The Supreme Court of Sri Lankahas ruled that a Bill seeking to decriminalise homosexuality is “not inconsistent with the Constitution”, clearing the way for a Parliamentary debate and vote on the subject.
“The Supreme Court is of the opinion that the Bill as a whole or as any provision thereof is not inconsistent with the Constitution,” Parliamentary Speaker Mahinda Yapa Abeywardena announced on Tuesday morning.
The determination pertains to a recent case challenging a ruling party legislator’s Private Member’s Bill that seeks to amend Sri Lanka’s penal code, and decriminalise homosexuality. The Bill, gazetted in March, effectively states that sexual orientation of a person shall no longer be a punishable offence, and any sexual conduct between two consenting adults of the same sex, in public or private, shall no longer be an offence.
Three persons, all Rajapaksa loyalists, challenged the Bill that brought some promise to Sri Lanka’s queer community who have been fighting for equality for decades. However, their petition was swiftly countered by nearly a dozen others — LGBTQIA+ activists and allies — who intervened in the matter with compelling arguments in support of amending Sri Lanka’s century-old, colonial era laws on same-sex relationships.
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Reference to 377
In its ruling, Sri Lanka’s apex court cited the landmark Navtej Singh Johar v. Union of India case in India, in which all consensual sex among adults, including those in same-sex relationships, was decriminalised as the Court historically struck down Section 377.
The Sri Lankan Supreme Court drew attention to the 2018 judgment of Chief Justice of India D.Y. Chandrachud, then a Supreme Court Judge, that said: “Gays and lesbians, transgenders and bisexuals continue to be denied a truly equal citizenship seven decades after Independence. The law has imposed upon them a morality which is an anachronism. Their entitlement should be as equal participants in a society governed by the morality of the Constitution.”
Further, it pointed to former Chief Justice Dipak Misra’s ruling that said: “The sexual autonomy of an individual to choose his/her sexual partner is an important pillar and an insegregable facet of individual liberty.”
Test in Parliament
Activists see the Sri Lankan Supreme Court’s determination as a significant step in the queer community’s decades-long struggle for equal rights, while pointing to the next big test in Parliament.
“In its determination the Supreme Court is very clear that equality and dignity are at the heart of the rights guaranteed to all citizens, irrespective of gender and sexuality. This is very significant,” noted Bhavani Fonseka, Senior Researcher with Colombo-based NGO Centre for Policy Alternatives, and an intervening petitioner who supported the Bill in the Supreme Court case.
“This is a historic moment for Sri Lanka, and we hope that the 225 MPs in Parliament take a leaf out of the SC determination and global developments, to be on the right side of history,” she said.
The last time there was an attempt in Sri Lankan parliament to repeal the Colonial-era laws — criminalising same sex relationships of men — was in 1995. Despite a push for reform from some, the amendment eventually passed by the legislature at the time ended up expanding the scope of the law, making it gender-neutral.
