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Wednesday, December 8, 2021

Sri Lanka Police: Trained to discriminate

The Sri Lankan law enforcement sector’s reputation is hardly considered as people friendly, and people rarely see it as a service provider. Even though some police officers have shown exemplary people friendliness, as a whole, people do not see the same from the Police force as a whole.

However, sometimes, this poor level of people friendliness goes to extreme, and results in acts amounting to discrimination and harassment, and Sri Lanka’s lesbian, gay, bisexual, transgender, intersex and queer/questioning (LGBTIQ) community is one that has faced such treatment for a long time.

Last week, a group of activists filed a writ petition in the Court of Appeal (CoA) seeking the issuance of a writ of prohibition preventing the Police from conducting seminars and training which include sessions that may promote ideologies that discriminate against the LGBTIQ community. On 12 November, the CoA allowed the petitioners to serve notice to the respondents.

While President’s Counsel (PC) Sanjeeva Jayawardena appeared for the petitioners, a two member CoA Judge bench comprised of Justices Dhammika Ganepola and Sobhitha Rajakaruna heard the case. Among the petitioners were; Equal Ground Executive Director Rosanna Flamer-Caldera and the Centre for Policy Alternatives (CPA) Executive Director Dr. Paikiasothy Saravanamuttu. The petitioners had named the Inspector General of Police (IGP) Chandana D. Wickramaratne, the Deputy Inspector General of Police (DIG) of the Kandy Range Chandana Alahakoon, and counsellor cum psychologist Ama Dissanayake, as the respondents.

“The petitioners seek a writ of prohibition preventing the Police from conducting training sessions, lectures, seminars, etc. that marginalise and violate the fundamental rights of the LGBTIQ people in Sri Lanka. The permitting and sanctioning of the vilification, dehumanisation, and condemnation of persons with different sexual orientations and gender identities and expressions by the law enforcement does not adhere to the basic human rights standards and is in violation of Article 12 of the Constitution, which deals with the right to equality and equal protection of the law and the freedom from discrimination,” Equal Ground said in a press release.

Anti-LGBTIQ training sessions for the Police

One of petitioners’ main concerns – i.e. conducting training sessions for the Police regarding LGBTIQ persons in a way that creates an erroneous idea about LGBTIQ persons, which can in turn increase discrimination against this community – became a topic of discussion after a video depicting the conduct of such a training went viral in August.

The video, which was severely criticised by LGBTIQ activists, showed one of the respondents, Dissanayake, conducting a training for police officers in Kandy, where she spoke about LGBTIQ persons in a way, which, according to the activists, degraded LGBTIQ persons, and encouraged police officers to disregard LGBTIQ persons’ human rights. During the training, she also pointed out that homosexuality does not contribute to, and can negatively affect, the process of procreation, and that norms pertaining to homosexuality should not and cannot change.

She further asked the police officers who are parents, who were present at the training, whether they would like their children to be a “victim of homosexual persons”, to which they responded “no”.

However, police officers discriminating LGBTIQ persons is a much older issue; reports of police officers subjecting LGBTIQ persons to mental, physical, and sexual harassments, making arbitrary arrests, taking bribes, and threatening LGBTIQ persons, have been prevalent in the recent past, according to the activists.

Adding that there is documented evidence of Sri Lankan Police’s homophobic and transphobic practices, Equal Ground said: “In this context, conducting such training only serve to exacerbate the discrimination and violence faced by the LGBTIQ community due to archaic, colonial laws still present in the Sri Lankan Penal Code.”

According to Sri Lanka Police’s 2018 Performance Report, which covered the years from 2016 to 2018, a total of 48 persons had been prosecuted for homosexuality in the three years. They were all men. In 2016, 17 incidents of homosexuality had been reported, and cases had been filed against all the incidents. While the percentage of prosecutions in that year was 100%, 33 men had been prosecuted. The report also showed that in 2017, a total of four such incidents had been reported and cases had been filed with regards to three of them. The percentage of prosecutions was 75%, and six men were among the prosecuted. Moreover, it showed that five incidents relating to homosexuality had been reported in 2018, and that cases were filed in connection with all five incidents. While the percentage of prosecutions was 100%, nine men had been prosecuted.

However, activists claim that official records regarding the same do not reflect the true prevalence and magnitude of such incidents taking place in the country, and that most of the incidents involving police officers and LGBTIQ persons go unreported.

Homosexuality and procreation

Some of the things that were mentioned during the said training, such as homosexuality not being biologically acceptable because it does not contribute to procreation, have been discussed and debunked before. Another closely related misconception is that evolution does/cannot explain homosexuality, and that homosexuality, therefore, is an unnatural and socially induced behaviour prevalent among humans.

However, homosexual behaviour has been observed in many animals, even among animals that are not known to socialise with animals of the same species or of different species. This phenomenon, according to researchers, shows that even if the alleged social factor was accurate, it cannot be the sole reason for homosexuality and that there may be a genetic aspect involved as well. The nature and extent of the relationship between homosexuality and genes has not been researched enough to reach a conclusion in that regard, according to scientists.

