Dec 6, 2023 | Advocacy, News
The second revision of Law No. 11 of 2008 on Electronic Information and Transactions (ITE Law), which was passed on 5 December 2023, does not comply with international human rights law and standards on freedom of expression and information, said the International Commission of Jurists (ICJ) today.
On 5 December 2023, the Indonesian House of Representatives passed the bill for the second revision of the ITE Law into law.
The ICJ is gravely concerned that the revised ITE Law fails to rectify the main flaws of its previous iteration, which has been used to wrongly criminalize and restrict free expression in online spaces. The criminal provisions contained in the revised law are inconsistent with international human rights law and standards, with added provisions having the potential to exacerbate repression of online expression.
“The retention of overbroad criminal provisions in the revised ITE Law signals the continuing failure of Indonesia to comply with its international human rights obligations to respect and protect the right to freedom of expression,” said Melissa Upreti, ICJ Regional Director for Asia and the Pacific. “The revision process lacked transparency, and important recommendations made by civil society to remove the ITE Law’s fatally flawed provisions have been disregarded.”
The ICJ is also concerned that the drafting process for the second revision was opaque, with public feedback on the draft having been ignored. The lack of transparency in the drafting process contravenes Indonesia’s obligation to ensure the effective exercise of the right to participate in public affairs, as guaranteed under article 25 of the International Covenant on Civil and Political Rights (ICCPR).
“The second revision of the ITE Law failed to capitalize on the opportunity for the Indonesian authorities to strengthen the protection of online freedom of expression and to reaffirm its commitment to respecting and protecting human rights in the online space. It is imperative that the revised law repeals or substantially amends the overbroad criminal provisions that have been used with concerning frequency to arbitrarily suppress online freedom of expression and create a climate of fear,” said Upreti.
In light of these concerns, the ICJ calls for the repeal or substantial amendment of the revised ITE Law to bring it in line with Indonesia’s human rights obligations to respect and protect the right to freedom of expression and information, through a transparent process that involves the effective participation of civil society.
Criminalization of free expression online
The revised ITE Law retains the overbroad and vague provisions criminalizing “contents that violate propriety” (article 27(1)); criminal defamation (article 27A); and “content that incites, persuades or influences” others that “causes feelings of hatred or hostility” based on protected characteristics (article 28(2)). A violation of these offences may result in imprisonment and criminal fines if found convicted (articles 45 and 45A).
Additionally, the revised law incorporates a new provision that imposes criminal liability for intentionally disseminating content that a person “knew contained false statements that cause public unrest” (article 28(3)), which may result in imprisonment if found convicted (article 45A(3)).
Any restriction on the right to freedom of expression and information must comply with the elements of legality, legitimate purpose, necessity and proportionality required under article 19(3) of the ICCPR. This means that any restriction on the right to freedom of expression must be based on law that is precisely worded, and be necessary for and the least restrictive measure to respond to a legitimate aim. The only aims identified as legitimate in article 19(3) are ensuring respect of the rights or reputations of others; or for the protection of national security, public order, public health or morals.
The criminal provisions in the revised law are unnecessary for any legitimate government purpose and risk making criminals of large numbers of ordinary internet users, and chilling many others from speaking online. They are clearly inconsistent with Indonesia’s obligations under article 19 of the ICCPR to guarantee the right to freedom of expression and information. They threaten unwarranted criminal sanctions for acts that are based on vague and overbroad language, which could be applied to unduly interfere with the rights of individuals and disproportionately impact those from disadvantaged and marginalized groups.
For instance, article 27(1) of the revised ITE Law threatens criminal sanctions for disseminating content that violates “propriety”, defined as “displaying nudity, genitalia, and sexual activity that contravenes with the values existing in society […]”. While the law now includes an exemption for public interest and self-defence (article 45(2)), this definition for “propriety” is vague and overbroad, having the potential to be weaponized to unjustly sanction any form of expression by individuals from marginalized groups, such as LGBTI-related content. Further, it could enable legal reprisals against victims/survivors of gender-based violence and lead to revictimization.
