Amidst British Prime Minster, David Cameron’s statement at the CHOGM on the issue of states treating homosexuality as a crime it brings up an interesting debacle as to what exactly its the legal position in Sri Lanka. Section 365A of the Penal Code under the heading “Unnatural Offences” used to cite the following.
‘Any male person who in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male, shall be guilty of an offence….’ This was termed ‘Acts of gross indecency between male persons.’
This section was further amended by Act No.22 of 1995 and termed ‘Acts of gross indecency between persons’ , the amendments brought being that ‘male person ‘ was replaced with ‘any person’ and the punishment for the offence which was initially imprisonment for up to two years, a fine or both which has now been amended, adding that when the offence is committed by a person over 18 years on any person under 16 years of age that up to 20 years of rigorous imprisonment may be imposed with a fine and also compensation for any injuries.
Thus it can be understood that the law of Sri Lanka since 1995 provides for criminalizing homosexual and lesbian activities both in private or public even if consensual and the amendments in 1995 suggest that the impact of the offence is graver than that it was earlier judging by the higher penalty that is now imposed.
Interestingly as per sources there have not been any convictions made on the above laws up to now suggesting that the law is not in force. It may be termed by some a ‘dead law’ that which is not enforced nevertheless legally valid.
A certain minister had commented that this is something that has been given to us by colonialism. It begs the question whether such a practice can be so ‘brought within’ like the practice of speaking English or playing cricket? I would like to think that there is something more than mere imposition leading to Sri Lankan gay activity but of course exactly what factors lead to a change in sexual orientation be it biological, psychological or sociological I cannot comment, it being beyond my learning.
The stance of religions has been against gay activity. In the 1990’s attempts to decriminalize gay activity was met with staunch resistance from Christian and Muslim activists. The reason for such would be moral religious grounds. Law is influenced by morals. This is the area of Natural Law as defined by some as to do what is ‘Natural’ to man according to his instincts. The terming of the offence as ‘Unnatural Offences’ suggest the basis of gay activity being thought of as illegal is clearly due to reasons based on religious grounds and anthropological grounds which consider such as unnatural.
However how far can a state regulate such activity? Public indecency can be one thing, is it however possible to criminalize activities of consenting adults? For example in Sri Lanka we have certain prohibited degrees of marriage based on biological as well as moral grounds. What then would be the basis for the prohibition of consensual, same sex adult activity? One may say a religious basis. But unlike the near universal consensus on marriage prohibition on such grounds we must understand that the grounds against gay activity are not as strong. It would thus seem this would be an unwarranted intervention on the private lives of human beings.
One must not compare Sri Lanka with western ideals where gay marriage, gay adoption, publicly gay politicians are fully part and parcel of day-to-day life. The only logic for Sri Lanka to maintain its status quo on being anti-gay is then the much harped upon ‘culture and ideals of decency ‘that we so proudly deem to possess.
Despite the lack of law’s enforcement there is to an extent a branch of social justice at practice where gay activity is somewhat condemned. Even though the Law is inactive it can be understood that society carries out a policing duty with this regard. Sadly however, then society is playing a game of double standards. Do we not know the activities that take place in the coastal areas of our country concerning ‘beach boys’ and male clients from here and abroad? Is private gay activity incorrect when Colombo’s high society seems quite happy to enjoy entertainment from seemingly gay based shows?
Article 12 of the Sri Lankan Constitution provides for equality before the law. The Law provides for an offence but policy dictates otherwise. It seems therefore Sri Lanka is entirely confused as to the position we should adopt on gay activity legally, socially and morally and it just maybe some persecute the wrong sector of the so called ‘criminals’ or ‘perverts’. It is high time the government takes up this issue and clarifies a proper stance for the future.
Comments - 5
Podiralahami Wednesday, 09 November 2011 11:06 PM
If a man can marry a man and woman a women, why cannot a man have his legally wedded second wife?
A.G.R.Silva Wednesday, 09 November 2011 12:51 AM
Sri Lanka is country of high moral and religious values which treats homosexuality as un-natural and a cardinal sin.Cameron seems to be a profound athiest with a lost memory of Biblical story of sodom and gomoragh.Let us not follow the whims of the devil at whatever cost.
Kevin Wednesday, 09 November 2011 01:16 AM
Being gay or indulging in gay activity was never illegal in Lanka until the British under Queen Victoria made it illegal in all of Britain's colonies. Like Lanka before the British came, gay activity has never been illegal in other Buddhist countries. Those that were never colonised such as Thailand, Korea, Japan never made it illegal and it is not illegal even today. This is all an imposed Judeo-Christian law. Buddhism does not make judgments between hetero and homo. It simply advises that all and any worldly desires prevents you from attaining Nirvana. It is as simple as that.
Neil Wednesday, 09 November 2011 02:21 PM
Alagan, this is about allowing same-sex marriage, not incest or bestiality or paedophilia or whatever. Those are different issues. There is no logical ground for comparing incest with homosexuality. You might as well compare incest with interracial marriage.
Silva, our constitution supports religious freedom. If you want to believe that homosexuality is a sin, I'm absolutely fine with that but you don't have a right to "prohibit" homosexuals with different religious and moral opinions from being in meaningful relationships. You are entitled to your own cultural and religious values but this is LAW we're talking about. Law shouldn't be based on religious and cultural values. Law should be based on fairness and justice. Law shouldn't be biased by religious/ cultural beliefs.
Alagan Elavalagan Wednesday, 09 November 2011 04:11 AM
Shouldn’t those who support marriage between two women and two men also support marriage between mother and son, father and daughter, and brother and sister?
In 2001, the Ontario Court of Appeal (Canada) said that a child can have two mothers and a father. In other words, a child can have three or even more parents. Furthermore these three, the mothers and the father, can legally have group sex, buy properties like houses, and everything you can imagine but except one thing: our glorious law says they cannot get married. Why is that? Is it because it is very difficult for the government to calculate their income tax and pension?
Copy the good part from the West, not everything!
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