A ray of hope: proposed decriminalisation of LGBTQI+ rights in Sri Lanka

Ruwani Dantanarayana
FJ&G de Saram, Colombo
ruwani.dantanarayana@fjgdesaram.com

Introduction

In an age where most nations are debating the grant and recognition of rights to their lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI+) community, Sri Lanka has been in a blissful state of simply ignoring that it lives in a world which recognises the rights of the LGBTQI+ community and advocates for the rights of the LGBTQI+ community. It has thus fallen far behind in protecting the rights of the LGBTQI+ community in Sri Lanka.

As the law currently stands in Sri Lanka, there is no direct constitutional protection granting equality to the LGBTQI+ community and, under the law, sections 365 and 365A of the Penal Code of Sri Lanka penalise same-sex relationships. These laws, along with cultural and social stigmas, result in the LGBTQI+ community in Sri Lanka facing all forms of discrimination, marginalisation and violence.

In fact, a UK Home Office Country of Origin report[1] on Sri Lanka, summarised the widespread discrimination faced by LGBTQI+ people, including employment, education, healthcare and housing, and commented on the hate speech online, emotional violence and physical abuse the LGBTQI+ community in Sri Lanka faced.[2] Members of the lesbian gay and bisexual community do not live openly as their true selves, due to the social stigma they will face otherwise.[3]

Against this background, LGBTQI+ rights activists in Sri Lanka have been campaigning for years to change the law of the country which criminalises same sex relationships, since it is believed that the decriminalisation of same sex relationships would play an integral role in reducing discrimination against members of the LGBTQI+ community.

The law as it currently stands

Penal Code

Sections 365 and 365A of the Penal Code of Sri Lanka, criminalises consensual same-sex sexual relations and in specific prohibits ‘carnal intercourse against the order of nature’ and ‘gross indecency between persons’.

However, the Penal Code is silent as to what would constitute ‘carnal intercourse against the order of nature’ and ‘gross indecency between persons’ and, in the absence of convictions under the said provisions,[4] no interpretation of the said key terms has been determined by the Courts of Sri Lanka. Therefore, it is not possible to interpret how wide the terms could potentially be interpreted by a court if a conviction is made under the said provisions.

In 1995, the Parliament of Sri Lanka approved several amendments to the Penal Code,[5] which included amendments to sections 365 and 365A of the Penal Code, mostly in relation to the punishment imposed for a conviction under the said provisions and the reference to ‘any person’ from what was previously only referred to as ‘a man’ (thereby indicating that such offences could be committed by a man or a woman). The amendments came at a time when there was an increase of child sex abuse and as a result of the Government’s attempt to curtail child abuse, especially in the tourism industry.[6] However, the 1995 Amendment also failed to provide a clear interpretation of the key terms of ‘carnal intercourse against the order of nature’ and ‘gross indecency between persons’.

Although section 365 and section 365A of the Penal Code permit arrests only when there is evidence of the commission of ‘carnal intercourse’ or ‘gross indecency’, it has been reported that Sri Lankan police conduct arbitrary arrests of LGBTQI+ individuals without such evidence but on the purported grounds that the arrested individuals will commit such acts in the future.[7] The laws are also said to serve to perpetuate societal prejudices against the LGBTQI+ community and to validate, and even encourage, hate crimes and acts of discrimination and violence both by State and non-State actors.[8]

The lack of legal interpretations allows law enforcement to abuse the powers given to them by virtue of these laws to arrest, detain or harass persons of the LGBTQI+ community by wilfully misinterpreting the law and its intentions.[9]

Therefore, in this context, decriminalisation is of utmost important. In a recent article published by the Daily Mirror of Sri Lanka,[10] a human rights lawyer, activist and former Commissioner of Human Rights has stated that ‘Decriminalisation is an extremely important and long overdue step. It will show that the law, rightfully, does not view same-sex relationships as an offence, a wrong or something that requires state interference or punishment.’[11]

Constitution of Sri Lanka

The Constitution of Sri Lanka also does not offer any constitutional protection for the equal treatment of the LGBTQI+ community.

