The Sri Lankan Constitution recognises the right to ‘the freedom of religion or belief’ (FoRB). Under article 10, it guarantees the freedom of thought, conscience, and religion. This aspect of FoRB is considered ‘absolute’, and cannot be restricted under any circumstance. In fact, the Constitution lists article 10 as an entrenched clause; it cannot be amended unless the amending law is approved by a two-thirds majority in parliament and the people at a referendum. Yet not all aspects of FoRB are beyond limitations. Article 14(1)(e) separately guarantees to all citizens the freedom to manifest religion or belief. This aspect of FoRB—which involves the externalisation of one’s convictions through worship, practice, observance, and teaching—may be restricted on certain grounds.
This article explains the law and practice relating to limitations on FoRB in Sri Lanka. It argues that though limitations are designed to be imposed purely in the public interest, they are often applied for majoritarian purposes.
The Law on Limitations
The current legal regime pertaining to limitations on FoRB requires all limitations to satisfy a particular legal test. This test is set out in article 15(7) of the Constitution and in the Supreme Court’s jurisprudence on limitations.
The first element of this test is that all restrictions must be ‘prescribed by law’. Two doctrinal clarifications need to be made with respect to this element. First, ‘law’ for the purpose of article 15(7) is narrowly defined to include acts of parliament and emergency regulations issued under the Public Security Ordinance (PSO) of 1947. This inclusion means that fundamental freedoms can only be restricted by legal instruments that are either enacted by parliament or at least subject to parliamentary scrutiny. The Supreme Court in Thavaneethan v. Dayananda Dissanayake (2003) in fact clarified that regulations other than those issued under the PSO cannot restrict any fundamental right in terms of article 15(7) of the Constitution. Second, article 16 of the Constitution provides: ‘All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency [with fundamental rights]’. The provision, therefore, validates laws that were in existence prior to the promulgation of the 1978 Constitution, despite any inconsistency with fundamental rights. Many of the laws relied upon to limit FoRB were enacted during the British colonial period, and the continued validity of these laws is partially dependent on article 16. For example, section 77 of the Police Ordinance of 1865 authorises limitations on religious processions on the grounds of ‘public order’. Similarly, the Quarantine and Prevention of Diseases Ordinance of 1897 authorises the minister in charge of health to regulate movement and travel (including to attend religious events) in the interests of preventing the spread of infectious diseases.
The second element in the legal test requires that a limitation on FoRB may be imposed only on specific grounds. Article 15(7) provides that FoRB may be limited on the grounds of ‘national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society.’ These grounds are admittedly broad and can encompass a wide range of public interests.
Despite the fact that broad limitation grounds are found in article 15(7) of the Constitution, a third element has served to further constrain the authority of the state to limit FoRB. The Supreme Court has separately recognised that restrictions on fundamental rights must meet the standard of reasonableness. In Wickramabandu v. Herath (1990), the Court held that if it is ‘satisfied that the restrictions are clearly unreasonable, they cannot be regarded as being within the intended scope of the power under Article 15(7)’. Therefore, if a particular limitation on FoRB is unreasonable, the Court is empowered to declare that the limitation is impermissible.
Limitations in Practice
Although the text of the law and some progressive jurisprudence have set out a fairly rigorous legal test on limitations, in practice, the state has abused the limitation regime for majoritarian purposes. Such abuse is evident in the manner in which limitations have been imposed on religious attire, religious rites, and the construction of places of worship and teaching. In each of these cases, the limitation has had a discriminatory effect on a religious minority group. Moreover, in each case, the courts have been unwilling to find that the limitation was unreasonable.
On 29 April 2019, immediately following the Easter Sunday Attacks, the government issued Regulation 32A under the PSO. The regulation provided: ‘No person shall wear in any public place any garment, clothing or such other material concealing the full face which will in any manner cause any hindrance to the identification of a person.’ The provision also clarified that ‘full face’ meant ‘the whole face of a person including the ears’. The seemingly neutral prohibition on all full face covering had a discriminatory impact on Muslim women, as the niqāb—a full face covering worn by some Muslim women was consequently prohibited in public places. The limitation was upheld when the Supreme Court dismissed a petition filed by the Centre for Policy Alternatives challenging the emergency regulations. The discriminatory and prejudicial nature of the restriction was observed by Ahmed Shaheed, the United Nations Special Rapporteur on the Freedom of Religion or Belief. He reported that even Muslim women and girls wearing hijāb, which involves head covering but no facial covering, were prevented from entering hospitals and exam halls, and were subjected to verbal abuse at work places.
