Expedite repeal of law criminalising same sex relations

Representatives of the LGBTIQ+ community in Sri Lanka met Speaker Mahinda Yapa Abeywardena this week where they discussed the issues faced by the community and spoke on the need to expedite the passing of the Private Member’s Bill presented to Parliament by MP Premnath C. Dolawatte to decriminalise same sex relations.

Dolawatte, who was a part of the delegation that met the Speaker, presented the Bill in April 2023 to repeal section 365 and 365A of the Penal Code. The Bill has gone to the Consultative Committee of the Ministry of Justice as well as the relevant oversight committee but there is no timeline for the Bill to be taken up for debate and put to a vote.

While presenting the Bill, Dolawatte noted that the Sri Lankan society has a backward notion regarding the LGBTQ+ community and as a result, not only in daily life, but even in Government and law enforcement agencies, this community has been subjected to various forms of violence, oppression and harassment. 

Dolawatte’s Bill was challenged in the Supreme Court by three Petitioners on the grounds that the Bill was inconsistent with the Constitution and once before Parliament, it should be passed by special majority (two-third of the whole House) and be approved by the People at a Referendum. 

Having considered the Petition, the Court dismissed the arguments of the petitioners stating that the grounds on which they had challenged the Bill were “fanciful and palpably false” and that the “Petitioners are advocating that a segment of the society continue to be denied the equal protection of the law.”

The Intervenient Petitioners in support of the Bill said the Bill would 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 SC ruled that the Petitioners have failed to establish that the repeal (in the manner proposed in the Bill) of Sections 365 and 365A of the Penal Code which criminalise intimate acts between consenting adults is unconstitutional and nor that the Bill as a whole or any clause therein is inconsistent with any provision of the Constitution.

Political parties across the spectrum have said they support the repealing of this outdated piece of legislation which is over a century old. Religious leaders too have shown more tolerance and understanding to the need to repeal such repressive and archaic laws. Societal attitudes towards individuals with different sexual orientation too has changed and there is general acceptance that there should be no discrimination on such grounds. The Supreme Court has also clearly stated that the law is discriminatory.

Having this law in the statute books has led to many cases of harassment of individuals with Police showing little understanding or sensitivity when dealing with such matters.

Internationally, the Government has been prompted to have this discriminatory law repealed in keeping with the growing acceptance in most countries that there should be no room for a segment of the population to live marginalised lives due to their sexual preferences.

The meeting between the members of the LGBTIQ+ community and the Speaker is a welcome move and will help refocus attention on the important piece of legislation before Parliament. All political parties should expedite the procedure that is followed when a Private Member’s Bill is passed by Parliament and ensure that the Bill is adopted before the next election.