The battle against an archaic law targeting those already at risk of human rights violations

Sakuni Mayadunne, Transrights Activist

The International Commission of Jurists has advocated for the repeal of Sri Lanka’s Vagrants Ordinance to halt the criminalization of homelessness and poverty and enhance human rights protection in the country.

Colombo, Sri Lanka—The abusive and much-criticized Sri Lankan government’s so called anti-drug operations —undertaken since December 2023 with the stated aim of controlling “the drug menace” and involving nighttime police raids, strip searches, arbitrary arrests and detention, and alleged torture —has also targeted female and transgender sex workers already experiencing poverty and homelessness.

Sakuni Mayadunne, a transgender woman and a former sex worker, recounted to the International Commisison of Jurists (ICJ) the recent arrest of a transgender woman sex worker in Gampaha, close to the capital, Colombo, on “loitering” criminal charges. When the police presented the case to a Magistrate Court, they charged her, instead, with “illicit drug possession”, which carries a much more serious penalty upon conviction than “loitering”.

For transgender people, who are often excluded from the labour market due to pervasive societal discrimination, occupational choices are limited. Many experience homelessness and poverty.

Mayadunne explained, “Discrimination in getting work led us to sex work. Hanging out on streets is necessary for us to get customers.”

Despite adult sex work not being a criminal offence in Sri Lanka, transgender individuals and sex workers of all genders face arbitrary detention, public strip searches and criminal charges.  Extortion by police is also common, as is blackmailing and forcing sex workers to perform sexual acts under the threat of criminal charges and lengthy jail terms. Under Sri Lanka’s Vagrants Ordinance of 1841, broadly and vaguely defined conduct, such as “loitering”, “behaving untowardly”, “soliciting,” “indecency”, “the collecting of alms” and “idling”, are all deemed “criminal offences”. It is under these provisions that transgender individuals and sex workers are often arrested and/or subjected to abuse.  The Vagrants Ordinance is an archaic piece of legislation from the British colonial era that has been enforced discriminatorily against those simply struggling to survive.

Indefinite detention under “prison-like conditions” 

Apart from sex workers, during the past few decades hundreds of impoverished women have been targeted under the Vagrants Ordinance. Many among them were arrested for begging on the streets and were eventually convicted or pleaded guilty before Magistrates before being detained at Methsevana State Detention Centre, the only State women’s home, in Gangodawila in the Western Province of Sri Lanka. Many of the women were too poor to pay the 100 rupees fine or to have a lawyer or legal assistance before or during the hearing.

Leigh Toomey, a former member of the UN Working Group on Arbitrary Detention of the UN Human Rights Council, who as Working Group member undertook an official country visit to Sri Lanka in 2017, went to the Methsevana State Detention Centre.  Toomey and her team spoke to several of the 175 women detained there.

“Many of them had been sent there under the Vagrants Ordinance because they had been begging in the street, they had been homeless and committed other alleged acts of vagrancy, which is defined very broadly,” Toomey recalled.

Toomey also explained that the Methsevana State Detention Centre was quite far from Colombo. Such a distance had made her wonder whether friends and families of the women were able to visit them. However, as she told ICJ, “we learned…that many of the women detained didn’t have family anyway”.

Living in prison-like conditions in the closed facility as much as 90 per cent of the women held there were estimated to be suffering some form of psychosocial disability and could not get treatment, she added.

“One of the women held within the centre had been there since 1975,” Toomey said.

That was an example of how the detention there was indefinite as the Magistrates’ Court usually would order detention without indicating a release date, she said. Some women at the centre continued to remain there despite the expiration of their release date. According to section 4 (2) of the Houses of Detention Ordinance of 1907 under which the Methsevana Centre was established any vagrant may be detained in a house of detention “until the person avails of suitable employment found for them, or until they are removed or discharged.” Furthermore, section 7 of the Houses of Detention Ordinance states that the superintendent of the houses “shall use his best endeavours to obtain suitable employment outside the house for the vagrants admitted thereto.”

