November 19, 2023 Bridge Team

An opinion piece by Mathuri Thamilmaran, National Legal Advisor – Sri Lanka at the International Commission of Jurists. You can also find it in Sinhala and Tamil.

Around 180 years ago, the British colonial rulers introduced the concept of vagrancy in Sri Lanka. Through this they criminalized behaviour relating to the subsistence of the economically marginalized: for example, begging, being physically challenged, exposing a disease, and homelessness. These were thought to be against British social mores of the period.

During the colonial period vagrancy laws were mainly enacted to round up those who had escaped from harsh labour (especially in the estates) and ended up homeless and were hence seen as useless in the eyes of the government.

These laws are inconsistent with human rights guaranteed by the Sri Lankan Constitution as well as international human rights law. Their application has also been arbitrary, discriminatory, and rife with abuse.

Sri Lanka’s vagrancy law has remained relatively unchanged since 1841 reflecting old colonial values which have no place in modern society.  Recently, the International Commission of Jurists (ICJ) released a legal briefer about the need to repeal Sri Lanka’s Vagrants Ordinance.[1] This briefer identified areas of concern within the law and how the law has been applied to violate human rights.

The Ordinance acts as a law regulating “decency”, penalizing certain social behaviour such as behaving in a ‘riotous and disorderly manner’, ‘wandering’, ‘idling’, ‘gather or collector of arms under false pretense’, ‘endeavoring by the exposure of wounds, deformities, leprosy or loathsome disease’, ‘soliciting’, or ‘acts of indecency’. Those who engage in such conduct are labelled ‘rogues,’ ‘vagabonds’ or ‘incorrigible rogues’.  ‘Incorrigible rogues’ are not only convicted for the ‘crime’ they committed, but are also expected to provide monetary security for one year after release to guarantee their future good behaviour.

News reports highlight how the law is being misused even beyond its already abusive purposes,  to routinely arrest trans-persons, sex workers and even couples whose only ‘crime’ would have been to hold hands in public. Public authorities, especially the Police, have misunderstood the legal provisions and have resorted to moral- policing in applying the law. None of the above are actually ‘crimes’ under Sri Lankan law. In fact, courts have held that a sex worker can only be arrested if she behaves in a “riotous or disorderly manner in any public street or highway” and not merely for engaging in commercial sex. In 2017, the UN Committee on the Elimination of Violence against Women condemned use of the Vagrants Ordinance by the Sri Lankan police “to arbitrarily arrest women in prostitution, using their possession of condoms as evidence of engaging in prostitution, and subjecting them to harassment, sexual bribery, and extortion.”

According to the Ordinance women offenders can at the discretion of court be sent to a House of Detention established under the Houses of Detention Ordinance No. 5 of 1907 in lieu of any term of imprisonment. In practice, women offenders sent by a Magistrate to the Methsevana house of detention (the only centre available) have languished there for years in a prison like environment without legal representation and with no path to release. In one case highlighted by the UN Working Group on Arbitrary Detention, the woman had been in detention since 1975. Arbitrary and discriminatory application of the law and the outdated nature of the crimes makes it all the more urgent to repeal the Ordinance.

Sri Lanka is a State Party to most core international human rights treaties and their protocols. These treaties all require to States to apply the principle of non-discrimination in the application of human rights law. The Committee on Economic, Social and Cultural Rights and the UN Special Rapporteur on Housing have indicated that the criminalization of homelessness is incompatible with a State’s human rights obligations. Doing so is also in violation of the State’s obligations under the International Covenant on Civil and Political Rights of protection from arbitrary arrest and detention. The Human Rights Committee has also affirmed that vagrancy laws targeting the poor and marginalised are in violation of this protection.

The provisions of the law are also in violation of the Fundamental Rights to Equality, Freedom from Torture or Cruel, Inhuman, and Degrading Treatment, and Freedom from Arbitrary Arrest, Detention and Punishment as provided for in Sri Lanka’s Constitution. Unfortunately, Article 16 of the Constitution that permits the continued validity and operation of all existing written and unwritten law notwithstanding their inconsistency with the fundamental rights chapter, allows for the Vagrants Ordinance’s continued operation.

Parliament must immediately repeal this outdated colonial law, and if needed review and replace in the Penal Code or through specific legislation any part of the law that requires retention. Any new law brought in replacement would need to be in conformity with Sri Lanka’s international human rights obligations.  Many innocents especially women and the LGBTI community have suffered for decades due to arbitrary application of this vague law and its repeal must be sooner than later.

• Published in the Sunday Morning newspaper (Sri Lanka) on 06 March 2022.

[1] The Briefing Paper can be accessed at : https://www.icj.org/wp-content/uploads/2022/01/Sri-Lanka-Briefing-Paper-A-Colonial-Relic-Long-Overdue-for-Repeal-2021-ENG.pdf