Sections 365 and 365A of the Penal Code have been used to harass, persecute and criminalise the lives of LGBT+ people

LGBT+ rights activists have time and again expressed their disappointment regarding laws that are introduced to restrict freedom 

The passage of the Emergency Regulations by an overwhelming majority has been frowned upon by fractions of the legal fraternity and rights activists. This is because the Regulations provided unprecedented powers to the Police and military officers to arrest and detain people who have allegedly violated sections 365 and 365A of the Penal Code. Following the outcome of the regulations, LGBT+ rights activists expressed their extreme

disappointment, hurt and fear. The Liberal Youth Movement for instance, filed a fundamental rights petition against the Emergency Regulations which highlighted the fact that certain provisions in the Regulations have no rationale or nexus to national security. In response, on August 7, the government issued a gazette repealing sections 365, 365A of the Penal Code from Emergency Regulations. However, for the LGBT+ community, this is only a small victory.

“I feel that Emergency Regulations should be scrapped altogether as they impinge on the people’s right to peaceful protest.  Governments should be held accountable for letting down the people”- Rosanna Flamer-Caldera Executive Director of Equal Ground 

Draconian sections of the Penal Code 
Section 365 of the Sri Lankan Penal Code makes it a criminal offense to engage in “carnal intercourse against the order of nature”. The penalty for violation of Section 365 is up to ten years imprisonment and a fine. Section 365A of the Penal Code criminalises “any act of gross indecency with another person. Violation of Section 365A is punishable by up to two years in prison, a fine, or both.

Section 11 of the Regulations allow any police officer or member of the armed forces to search and detain, without a warrant, any person who is committing or has committed or is suspected of committing an offence under sections 365 and 365A of the Penal Code.

Sections 365 and 365A of the Penal Code have been used to harass, persecute and criminalise the lives of LGBT+ people. The offences criminalise “intercourse against the order of nature between man, woman and animal” and “gross indecency between any persons”. 

Both offences are perceived as extremely vague and can be committed in public or private. Their vagueness has been used as a tool to persecute LGBT+ people, including subjecting them to torture and prosecution. 
The arrests, detentions and persecutions of LGBT+ people continued in Sri Lanka despite several statements by the Attorney General that discrimination against LGBT+ people is unconstitutional and that sections 365 and 365A of the Penal Code cannot be used against LGBT+ people. 

Section 12 (e) of the Regulations also impose life imprisonment for any person found guilty of committing an offence under section 365 and 365A of the Penal Code. This punishment risks subjecting Sri Lanka’s LGBT+ to a punishment more severe than that imposed in Saudi Arabia or Nigeria. 

The punishments and continued persecution of LGBT+ are in complete contravention of Sri Lanka’s Constitutional guarantees and international commitments especially under the International Covenant for Civil and Political Rights (ICCPR). These violations risk further damaging Sri Lanka’s reputation and access to key export markets through GSP+.

“I am glad that removal of these provisions from the Emergency Regulations have now been Gazetted. It’s only a small win for the LGBT+ community. But it gives us some comfort”-Aritha Wickramasinghe Equality Director at iProbono

Emergency regulations impinging people’s rights?
 However, the issuance of the recent gazette is perhaps a small step in the right direction. “I’m really glad that common sense finally prevailed and sections 365 and 365A of the penal code were deleted from the emergency regulations,” opined LGBTQ Rights activist and Executive Director of Equal Ground Rosanna Flamer-Caldera. “However I feel that Emergency Regulations should be scrapped altogether as they impinge on the people’s right to peaceful protest.  Governments should be held accountable for letting down the people. The Government must listen to the people’s voices and heed the messages of despair and disappointment that have been communicated thus far. A true democracy should be for the people by the people not for some people by some people,” said Flamer-Caldera. 

A small win 
Human rights activist and Equality Director at iProbono Aritha Wickramasinghe said that the inclusion of sections 365 and 365A in the Emergency Regulations were alarming and disturbing. “It risked severe punishment for members of the LGBT community who have long been persecuted as a result of these specific offences.

“Although the offending laws make no mention of ‘homosexuality’, the reality has been the overwhelming use of these laws against LGBT people, including forced anal and vaginal examinations by police and JMOs to find “proof” of homosexuality.”

“I am glad that removal of these provisions from the Emergency Regulations have now been Gazetted. It’s only a small win for the LGBT+ community. But it gives us some comfort that we won’t have police breaking through our windows to arrest and jail us for how we are born,” he added.