The imposition of limitations on certain rights in the interest of public health is permitted both under international law and Sri Lanka’s Constitution. For example, the International Covenant on Civil and Political Rights (ICCPR) provides that certain rights may be limited on the grounds of public health. Article 15 of the Sri Lankan Constitution similarly authorises limitations on a range of rights on the grounds of public health.

A public health crisis such as the Covid-19 pandemic can form the basis for limiting certain rights. For example, the freedoms of movement and peaceful assembly may be limited on the grounds of public health. Typically, restrictions on travel to and from certain locations with high infection rates, and restricting gatherings of three or more persons may be justified on the grounds of public health. These measures may be legally permissible, provided they are carefully justified. For instance, under the ICCPR, they would need to be justified on the basis that they are necessary and proportionate in terms of meeting the aim of protecting public health. This general discourse on limiting rights in response to the Covid-19 pandemic has, however, placed free speech in grave peril. In Sri Lanka, a slide from justifiable limitations on some rights, to unjustifiable limitations on free speech, is already visible.

The actual benefit that is served through limitations on free speech during the Covid-19 crisis remains unclear. The argument could be that criticism of the government would result in the loss of confidence in the government, and that such loss of confidence may indirectly impede the effectiveness of its measures to combat the virus. Yet, in democracies, confidence in government has to be earned rather than enforced. Governments must deal with criticism by contesting it, rather than by prohibiting it.

There are good reasons to safeguard free speech during a public health crisis. First, free speech stimulates governments to be more responsive to the needs and preferences of individuals in society. Prohibiting criticism has a chilling effect on a sincere and candid dialogue between individuals and their governments on how to cope with the crisis. If individuals are prohibited from criticising governments, governments cannot genuinely discover how measures adopted to combat the virus can affect the lives of individuals. It is the free flow of information and opinion that ensures meaningful improvements in the response strategy. Second, free speech often acts as a bulwark against the abuse of governmental power. In Sri Lanka, the president dissolved parliament in anticipation of an election. However, the election has since been postponed, and the government has operated without a sitting legislature for over three weeks. The military has meanwhile been deployed to spearhead the response to the crisis, and an island-wide curfew is in operation. Most people may support the government’s strategy in the short term. Yet a ban on criticism may conceal shifting perceptions and an eventual scepticism towards the long-term suspension of institutional checks and balances, and the entrenchment of the military.

The Covid-19 crisis has presented many governments with a host of unenviable challenges. In this context, it is reasonable to expect some limitations to be placed on certain individual rights in the interests of public health. However, Sri Lanka remains a stark reminder of the grave risks this context poses to many of our cherished rights – most significantly, our right to free speech.

Saying or writing anything that could cause ‘communal disharmony’ is criminalised under section 2(1)(h) of the current PTA. This provision has a notorious history of abuse. In 2009, it was used to convict journalist J.S. Tissainayagam for accusing the armed forces of committing war crimes. The new framework contains a similar provision, which is potentially worse than the PTA. Clause xviii of the section on ‘terrorism-related offences’ criminalises ‘words either spoken or intended to be read’, that ‘threaten the unity’ of Sri Lanka. The clause could therefore outlaw criticism of state policies that favour one community over another.  For example, a journalist who criticises a discriminatory language policy in the public sector could be accused of ‘threatening the unity’ of the country. Moreover, civil society advocates who press for the prosecution of war criminals and perpetrators of religious violence could be accused of ‘threatening unity’ through their advocacy. This clause, if enacted, could seriously impede free speech in Sri Lanka and restrict the space for resisting impunity and the abuse of power.

The new framework in fact goes a step further. It also criminalises gathering or providing ‘confidential information’ with the knowledge that such information will be used for the commission of any offence under the new law. For example, providing confidential information with the knowledge that it will be used to say or write something that ‘threatens unity’ is deemed to be ‘espionage’ and carries a prison term of ten years. This provision has serious implications for whistleblowers, who are vital to revealing state corruption and abuses. It also contradicts Sri Lanka’s new Right to Information Act, which specifically prohibits the punishment of whistleblowers who disclose information held by public authorities. Hence the espionage offence could be particularly devastating when combined with the offence of ‘threatening unity’.