With regard to procreation, sociologists say that the notion that homosexual partners do not contribute to procreation is extremely subjective, and the way it is interpreted may vary according to cultures, communities, and social norms. They say that in a context where homosexual partners can adopt children (in some countries), female to male transgender persons (who have not gone through the procedures in the transitioning process which involve removing certain parts of the reproductive system which render them unable to have children) are able to get pregnant from a male partner (when the female to male transgender person identifies as bisexual or gay and decides to be in a relationship with a male partner) or through a sperm donor, and where lesbian persons can conceive with the support of a sperm donor, such blanket opinions do not represent the true relationship between homosexual persons and couples and procreation.

Law and leaders

Despite mounting allegations against police officers over violating the rights of LGBTIQ persons, few of the country’s prominent figures have openly vowed to protect the rights of people of diverse sexual orientations and gender identities.

Justice Minister, M.U.M. Ali Sabry PC last year stated that he had requested the relevant authorities to refrain from continuing such acts. He made this statement in response to reports alleging that Judicial Medical Officers (JMOs) and police officers were conducting forced examinations on the private body parts of LGBTIQ persons without or against their consent. He underscored the citizens’ right to live with dignity and without fear of prosecution, and that no persons should be discriminated against or made to suffer any form of abuse, indignity, or injustice on the basis of their gender, sexual preference, or identity.

In addition, in a Tweet posted on 1 March, which also happened to be the United Nations (UN) Zero Discrimination Day, President Gotabaya Rajapaksa acknowledged the right of LGBTIQ persons to not be discriminated against their sexual orientation and/or gender identity. He Tweeted: “As the President, I am determined to secure everybody’s right to live life with dignity regardless of age, gender, sexuality, race, physical appearance, and beliefs”.

As far as the legal situation is concerned, Sri Lanka’s Constitution and the Penal Code as amended, include provisions which can be applicable to LGBTIQ persons. The Constitution, in its Fundamental Rights Chapter, says that no citizen should be discriminated against on several grounds including sex, which LGBTIQ activists say can be used to ensure LGBTIQ persons’ right to not be discriminated, especially against sexual orientation and/or gender identity, even though it is not at all adequate to safeguard LGBTIQ persons. The Penal Code however, contains provisions which can be used against homosexual persons and also transgender persons (transitioning to or living in the role of their desired gender). Activists claim that while Sections 365 and 365A, which relate to “unnatural offences” and “acts of gross indecency between persons” respectively, can be used against homosexual persons, Section 399, which relates to “cheating by personating” can be used against transgender persons.

Even though it is too early to predict the verdict of the recently filed writ petition, the Supreme Court (SC), in a 2016 verdict, pointed out the outdated nature and questionable applicability of Section 365A when it comes to sexual intercourse between consenting adults. The case, Wimalasiri vs. Officer-in-Charge (OIC) of the Maradana Police Station and Another, was heard by a three Judge bench comprising Justices Buwaneka Aluwihare PC, Shanthi Eva Wanasundera PC, and Anil Gooneratne. Initially, the trial Magistrate had found the accused parties guilty, and had subsequently convicted the duo and had imposed a term of imprisonment and a fine. Wimalasiri had then appealed to the Provincial High Court which upheld the original conviction and sentence, and Wimalasiri had thereafter appealed to the SC. In the verdict, Justice Aluwihare PC said that Section 365A (amended in 1995) – which was a part of Sri Lanka’s Penal Code since its inception in the 19th Century – deals with the offences of sodomy and buggery, which were a part of the law in England and is based on public morality, and that the Sexual Offence Act of England repealed the sexual offences of gross indecency and buggery in 2004.  He highlighted that the contemporary thinking that consensual sex between adults should not be policed by the state nor should it be grounds for criminalisation appears to have developed over the years and may be the rationale that led to the repealing of the offence of gross indecency and buggery in England. Notably, even though the Court said that the said offence remains very much a part of the Sri Lankan law, when making a decision as to whether to penalise the accused, the Court took into consideration the fact that the sexual act was consensual.

“Considering the above, I set aside the sentence of the one year term of imprisonment and substitute the same with a sentence of two years rigourous imprisonment and acting under Section 303(1) of the Code of Criminal Procedure Act, suspend the operation of the term of imprisonment for a period of five years, effective from the date the sentence was pronounced by the Magistrate,” the SC said in its judgment.

Stopping police harassments  

This situation is not confined to Sri Lanka, and incidents of police officers discriminating and harassing LGBTIQ persons are being reported from around the world. According to researchers, even though reports of such incidents are on the rise, they do not show the magnitude of the true situation due to the severe underreporting of such cases.