Defamation should never be subject to criminal, as opposed to civil, sanctions. The UN Human Rights Committee, which authoritatively interprets the ICCPR, has called on States to end the use of the criminal law for such purposes and affirmed that “imprisonment is never an appropriate penalty [for defamation]”. While the revised ITE law now incorporates a public interest exemption, the retention of criminal defamation will continue to have a chilling effect on online freedom of expression and information. Indeed, the previous criminal defamation provision in article 27(3) of the ITE Law, has already been applied to target expression critical of the government.
The criminalization of disseminating content that incites “feelings of hatred or hostility” in article 28(2) cannot be used to justify the application of criminal law. While States must act under the ICCPR article 20 to protect against actual incitement to violence and discrimination, provoking mere “feelings” of ill-defined conceptions of “hatred or hostility” stands well below the threshold of actual acts of violence or discrimination. In any event, the use of the criminal law is a plainly disproportionate measure to address any legitimate objective. The ICJ notes that the previous criminal hate speech provision in the ITE Law has been applied in an arbitrary manner to charge journalists and convict forms of expression that do not give rise to substantial harm.
The addition of article 28(3) in the revised ITE Law to criminalize disseminating “false statements” that causes “public unrest” is vague, overbroad and imprecise, which is inconsistent with the legality principle. Authorities may not rely on the prevention of “public unrest”, vaguely defined as “conditions that disturb public order […]”, to justify the disproportionate threat of criminal sanctions, especially imprisonment. The ICJ notes how other criminal provisions sanctioning disinformation, based on colonial-era regulations, have been used to arbitrarily sanction legitimate expression protected under international human rights law, including public interest reporting or critical opinions concerning public officials.
This press release can be downloaded in Bahasa Indonesian here.
Contact
Melissa Upreti, ICJ Regional Director for Asia and the Pacific, e: melissa.upreti@icj.org
Daron Tan, ICJ Associate International Legal Adviser, e: daron.tan@icj.org
Yogi Bratajaya, ICJ Legal Consultant, e: yogi.bratajaya@icj.org
Further reading
Dictating the Internet: Curtailing Free Expression, Opinion and Information Online in Southeast Asia
Indonesia: ICJ asks court to ensure that defamation and “false information” laws not be used to silence and criminalize human rights defenders
Indonesia: Law No. 12 of 2022 on Sexual Violence Crimes and Online Gender-Based Violence Against Women
Silenced But Not Silent: Lesbian, Gay, Bisexual and Transgender Persons’ Freedom of Expression and Information Online in Southeast Asia
Dec 1, 2023
An opinion piece by Yogi Bratajaya, ICJ Legal Consultant and Daron Tan, ICJ Associate International Legal Adviser, Asia and the Pacific Programme, published on The Jakarta Post on 27 November 2023.
Over the past two decades, state authorities have tightened their grip on online freedom of expression in the country by enacting and applying overbroad laws purportedly aimed at legitimate objectives such as combating disinformation, but with the effect of arbitrarily censoring expression and targeting journalists and human rights defenders.
Among these are criminal provisions against intentional dissemination of harmful “false information”, i.e. disinformation. One such provision is Article 14(1) of Law No. 1/1946 on criminal law regulations, which criminalizes the act of “intentionally broadcasting false news or statements that incite chaos in society”, which may result in 10 years’ imprisonment.
Civil society organizations have rightly pointed out that the 1946 law and other disinformation laws inherited from the colonial justice system should not be applied in current times. In July 2023, a petition was filed with the Constitutional Court by several human rights organizations claiming that the disinformation provisions in Law No. 1/1946 contravene the state’s obligation to protect the right to freedom of expression and information.
Disinformation laws have frequently been enforced to restrict freedom of expression. Muhammad Asrul, a journalist, was charged in 2021 under Article 14(1) of Law No. 1/1946 for a piece detailing the alleged involvement of the son of the Palopo mayor in a corruption scandal. Human rights defenders Haris Azhar and Fatia Maulidiyanti are standing trial on charges relating to the criminal disinformation provisions of the same law in relation to a YouTube video discussing allegations of a conflict of interest by the Coordinating Maritime and Investment Affairs Minister Luhut Pandjaitan.