The present government’s persistence in introducing repressive legislation in the face of human rights commitments is certainly disturbing. In fact, this is not even the first time it has attempted to re-enact a provision similar to section 2(1)(h) of the PTA. In December 2015, it attempted to introduce an amendment to the Penal Code, purportedly to criminalise hate speech. The proposed legislation replicated section 2(1)(h), but was withdrawn following opposition from civil society and the Human Rights Commission. Moreover, in August 2016, the Minister of Justice gazetted a Bill that sought to deny suspects the right to access legal counsel until police interrogations are completed. Fortunately, this Bill was also shelved following civil society opposition and the intervention of the Human Rights Commission.

This trend reveals a darker side to the present Sri Lankan government, which has thus far characterised itself as progressive and committed to human rights. It reveals the fact that government actors with repressive interests wield enormous influence over the reform agenda. These interests shape legislation to retain a pervasive national security apparatus – the very apparatus that the present government promised it would dismantle.

The new counterterrorism framework appears to perpetuate this trend. Sri Lankan civil society together with the Human Rights Commission must now prepare for yet another battle to resist repressive legislation. As they reflect on a frustrating year since that historic resolution, they can acknowledge one silver lining. It is the fact that Sri Lanka still affords space for resistance through civil society activism and independent institutions. This space must be safeguarded. Thus the battle against this new counterterrorism framework is not merely against repressive legislation. It is a battle to maintain this space for resistance.

Once enacted, the new RTI law will enable citizens to access information held by public authorities. Any citizen could submit an RTI request to the relevant authority and receive information free of charge. Moreover, an information request cannot be refused if the public interest in the disclosure outweighs any perceived harm. The new law thus promises to advance public accountability and combat corruption—two major platforms on which the current government was elected.

Meanwhile, another protracted struggle for information continues to take place in Sri Lanka. Thousands of families have endured indescribable grief and indignity throughout the country’s history of enforced disappearances. An insurrection in Sri Lanka’s south during the late 1980s saw the disappearance of thousands of people. The recently concluded civil war in the north and east similarly witnessed the disappearance of thousands more. In the latter case, many disappeared after surrendering to security forces. A presidential commission of inquiry appointed in 2013 received over 24,000 complaints on missing persons, 5,000 of which were made by the families of military personnel missing in action. If there is one experience that tragically unites Sri Lankans across ethnicity and geography, it is the trauma of not knowing the whereabouts of a missing relative.

Despite its obvious merits, the current RTI Bill is unconscious of the deep conceptual relevance of RTI to the issue of enforced disappearance. Oblivious to this relevance, section 25(3) of the Bill provides: ‘Where the request for information concerns the life and personal liberty of the citizen making such request, the response to it shall be made within forty-eight hours’ (emphasis added). Thus a citizen can seek an expedited response to an information request only if it applies to her own life and liberty. But this right does not extend to information that concerns the life and liberty of someone else—a missing relative perhaps.

Cynics might insist that in any event a standard RTI request is unlikely to help a family obtain information on a missing relative. Instead, an Office on Missing Persons, once established, could provide such information. Yet, should we not feel some discomfort with the fact that Sri Lanka’s national discourse on RTI fails to engage the community that needs this right the most? Sri Lanka’s RTI campaign has carefully avoided an association with enforced disappearances—perhaps out of a sense of political expediency. Linking the campaign to a deeply contentious issue may have ultimately undermined it. Yet can a campaign that seeks to overcome a culture of secrecy disregard one of the most infamous ‘secrets’ in the country? The irony of failing to invite such introspection is not lost on this RTI advocate.

