State of emergency regulations (ER) poses specific risks to sex workers in Sri Lanka. The police and armed forces have the ability to enter homes, offices and carry out searches, confiscate property, arrest and hold people on a suspicion or allegation. This guideline presents few things to be aware of, and steps that sex workers can follow in case of an emergency situation.
This document was an outcome of series of dicsussion with civil socity organisations and sex workers groups. Emergency regulations was imposed after the Eater attack in April 2019, this was the first time of brining back the emergency laws since the end of the civil war in 2009.
Download the PDF here.
Emergency Regulation Laws
A Guide for Sex Worker Community in Sri Lanka
The Constitution about Arrest and Detention
The Constitution of Sri Lanka provides that any person arrested and detained:
- Must be informed of the reason for arrest.
- Must not be discriminated against owing to their race, religion, language, sex or political opinion.
- Must not be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
If the arrest or detention is illegal or arbitrary, you can immediately make a complaint to the Human Rights Commission of Sri Lanka (HRC). The HRC is empowered to inquire into and investigate complaints of arbitrary arrest, detention and torture.
Emergency Regulations and Prevention of Terrorism Act
The current state of emergency regulations (ER) poses specific risks to sex workers in Sri Lanka. The police and armed forces have the ability to enter homes, offices and carry out searches, confiscate property, arrest and hold people on a suspicion or allegation. Here are a few things to be aware of, and steps you can follow in case of an emergency situation.
Search and Seizure
Under the current circumstances, police and armed forces can enter, search a house/office including closed premises, and confiscate any items on a suspicion or allegation of an offence under Emergency Regulations or Prevention of Terrorism Act (ER/PTA). You cannot deny them access. During a search, any person living at the premises or is present at the time, can be questioned and could be at risk of arrest.
However, a female citizen can only be searched by a female officer [ER8, 17, 20]. A transgender person can request an officer of either gender, according to their preference.
Arrest and Detention
Anyone can be detained based on a Detention Order (DO) issued by the Secretary of Defense; in such a case they may be held for up to 30 days without being produced before a Magistrate. You have the right to ask to see a DO, if this is the case. A person arrested with a DO may be held for up to 1 year without charge and without the possibility of bail. A simple suspicion or an allegation is enough cause to arrest anyone under ER.
A person may also be arrested/detained without a DO, but in that case they need to be taken to a police station and produced before a Magistrate within 24 hours, as per the ordinary law.
If arrested under ER, your natal family/spouse (no Friends/Partners) have to be informed of the arrest, and where you are being held. ER does not mention friends or partners. Authorities must also inform the Human Rights Commission of Sri Lanka (HRCSL) of the arrest and place of detention within 48 hours. HRCSL must be informed if a person is transferred from a place of detention to another.
During an ER Arrest
At the time of the arrest, make sure to ask the emergency office for:
- The reason for the arrest.
- The identity of the arresting officer and from which police station, army unit he/she is.
- Under which law or regulation you are being arrested.
- Your right to make a statement in the language of your choice and then sign the statement. (If you wish to make a statement in your own handwriting it should be permitted)
Registration with Police
There is no blanket requirement to register, unless the ASP of your local area (or someone acting on their behalf) requires you to register household details. Once you register, any new additions or changes will have to be informed to the Gramasevaka.
Offenses to be Mindful of
Apart from the obvious terrorism-related offences, under ER there are some acts that may constitute an offence:
- Possessing books and documents which may compromise national security;
- Possessing maps of government buildings or photos of military installations; or acts that:
- Promote hatred/enmity towards the government;
- Spreading rumours;
- Wearing or having in your possession any military uniform,
- Or symbol or emblem that is worn by the police/military
These are some of the things that can lead to arrest and detention under the emergency regulations (ER31-39).
Smart Steps to Follow
- Before submitting your identity documents to a person not in uniform, make sure you clarify the identity of the person who is asking for your documents.
- Inform HRCSL of the arrest/threat/search etc either by calling the 24 x 7 hotline 1996 or a complaint at the HRCSL office; Maintain the HRCSL registration number to follow up.
- If you know a lawyer friend, immediately inform them about the arrest.
- Inform next of kin (Family or Spouse) - In the absence of family or spouse clearly state the person or lawyer who should be contacted in case of emergency Permanent address for notices – Be very clear about the address to which you want any information sent.
- Have an emergency contact that can be dialed in case of a search or risk. If someone enters your house you have the right to ask for identification, but cannot prevent the search.
- Neighbors and community members have a greater sense of power under the guise of vigilance or security. So cooperate.
- Trans persons’ identity document may prove a security risk – useful to have an affidavit confirming identity attested by a lawyer along with the medical records, clinic cards (if any);
- For syringes and hormones – a letter from a medical doctor is necessary to keep these with you.
- For prosthetics – A letter from the NSACP or FPA confirming that it is being used for SRHR.
If arrested under the penal code
If arrested under IR/PTA
(As per the Presidential guidelines issued on 17.06.2016 to protect the rights of the persons arrested and detained)
- Police must give reasons for the arrest.
- The detained individual is allowed to have visits from relatives while in custody.
- For most of the offences, the detained individual has to be brought before a magistrate within 24 hours.
- Except for certain offences, in all other cases the detained individual is expected to be released on bail (check with a lawyer if the offence is bailable).
- The detained individual is entitled to be represented by a lawyer in courts or the individual may represent himself/herself.
- When the detained individual is brought to courts he/she has the right to be heard. The case should be explained to him/her and if he/she had been treated in an undue manner that fact must be reported to the magistrate.
- Once he/she is charged for an offence the Police must give the detained individual the first information details pertaining to the charge(s) and the statements made by the complainant.
- The person who is arresting or detaining should identify himself by name and designation to the person being arrested or to his/her relative or friend.
- The person being arrested should be given the reason for the arrest
- The person arrested should be permitted to inform family members about the place where he/she is being held.
- A child under 18 or woman arrested or detained should be able to be accompanied by a person of their choice. When they are detained by military or police they should as far as possible be under the custody of a Women Police Officer or women army officer.
- The person arrested or detained should be able to give statements in a language of their choice. Thereafter signature confirming the contents must be obtained (They must be permitted to make statements in their own hand writing if they so desire).
- The person arresting or the officer ordering the detention should inform the Human Rights Commission within 48 hours about any arrest or detention as well as the place of detention.