As a state party to the International Covenant on Civil and Political Rights (ICCPR), Indonesia is obliged to respect and ensure the right to freedom of expression and information, as guaranteed under Article 19 of the ICCPR. As affirmed by the United Nations Human Rights Committee, the monitoring body for the ICCPR, this right forms the “foundation” of a free society in ensuring the “transparency and accountability” crucial to the promotion and protection of many other rights.
Any restriction of this right must be based on a law that is precisely worded. Further, it must be necessary for and be the least restrictive measure to respond to a legitimate aim. The only aims identified as legitimate are ensuring respect for the rights or reputations of others; or for the protection of national security, public order, public health or morals.
The criminal disinformation provisions of Law No. 1/1946 by no means meet the above standards. The use of the term “false news or statements” in the criminal disinformation provisions of the law is vague, overbroad and imprecise, as the lines between facts and opinions, and truth and falsehoods can be notoriously difficult to draw.
Further, the authorities should not rely on an overbroad definition of upholding public order to justify restrictions of freedom of expression. There appears to be nothing in the law or in any correlative pronouncements to suggest whether or how “chaos in society” relates to any of the bases in the closed list of legitimate purposes under Article 19 of the ICCPR. The failure to comply with these requirements for restriction may result in the arbitrary sanctioning of legitimate expression protected under international human rights law, including public interest reporting or critical opinions concerning public officials.
Particular care must be taken concerning the application of criminal law, as it is among the harshest of tools at the disposal of the state to exert control over individuals. Criminal law may only proscribe conduct that inflicts or threatens substantial harm on the human rights of others or to certain fundamental public interests.
It is unlikely that “chaos in society” would meet the threshold of “substantial harm” needed to justify a criminal law response, in part due to the lack of clarity on what “chaos in society” actually entails. The potential of such disproportionate criminal penalties has a chilling effect on the free communication of ideas, opinions or information, as individuals will self-censor to protect themselves.
We, the International Commission of Jurists (ICJ), have documented how states across Southeast Asia have purported to combat disinformation with laws that fail to conform to international human rights law and standards on the right to freedom of expression and information.
These laws are emblematic of the immense challenges of responding to disinformation using coercive legal measures, especially if they focus on the blunt instrument of criminalization. Generally, these laws targeting disinformation have been used to suppress or discourage the expression of contentious and critical views on matters of public interest.
For instance, section 14 of Thailand’s Computer-related Crimes Act B.E. 2560 (CCA) criminalizes “false computer data” that is “likely to cause damage to the public”, or “the protection of national security, public safety […] or cause panic to the public”, with these crimes being punishable with up to five years’ imprisonment, a fine of up to 100,000 Baht (about US$3,000), or both. Similarly, Section 7 of Singapore’s Protection from Online Falsehoods and Manipulation Act 2019 criminalizes the spreading of a “false statement of fact knowing it is false, and knowing it will or is likely to harm the public interest”, which may result in five years’ imprisonment, a fine of up to S$50,000 (about US$35,000), or both.
This worrying trend must be reversed, and Indonesia should thoroughly review its laws criminalizing disinformation, with a view to amending or repealing these provisions in line with its human rights obligations. While Law No. 1/1946 will no longer be applicable with the entry into force of the revised Criminal Code in January 2026, disinformation continues to be criminalized, including under articles 263 and 264 of the new Criminal Code.
The ICJ recognizes the complexities and challenges of responding to the spread of disinformation, including in online spaces.
When disinformation threatens human rights, states have a duty to take appropriate steps, grounded in human rights law, to address serious harms.
The crafting and use of vague and overbroad criminal laws, such as Article 14(1) of Law No. 1/1946, to sanction disinformation and undermine freedom of expression is rarely the answer. While certain forms of disinformation intended to cause serious harm may warrant a legal response, civil and administrative measures, rather than criminal law, will generally be appropriate where the disinformation does not involve incitement to violence. These legal responses must comply strictly with the human rights legal standards, and guard against harms that are limited and necessary to meet a legitimate purpose identified under Article 19 of the ICCPR.
