Image: A gathering of LGBTQ community in Sri Lanka (image courtesy: Foreign and Commonwealth Office, United Kingdom)
In its response to the list of issues raised by the Committee on Economic, Social and Cultural Rights (CESAR) at its Sixty-first session, Sri Lanka government says that under the new constitution existing discriminatory laws in relation to LGBTIQ persons will be addressed.
The 61st session of the CESAR is taking place at OHCHR HQ Palais Wilson in Geneva from 29th May – 23rd June.
” It is observed that an equality provision to the above effect would seek to overcome the impact of the applicable criminal law provisions affecting the LGBTIQ community, when post enactment judicial review of legislation is provided for under the new Constitution, which is envisaged.” says the replies of Sri Lanka to the list of issues.
Non-discrimination in respect of LGBTIQ persons.
51. Article 12(2) of the present Constitution stipulates that ‘no citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds’. It is clear that the grounds of non-discrimination set out in the said article are not exhaustive and could cover differences pertaining to sexual orientation as well.
52. During the ongoing Constitutional Reform process, it has been proposed by the sub-committee on Fundamental Rights of the Constitutional Assembly to specifically include “sexual orientation” as a ground of non discrimination, thus clarifying any uncertainty as to whether discrimination based on sexual orientation is prohibited under the Right to Equality.
53. The formulation suggested by the Sub-Committee in its report to the Steering Committee is as follows:
“No person shall be arbitrarily discriminated against on any ground including race, gender, sex, sexual orientation, gender identity, maternity, marital status, parental status, cast, ethnic or social origin, age, disability, religion, conscience or belief, political or other opinion, culture, language, place of birth or place of residence.’’
54. It is observed that an equality provision to the above effect would seek to overcome the impact of the applicable criminal law provisions affecting the LGBTIQ community, when post enactment judicial review of legislation is provided for under the new Constitution, which is envisaged.
55. It may also be noted that the NHRAP 2017-2021 adopted by the Government in January 2017 has also recommended “to Review the Penal Code offences to ensure that they are in compliance with the international Human Rights Standards and bring legislations where necessary”.