Regarding LGBT rights and to uphold fundamental rights of marginalised citizens

Aritha Wickramasinghe

• The judgment confirmed that this law is not part of our South Asian culture and heritage and was forcibly imposed on us by a colonial power 
• This law has been used to target and criminalise the lives of LGBT people 
• Why should LGBT people tolerate being treated differently because of the way they were born? 
• I saw the real ugly side of Sri Lankan politics, the duplicity of some politicians and how people try to sabotage good initiatives by spreading lies 

Aritha Wickramasinghe is a finance lawyer and an activist who promotes the Lesbian, Gay, Bisexual and Transgender (LGBT) rights and the rights of women, children and ethnic minorities. He was instrumental in lobbying for the Transgender Equality Inquiry by the Women and Equalities Committee of the British Parliament. He was also part of the team that successfully negotiated with the EU to include LGBT rights as a condition for Sri Lanka to gain preferential market access into the single market. He has also worked at the Chambers of the United Nations International Criminal Tribunal for Rwanda in Tanzania. 

In an interview with the Dailymirror , Wickramasinghe spoke about the recent landmark judgment by the Indian Supreme Court decriminalizing homosexuality, the laws in Sri Lanka and possibility for reform and the discrimination faced by LGBT professionals today. He further spoke about his resignation from an initiative called ‘Think Equal’ which aims to teach children equality, empathy, peaceful conflict resolution, critical thinking, gender sensitization, emotional literacy etc. through its curriculum. It was initiated by award winning filmmaker and HR activist Leslee Udwin,who produced the controversial documentary ‘India’s Daughter’. Further, the patrons of ‘Think Equal’ include Malawai’s first female President, Joyce Banda and award winning actress and activist Meryl Streep. ‘Think Equal’ is the first global education initiative endorsed by the UN Human Rights Office.The programme is aimed to be implemented in all of Sri Lanka’s 19, 000 preschools and over 10,000 national schools.

Excerpts:

QRecently the Indian Supreme Court decriminalized homosexuality.What are your thoughts about this judgment and its implications?

The Indian Supreme Court’s ruling declaring section 377 of India’s Penal Code “irrational, indefensible and manifestly arbitrary” and thereby unconstitutional was a landmark judgment in many ways.   

This was really a historic judgment, not only for the people of India, but for the world. Since the British imposed this law during colonial rule, millions of gay, lesbian, bisexual and transgender (“LGBT”) people have lived their lives shrouded in the fear of just being themselves. This judgment lifted that shroud and gave hope, not only to LGBT people that live in countries that criminalise them (including Sri Lanka), but to all oppressed minorities across the world that live under unjust laws.   
The judgment confirmed that this law is not part of our South Asian culture and heritage and was forcibly imposed on us by a colonial power. Asian culture and religions have historically been inclusive and have acknowledged and celebrated the diversity of human existence, including sexuality. The judgment also confirmed that homosexuality, like heterosexuality, was natural and part of the natural order of human existence – dismissing the ‘unnatural’ argument against homosexuality.   
The Indian Supreme Court was also sensitive to the suffering endured by the LGBT community, expressly referred to their pain and acknowledged that the law – which should be a tool for justice and a fairer society - had been used as “a weapon in the hands of the majority to seclude, exploit and harass the LGBT community”. 

 
This is exactly what happens in Sri Lanka. The law actually prohibits “carnal intercourse against the order of nature between man, woman and animal” and “gross indecency between persons”. There is actually no express criminalization of homosexuality or gay sex. The Indian Supreme Court referred to a number of previous judgments in the Commonwealth that made it very clear that this law applied equally to both homosexual and heterosexual sex. The law actually criminalises all forms of sex between adults which doesn’t have any reproductive purpose, this has included oral sex and mutual masturbation. So technically, even using contraception and birth control is a criminal offence – as there is no reproductive purpose.   

However, what has happened is that this law has been used to target and criminalise the lives of LGBT people. The Indian Supreme Court therefore held that due to its application, the law had violated the fundamental rights to equality, non-discrimination and the freedom of expression of LGBT people and was struck down.   

QIn Sri Lanka an attempt to decriminalize homosexuality was rejected by the Cabinet. But we had a judgment in 2016 where though gay sex was upheld to be an offence, the custodial sentence attached to it was not imposed mainly because the act in that instance was consensual.Your comments. 

The 2016 Sri Lankan Supreme Court judgment was progressive in some ways, but also disappointing.   

First of all, with great respect to our learned judges, they got the law wrong. The two people who were appealing their High Court conviction were charged and convicted under section 365A of the Penal Code which prohibits “gross indecency” between “any persons”. However in their judgment, the Court held that section 365A “deals with the offences of sodomy and buggery.”   

