April 4, 2021 by Yumiko Perera
A complex mixture of legal systems of Roman-Dutch Law, British Law, Kandyan Law, Thesavalamai, and Muslim Law, the legal framework of Sri Lanka is rich in diversity. The religious and colonial history of the country, tracing back from 1505 to 1948, has been a huge contributing factor, responsible for the country’s legislative inheritance.
Comprising collections of codified and un-codified forms of law of many origins, subordinate to the Constitution of Sri Lanka, various customary laws based on community and geography have been a part of the legal structure of the country for decades. Applicable to various communities – the Kandyan Sinhalese, Tamils of Jaffna, and Muslims across the island – there are also significant gaps and discrepancies when it comes to these customary laws.
Even with such legislative inheritance, Sri Lanka is still lagging on a more progressive front, and the fact that some of these laws have not been amended for a considerable period of time, sets us back multiple decades. Do these laws still fit into today’s context? Why is significant change necessary? The Sunday Morning approached multiple individuals for their expert views and thoughts on the topic.
Outdated laws marginalise
Speaking with The Sunday Morning, finance lawyer and human rights activist Aritha Wickramasinghe said: “Sri Lanka has several laws which are very archaic and haven’t been updated in a long time. The Vagrants Ordinance is one of them. It’s primarily there to criminalise people who would be seen as not stringent to what society expects from them, generally – begging, sex work, being homeless, begging with a deformity or a disability, and being idle and not having a purpose.”
Following the recent arrest of several women, the relevance of laws such as the Vagrants Ordinance today seems implausible; ridiculous even. “While these laws are used primarily against heterosexual couples for holding hands in public, etc., in the last couple of years, we have had so many cases of Police conducting mass arrests of couples in parks,” Wickramasinghe added.
Popular speaker and activist Shanuki De Alwis, in conversation with The Sunday Morning, shared: “I find it interesting how the Vagrants Ordinance is almost always only used by the establishment to target and victimise women and sex workers or the LGBTQI community. If they are sincere about making arrests of suspicious persons loitering, then there are thousands of shifty, dodgy men who hang around without any purpose.
“As far as the media reported, the women in question who were arrested had done nothing wrong or harmful to anyone. They were arrested simply for standing somewhere. Doesn’t that impede my fundamental right to go outside my home and hang around somewhere watching the world go by? What if I wanted to go sit on a park bench at night and enjoy some time by myself? Why shouldn’t I be allowed to?
“The Sri Lankan system has continuously manipulated and used laws to be unjust towards women and non-CIS persons or those without privilege in society. It’s an unfair power dynamic at play, and nothing to do with justice. It makes you wonder who the real public nuisance here is. Unless we evolve as a country and amend these ancient laws accordingly, they will just be used to allow very flawed and corrupt police to continue systematic injustice and inequality towards citizens.”
Attorney-at-Law Dr. Gehan Gunatilleke, speaking with The Sunday Morning on the matter, shared: “I think it’s useful to recall that these are colonial-era laws that remain on our statute books. But I would not overstate the point. A lot of 19th-Century laws have no place in a modern legal system, and we shouldn’t become preoccupied with the point that the British enacted these laws. The fact is that we have a perfectly functional legislature that is capable of amending these laws today. The reason that these archaic laws remain on our statute books is entirely due to the apathy of our current lawmakers. Nothing is stopping them from repealing these archaic laws.”
Questioning the relevance of these laws today, Dr. Gunatilleke added: “It contains strange provisions that have no place in a modern legal system. Here’s an example.
“Section 3(c): Every person wandering abroad or lodging in any verandah, outhouse, shed, or unoccupied building, or in any cart, vehicle, or other receptacles, without leave of the owner thereof, and not having any visible means of subsistence, and not giving a good account of himself…shall be deemed an idle and disorderly person within the true intent and meaning of this Ordinance, and shall be liable upon the first conviction to be imprisoned, with or without hard labour, for any term not exceeding fourteen days, or to a fine.
“It is almost comical in its irrelevance to contemporary society,” added Dr. Gunatilleke.
Highlighting that most of these laws have been built on a patriarchal legal structure, Wickramasinghe added: “Certain laws dictate the time women can work. Women are not allowed to work beyond 10 p.m. Certain sections also mention the things that employers must provide for females, but at the same time, it has a patriarchal aspect to it. Women are not allowed to work at certain times unless they get special permission.
“The legal structure hasn’t seen any changes in decades; so, we are pretty much still governed by the laws the colonisers used to control us and subjugate us. We can see post-1948, how those colonial laws were used to control, torture, and repress the people consistently in Sri Lanka,” he stated.
Speaking briefly about how outdated laws further marginalise the already marginalised, Wickramasinghe added: “Section 365 and Section 365A of the Penal Code criminalise certain sexual acts which are committed in privacy. This was of course the time when Victorians thought the only purpose of sex was to reproduce. It used to constitute LGBTQI (Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex) people, but heterosexual people have often been constituted under these rules as well.”
Meanwhile, speaking with regard to Sections 365 and 365A of the Penal Code, Dr. Gunatilleke said: “The Supreme Court (SC), in a recent decision (SC Appeal No. 32/11), observed that ‘the contemporary thinking, that consensual sex between adults should not be policed by the state nor should it be grounds for criminalisation appears to have developed over the years and maybe the rationale that led to repealing of the offence of gross indecency…in England’. The Court decided not to impose a custodial sentence on the accused based on such thinking.”
