Following concerns expressed by Lesbian, gay, bisexual, transgender, intersex, and queer/questioning (LGBTIQ) persons, President Ranil Wickremasinghe yesterday (7) issued a gazette removing Sections 365 and 365 A of the Penal Code from the emergency regulations that were gazetted by him and passed in Parliament with a majority last month.
Section 360 of the Penal Code terms “voluntary carnal intercourse against the order of nature with any man, woman, or animal” as an “unnatural offence”, while Section 365 A penalises “acts of gross indecency between persons” in either public or private, and are often relied on by the police to harass and arrest LGBTIQ persons.
In a statement issued regarding the inclusion of these two sections in the emergency regulations that were issued last month by the President, Equal Ground, an organisation fighting for equality for persons of all sexual orientations and gender identities, said that it is “particularly concerned” about it as it could “garner a sentence of life imprisonment if convicted”.
“Particularly, Equal Ground is concerned about the inclusion of Sections 365 and 365A of the Penal Code in Articles 11 and 12 of the Emergency Regulations. The Police and law enforcement authorities already use 365 and 365A, which criminalise ‘carnal intercourse against the order of nature’ and ‘acts of gross indecency’, respectively, to arrest and harass lesbian, gay, bisexual, transgender, intersex, and queer/questioning (LGBTIQ) persons.
The emergency regulations give the Police and armed forces power to question, search, and detain, without a warrant, anyone committing or suspected of committing offences under 365 and 365A. These two sections are also included in Article 12(1)(e), which lists the offences that could garner a sentence of life imprisonment if convicted,” said the statement.
Thus, Equal Ground Executive Director Rosanna Flamer Caldera said that this targeting of LGBTIQ persons under the emergency regulations is “just another ploy” by the Government to continue to “marginalise, discriminate, and undermine the Constitution”, while attempting to “tarnish the LGBTIQ community as “harmful to the State”, thereby making them easy targets for the Police, armed forces, and other citizens.
Yesterday’s Gazette Notice repealed these two sections from the emergency regulations, after which Equal Ground posted on Twitter: “President issues gazette dropping 365 and 365A from Emergency Regulations. A prelude to decriminalisation perhaps?”
Furthermore, the Gazette Notice also repealed Section 365 B, pertaining to grave sexual abuse, from the emergency regulations. Also, it replaced Section 427 (criminal trespass) with Section 446 (all persons jointly concerned trespassing or housebreaking to be punishable for death or grievous hurt caused by them).
The emergency regulations, gazetted by then-Acting President Wickremesinghe on 18 July 2022, have received widespread condemnation and have been termed the “most oppressive” in Sri Lanka’s history.
Four days after the emergency regulations were gazetted, on 22 July, security forces attacked the protestors occupying the Presidential Secretariat, despite the protestors having informed that they would move out of the Secretariat the following day. Victims of the attacks included lawyer Nuwan Bopage and journalists.
Former Human Rights Commission of Sri Lanka (HRCSL) Member, human rights activist, and lawyer Ambika Satkunanathan has filed a fundamental rights (FR) petition at the Supreme Court, challenging the state of emergency and the emergency regulations, while key members of the Opposition, including Tamil National Alliance (TNA) Spokesperson M.A. Sumanthiran PC, have termed Wickremesinghe’s emergency regulations “the most repressive” in history.
The Centre for Policy Alternatives (CPA) has highlighted that they are “more draconian” than former President Gotabaya Rajapaksa’s emergency regulations in May 2022. The Frontline Socialist Party (FSP) too condemned the emergency regulations, stating that these are unlike any that have been seen in history. The Sri Lanka Podujana Peramuna (SLPP) faction led by Prof. G.L. Pieris and Dullas Alahapperuma has stated that these emergency regulations “cannot be justified in any way”.