Therefore, in the first instance, the Supreme Court mixed up the unnatural sex offence under section 365 with the gross indecency offence under section 365A. In the second instance, the offence of “sodomy and buggery” is the act of anal intercourse. However, the two appellants were convicted for having oral sex. This is not the offence of sodomy and buggery. If the Court was of the view that it was only anal intercourse which was unlawful, then confirming a conviction for oral sex is manifestly wrong. This oversight by the highest court in our country was actually quite surprising and disappointing.   

Additionally, as the appellants were charged for “gross indecency” and not “carnal intercourse against the order of nature”, the Supreme Court had a great opportunity to define what is meant by “gross indecency”. We must be mindful here that under the “gross indecency” prohibition in section 365A it is the act which is the offence, not the gender of the persons committing the act. By affirming that oral sex is grossly indecent, the Supreme Court of Sri Lanka has effectively accepted the criminalization of all oral sex, whether either heterosexuals or homosexuals commit it. In my view, the Supreme Court failed to use its powers of interpretation to declare that oral sex was not an act of “gross indecency” and squash the conviction. This may be because it got section 365 and 365A confused with each other and probably got oral sex confused with anal sex.   

However, the Supreme Court did give us a positive signal in its judgment. Although affirming, in my view, a wrongful conviction, the Supreme Court nevertheless held that a custodial sentence was not appropriate because the parties consented. This was actually ground breaking and has wide legal implications. By using their powers of interpretation and affirming that consensual sexual relations (irrespective of them being grossly indecent) do not warrant a custodial sentence the Supreme Court has, in some ways, made the law impotent. Why would you arrest and take to court any person under these laws if the highest court in the land has held that there shouldn’t be a custodial sentence where there was consent?   

QDo you think the Sri Lankan Supreme Court has the potential to decriminalize homosexuality?

First of all, we need to understand the differences between the Indian Constitution and the Sri Lankan Constitution. In Sri Lanka, unlike India, judicial review of any laws is not permitted under our Constitution. This means that we basically have a fundamental rights chapter in our Constitution which is not worth the paper its written on as once Parliament has passed laws that violate our rights, the citizens of our country have no legal recourse against them.This strangely seems to apply to laws that were even imposed on us by foreign parliaments. The current law being used to target LGBT people was passed by a foreign, colonial power. Yet, the Fundamental Rights Chapter of our Constitution prevents the citizens of an independent Sri Lanka from challenging the laws of the colonial master.   

The implications of this prohibition don’t only affect the LGBT community, but also women, ethnic minorities and other marginalised groups that were historically discriminated against and mistreated by our former colonial rulers.   

Having said that, the Sri Lankan Supreme Court does have wide powers of interpretation. Our learned judges can certainly take some guidance from their Indian counterparts and the incredible exercise of their powers of interpretation to uphold the fundamental rights of marginalised citizens.   

The Supreme Court should also take note of statements made by the Government of Sri Lanka in both 2014 (under President Rajapaksa) and 2017 (under President Sirisena) that discrimination against LGBT people was unconstitutional and that the application of sections 365 and 365A in a manner that was discriminatory against LGBT persons was unconstitutional. 

 
So, yes – I do believe that the Sri Lankan Supreme Court has the power to decriminalize homosexuality if they effectively use their powers of interpretation and exercise their duty to protect the fundamental rights of our citizens.   

• Our FR Chapter of our Constitution prevents Sri Lanka from challenging the laws   
• Our judges can take guidance from India to uphold the fundamental rights of marginalised citizens  
• My private life and the sexual orientation I was born with should have nothing to do with my professional career  

QDo you think that there is a culture of acceptance among the Sri Lankan populace if either the judiciary or the legislature was to decriminalize homosexuality? 

Sri Lanka has a long cultural history of acceptance and tolerance. The main religions of this country, especially Buddhism and Hinduism, are entrenched in the principles of tolerance, acceptance of diversity and inclusion of all minorities.   

Following the recent Indian judgment, Sri Lanka remains the only country with a significant Buddhist and Hindu population that criminalises homosexuality. We are an anomaly in Asia – not because our society doesn’t accept LGBT people, but because our politicians would rather maintain a system that subjugates and tramples on the dignity of our citizens than establish a system that would protect them.   

The Christian world has also progressed rapidly. Many decriminalized homosexuality over 50 years ago and have moved forwards towards full equality, including marriage rights. Italy – the centre of the Catholic Church-has even gone as far as legalizing same sex unions – recognizing the love between two persons and protecting that love. Muslim countries such as Turkey, Indonesia, Albania, Azerbaijan, Bahrain, Bosnia, Burkina Faso, Djibouti, Guinea-Bissau, Iraq, Jordan, Kazakhstan, Kosovo, Kyrgyzstan, Mali, Niger and Tajikistan don’t criminalise homosexuality and some have expressed legislation that prohibit discrimination against LGBT persons.   