The families of those missing are accustomed to being pushed to the margins. The total absence of public spaces to commemorate the disappeared certainly reflects such marginalisation. Despite repeated calls for public memorials, these families have only an unofficial site on the wayside in Seeduwa—a small town located a few miles from Colombo—to remember their missing loved ones. They will not be surprised by the current RTI Bill’s insensitivity to their cause. It is just a cruel reminder of their reality.

Nevertheless, it is not too late to restore the integrity of the national discourse on RTI in Sri Lanka. The Bill is now in the hands of parliamentarians. They can still move to revise section 25(3) of the Bill to ensure that there is an expedited response to requests concerning the life and liberty of any person, and not merely of the applicant. RTI advocates must lobby this revision, which at least acknowledges the relevance of the disappeared to Sri Lanka’s demand for RTI. Such acknowledgement could finally end the deep disconnect between the clarion call for more information and the lived experience of those in most need of it.

More than a year later, the new Sri Lankan government has responded to the problem of religious violence by attempting to introduce new laws on hate speech. This article explores some of the complexities that underlie the government’s response. It argues that an attempt to introduce new laws serves to perpetuate—rather than combat—impunity.

In September 2015, the new government announced that it would introduce new laws banning hate speech. The announcement was welcomed, as it responded to a call by the UN High Commissioner for Human Rights to criminalise hate speech. Yet both the government and High Commissioner neglected to consider section 3 of the International Covenant on Civil and Political Rights (ICCPR) Act of 2007. This (Sri Lankan) law reproduces Article 20 of the ICCPR, and prohibits the advocacy of ‘religious hatred that constitutes incitement to discrimination, hostility or violence’. It also gives the High Court jurisdiction to try and punish offenders.

Sri Lanka does not face a gap in the law as far as hate speech is concerned. In fact, the current law is fully compliant with international standards. The problem is one of enforcement. To date, Gnanasara Thero has not been investigated for the role he played in inciting violence against the Muslim community on 15 June 2014. Despite the status of existing law, the Minister of Justice tabled two new Bills in Parliament on 11 December 2015. The two Bills sought to insert a new offence on hate speech into the Sri Lankan Penal Code and Criminal Procedure Code.

The proposed laws on hate speech are deeply problematic for two reasons. First, new laws banning hate speech create the impression that hate speech is not already prohibited under Sri Lankan law. Article 13(6) of the Sri Lankan Constitution prohibits the retroactive application of criminal laws. Thus the very notion of a ‘new law’ criminalising hate speech could impede prosecution of past offenders.

Second, the new offence contained in the proposed Bills is virtually identical to section 2(1)(h) of the Prevention of Terrorism Act  (PTA) of 1979. The previous government used this section to target its critics, such as Tamil journalist J.S. Tissainayagam, who was sentenced to 20 years of rigorous imprisonment for accusing the government of committing war crimes. Yet, the present government has committed itself to repealing the PTA in its co-sponsored resolution adopted at the 30^th Session of the UN Human Rights Council contains this commitment. This attempt to reproduce a provision of an anti-terror law (destined for repeal) in ordinary criminal law is at best incongruous, and at worst insidious.

Sections of Sri Lanka’s civil society, the Human Rights Commission of Sri Lanka and the main opposition party in Parliament immediately opposed the two new Bills. The campaigners argued that, like the PTA, the new laws would be used to target critics of government rather than hate speech offenders. Petitions challenging the constitutionality of the Bills were then filed in the Sri Lankan Supreme Court.

The government succumbed to the pressure generated through the campaign and abandoned the Bills. The campaign had succeeded in at least maintaining the space to bring past perpetrators of hate speech to justice. Yet this is only a minor victory, as those very perpetrators continue to enjoy impunity even today. Civil society in Sri Lanka must now turn its attention to the more important question of enforcing the ICCPR Act. Such enforcement is vital to advancing justice and preventing future religious violence.