Decolonising the law: Repeal antiquated “morality laws”

The function of criminal law should be to prevent harm, and not to legislate on “moral values.”

Can an alien cultural and moral imposition in violation of human rights become one’s own law and belief? Indeed, this is what British colonialism gifted Sri Lanka through the introduction of “morality laws”, such as the Vagrants Ordinance of 1841 and the criminalisation of consensual same-sex relationships through the Penal Code of 1883.

The conversation around the criminalisation of consensual same-sex relationships being a deeply damaging legacy of British colonialism has once again risen to the forefront as former colonies contend with decriminalisation attempts via legislation and/or courts. Academics and non-governmental organisations have continued to document the Victorian era puritan ideologies that have been implanted in the minds of the colonised and the impact of British colonialism on the law.

As of March 2023, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) has identified that 62 UN Member States still criminalise consensual same-sex relationships in law, with an additional two States criminalising such relationships in practice, while in 129 Member States consensual same-sex sexual conduct is legal. Of the States that do criminalise same-sex relationships more than 30 retain the law as a legacy of British colonial rule.

The Penal Codes of many Asian and African States were influenced by the Indian Penal Code (IPC) drafted by Lord Macaulay in 1860. Section 377 of the IPC was modelled on Britain’s 16th century Buggery Act. Similar provisions were exported all over the colonies into their respective Penal Codes and became known as “buggery laws” or “sodomy laws”. 

A main reason identified by researchers for the importation by the British of these laws to the colonies was said to be “the need to protect British soldiers from being led astray by the exotic and overly erotic oriental culture” of Asia and the Middle East. The British also enacted vagrancy and beggary laws to criminalise begging, loitering and homelessness in the colonies purportedly to keep the labour market thriving.

In 1967 England and Wales decriminalised homosexual acts between two men, both over the age of 21, in private, following the recommendation of the Wolfenden Committee. The Wolfenden Committee Report of 1957 studied the relationship between criminal law and morality popularised by political philosophers J.S. Mill and H.L.A. Hart.  The Wolfenden Report states “[Unless a deliberate attempt be made by society through the agency of the law to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business”, thereby indicating that the function of criminal law should be to prevent harm, and not to legislate on “moral values.” 

The Report warned even at that time, that the law had been used for blackmailing and that persons who are blackmailed cannot even complain to the police in fear of being charged under the “sodomy laws.” This holds true and is a common occurrence in Sri Lanka even today.

In April 2018, then British Prime Minister Theresa May made a statement to the Commonwealth nations in which she expressed regret over Britain’s role in introducing “sodomy laws” to the colonies and for their legacy of discrimination, violence and even death. She called upon the Commonwealth States that had not done so to immediately decriminalise same-sex relationships.

In Sri Lanka, Sections 365 and 365A of the Penal Code criminalise “carnal intercourse against the order of nature” and “acts of gross indecency”, respectively. Although the Penal Code does not provide a definition of these terms, both sections have been used to criminalise consensual same-sex sexual relations. Those convicted of these “crimes” may face up to ten years’ imprisonment.

Sri Lanka’s Vagrants Ordinance, like the “beggary laws” in India, acts as a law regulating “decency”, penalising certain social behaviour, such as behaving in a “riotous and disorderly manner”, “wandering”, “idling”, “gather or collect alms under false pretence”, “the exposure of wounds, deformities, leprosy or loathsome disease”, “soliciting”, or “acts of indecency”. The police routinely use the Vagrants Ordinance to arrest people for their real or imputed sexual orientation or gender identity or gender expression. In most instances charges are not filed against them, and they are seldom taken to court. Instead, they are harassed and ridiculed and often made to pay bribes to secure their release.  

In a briefing paper published last year, the International Commission of Jurists (ICJ) called for the repeal of the Vagrants Ordinance and the review of all other legislation relating to vagrancy, specifically the Houses of Detention Ordinance, with a view to ensuring their compliance with Sri Lanka’s obligations under international human rights law and standards.

In March 2023, the ICJ organised a South-South Judicial Dialogue with judges and activists from Asia and Africa on “Decolonising Jurisprudence: Protecting the rights of dignity, privacy, equality and non-discrimination of marginalised people in post-colonial States”. The convening looked at how law and colonialism impacted on the human rights of individuals belonging to sexual and gender minorities in former colonies. The participants at the Dialogue were entirely in agreement that criminalisation of consensual same-sex relationships and discrimination against lesbian, gay, bisexual, trans and intersex (LGBTI) individuals were a result of British colonial ideas being entrenched through law, and that it is a necessity now to create awareness that neither criminalisation nor discrimination were part of the rich cultural heritage of these former colonies.  

The culture and art as portrayed in the Hindu temples in Kajuraho and Konark and Buddhist monastic caves in Ajanta and Ellora in India, which display erotic sculpture or art depicting same-sex sexual relations, and the acceptance of mythological figures from the Mahabharatha like Aravaan and Sikhandi, who were thought to be transgender and/or intersex, have been used by activists and also judges in India and Nepal to develop arguments that look at the progressivism of their own cultures, which were different from the narrow puritanical values imposed by the British. African states like South Africa, Botswana and the Seychelles have also shed their shackles of colonial era law by decriminalising consensual same-sex relationships. This development was a result of embracing their culture and the underpinning concept of Ubuntu or African humanism, recognising the need to protect the human rights of LGBTI individuals.  It is this understanding that can refute thinking among the general population that consensual same-sex relationships are a western import when in fact this is not the case. Homophobia was the western import while acceptance was part of Asian and African culture.

In Toonen v. Australia, a case decided in 1994, the UN Human Rights Committee held that Tasmania’s “sodomy laws” violated Articles 17 (privacy) and 26 (non-discrimination) of the International Covenant on Civil and Political Rights (ICCPR). The Committee rejected Tasmania’s public morality justification. Since then, the Human Rights Committee and other UN treaty bodies have repeatedly urged States to decriminalise consensual same-sex sexual conduct. Most recently, the Committee made similar recommendations to Sri Lanka.

While activists in States like Kenya and Uganda struggle to remind their fellow citizens of their rich culture, which included acceptance of sexual and gender minorities, and Pakistani activists resist a rollback on human rights with an impending legislation that seeks to repeal their somewhat progressive Transgender Protection Act of 2018, it is important to remember that this conversation is of relevance not only in those countries, but also in Sri Lanka, where “decriminalisation” is, once again, a hot topic. Sri Lanka must now show its resolve to disengage from the “moral-policing” of its colonial past, and move towards equal protection and non–discrimination of LGBTI individuals by decriminalising consensual same-sex relationships as well as introducing much needed legal reform to protect the rights of sexual and gender minorities. 

(The writer is National Legal Advisor – Sri Lanka at the International Commission of Jurists)