Sri Lanka’s Supreme Court has held that decriminalising consensual same-sex relationships is not “inconsistent with the Constitution”, the country’s Speaker Mahinda Yapa Abeywardena announced in the Parliament on Wednesday, May 9. With the court essentially stating that it wouldn’t stand in the way if the Sri Lankan Parliament decides to decriminalise homosexuality, the country can now do so by passing the Penal Code (Amendment) Bill. The court had issued the judgement while hearing petitions opposing the Bill.
The Private Member’s Bill titled ‘Penal Code (Amendment) Bill’, which seeks to decriminalise same-sex relationships, was submitted by Colombo electoral district’s Member of Parliament Premnath C Dolawatte, of the Sri Lanka Podujana Peramuna. He presented the Bill to the Parliament on August 23, 2022, and handed it over to President Ranil Wickremesinghe the next day.
On February 9, 2023, Minister of Foreign Affairs MUM Ali Sabry said that the government will support the Bill decriminalising consensual same-sex relationships, but will not be legalising same-sex marriages. The Bill was published in the gazette on March 22, and republished on April 4. The Bill was then challenged at the Sri Lanka SC by retired Army Brigadier Athula De Silva, political analyst Shenali Waduge, and businesswoman and political figure Jehan Hameed, on April 19.
A three-judge bench of the Sri Lankan Supreme Court — comprising Chief Justice Jayantha Jayasuriya and Justices Vijith Malalgoda and Arjuna Obeyesekere — heard the case in April and confidentially delivered the verdict to Parliament Speaker Abeywardena on May 9.
The petitioners’ primary argument against the Bill was that the amendment was a “vehement infringement” on Constitutional Articles, and if it comes into force, will fail to protect children below 16 years of age from sexual exploitation. They also claimed that the decriminalisation will increase the number of HIV cases and that there was “clear medical evidence locally and globally to suggest that the majority of people living with HIV has a history of gay or bisexual exposure.”
The petitioners also claimed that the decriminalisation would endanger the “national security of the republic since it has the potential to destroy the very fabric of what constitutes a state, that is the individuals, families, communities, economic and socio-political institutions, and the military and police forces which guarantee the protection of state institutions.” Further, they argued that the proposed amendment would “undermine and/or threaten… the maintenance of Military Discipline of all try forces and Sri Lanka police.”
They also alleged that the decriminalisation would pave the way to same-sex couples getting married, and will impact “progeny and demography of the country”, leading to population decline. Homosexual activity was also contrary to the principles of Buddhism and therefore violates Article 9 of the Sri Lankan Constitution, which states that the Republic of Sri Lanka shall give Buddhism the foremost place, the petitioners further claimed.
Soon after the petition was filed, several intervening petitions were filed in support of the Bill, including by LGBTQIA+ rights organisations, activists, academics, teachers, and mental health professionals, stating that the petitioners’ claims were baseless and false.
In its final judgement, Sri Lanka’s apex court observed that the petitioners have submitted little to nothing to support their proposition, other than a singular point that HIV and AIDS affect those engaging in same-sex intercourse more than those engaging in heterosexual intercourse. In fact, the material submitted also does not support their position that HIV and AIDS are only prevalent in homosexual persons, or that the proposed amendment will result In an increase In the number of those afflicted with HIV and AIDS, it added.
Stating that correlation does not equal causation, the court observed that the perception that HIV is disproportionately higher in homosexual persons is due to the social stigma caused by the criminalisation of their relationships. Further, the petitioners’ argument that the Sri Lankan Armed Forces and police would be destroyed by HIV or AIDS if the decriminalisation happens “descends to the realm of the absurd”, the court said. The bench also said it was unsurprising that the petitioners did not adduce any scientifically acceptable evidence to support this line of argument.
Regarding the petitioners’ argument that homosexual activity was contrary to the principles of Buddhism, the court said that the petitoners did not explain how decriminalisation of one's sexual orientation derogates from the State's duty to protect and foster the Buddha Sasana, nor how the proposed amendments are prohibited by the Buddha Sasana.
“There is a common thread that runs through most of the arguments put forward by… the petitioners, which is that they are largely based on speculation and are tenuous at best, and may be disposed of summarily,” the court said, adding that this prompted the respondents and intervening petitioners to submit with “almost one voice” that the purported grounds urged by the petitioners are not only “speculative, fanciful and palpably false, but have not been established in any manner.”
The court said it is of the view that the decriminalisation of sexual activity among consenting adults irrespective of their sexual orientation only furthers human dignity, and that it cannot be considered an offence. It also opined that criminalisation of intimate acts between consenting adults was considered a crime based on morality of a bygone Victorian era, and that its removal would uphold the dignity of human beings. “This court has no mandate to interfere with such a decision, which is the prerogative of Parliament,” it said.
In an important observation, the court accepted the respondents’ submission that 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 enhance their fundamental rights guaranteed to them under the Constitution and enable them to live in society with dignity.