The constitutionality of the private member’s bill submitted to parliament seeking to amend Sri Lanka’s penal code with the aim of protecting the country’s LGBTQI community has been challenged before the Supreme Court through a Special Determination Petition.
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. This petition was filed through Attorney-at-Law Dharshana Weraduwage.
Through this petition, the petitioners are seeking a declaration that the bill requires the approval of the people at a referendum in addition to the 2/3 approval of the Parliament.
The petitioners said the Private Members’ Bill titled “Penal Code (Amendment)” was initially published in the supplement issued on March 22, 2023, to Part II of the March 17, 2023, Gazette and later re-gazetted on or around April 4, 2023, as ordered by the Parliament, after the bill was presented by Parliamentarian Dolawatte for its first reading on the said date. The petitioners said they sincerely believe that the Parliament has granted leave to proceed with the said bill.
The petitioners state 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 and impact the free decision-making of the schoolchildren and may also give rise to transgender children.
The petitioners further state that the proposed amendment, it may decriminalize homosexual activities (which include gay, lesbian, etc.), which can exacerbate the current situation of the human immunodeficiency virus infection and acquired immunodeficiency syndrome (HIV/AIDS) epidemic.
The petitioners’ further state that there is clear medical evidence, locally and globally, to suggest that the majority of men in the People Living with HIV (PLHIV) population have a history of gay or bisexual exposure.
“Such a situation endangers 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 that guarantee the protection of state institutions,” the petitioners added.
The petitioners maintained that Section 365 of the Penal Code (as amended) was proposed to be amended by Clause 2(i) of the bill. They alleged that the said clause seriously removed the safeguards placed by the legislature by Section 17 of Amending Act No. 22 of 1995 to protect children below the age of 16 from, among other things, sexual exploitation.
Accordingly, the petitioners state that said clause seriously violates the preamble, Articles 01, 03, 04(d), 12(1), 14(1)(f), 27(1), 27(2)(a), 27(2)(g), 27(3), 27(10), 27(11), 27(12), and 27(13) of the constitution, and duly requires the approval of the people at a referendum by virtue of the provisions of Article 83 of the constitution.
