De-criminalising is de-colonising. Repealing Article 365 and 365 (A) of Sri Lanka’s Penal Code is not just supporting the de-criminalising of same sex sexual conduct between consenting adults, it plays a key role in erasing archaic colonial attitudes which are still residual in our country.
The recent rejection by the Government of certain clauses that were included in the National Human Rights Action Plan recommending the repeal of Articles 365 and 365 (A) of the Penal Code, was not just another blow to the homosexual community. It is a blow to all communities as it clearly shows that our Government is not yet ready to fully embrace minority rights and accept that this, the de-criminalisation of homosexuality, plays a major part in protecting the human rights of all citizens of this country.
The media carried many views and analysis, expressed, and written on this decision by the GOSL to drop the de-criminalisation of Homosexuality from the National Action Plan for the Protection and Promotion of Human Rights. While being a shocking decision and a heavy blow to the LGBTIQ community, it nevertheless, brought forward a vibrant dialogue on the rights of the LGBTIQ -- lesbian, gay, bisexual, transgender, intersex and questioning -- community. The action plan was described as a prerequisite laid by the European Union to award Sri Lanka the GSP+ facility. Additionally, the Human Rights Action plan was also a result of an obligation Sri Lanka holds as a UN member state. However, the question is, should a Government formulate its actions to settle the requirements of the international community? Isn’t it the responsibility of a Government to ensure protection and promotion of human rights of all its citizens and be sensitive towards minority rights even in the absence of international pressure? Aren’t minority rights human rights too?
If a part of the international political community must intervene and remind the Government about its obligations, that itself shows a huge failure on the part of the Government to do its duty towards
As the LGBTIQ community has become more visible in Sri Lankan, the moves to silence them seem to be getting more insidious, and this time with state patronage. It is obviously a failure of any government when it does not accept its overall responsibility to fulfil constitutional obligations to ‘respect, secure and advance’ fundamental rights of all citizens irrespective of their differences.
Including sexual orientation and gender identity as a protected characteristic in the constitution is essential to end marginalisation of citizens belonging to the LGBTI community. The existing Sri Lankan constitution already has a strong statement -- Article 4(d) of the Constitution states: “The fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided…”
While the existing Constitution (as amended up to May 15, 2015) confirms the right to equality stating that ‘all persons are equal before the law and are entitled to the equal protection of the law’ and that ‘no citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds’, it does not specifically state LGBTIQ persons. One can argue that the terminology used in the current constitution should mean ALL citizens however, it seems that because sexual orientation and gender identity are not specified, there is room for misinterpretation and discrimination. Therefore, the best amendment to the Constitution would be to include ‘sexual orientation and gender identity’ explicitly.
Despite its obligations, the GOSL has decided to keep alive the endless discrimination and injustice to a minority of our population with different sexual orientations and gender identities (the LGBTIQ community). Thus, homophobia and transphobia continue and the rights of the LGBTIQ community continue to be violated. Isn’t 134 years of marginalisation, discrimination and violence enough?
It should be a commitment of the Government to its citizens and not to please the international community. Citizen’s security and welfare should be a prime concern of any Government. The interventions from international political communities is a sign of the failure of any Government unable and unwilling to perform its prime duty to protect human rights of all its citizens.
Further, regarding the state’s obligation to the International Covenant on Civil and Political Rights (ICCPR), which the Sri Lankan Government is a signatory to; it is mandatory for the Sri Lankan Government to recognise the right to self-determination and freedom of all individuals to pursue economic, social and cultural development, right to protect oneself against inhuman or degrading treatment and protect the right to liberty and security of all persons. The ICCPR in its Article 26 state that, “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons, equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
It is quite astounding therefore that the request to de-criminalise the homosexual community continues to get branded as a concept imported from the West or against Sri Lankan culture. In reality, loving or liking another human being of your own sex is not an alien concept in Sri Lanka. Numerous historical chronicles and records are evidence to prove that homosexuality was a given – within the culture, within society and certainly within the ranks of power in those days.
Frankly, the Sri Lankan Government has not yet effectively and meaningfully dealt with the discriminatory and unequal treatment towards people of diverse sexual and gender identities. By giving shallow excuses and continuing to hide behind culture and Buddhism, it continues to show the dysfunctionality of those who are elected to serve the people….ALL people.
The writer is a veteran LGBTIQ activist with national and international recognition. In 2004 Flamer-Caldera founded EQUAL GROUND, the only mixed-gender queer organization in Sri Lanka, with the ultimate goal of changing the Sri Lankan constitution and federal laws to no longer criminalize queer people’s lives. EQUAL GROUND/Flamer-Caldera currently chairs The Commonwealth Equality Network, a collective of civil society organisations working in solidarity challenging inequality based on sexual orientation and gender identity within Commonwealth countries.