More broadly, promoting and protecting, rather than limiting, human rights can serve as a means of achieving the kind of objectives that this legislation is purported to be aimed at. As emphasized by the UN Special Rapporteur on freedom of expression, it is through protecting and strengthening freedom of expression, improving digital literacy and supporting the important work of a free and independent media and civil society, that disinformation can be more effectively countered.
First published on The Jakarta Post here.
Nov 7, 2023 | News
World Health Organization (WHO) member states should push for clear commitments to human rights protections in the text of a draft “pandemic treaty” being negotiated on November 6-10, four rights organizations said today. The current draft fails to enshrine core human rights standards protected under international law, most notably the right to health and the right to benefit from scientific progress, therefore risking a repeat of the tragic failures during the Covid-19 pandemic.
The WHO’s Intergovernmental Negotiating Body is meeting to debate the draft of a new international instrument on pandemic prevention, preparedness, and response with the goal of addressing the failures of the Covid-19 response and preventing another global crisis. However, rather than acting on the lessons learned from the Covid-19 pandemic, the current proposed text offers a weak framework for ensuring that countries will be accountable for maintaining a rights-compliant response to future pandemics.
This is the position taken by four international human rights groups: Amnesty International, the Global Initiative for Economic, Social and Cultural Rights, the International Commission of Jurists, and Human Rights Watch.
“Creating a new pandemic treaty could offer an opportunity to ensure that countries are equipped with proper mechanisms for cooperation and principles to prevent the level of devastation wrought by the Covid-19 pandemic, and the rights violations resulting from government responses,” said Tamaryn Nelson, legal advisor at Amnesty International. “By failing to ground the treaty in existing human rights obligations and inadequately addressing human rights concerns arising during public health emergencies, governments risk repeating history when the next global health crisis hits.”
Existing international human rights law and standards should be explicitly referenced throughout the document, recognizing that they are core to an effective and equitable pandemic response, the organizations said. It should also incorporate developments in international human rights standards reflected, for example, in principles developed by the Global Health Law Consortium and the International Commission of Jurists in the “Principles and Guidelines on Human Rights and Public Health Emergencies,” and the Civil Society Alliance’s “Human Rights Principles For a Pandemic Treaty.”
“A global health architecture that puts profit-driven considerations at the center of global health decisions exacerbated the unprecedented magnitude of illness and death from Covid-19,” said Julia Bleckner, senior health and human rights researcher at Human Rights Watch. “Certain higher-income countries effectively hoarded vaccines and blocked a proposal to share the vaccine recipe, while those in lower-income countries died waiting for a first dose. An equitable and effective response to any future pandemic should ensure states carry out their obligation to, individually and collectively, regulate private entities to prevent them from undermining human rights.”
Human rights standards clearly establish that scientific progress must be available, accessible, acceptable, and of good quality to all individuals and communities. Governments must take steps to ensure that everyone can access the applications of scientific progress without discrimination.
The new treaty should reiterate that governments are required under international human rights law to strictly monitor and regulate private actors when they are involved in financing and the delivery of healthcare, ensuring that all their operations contribute to the full realization of the right to health. But the draft fails to incorporate the human rights framework on strictly monitoring and regulating private actors in healthcare, as well as preventing any harmful impact of private actors’ involvement in healthcare on governments’ capacity to effectively respond to pandemics. For example, the new text includes that state parties should “promote collaboration with relevant stakeholders, including the private sector” without clear human rights guardrails.
The Covid-19 pandemic was both a health and human rights catastrophe. Without clear and binding commitments to human rights law and standards leading up to and during public health emergencies, the crisis gave way to a ripple effect of human rights violations and abuses. Governments enforced lockdowns, quarantines, and other restrictions in ways that often were disproportionate to the public health threat and undermined human rights. In some cases, governments weaponized public health measures to discriminate against marginalized groups and target activists and opponents.
