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

Hemantha Warnakulasuriya, PC
|
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.

Mangala Samaraweera |
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. |