November 19, 2023 Bridge Team
Recently, the Mauritius Supreme Court (SC) ruled that a 185-year-old law criminalising consensual same-sex sexual conduct was unconstitutional. This latest ruling adds Mauritius to the growing number of States where, in the past few years, consensual same-sex sexual relations have been decriminalised, either through the adoption of specific legislation or as a result of judicial decisions. It is anticipated, and, very much hoped, that Sri Lanka will join this global wave of change in the coming months.
Like Sri Lanka, most of these states had laws criminalising consensual same-sex sexual conduct originally imposed on them as a result of colonial rule. The British introduced the Penal Code in 1833, when Sri Lanka (Ceylon) was still a British colony. The Sri Lankan Penal Code was modelled on the Indian Penal Code of 1860. While three colonial powers, the Portuguese, the Dutch, and the British, had ruled Sri Lanka, it was the British who codified the criminalisation of consensual same-sex sexual conduct through the introduction of criminal provisions proscribing “unnatural offences”, namely; “carnal intercourse against the order of nature” (Section 365) and “gross indecency” (Section 365A) in the Sri Lankan Penal Code. None of these terms has been defined in the law, but, in practice, they have been interpreted and applied to those who engage in consensual same-sex sexual conduct or are perceived to do so.
Sri Lanka gained Independence from the British in 1948. But, 140 years since their enactment, these Penal provisions continue to be in place with a few amendments and, while rarely enforced, they have been used as a tool of harassment, blackmail, and persecution against lesbian, gay, bisexual, transgender (LGBT), and non-binary persons by State and non-State actors alike. Criminalising same-sex sexual conduct between two consenting individuals only serves to perpetuate discrimination, violence and stigma motivated in whole or in part by the ignorance of, prejudice and hatred against real or imputed same-sex sexual orientation.
Human rights violations and abuses against LGBT and non-binary persons in Sri Lanka have been documented by many Sri Lankan civil society organisations throughout the years. For example, the criminalisation of consensual same-sex sexual conduct has been shown to lead to instances of extortion by both public and private actors. Another documented detrimental impact of criminalisation relates to the right of access to healthcare of the individuals concerned, while raising more broadly, public health concerns. Branded “criminals” by the law, LGBT and non-binary persons are less likely to access health services due to the fear of being outed, discrimination, stigma, and opprobrium, thus making it harder for them, for example, to receive vital messages about safe sexual conduct and human immunodeficiency virus and acquired immunodeficiency syndrome prevention.
Sri Lanka is a State party to all core international human rights treaties and to some of their protocols and it is thus bound by international human rights law. The latter enshrines the principle of non-discrimination and guarantees to everyone the right to equality before the law and equal protection of the law without discrimination in law and in practice. The United Nations (UN) Human Rights Committee has called upon States to ensure that their domestic law comply with the prohibition against discrimination, including the obligation not to discriminate against a person on prohibited grounds such as “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. In Edward Young vs. Australia (2003), the Committee held that the prohibition against discrimination under Article 26 of the International Covenant on Civil and Political Rights also comprises discrimination based on sexual orientation.
Last year (in 2022), while addressing the Committee, the Sri Lankan Government stated that Article 12 of the Constitution of Sri Lanka included non-discrimination on the basis of sexual orientation. Such a statement is contradicted by the criminal provisions proscribing consensual same-sex sexual conduct, and by the documented human rights violations and abuses committed against LGBT and non-binary persons over the years. The Committee, in its Concluding Observations published in April of this year (2023), expressed concern that “LGBT persons continue to face criminalisation under Sections 365, 365A and 399 (“cheating by personation”) of the Penal Code and discrimination on a daily basis, including in accessing healthcare, employment and housing” and that they are “victims of arbitrary arrests and detention and are subjected to forced anal examinations in an attempt to gather evidence for prosecutions for same-sex conduct.” The Committee called upon the Government to repeal the aforesaid legal provisions, to protect LGBT persons from discrimination of any kind, and to combat negative stereotypes and prejudice against them through training and awareness programmes.
Further, in 2023, during its Universal Periodic Review (UPR) at the Human Rights Council, Sri Lanka stated that a number of criminal proceedings had been revisited on grounds of non-discrimination based on sexual orientation. The Working Group of the UPR subsequently made recommendations to decriminalise same-sex sexual conduct. Unfortunately, Sri Lanka did not explicitly accept such recommendations and instead only took note of them. The UPR recommendations echo the recommendation made by the UN Committee on the Elimination of Discrimination against Women (the Convention on the Elimination of All Forms of Discrimination Against Women Committee) in 2022 that the criminalisation of consensual same-sex sexual conduct between females under Section 365A of the Penal Code violated their right to non-discrimination and that therefore Sri Lanka should decriminalise consensual same sex sexual conduct between females. In light of this, the continued criminalisation of consensual same-sex sexual relations puts Sri Lanka at odds with its international human rights law-related obligations and erodes its credibility on the global stage.
In May 2023, the SC of Sri Lanka published its Special Determination on the constitutionality of the Penal Code (Amendment) Bill of 2023, whose stated objective is to repeal “provisions that make sexual orientation a punishable offence”. The recognition, for the first time, by the country’s highest Court that the criminalisation of homosexuality was an affront to the rights of equality and non-discrimination, dignity and privacy of a person, among others, was a watershed moment for human rights activists who had worked with LGBT persons in pursuit of this outcome. The SC’s Determination also put to rest unsubstantiated rhetoric depicting homosexuality as a threat to society. On the strength of the SC’s Determination that the Bill is constitutional, the said Bill now requires a simple majority in the Parliament to pass and become law.
The Parliament is expected to vote on the Bill in the coming months. It is a private Member Bill tabled in the Parliament by Parliamentarian, attorney-at-law Premnath C. Dolawatte. Under the Bill, Section 365 of the Penal Code of 1883 will be repealed and replaced with reference only to “bestiality” as an “unnatural offence”, while Section 365A will be fully repealed.
It is heartening to witness States around the globe reconsider and rectify outdated laws that stigmatise and criminalise consensual same-sex sexual relations. Sri Lanka should not hesitate to follow suit and finally take that vital stride towards a more just and inclusive society. The decriminalisation of consensual same-sex sexual conduct would send a powerful message that Sri Lanka recognises and respects the autonomy of individuals to choose their partners and live their lives authentically. The SC has taken the first step in that direction. It is now time for the Parliament to ensure that the Bill is passed.
(The writer is the National Legal Advisor – Sri Lanka at the International Commission of Jurists)