Yet the draft treaty fails to give governments virtually any guidance on how to comply with international law and standards, requiring any restrictions of human rights in the context of such emergencies to be evidence based, legally grounded, non-discriminatory, and necessary and proportionate to meet a compelling human rights threat. To the extent that restrictions undermine full enjoyment of economic and social rights, social relief measures to ensure the protection of those rights should also be put in place.
“The fact that the current draft of the text does not even repeat well established and existing standards in regard to legality, necessity, and proportionality of response measures is as disappointing as it is confounding. The result is a treaty that does not reflect the experience of individuals throughout the world who were subjected to human rights abuses in the name of public health response,” said Timothy Fish Hodgson, senior legal advisor at the International Commission of Jurists. “It is imperative that the negotiated text explicitly includes the necessary safeguards required under international human rights law when responding to a public health threat.”
The Covid-19 pandemic underscored the need for a social safety net and the consequences of failing to substantively account for the social and commercial determinants of health. While the current draft recognizes the ways in which the Covid-19 pandemic exacerbated inequalities, it does not explicitly commit governments to effectively protect the rights that guarantee key underlying determinants of health, including social security, food, education, housing, water, and sanitation, without discrimination.
In order to genuinely achieve its commitments to the principle of equity “at the centre of pandemic prevention, preparedness and response,” the Intergovernmental Negotiating Body should include in the draft explicit language on the obligations to proactively protect the rights of persons from marginalized groups, and to emphasize the human rights protections against discrimination.
“The global health response to the Covid-19 pandemic prioritized profit over the lives of the world’s most marginalized,” Rossella De Falco, programme officer on the right to health at the Global Initiative for Economic, Social and Cultural Rights said. “If countries are serious about preventing the inequities and loss of the Covid-19 pandemic, they will commit to a rights-aligned agreement for future pandemics.”
Please note, the text above is a shortened version of this full statement, adapted by the ICJ for its website.
For more information:
For the International Commission of Jurists, Timothy Fish Hodgson: +27-82-8719-905; or timothy.hodgson@icj.org.
For Human Rights Watch, in Nairobi, Julia Bleckner: +1-917-890-4195; or blecknj@hrw.org.
For the Global Initiative for Economic, Social and Cultural Rights: +39-393-819-5332 or rossella@gi-escr.org
For Amnesty International, Tamaryn Nelson: tamaryn.nelson@amnesty.org
Background:
Previous joint statement of ICJ, AI, GI-ESCR and HRW (24 February 2023) available here.
ICJ and Global Health Law Consortium “Principles and Guidelines on Human Rights in Public Health Emergencies” available here.
Civil Society Alliance for Human Rights in the Pandemic Treaty “Human Rights Principles for a Pandemic Treaty” (11 April 2022) available here.
Civil Society Alliance for Human Rights in the Pandemic Treaty “Why States Must Ensure Full, Meaningful and Effective Civil Society Participation in developing a Pandemic Treaty” (11 April 2022), available here.
Download the full statement
Nov 7, 2023 | News
Arbitrary restrictions and excessive government control.
(Tunis, 7 November 2023) – The draft law on associations submitted by 10 parliamentarians to the Tunisian Parliament on 10 October 2023 would violate the right to freedom of association and endanger civic space in Tunisia if adopted as currently formulated, 8 rights groups said today.
البيان باللغة العربية على هذا الرابط
The draft law, if passed, would replace Decree-Law 2011-88 on associations, which enabled the emergence of a diverse civil society in the aftermath of Tunisia’s 2011 revolution. As presently drafted, it threatens to end more than a decade of work by independent groups. According to official data, over 24,000 civil society organizations are currently registered with the Tunisian authorities, although it remains unclear how many are active today. If adopted in its current form, the draft law would grant the government pervasive control and oversight over the establishment, activities, operations and funding of independent groups, which are one of the last remaining counterweights to President Kais Saied’s autocratic rule.
