2020 Sep 21
Sri Lanka’s legal system is plagued by many loopholes. As much as our island’s laws have been the source of public order and stability, guarantor of equality and a buffer against injustice, some of them are also seen as Sri Lanka’s most burdensome legacies. Some of these obscure laws are archaic and date back to the colonial era. Worst yet, most of them, although some being obsolete, may seem hysterical on the face of it, but are actually rooted in discriminatory policies and regressive social norms.
A note on the legal system of Sri Lanka
Sri Lanka’s legal system is based on common law. This means that in addition to legislation, laws are interpreted through custom and judicial decisions. We operate on a hybrid legal framework with criminal laws drawing its origins from English law while common law is based on Roman-Dutch law. Due to Sri Lanka’s complex colonial history and cultural dynamics, our legal system is marked by a combination of Kandyan law, Roman Dutch law, English law, Thessavalamai and Muslim law.
If you’re looking for a list of vague and meaningless laws in Sri Lanka, we’ve got you covered! Here are a few startling examples.
Anyone who exhibits disorderly conduct in a public street or highway is subject to a fine of Rs. 20.
Yes, you read it right. No, it’s not a typo.
The 179-year-old Vagrants Ordinance is used by law enforcement authorities to warn or arrest anyone from sex workers, beggars, LGBTQ+ persons and loiterers who are ridiculously placed in one single category. According to this ambiguous law, any person who “follows, accosts, or addresses by words or signs any person against his will” while in a verandah, street, or passage (among others) that is used or accessible to the public is deemed “an idle and disorderly person.” Thereby, they are subject to a fine of Rs. 5 while those deemed a “rogue,” “vagabond” or worst yet… an “incorrigible rogue,” is subject to hard labour or a fine not exceeding Rs. 20. Adding to the laughable nature of such fines, there have been instances where so-called offenders have spent much more on their lawyer’s fee and the cost of hearing the case to be charged with just Rs. 10.
“Improper behaviour” between couples may warrant an arrest
Remember the recent incident in Anuradhapura where 100 couples were taken into custody? According to lawyer and advocate Aritha Wickramasinghe, there is no recorded court judgment which shows that “public displays of affection” is a criminal activity. Police often exploit vaguely worded and archaic colonial laws such as Section 365A, mentioned above, to arrest or warn couples under the wildly unreasonable justification of “gross acts of public indecency.”
Women in Sri Lanka cannot legally buy alcohol
Yes, you read that right too. Women are not legally allowed to purchase alcohol in Sri Lanka. Just two years ago, most Sri Lankans were all smiles as the then Finance Minister, Mangala Samaraweera had made the decision to amend the 1979 ‘sexist’ and obsolete law that banned women from buying alcohol. But the celebration was short-lived as President Sirisena stepped in soon after and ordered it to be overruled. Even though the law is hardly enforced, paternalistic attitudes indicating that women should not drink is a regressive social norm that is unfortunately still upheld in Sri Lanka.
Women cannot work in taverns without a permit
Women are legally banned from working in taverns and bars without a state permit from the Excise Commissioner, according to the Excise Ordinance, No.666 of 1979. The same proposed amendment that would have lifted the ban on women buying alcohol also made leeway for this archaic law preventing women from working in taverns, to be repealed.
However, the amendment never came into effect due to President Sirisena’s overruling.
Rape is a crime… unless you are married to the perpetrator
No, marital rape is still not criminalised in Sri Lanka. As much as we take pride in being one of four South Asian countries that have strong domestic violence laws in place, marital rape is not considered a crime, unless the husband and wife are (legally!) separated. Marital rape is the act of having sexual intercourse without the consent of one’s partner. Most instances of rape, unfortunately, occur between spouses, which sadly leave survivors of such assault with little to no legal protection. Notably, criminalising marital rape in Sri Lanka was also a condition laid by the European Union in withdrawing the ban of the GSP+, according to former Justice and Foreign Employment Minister Talatha Atukorale.
The vaguely worded General Marriage Registration Ordinance of 1907
In 1995, laws detailing the minimum age of marriage were amended, raising the legal age of marriage to 18 years. However, a predated clause – Section 22 of the General Marriage Registration Ordinance caused confusion among the public regarding the provision stating that parents may give consent to the marriage of a minor who is under 18 years. However, proceeding case law, particularly Gunaratnam v. Registrar-General (2002), clarified that the law stating 18 years as the minimum legal age of marriage overrides parental authority to provide consent to the marriage of a minor.
Intercourse “against the order of nature” is illegal
Article 365 of the Sri Lankan Penal Code criminalises “carnal intercourse against the order of nature” and considers it a punishable offence that is liable to a fine, or up to 10 years of imprisonment. This astonishingly vague and needless to say, demeaning law along with Article 365a which cites acts of “gross indecency” between adults stem from old Victorian law that does not overtly state that homosexuality is illegal, but is often used to enforce the illegality of same-sex relations between consenting adults, including in private spaces. The vague and ambiguous nature of these laws, unfortunately, exposes LGBTQ+ persons in Sri Lanka to police abuse. They are also likely to face impunity for crimes or misdemeanours directed at them.
“Cheating by impersonation” is banned
This utterly vague law that comes under Section 399 of the Penal Code is often used to harass transgender people. The impersonation law supposedly implies the act of pretending to be someone that they are not, and are sometimes used by Police to allege and arrest transgender individuals on the illogical basis that they are ‘pretending’ to belong to a different gender and are therefore misleading to the public.
These incidents have made one thing clear. The time to decolonise and reform our laws are NOW.