Sri Lanka is now in the unenviable category of countries that include Afghanistan, Saudi Arabia and Nigeria which criminalise homosexuality. We need to ask ourselves whether the culture of these countries reflects our own and whether this is a category we want to continue remaining in?   

QThe LGBTQ community faces constant discrimination and stigmatisation in Sri Lanka. What challenges do LGBTQ professionals face? 

LGBTQ professionals face a number of challenges. Many have not made public their sexuality out of fear, some have been forcibly ousted from work and others have been subjected to humiliation.   

Recently I had to intervene in a matter where a gay man, working in a major establishment in Colombo, was taken inside the security room of that establishment by the senior management and forced to confess his sexuality and give details of his private, sexual practices. He was subject to humiliating and derogatory treatment and his entire ordeal was recorded on video. He fortunately reached out to me and together with our pro bono lawyers at iProbono, we were able to redress his situation, seek a just solution and ensure that similar incidences are never repeated in that establishment again. Although I must commend the head of that establishment (without whose knowledge the ordeal happened) for taking swift and prompt action against such abuses 

 
If incidences of this nature can happen at some of the most sophisticated places in this country, you can imagine the situation of gay men in other work places.   
On a weekly basis I receive emails and messages from LGBT people who are desperate to leave Sri Lanka. Many who contact me are educated and can contribute so much to the development of this country. But, they want to leave because living here would mean living a life that, for them, is not worth living. It breaks my heart each time I read those messages.   

QIn which ways do you think the rights of the LGBTQ persons should be recognized? 

LGBT people are not asking for any special rights. They are asking for the same rights as every other person in this country. No one would want to be treated differently because of their race, religion, gender or caste, therefore, why should LGBT people tolerate being treated differently because of the way they were born? 

 
QRecently you resigned from an initiative called ‘Think Equal’ due to certain allegations. Firstly, could you explain what ‘Think Equal’ entails and what it aims to achieve? 

The ‘Think Equal’ initiative was born out of a movement to end violence in this world especially against women and introduces a new subject into schools (designed with input from Montessori International and the University of Yale) that will teach children social and emotional intelligence. This is teaching children moral values and key skills such as critical thinking, problem solving and creativity. It aims to create a new, enlightened generation of Sri Lankans that will have the knowledge and skills suitable for the 21st century.   

QCould you explain the circumstances that led to your resignation as a trustee of Think Equal?

Unfortunately, like many good things which have been started in Sri Lanka, this organisation too got exposed to politicization and became a football for political disputes. Some politicians wanted to gain mileage out of this programme and others who didn’t want a more enlightened Sri Lanka started making allegations that the programme was promoting homosexuality due to my involvement in it.   

This programme has nothing to do with promoting homosexuality or any sexuality. I mean, how can you give education about sexuality to 3-year-old children? We need to question the morals of people who come up with these false ideas and allegations and the people who spread them.   

The Think Equal curriculum is publicly available for anyone to download and to read it for themselves. Unfortunately with the advent of social media, people just share things without thinking or checking facts. But every time you share a lie on Facebook, it has terrible and painful consequences. As a society, we need to be more conscious of that.   

QWas your resignation absolutely essential, considering the fact that you were a founding trustee of ‘Think Equal’, and the fact that this curriculum is acclaimed internationally? 

My resignation was not essential, but I didn’t want to be a distraction to the benefits of the programme. If my presence was going to get in the way of creating a more enlightened generation of Sri Lankans, then I would rather step aside and let that generation be created. The programme and its outcomes are bigger than I and considering the circumstances, I thought it was in the best interest of the programme to step aside.   

Having had to work with politicians and the Government administration on this project, I saw the real ugly side of Sri Lankan politics, the duplicity of some politicians and how people try to sabotage good initiatives by spreading lies. But, at the same time, my admiration grew for the Government servants I worked with, their professionalism, integrity and their genuine interest to create a better Sri Lanka for everyone. Unfortunately, some bad politicians prevent our Government servants and our professionals from doing their jobs. This explains why we as a country are still struggling to develop and why our people would rather be slaves in the Middle East than be subjugated and humiliated by their own people here.   

QHow did these false allegations impact you?

The allegations against ‘Think Equal’ really hurt me incredibly. Firstly, because it was all lies and politically motivated and secondly, because I am a gay man. But, my private life and the sexual orientation I was born with should have nothing to do with my professional career and my capabilities or work. I was the only gay man in this organisation of about 50 people from diverse cultural, religious and ethnic backgrounds. To say that having one gay man helping an organisation of 50 people means that the organisation is promoting homosexuality is as absurd as saying that having one Hindu man working for an organisation means that the organisation is promoting Hinduism.   

I am a banking and finance lawyer. I helped organisations such as Think Equal through the free work I do as a lawyer. I help a number of initiatives for free because I truly believe that we all deserve to live in a world where we are treated with dignity and fairness.