While the text claims to maintain a notification system for establishing new associations, it would actually introduce a thinly disguised registration system, granting a department under the Prime Minister’s Office the authority to deny a group the right to operate within a month after of registering (article 9.2). Without being required to provide any reasons, the government would also be able to petition the judiciary at any time requesting the cancellation of an association’s registration (article 9.3).
In addition, new organizations would not be allowed to operate until a government-headed “administration of associations” publishes a notice in the Official Gazette, leaving open the possibility of denying a group’s registration. At present, under Decree-Law 2011-88 on associations, an association may begin operating once the representative of the association has notified its registration to the Official Gazette.
Under the draft law, international organizations would be required to obtain prior authorization to register from the Foreign Affairs Ministry (articles 8 and 19). Without setting conditions or deadlines for any such a process, the draft law empowers the Ministry to issue temporary authorizations and to revoke and suspend them at its own discretion (article 20). As a result, international organizations may be arbitrarily denied registration for any reason and without due process, the groups said.
In 2012, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and association’s report on best practices related to the right to freedom of association recommended a “notification procedure”, rather than a “prior authorization procedure” requesting the authorities’ approval to establish an association as a legal entity. The 2017 Guidelines on Freedom of Association and Assembly in Africa of the African Commission on Human and Peoples’ Rights stipulate that “registration shall be governed by a notification rather than an authorization regime, such that legal status is presumed upon receipt of notification” and that the administrative body overseeing registration should carry out its functions “impartially and fairly.”
The draft law’s preamble states that associations must operate in accordance with the “principles of national orientation,” and must not “violate laws related to good morals,” “disturb public security,” “undermine the unity of the national territory and the republican system,” or “violate national sovereignty.” Such terms are vague, imprecise, arbitrary and overly broad and, as such, do not comply with the principle of legality. As a result, these concepts are open to broad interpretations and the authorities could use them to justify arbitrarily restricting or closing associations that displease them, the groups said.
The draft law places national organizations under “the supervision and control” of the Ministry relevant to their main area of work and international organizations under Prime Minister Office’s supervision (article 6). The current draft law does not specify what such “supervision and control” entail. It also requires associations to inform the pertinent Ministry of any planned activities (article 13).
The draft law also gives rise to concern about surveillance as it empowers the authorities to establish a digital database of associations and volunteers (article 14).
If the draft law is adopted in its current form, then the authorities may interpret its many vague provisions to ban or dissolve associations. The establishment of associations on religious or ethnic grounds is forbidden in the draft law. In addition, the qualification that a group’s work must be “voluntary” may be interpreted as a ban on paid labour by non-profit groups (article 2). The draft text further provides that the Prime Minister’s Office can “automatically” dissolve any group “suspected of terrorism” or that has a “terrorist background” (article 24), without judicial review.
This text also dangerously conflates associations with unions (article 15), which are currently separately governed by the Tunisian labour law, without providing any specific guarantees or sufficient protections for union rights.
National associations would have to obtain prior approval from the Prime Minister’s Office before receiving foreign funding (article 18). Associations that fail to comply with this requirement would risk immediate suspension or dissolution (article 24).
The draft law requires all existing associations to “rectify” their situation in accordance with the new law within a year of the law’s publication.
In 2013, the Special Rapporteur on the right to freedom of peaceful assembly and of association’s report affirmed that a civil society organization’s access to funding from domestic, foreign and international sources was “an integral part of the right to freedom of association.” Requiring groups to get prior government approval to receive foreign funding without specifying the grounds for refusal is inconsistent with the principle of legality and constitutes an arbitrary interference with the right to freedom of association.
Under Article 38 of the Guidelines on Freedom of Association and Assembly in Africa, governments may neither impose blanket bans on foreign funding for civil society groups nor require prior government authorization to receive it.
Decree-Law 2011-88 on associations provides sufficient guarantees and procedures to ensure that civil society groups’ funding be transparent and law compliant, the groups said. The draft law’s foreign funding provisions are open to abuse and may be used to punish and reject funding for organizations critical of the government.
