Hemantha Warnakulasuriya comments on Mangala's statement:

'It's no longer a private matter'

Why didn't Mangala change archaic laws when he was a powerful minister?:

by Kurulu Koojana Kariyakarawana

Parliamentarian Mangala Samaraweera should have amended the archaic Victorian laws to permit carnal intercourse between two consenting adults even against the order of nature and to make it not an offence, when he had the best opportunity to do so as a powerful minister of the cabinet of President Chandrika Bandaranaike Kumaratunga in 1995 instead of now blaming the government and its President that the archaic laws would violate the Commonwealth Charter.

President's Counsel Hemantha Warnakulasuriya told the Sunday Observer in response to MP Samaraweera's recent statement, following the burglary that took place at his residence and incidents involved in the aftermath of the case, and has said that the "Mahinda Rajapaksa regime is attempting to invoke the archaic law in direct violation of the Commonwealth Charter".

Agreeing to the point made by Samaraweera that laws pertaining to the specific subject are old and old-fashioned, PC Warnakulasuriya said that the Section that deals with unnatural offences is contained in Section 365 of the Penal Code which was enacted as far back as 1883. "Therefore I completely agree with Samaraweera that these are archaic laws based on Judaic Christian morals where sodomy or any sexual offence against the nature of man was considered a sin.

Therefore the Penal Code is based on that original sin and has codified that.

Even if a person was charged under this Act, the jurisdiction remains with the Magistrate courts. Therefore it had been a common practise unless there are grave injuries to somebody or specially to a minor who is under 16 years of age. The matter could be more or else settled in courts by reducing the offence to criminal force. But it was the Chandrika Bandaranaike regime in 1995 where Samaraweera was an important and a powerful minister in the Cabinet that voted for the amendment of the Section 365 which extended the term for 20 years.

Therefore Mangala Samaraweera who had been a vocal and active member of the Chandrika Bandaranaike Cabinet should have vociferously opposed this amendment or amended the section to permit carnal intercourse between two consenting adults be exempted and it should not have been made an offence. Samaraweera should have thought about the Commonwealth Charter in 1995 and should have never permitted this section for an enhanced punishment.

So this section is not archaic at all as it had been enacted in 1995.

Today worldwide people are considering amending the laws permitting relationship between two consenting adults of the same sex whether a man or a woman and certain European countries even considering permitting gay and lesbian marriages. This archaic principal which has been based on Judaic Christian morality should have been opposed by him. However, the section also deals with the fact that a person having carnal intercourse with somebody under sixteen years of age is universally deplored," the President's Counsel said.

PC Warnakulasuriya suggested that MP Samaraweera should now think of asking the UNP to bring a motion to Parliament to amend Section 365. But as long as section 365 remains an offence in the Penal Code and any person who has such a relationship is guilty of that offence.

Samaraweera has said that it was a private matter. For example, a person who consumes heroin may say it is a private matter. but if the consumer is arrested and charged then it does not become a private matter. If the offence is against the law of the land or even if a third party complained it will not be a private matter anymore. If a young lover has sex with his girl friend it is a private matter.

But if the girl is below 16 years of age and consents to have sex in the belief that she will eventually marry him, and the boy agrees to marry her, yet if the parents of the girl complains it becomes statutory rape where there is hardly any defence.

In this case it was the wife of the accused who complained about Mangala's relationship with her husband and her husband had made an explicit statement about his relationship with Mangala. Now there is a complaint and the police will have to investigate it. If they find that the complaint is true then they will have no alternative but to charge Mangala under Section 365 of the Penal Code which has been amended by the government in 1995, where Mangala was a powerful minister, it no longer becomes a private matter.