SC cannot comment on someone's sexual preferences

The Supreme Court cannot make any comment on someone’s sexual preferences and can only rule on whether or not a bill violates the Constitution, Supreme Court Justice Vijith Malalgoda stated.

He made the remarks in response to a statement made by Sanjeewa Jayawardena, PC, who appeared for one of the intervenient petitioners in the Fundamental Rights petition challenging the Penal Code (Amendment) Bill tabled in Parliament by MP Premanath C Dolawatte.

The petition was taken up this week in front of a three-judge bench led by Chief Justice Jayantha Jayasuriya and including Justices Vijith Malalgoda and Arjuna Obeyesekere.

Retired Brigadier Athula H De Silva, political analyst Shenali Waduge, and social activist Jehan Hameed had filed the petition against the bill.

Attorney-at-Law Darshana Weraduwa, who appeared for the petitioners, told court that the bill violated the Constitution in that it seeks to strip protections afforded to women and children through a 1995 amendment to the Penal Code. Given that this amounts to a clear violation of the fundamental rights enshrined in the Constitution, he argued that the bill has to be approved by the people at a referendum.

Given that the bill will decriminalise same-sex relations, he warned that it will create enormous social issues in the country.

Sanjeewa Jayawardena PC, who appeared for Mr Dolawatte as well as a group of intervenient petitioners including Prof Savithri Gunasekara and Dr Radhika Coomaraswamy, rejected Mr Weraduwa’s arguments. He stressed that a same-sex relationship between two consenting adults cannot be deemed illegal. He pointed out that people cannot be discriminated against based on their sexuality or sexual relationships. He noted that the Indian Supreme Court had also affirmed the rights of LGBTQ persons.

Additional Solicitor General Haripriya Jayasundara, appearing for the Attorney General, said that the bill was being brought forward with the aim of protecting the rights of LGBTQ persons. The petitioners’ arguments are based on pure conjecture and are incorrect, she told the court. She asked the court to dismiss the petition.

Prasantha Lal De Alwis PC, appearing for Equite Lanka also made written submissions arguing against the petition.

The Supreme Court’s ruling on the bill will be conveyed to the Speaker.