In February 2022, a draft law on associations prepared by the executive that threatened human rights safeguards was leaked and denounced as restrictive by the Tunisian civil society. Shortly after, on 24 February 2022, President Saied announced his intention to “prevent foreign funding to associations.” In light of this, UN experts expressed concern over the then draft law in a communication to the Tunisian authorities in April 2022, to which the Tunisian government responded in June 2022, confirming their intention to amend Decree-law 88.
Since 25 July 2021, President Saied has dismantled Tunisia’s democratic institutions, undermined judicial independence, stifled the exercise of freedom of expression and repressed dissent.
Tunisia is obliged to respect, protect, promote and fulfill the right to freedom of association, guaranteed by Article 22 of the International Covenant on Civil and Political Rights and Article 10 of the African Charter on Human and Peoples’ Rights. Restrictions on the exercise of this right may be permissible only when they are prescribed by law and necessary in a democratic society; that is, using the least restrictive means possible and reflecting basic values of pluralism and tolerance.
“Necessary” restrictions must also be proportionate; that is, carefully balanced against the specific reason for imposing them in the first place. In addition, they may not be discriminatory, including on the grounds of national origin or political opinion or belief.
The Tunisian authorities should refrain from adopting the proposed draft law and, instead, should commit to safeguarding the right to freedom of association as enshrined in Decree-law 88 and under international human right law binding on Tunisia, the groups said. The authorities should ensure that associations are able to operate without political interference, intimidation, harassment or undue restrictions.
Signatories:
1-International Commission of Jurists (ICJ)
2-Euromed Rights
3-Human Rights Watch (HRW)
4-Avocats Sans Frontières (ASF)
5-Access Now
6-World Organisation Against Torture (OMCT)
7-Tahrir Institute for Middle East Policy (TIMEP)
8- International Service for Human Rights (ISHR)
Nov 7, 2023
An opinion piece by Mathuri Thamilmaran, National Legal Advisor – Sri Lanka at the International Commission of Jurists
Recently, the Mauritius Supreme Court ruled that a 185-year-old law criminalizing consensual same-sex sexual conduct was unconstitutional. This latest ruling adds Mauritius to the growing number of States where, in the past few years, consensual same-sex sexual relations have been decriminalized, either through the adoption of specific legislation or as a result of judicial decisions. It is anticipated – and very much hoped – that Sri Lanka will join this global wave of change in the coming months.
Like Sri Lanka, most of these States had laws criminalizing consensual same-sex sexual conduct originally imposed on them as a result of colonial rule. The British introduced the Penal Code in 1833, when Sri Lanka (Ceylon) was still a British colony. The Sri Lankan Penal Code was modeled on the Indian Penal Code of 1860. While three colonial powers – the Portuguese, the Dutch and the British – had ruled Sri Lanka, it was the British who codified the criminalization of consensual same-sex sexual conduct through the introduction of criminal provisions proscribing “unnatural offences”, namely, “carnal intercourse against the order of nature” (section 365) and “gross indecency” (section 365A) in the Sri Lankan Penal Code. None of these terms has been defined in the law but, in practice, they have been interpreted and applied to those who engage in consensual same-sex sexual conduct or are perceived to do so.
Sri Lanka gained independence from the British in 1948. But, 140 years since their enactment, these penal provisions continue to be in place with a few amendments and, while rarely enforced, they have been used as a tool of harassment, blackmail and persecution against lesbian, gay, bisexual, transgender (LGBT) and non-binary persons by State and non-State actors alike. Criminalizing same-sex sexual conduct between two consenting individuals only serves to perpetuate discrimination, violence and stigma motivated in whole or in part by ignorance of, prejudice and hatred against real or imputed same-sex sexual orientation.
Human Rights violations and abuses against LGBT and non-binary persons in Sri Lanka have been documented by many Sri Lankan civil society organizations throughout the years. For example, criminalization of consensual same-sex sexual conduct has been shown to lead to instances of extortion by both public and private actors. Another documented detrimental impact of criminalization relates to the right of access to health care of the individuals concerned, while raising more broadly public health concerns. Branded “criminals” by the law, LGBT and non-binary persons are less likely to access health services due to fear of being outed, discrimination, stigma and opprobrium, thus making it harder for them, for example, to receive vital messages about safe sexual conduct and HIV/ AIDS prevention.
