations Convention on the Rights of the Child (UNCRC) defines a child as “every human being below the age of eighteen years, unless under the law applicable to the child, majority is attained earlier.” This convention has been ratified by a vast number of countries, including Sri Lanka, and the age of 18 is widely accepted internationally as the cut-off age for childhood. As just one example, all the banks in Sri Lanka consider anyone under the age of 18 years as a minor and one can get a driving license in our country only when one has reached that magic age of 18. That said, some countries may have different legal definitions and ages for transitions from being a child to being considered an adult. These ages typically range from 16 to 21 in several different jurisdictions.

The minimum age of consent for sexual intercourse is the age at which someone is considered capable of making that decision. The unbiassed objective of the imposition of a minimum age of sexual consent is to protect adolescents from sexual abuse as well as the potential consequences of early sexual activity on their rights and development. Many medical professionals and their organisations have seriously objected to the proposed amendment of the age of consent for sex to be reduced to 14 years from the current age of 16 years, for quite a few compelling medical reasons.

It has been clearly shown by scientific studies that a child of 14 years is not intellectually mature enough by any stretch of imagination to give informed consent for an act such as sexual intercourse. This is simply because she does not have the necessary and adequate understanding of the given situation. To make matters even worse, in this land of Sri Lanka, where acceptable sex education is not provided, a child of 14 years who consents to sexual intercourse is not intellectually empowered and is most likely to be significantly ignorant of the possible repercussions of the sexual act, such as unwanted pregnancy, as well as the potential exposure to sexually transmitted diseases. In other words, that so-called consent is not one which anyone would call fully informed consent.

A child of 14 years is not physically and mentally mature enough to be a mother to a baby she may give birth to, following the sexual act. In addition, such adolescent mothers are a medically high-risk group to develop various complications of pregnancy. These include medical disorders of physical as well as mental nature. The offspring too would be at risk due to inadequate nurturing, as well as to have a propensity to develop physical, intellectual, and emotional problems, well into the future.

It has to be considered that in the proposed amendment, the male culprit’s age is mentioned as under 22 years to qualify for a more lenient judicial sentence. The attempt is to increase it to 22 years from the current limit of 18 years.

Is it the contention of the government that giving in to carnal desires against the law would warrant leniency simply because of an age-related Romeo and Juliet phenomenon? If this is allowed to sail through, there is no guarantee that the upper age cut-off for the male culprit will not be increased further in the future. A wag remarked that even an octogenarian might qualify for a more lenient sentence in the future. All these contentions make one begin to wonder whether there is some ulterior motive behind this.

It is quite interesting to note some of the antecedent events or even the woeful lack of them, before the gazette was published.

We need to carefully assess the policy-making processes, if any for that matter, that were followed before the decision was made to amend the relevant sections of the Penal Code.

It is vital to unravel the processes followed before the authorities jumped in at the deep end to introduce such an offensive bill. One wonders which ministry initiated the process in the first place and wanted the amendments in question effected to the law. We have to examine the exact processes that took place. What was the specific trail that was followed?

Generally speaking, new laws are formulated by relevant ministries, extensively discussed, then sent to the Attorney General, followed by the submission of it to the Legal Draughtsman and finally presented to the Cabinet of Ministers. It is quite clear that none of these formalities were adhered to, as many of these institutions, including the Parliament, have denied any knowledge of this bill that was hastily sprung through a Government Gazette notification.

It is necessary to look for the reasons that prompted this despicable attempt. More than anything, such a detailed analysis would help to guard against and even prevent recurrences of this kind of tyrannical behaviour on the part of the powers-that-be in the future. It has been claimed that the motive behind this is to ensure some legal requirements but one would argue that drastic changes such as the attempted amendments to the Penal Code should only be presented following open and frank discussions with all stakeholders. It is quite obvious that this was not done.

As indicated by a statement in the Parliament on 01 April, 2024, the proposal to amend the relevant sections of the Penal Code have been “withdrawn”. Yet for all this, the Ministry of Justice is now planning to have a so-called dialogue with interested parties in the immediate future regarding these proposed amendments to the Sri Lankan Penal Code.

The implications are that the so-called bill has not been withdrawn once and for all; at least not as yet.

To make matters worse, it is likely to be presented again and rushed through the parliament. There have been many instances where the authorities withdrew some controversial legislations following intense protests only to present them again a slightly modified form and pushed through the legislature. So, watch out people …, we need to remain intensely vigilant.

Concerned Sri Lankan