Sri Lanka National Human Rights Plan minus protection for LGBTIQ

In response to the Sri Lankan Government’s National Human Rights Action Plan, which was released yesterday (2nd November 2017), Rosanna Flamer-Caldera, Executive Director of EQUAL GROUND, said:

“We welcome the advancement to Sri Lankan citizens’ human rights protections today and commend in particular our government’s commitment to protecting those discriminated against as a result of their gender identity.

We at EQUAL GROUND believe that all Sri Lankans should be afforded the freedom to live their lives without fear of oppression, violence or discrimination. This includes those who are targeted as a result of their sexual orientation, a group conspicuously missing from the action plan.

The work we do everyday exposes us to the reality of those living under threat of violence because of whom they love. These are vulnerable communities that need and deserve protection from the state, to the same level as all other Sri Lankans.

We hope the government sees fit to re-dress this missed opportunity and to include sexual orientation where appropriate as a protected characteristic. Human rights are for all of us.”

The Government of Sri Lanka published the much-anticipated National Human Rights Action Plan for 2017-2021 on the 2nd of November 2017 through the Ministry of Foreign Affairs website. EQUAL GROUND commends the Government of Sri Lanka’s attempts to advancing the rights of Sri Lankan citizens. We are especially happy to see that the Government has taken measures to protect the rights of Trans persons by including non-discrimination based on ones Gender Identity in the Fundamental Rights Chapter of the Constitution. This advancement would help us address the various forms of harassment the Trans community faces from society as well as law enforcement on a regular basis.

It is however unfortunate to see that regardless of the Government‘s acknowledgement to International treaty bodies and the Government’s commitment in the National Report to the Universal Periodic Review of Sri Lanka (A/HRC/WG.6/28/LKA/1, Section IV:A P7) to eliminate discriminatory provisions set forth by the Penal Code (Section 365 & 365A criminalises carnal intercourse against the order of nature and acts of gross indecency committed in private or public, which is widely understood to target same sex activities), as well as guarantee non-discrimination on the basis of Sexual Orientation, the NHRAP 2017-2021 has failed to follow up by not including Sexual Orientation as a basis for protection against discrimination in the fundamental rights chapter of the constitution.

The NHRAP 2017-2021 also calls to review and amend the right to privacy in the Sri Lankan constitution (3.1.2) which in an essence should stand for protection against Section 365A of the Penal Code, that warrants the criminalisation of same-sex activities committed in private. However, we are sceptical that such provisions would guarantee the right to privacy of person of minority sexual orientations.

Section 6.6.4 of the NHRAP 2017-2021 includes an action to eliminate discriminatory practices within the health care setting based on ones perceived or actual sexual orientation. This shows that the Government of Sri Lanka is aware of such discrimination occurring, at least in the healthcare sector. But, the performance indicator for this action is inadequate because it simply measures the success of elimination of discrimination by the number of programs conducted. Furthermore, no agency has been appointed to overlook the programme. Any person facing discrimination based on their sexual orientation in the healthcare sector has no redress in the eyes of the government without an explicit protection under the fundamental rights chapter of the constitution.

The President and the Prime Minister strongly believes that this Action Plan is a constructive step by the Government of Sri Lanka to protect, promote and fulfill the human rights of all Sri Lankans. They further comment on how the plan was spear headed by civil societies and UN agencies yet the NHRAP fails to address the Governments own commitments to the UN mechanisms and the recommendations they have received from them. The Committee on Economic, Social and Cultural rights in their concluding observations during the 61st session 2017 (E/C.12/LKA/CO/5 Sec C:14 P4) recommended that the Government of Sri Lanka “expand the non-discrimination clause in article 12(2) of the Constitution to include sexual orientation.”

Contradiction of this sort only proves that the Government of Sri Lanka is yet to acknowledge persons with minority sexual orientations as people of the country; who as active contributors to society, require to be protected just as anyone else. We have the right to live lives free of criminalisation and discrimination based on our sexual orientations as well as our gender identity and expressions. It’s about time that 134 years of criminalisation and systematic discrimination of the LGBTIQ community comes to an end and we are acknowledged as a part of a vulnerable group which requires explicit protection by the Government of Sri Lanka.