The Constitution of Sri Lanka has enshrined within it the principle of equality and non-discrimination and includes a ‘Fundamental Rights’ chapter that specifies the rights that all citizens can enjoy.[12] It includes the right to equal protection under the law,[13] the freedom of movement, the right to choose one’s residence, freedom of expression,[14] and freedom from cruel and inhuman treatment.[15]

Article 12 of the Sri Lankan Constitution provides, inter alia, for the right of equality which includes the right to equal protection under the law, to be protected against discrimination on the grounds of race, religion, language, caste, sex, political opinion, place of birth.

Despite the fundamental rights provisions provided for in the Constitution, it should be noted that infringement of these rights is only justiciable under the fundamental rights jurisdiction exercisable by the Supreme Court in respect of such infringement, where the infringement has been committed by the State/the Executive.

In October 2014, at the Office of the United Nations High Commissioner for Human Rights in Geneva, the then Additional Solicitor General with the Attorney-General’s Department of Sri Lanka, stated that ‘Article 12.1 ensures equality for sexual orientation and gender identity’ and, that under Article 12.2, ‘laws discriminating on the grounds of sexual orientation and gender identity are unconstitutional.’ It was further specified that ‘sections 365 and 365A [of Sri Lanka’s Penal Code] do not target any particular group but are there to protect public morality.’[16]

Decriminalisation of LGBTQI+ rights in Sri Lanka and the ray of hope for a rainbow future

Failed attempts to decriminalise same sex relationships

Despite various attempts and proposals introduced over recent years for the decriminalisation and recognition of LGBTQI+ rights in Sri Lanka, no solid steps were taken to make a positive impact.

In 2011, a draft Bill of Rights prepared by a Committee to the Ministry of Disaster Management and Human Rights, expressly included sexual orientation as a protected characteristic. Although the Bill was submitted to the Ministry of Justice for review, the said Bill is yet to be adopted.[17]

In January 2016, the Government of Sri Lanka abandoned a proposal to decriminalise same-sex conduct from the Human Rights Action Plan, where it was stated that such a proposal was ‘culturally inappropriate’.[18] However, later that year, in November 2017, Sri Lanka’s then Deputy Solicitor General pledged to take steps to have the Penal Code amended after the country’s Universal Periodic Review (of the Office of the High Commissioner for Human Rights (OHCHR)) where it was stated by the said Deputy Solicitor General that ‘the government is committed to ensuring that no provision in the law would be applied to persons of the LGBTQI+ community in a discriminatory manner’.[19]

The 2023 Bill to decriminalise same-sex relationships

In August 2022, a Private Members’ Bill was initiated by one of Sri Lanka’s main political parties, calling for the decriminalisation of homosexuality and for the amendment of sections 365 and 365A of the Penal Code.[20]

Despite the said Bill being challenged by certain petitioners on various grounds,[21] the Supreme Court gave the green light to the said Bill and held that the Private Member’s Bill as a whole or as any provision thereof is not inconsistent with the Constitution of Sri Lanka.[22]

In reaching its determination,[23] it appears that the Supreme Court heavily relied on Indian and South African jurisprudence, among others, regarding decriminalisation of consensual same-sex sexual relations, especially case-law focusing on the human rights to dignity, equality, equal protection of the law without discrimination, and privacy of the individual.[24]

The International Commission of Jurists in their article, ‘Sri Lanka: ICJ welcomes Supreme Court’s determination that the proposed amendment decriminalising consensual same-sexual relations between adults is constitutional’, observed that the Supreme Court noted that, ‘the provisions of the Bill would in fact ensure that all persons shall be equal before the law and be entitled to the equal protection of the law, irrespective of their sexual orientation, and that the Bill would, in fact, enhance their fundamental rights guaranteed to them under the Constitution and enable them to live in society with dignity.’

The Government also stated that it will support its position of decriminalising same-sex relationships. A revised version of the Bill was gazetted on 23 March 2023.[25] The Bill was presented to Parliament on 4 April 2023.[26] With the determination by the Supreme Court regarding the Bill’s constitutionality, the Bill now requires a simple majority in Parliament to become law.[27]

Conclusion

While decriminalising homosexuality would be a notable advancement in terms of state recognition of the gay and lesbian community, it is still a small step in the long road to equality. However, as observed by an attorney-at-law and advocacy officer in Sri Lanka, ‘[…] the door is finally open. This Supreme Court decision is major for the community in terms of any kind of progress they have seen over the last couple of years’.[28]