According to a 2015 report by the Williams Institute of the University of California, Los Angeles (UCLA) School of Law – titled “Discrimination and Harassment by Law Enforcement Officers in the LGBTIQ Community” authored by the Institute’s Legal Director Christy Mallory, former Jim Kepner Law and Policy Fellow Amira Hasenbush, and the Institute’s Founding Executive Director Brad Sears – in the US, LGBTIQ people of colour, youth, and transgender persons are particularly vulnerable to profiling, entrapment, and violence by law enforcement authorities, and that the mistreatment of LGBTIQ people breaks down trust, inhibits communication, and prevents officers from effectively protecting and serving their communities. To eradicate such mistreatment, the report provided recommendations, which include, adopting non-discrimination policies and zero tolerance harassment policies; adopting policies requiring officers to respect an individual’s gender identity, ensure safety in arrest processing, searches, and placement in police custody, and explicitly prohibiting searches conducted for the purpose of assigning gender-based on anatomical features; and conducting LGBTIQ sensitivity, diversity, and specialisation trainings. In addition, it was also recommended to establish civilian complaint review boards with investigators and adjudicators specifically trained to address the types of police profiling and abuse experienced by LGBTIQ people, including sexual harassment and assault, and prohibiting discrimination based on sexual orientation or gender identity by law enforcement personnel.

Another report titled “To Serve and Protect Without Exception: Addressing Police Abuse Toward LGBTI People in the Philippines” which was issued by OutRight Action International – said that in the Philippines, the absence of information regarding sexual orientation, gender identity, and gender expression issues and concerns of LGBTIQ persons in the Philippines National Police (PNP) Operational Procedures Handbook results in poor and erroneous implementation of police operational procedures, and that it has resulted in police officers using their personal judgment and oftentimes failing to use appropriate, sensitised, and professional methods when conducting body searches and frisking, making arrests, carrying out custodial investigations, and detaining LGBTIQ persons.

In order to prevent discrimination and harassment against LGBTIQ persons, researchers propose that both police officers and LGBTQ persons should be made aware of the citizens’ rights with a focus on the equal entitlement of human rights for LGBTIQ persons.

Steps needed to be taken to make the police a LGBTIQ friendly service include; incorporating LGBTIQ issues in mandatory refresher courses for police officers; giving comprehensive and sustained trainings instead of a mere one-off training, in order to ensure lasting positive attitudinal and behavioural changes; amending police operational procedures to include specific procedures and good practices for the sensitive and appropriate handling of LGBTIQ persons, particularly when conducting body searches and detaining LGBTIQ persons; incorporating transgender women’s issues and concerns into the Women and Children’s Protection desks; and drafting and implementing protocols for the inclusion of sexual orientation, gender identity, and expression (SOGIE) issues into the training modules of police community relations.

Moreover, researchers say that LGBTIQ persons too need to be aware of their rights and the instances and places where their rights can be violated by police officers. In addition, having an easily contactable support system – particularly a LGBTIQ rights group with legal and social recognition, or legal professionals – would be immensely beneficial. With regard to transgender persons, they suggest having documents pertaining to their transitioning process (if they are transitioning), in addition to the above mentioned steps, as being beneficial.

As far as the South Asian context is concerned, India has an ongoing discourse about preventing police officers from discriminating and harassing LGBTIQ persons, in addition to the Court proceedings pertaining to Section 377 which resulted in India decriminalising homosexuality in 2018. In September, for the first time in India’s history, a Court issued directives to amend the Indian Police Conduct Rules for the protection of LGBTIQ persons. The Madras High Court directed the Indian Police to refrain from harassing LGBTIQ persons and activists, and ordered the State Police to add a clause to the Police Conduct Rules declaring that any form of harassment by police officers against LGBTIQ persons and also activists will be treated as “misconduct” and will attract punishment. Last month, the Tamil Nadu State Government informed the Madras High Court that it was taking measures to make the said amendments.

This has happened in a context where the Court had directed India’s National Medical Commission to amend the Bachelor of Medicine and Bachelor of Surgery (MBBS) curriculum in order to prevent doctors from having the erroneous notion that gender identity-related issues were curable, which sometimes led to recommending conversion therapy, according to the Indian media.

The globally accepted norm about the role of the police is that their duty is to protect and serve the public, and it is not dependent on citizens’ identities, differences, or personal choices. If a certain segment of the society does not get protection and service, and if they experience discrimination and harassment at the hands of police officers instead, that is a sign of a need for strong reforms. The fact that such incidents against LGBTIQ persons in Sri Lanka are continuing and increasing is worrying.

The CoA may or may not give a favourable verdict after the hearing. However, the Police’s non-discriminatory policies being updated, and supporting police officers to change their attitudes about people of diverse identities, is a timely need, and it should not depend on the CoA’s verdict. Proper non-discriminatory policies is not just a need of LGBTIQ persons, it is a need of the public in general to be safe from discrimination and harassments.

BY Sumudu Chamara/The Morning

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