The restriction of Muslim and Christian burial rites in the context of COVID-19 is another example of an unreasonable limitation on FoRB. On 11 April 2020, the Minister of Health and Indigenous Medical Services issued Regulation 61A under the Quarantine Ordinance of 1897. The regulation provided ‘the corpse of a person who has died or is suspected to have died, of Coronavirus Disease 2019 (COVID-19) shall be cremated’. The new regulation had a direct bearing on the burial rites of Muslims and Christians. Muslims in particular consider cremation of deceased persons as contrary to religious teaching. The restriction lacked a scientific basis, as the World Health Organisation Guidelines on the issue at the time stated that cremation should not be made mandatory, and that the deceased could be either cremated or buried. Several petitioners challenged Regulation 61A on the basis that it violated the fundamental rights to non-discrimination and the freedom to manifest religion or belief. However, the Supreme Court, in a split decision, dismissed the petitions. The Court effectively upheld the restriction despite the fact that it appeared to lack any reasonable basis.
Both these cases reflect how the limitation regime in the Sri Lankan Constitution can become a vehicle for advancing majoritarian interests, rather than genuine public interests. Although Regulation 32A of 2019 falls within the scope of ‘national security’ under article 15(7) of the Constitution, it was driven by an underlying majoritarian antagonism towards external symbols of Islam including ‘Islamic’ attire rather than a genuine interest in national security. Certain forms of Islamic attire have come to symbolise a threat to Sinhala-Buddhist cultural dominance in Sri Lanka. The ban on the niqāb aligned with pre-existing prejudices towards Muslim religious attire. Sinhala-Buddhist militant groups such as the Bodu Bala Sena (BBS) have often capitalised on these antagonisms, and have run campaigns calling for the ban of the niqāb. Such campaigns resonate with some segments of the Sinhala-Buddhist community. In this context, the prohibition on face coverings was in reality a limitation that aligned with pre-existing majoritarian antagonism towards ‘Islamic’ attire. Although the limitation in question seemingly fell within the scope of ‘national security’, it was ultimately a reflection of how majoritarianism infiltrates and shapes the state’s conception of ‘public interests’.
A similar majoritarian motivation undergirded the restriction of burial rites of Muslims. The ban came at a time when Muslims were portrayed in the media as vectors of COVID-19. Hate speech targeting Muslims often portrayed Muslims as ‘insular’, living in large communes, and engaging in poor hygiene practices. Mainstream politicians capitalised on this anti-Muslim narrative. For example, Mahindananda Aluthgamage, a government minister, falsely claimed on national television that a majority of those who violated lockdown regulations in a particular area were Muslim. The restriction on Muslim burial rites—particularly where there was no scientific basis for such restriction—must therefore be interpreted within the broader political climate in which it was imposed. It became clear that it was a measure to stoke and appease anti-Muslim sentiment within the majority community, rather than protect public health interests.
Another clear example of an unreasonable limitation on FoRB concerns the use of circulars issued by the Ministry of ‘Religious Affairs and Moral Upliftment’ in 2008, and later (by the equivalent ministry) in 2013 to restrict the construction of religious institutions. The 2013 circular was assessed by the Supreme Court of Sri Lanka in Faril et al v. Bandaragama Pradeshiya Sabha et al (2017). In this case, a Muslim group that wished to construct a religious educational institution were prevented from doing so by local authority officials and the local police in the area following a protest by a local Buddhist monk and villagers. The Muslim group filed a fundamental rights application before the Supreme Court complaining that their rights to equality and non-discrimination had been violated. Yet the Court dismissed the application and held that the restriction was lawful. The Court upheld the decision of state officials on the basis that ‘due consideration’ had to be given to the protests to ‘avoid a crisis situation which could spread to other areas of our country’. The Court calculated that a threat to ‘public order’ might ensue if the construction was not halted. However, in doing so, it legitimised the majoritarian interests at play, as the construction of a Muslim place of worship was perceived as a threat to the Buddhist community in the area. The limitation was essentially meant to appease the majority community and dissuade them from causing unrest. Although a public interest (i.e., ‘public order’) was being cited as the basis for the limitation, the threat to public order came from those responding to the religious act in question, and not from the religious act itself. In such a context, it is difficult to see how the limitation in question could be deemed reasonable.
Sri Lanka’s constitutional text and jurisprudence sets out clear legal criteria that must be met for a limitation on FoRB to be permissible. A limitation must be (1) prescribed by law, (2) relate to a specific public interest, and (3) be reasonable. However, in practice, courts have not always intervened to prevent patently unreasonable limitations from being imposed on FoRB. These instances appear to arise when a majority community opposes a specific religious act or practice of a religious minority group. Thus majoritarian interests have often shaped the way limitations are imposed on FoRB. In this context, courts are yet to apply the reasonableness standard in a consistent manner. Doing so would place a crucial check on the state’s authority to limit FoRB, and would ultimately ensure that religious minorities in Sri Lanka can meaningfully enjoy their rights.