Communicating its determination to the Speaker of Parliament on the Penal Code Amendment Bill relating to decriminalizing homosexuality, the Supreme Court held that the Bill as a whole or any provision thereof is not inconsistent with the Constitution.
The Supreme Court’s three-judge bench, comprising Chief Justice Jayantha Jayasuriya, Justice Vijith Malalgoda, and Justice Arjuna Obeysekera, held that the submissions of the petitioners are in fact fanciful hypotheses and have no merit.
The Supreme Court is of the view that the petitioners have failed to establish that the repeal of Sections 365 and 365A of the Penal Code, which criminalize intimate acts between consenting adults, is unconstitutional.
“We have determined that it is not the business of the law to regulate private consensual sexual encounters between adults. The same applies to issues of private decency or indecency between consenting adults. Any regulation of conduct deemed indecent done in private between consenting adults is a violation of the constitutional right to privacy and liberty. By invoking textual surgery, any reference to private indecency ought to be severed and excised from Section 167, so that its umbrage and coverage are only public indecency. Even after such severance, Section 167 thereof remains intelligible, coherent, and valid,” the Supreme Court determination added.
The Supreme Court made this determination, in terms of the Supreme Court’s special jurisdiction, pursuant to a petition filed challenging the legality of the bill titled “Penal Code (Amendment) Bill,” which is a private member’s bill moved by Member of Parliament Premanath C. Dolawatta.
A retired Brigadier of the Sri Lankan Army, Athula De Silva, political analyst Shenali Waduge, and prominent businesswoman Jehan Hameed filed this Special Determination Petition, naming the Attorney General and Parliamentarian Premnath C. Dolawatte as respondents.
Several intervening petitioners, including women and media collectives, Prof. Savithri Goonesekere, Dr. Radhika Coomaraswamy, Ramani Muttetuwegama, Executive Director of the Centre for Policy Alternatives (CPA), Dr. Paikiasothy Saravanamuttu, Senior Researcher at CPA Bhavani Fonseka, and former Commissioner at the Office on Missing Persons Mirak Raheem
The petitioners stated that the proposed amendment has failed to look into and preserve the best interests of the children. The petitioners feared that the LGBT movements may promote their programs in schools, impact the free decision-making of the schoolchildren, and also give rise to transgender children.