Having no family or a source of income are key reasons for women being unable to leave the center.

Toomey stressed that the vagrancy law effectively “criminalized homelessness and poverty”, which is incompatible with Sri Lanka’s international obligations under human rights treaties.

Following its country visit to Sri Lanka, the UN Working Group recommended that the Sri Lankan authorities should transform the facility into an accessible center offering vocational education and training for women to secure employment and live with dignity, as detaining the impoverished does not tackle the underlying issues, Toomey recalled.

Growing calls for a repeal of the backward law 

Toomey pointed out that with its broadly and vaguely defined offences, the Vagrants Ordinance itself does not meet the principle of legality pursuant to which criminal offences must be defined with requisite specificity, among other things, so that people know how to avoid committing an offence.

Mathurabhasini Thamilmaran, ICJ’s National Legal Adviser based in Sri Lanka, said the law, which was passed by the British colonial regime to criminalize plantation workers who ran away, was an affront to human dignity and in any event, it was completely outdated in many ways in the current context.

“The police use it to arbitrarily arrest people, even couples holding hands in public are arrested under this law as an act of indecency,” said Thamilmaran.

Since 2021, the ICJ’s Women’s Access to Justice project has pushed for the repeal of the Vagrants Ordinance through engagement with political leaders, the police, lawyers, and other stakeholders and the publication of a briefing paper on the Vagrants Ordinance analyzing its provisions in light of Sri Lanka’s obligations under international human right law and standards.

Among other things, the ICJ’s briefing paper points out that it is no excuse to retain the Vagrants Ordinance to purportedly deter the sexual exploitation of girls and women because other criminal offences already proscribe such criminal conduct.

“We met with the then Justice Minister in 2022 and expressed our desire to see the law repealed and articulated compelling human rights arguments justifying its repeal. At the time the then Minister appeared to be interested and instructed his legal adviser to discuss with the ICJ how the law should be reformed. Unfortunately, the change in government soon after led to a pause in discussions with the Ministry. ICJ hopes to rekindle the discussions soon,” Thamilmaran said.

The tip of the iceberg 

Ambika Satkunanathan, a former member of the country’s Human Rights Commission, points out that the Vagrants Ordinance is part of broader set of regressive legislative provisions. However, these laws have enjoyed backing from the conservative quarter of society.

Those supporting the Vagrants Ordinance would say that the law is “to protect women, prevent sex work” and “maintain our social culture,” she said, arguing that it in fact criminalizes harmless conduct.

“It is a law that has been used by the police to target and discriminate against lesbian, gay, bisexual, transgender, intersex and queer persons, sex workers, people who might be on the streets engaging in begging,” she said. “It doesn’t adhere to international law and human rights standards.”

Ambika Satkunanathan added that it worsens the discrimination faced by already-marginalized groups, emphasizing that repealing the law would create a safer environment for these people.

“They might be subject to discrimination using other means, but at least this law won’t be used as a weapon against them,” said Satkunanathan.

She said the ICJ has provided legally sound, sophisticated, and nuanced legal analysis on the issue.

Principle 21 of the ICJ’s ‘The 8 March Principles for a Human Rights-Based Approach to Criminal Law Proscribing Conduct Associated with Sex, Reproduction, Drug Use, HIV, Homelessness and Poverty’ states that no-one should be held criminally liable for engaging in life sustaining activities in public places and for conduct associated with homelessness and poverty, the very acts that the Vagrants Ordinance seeks to criminalize.

“Therefore, to have the ICJ’s voice in our collective battle against some of these repressive laws is a positive thing,” she added.

Thamilmaran said the ICJ would continue campaigning for the reform of this and other discriminatory laws, including planned engagements with the Ministry of Justice and the Ministry of Women, Child Affairs and Social Empowerment on the need to repeal the Vagrants Ordinance.

“The repeal of the law would be a milestone in enhancing human rights protection for already marginalized groups and individuals in Sri Lanka who are at risk of being targeted under this law”, she said.