LGBTQI rights activist Rosanna Flamer-Caldera, speaking with The Sunday Morning, said: “Section 365 talks about carnal intercourse against the order of nature, and Section 365A talks about acts of gross indecency. Both laws are being used to persecute and discriminate against LGBTQI persons, based on the fact that these are laws that the British enacted in 1883. At that time, they were known as sodomy laws because they applied only to gay men.
“However, in 1995, the laws were amended, the word male was dropped, and now the law applies to everyone, including heterosexuals. It is not the heterosexual community that is prosecuted under those laws, which is why I feel it is essential to be repealed.
“A lot of the laws that are in the books still date back to the British Era. I believe we shouldn’t use the law as a weapon, but we should be using the law to save lives and to protect people; whereas the laws of Sri Lanka do just the opposite,” concluded Flamer-Caldera.
Formulated by the British and enacted in 1883, Sections 365 and 365A of the Penal Code have long been used to criminalise homosexuality in Sri Lanka. Although this is an old Victorian-Era law that doesn’t state that homosexuality is illegal, it has been used to criminalise consensual same-sex sexual relations. While other South Asian countries like neighbouring India and Bhutan have chosen to decriminalise consensual same-sex sexual relations in the recent past, Sri Lanka only seems to be heading down a more regressive path.
The much-discussed MMDA
The need for reforms to the Muslim Marriage and Divorce Act (MMDA) has been at the forefront of public discourse due to the agitations from women’s rights groups and various efforts being made over the years for possible amendments.
A customary law, through the Muslim Marriage and Divorce Act (MMDA), women can be entered into a marriage without their consent, and can also be handed a divorce without their consent.
Human rights and women’s rights activist Shreen Saroor, speaking with The Sunday Morning, said: “The MMDA is a Sharia Law and it’s untouchable. However, it needs to be amended to align with the Constitution of this country so that Muslim women and girls are treated equally. Everybody has to be treated fairly and equally under Sri Lankan law. Although there have been multiple bills presented to abolish the MMDA, we think that making the necessary amendments would not only suffice, but would also make a significant difference.”
Dr. Gunatilleke, emphasising the need for change, said: “I think personal laws that are inconsistent with the principle of non-discrimination need to be repealed, without exception. But we need to be sensitive to the fact that chauvinistic agendas often disguise themselves by calling for reforming of laws applicable to minority communities. For example, an anti-Muslim sentiment often drives calls for banning admittedly problematic practices within the Muslim community, such as underage marriage.
“In principle, it makes sense to impose a minimum age of marriage in the interests of protecting children. But then why not extend that principle and prohibit child ordination? Such selectivity is a serious problem and de-legitimises even genuine reform initiatives. Having said that, I think law reformers have to listen to the people that are affected by discriminatory laws – often women from minority communities. I think there is certainly enough evidence to suggest that women from the Muslim community are demanding reform – so that needs to be taken seriously, and is a valid basis for proceeding with reform,” concluded Dr. Gunatilleke.
Bar Association of Sri Lanka (BASL) President Saliya Pieris PC, speaking with The Sunday Morning, said: “The BASL has nominees in various committees formed by the Justice Ministry with regard to bringing in new reforms. We are looking at various aspects of renewing these laws.”
Emphasising on the need for a more progressive framework when it comes to the legal structure of the country, Minister of Justice Ali Sabry had recently conveyed his intention to reform the entire legal framework of Sri Lanka, in order to suit the present day.
Speaking with The Sunday Morning, Sabry said: “We are in the process of identifying the requirements and the need for amendments, and with regard to whatever is being recommended with justification, we are willing to change those laws to fit today’s context.”
Some archaic laws
- The Vagrants Ordinance (1982)
The provisions of the Vagrants Ordinance are often used to intimidate, extort, detain, and interrogate individuals whose appearance do not conform to gender norms. According to these provisions, authorities are allowed to arrest and prosecute sex workers. It levies a series of fines ranging from Rs. 5 to Rs. 20. You can be clocked for doing anything from merely idling to exposing yourself in public under the Vagrants Ordinance.
- Section 365 of the Penal Code (1883)
Carnal intercourse against the order of nature with any man, woman, or animal, is punishable with imprisonment of either description for a term which may extend to 10 years, and may also be liable to a fine, as per Section 365 of the Penal Code. The Penal Code prohibits sexual acts between men, and does not acknowledge lesbianism.
- 365A of the Penal Code (1883)
Prohibits acts of “gross indecency”, or the procurement or attempted procurement thereof, carries a penalty of up to two years’ imprisonment and/or a fine, and is applicable to sexual acts amongst men, and between women.
- The Workmen’s Compensation Ordinance (1935)
Under Schedule IV of The Workmen’s Compensation Ordinance and its subsequent amendments, compensation for permanent and total disablement as a result of the injury sustained is a maximum payable of Rs. 550,000in the case of death or permanent disablement. The employer is also not liable to pay compensation to a worker in respect of any disease unless the disease can be directly attributable to a specific injury by accident as a result of his/her employment or if the disease is reasonably attributable to the nature of his/her employment.
- The Excise Ordinance (1951)
A law which had been introduced post-colonial era, notification 417 of Ceylon Government Gazette No. 100266 of 5.7.1951, it prohibits the possession by any female of any quantity of arrack or fermented toddy in any public place throughout the whole island except under the authority of a permit or pass duly granted under that Ordinance. Therefore, while a woman is permitted possession, for example inside the premises of a licensed restaurant, the right to possess any kind of alcohol by a woman, does not extend outdoors.
As per the Excise Notification No. 666 of the Gazette Extraordinary of 1979, it is prohibited for females over 18 years of age to purchase alcohol from taverns, and also to be employed in licensed premises without prior approval of the Excise Commissioner.
Original post: The Sunday Morning