Sri Lanka is a State party to all core international human rights treaties and to some of their protocols and it is thus bound by international human rights law. The latter enshrines the principle of non-discrimination and guarantees to everyone the right to equality before the law and equal protection of the law without discrimination in law and in practice. The UN Human Rights Committee has called upon States to ensure that their domestic law comply with the prohibition against discrimination, including the obligation not to discriminate against a person on prohibited grounds such as “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. In Young v. Australia (2003) the Committee held that the prohibition against discrimination under Article 26 of the ICCPR Covenant comprises also discrimination based on sexual orientation.
In 2022, while addressing the Human Rights Committee, the Sri Lankan government stated that Article 12 of the Constitution of Sri Lanka included non-discrimination on the basis of sexual orientation. Such a statement is contradicted by the criminal provisions proscribing consensual same-sex sexual conduct, and by the documented human rights violations and abuses committed against LGBT and non-binary persons over the years. The Committee, in its Concluding Observations published in April 2023, expressed concern that “lesbian, gay, bisexual and transgender persons continue to face criminalization under sections 365, 365A and 399 of the Penal Code and discrimination on a daily basis, including in accessing health care, employment and housing” and that they are “victims of arbitrary arrests and detention and are subjected to forced anal examinations in an attempt to gather evidence for prosecutions for same-sex conduct.” The Committee called upon the government to repeal the aforesaid legal provisions, to protect LGBT persons from discrimination of any kind, and to combat negative stereotypes and prejudice against them through training and awareness programmes.
Further, in 2023, during its Universal Periodic Review (UPR) at the Human Rights Council, Sri Lanka stated that a number of criminal proceedings had been revisited on grounds of non-discrimination based on sexual orientation. The Working Group of the UPR subsequently made recommendations to decriminalize same-sex sexual conduct. Unfortunately, Sri Lanka did not explicitly accept such recommendations and instead only took note of them. The UPR recommendations echo the recommendation made by the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee) in 2022 that the criminalization of consensual same-sex sexual conduct between women under section 365A of the Penal Code violated their right to non-discrimination and therefore Sri Lanka should decriminalize consensual same-sex sexual conduct between women. In light of this, the continued criminalization of consensual same-sex sexual relations puts Sri Lanka at odds with its international human rights law obligations and erodes its credibility on the global stage.
In May 2023, the Supreme Court of Sri Lanka published its Special Determination on the constitutionality of the Penal Code (Amendment) Bill of 2023, whose stated objective is to repeal “provisions that make sexual orientation a punishable offence”. The recognition, for the first time, by the country’s highest court that the criminalization of homosexuality was an affront to the rights of equality and non-discrimination, dignity and privacy of a person, among others, was a watershed moment for human rights activists who had worked with LGBT persons in pursuit of this outcome. The Supreme Court’s determination also put to rest unsubstantiated rhetoric depicting homosexuality as a threat to society. On the strength of the Supreme Court’s determination that the Bill is constitutional, the Penal Code (Amendment) Bill now requires a simple majority in Parliament to pass and become law.
Parliament is expected to vote on the Bill in the coming months. It is a private member’s Bill tabled in Parliament by parliamentarian Premnath Dolawatte. Under the Bill, section 365 of the Sri Lankan Penal Code of 1883 will be repealed and replaced with reference only to “bestiality” as an “unnatural offence”, while section 365A will be fully repealed.
It is heartening to witness States around the globe reconsider and rectify outdated laws that stigmatize and criminalize consensual same-sex sexual relations. Sri Lanka should not hesitate to follow suit and finally take that vital stride towards a more just and inclusive society. Decriminalization of consensual same-sex sexual conduct would send a powerful message that Sri Lanka recognizes and respects the autonomy of individuals to choose their partners and live their lives authentically. The Supreme Court has taken the first step in that direction, it is now time for the Sri Lankan Parliament to ensure that the Bill is passed.
