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Do you, as a foreigner, want to get married in SL?: The Government may say NO

02 Jan 2022

  • Circular demanding Security Clearance Report to marry foreign national is ‘…arbitrary, unlawful, and unconstitutional’
In a circular dated 18 October, a requirement was introduced where it is now mandatory for foreigners to get clearance from the Defence Ministry if they wish to marry locals. In the circular, the Registrar General W.M.M.B. Weerasekera cited national security reasons for introducing these measures, which are to come into effect from 1 January 2022.  Therefore, to register such marriages (those between a local and a foreign national), you have to go through the Additional District Registrars after obtaining a “security clearance report” relating to the foreign party. The Security Clearance Report is to be obtained from the security authorities of the relevant countries, and appears to focus on whether the foreign national has been convicted of any criminal offence. The decision has been criticised by both the Opposition and civil groups. As could be expected, much of the opposition surrounding this circular is regarding the blatant disregard for civil liberties exercised by the authorities.  Fundamental Rights violation  Attorney-at-Law Aritha Wickramasinghe, addressing this recent circular, shared his thoughts on the matter, providing that “the Defence Ministry requirement is completely arbitrary, unlawful and unconstitutional”, adding that it violates the Constitutional rights to:
  1. A) Freedom of thought and conscience (Art. 10) - who you love and choose to marry is intrinsically your decision;
  2. B) Right to Equality (Art. 12) - this law is only applicable to Sri Lankans wanting to marry foreigners. 
  3. C) Freedom from discrimination (Art. 12.1) - as it discriminates Sri Lankans who wants to marry a foreigner 
  4. D) Freedom of association (Art. 14 (1) (c)) - as who you associate with, choose to love and marry is your choice.
  5. E) Freedom to live anywhere in Sri Lanka and to return to Sri Lanka (Art. 14 (1) (h) and (i) - denying a Sri Lankan the right to marry a foreigner because of some trumped up charge or health condition will force the citizen to move outside Sri Lanka and deny him a right to return if he can’t bring his family with him. 
Wickramasinghe shared that these regulations also violate the universal rights accepted by Sri Lanka and which our entire legal and judicial system is based on. He said that these regulations are an arbitrary interference into the common law recognised and universal rights to privacy, to marriage and to family life.  Additionally, he noted that the State may exercise its obligation to provide national security through determining who gets to live in Sri Lanka by issuing residence or spousal visas (that too being reasonable and non-arbitrary), but that it “has zero rights to tell me or anyone else whom we can fall in love with and get married to”. “As a 37-year-old adult, I don’t even need my parents’ permission to get married. But apparently I need Sarath Weerasekera and Kamal Gunaratne’s permission,” said Wickramasinghe. He also especially noted that the rules when it comes to marriage are “manifestly unlawful”. He provided that the Marriage Ordinance does not permit the Defence Minister or anyone to issue rules on who can get married to who (except for the restrictions already prescribed in the law as passed by Parliament), and that the law only sets out the procedural steps to take when getting married.  These rules are more than procedural steps, said Wickramasinghe, sharing that “they have given to the Defence Minister and Secretary the right to determine whom I can get married to. They have placed themselves in the position of God and my parents.” He provided that this is another example of the Sri Lankan Government creating further chaos in a country so full of existential problems. “We don’t need the Government to interfere in our love lives. The last thing I want is them telling me whom I can love and marry,” he said.  Exercising personal choice  Attorney-at-law Ermiza Tegal shared her thoughts on the matter as well, and similar to much of what Wickramasinghe stated, she also addressed the fundamental rights aspect of it all, stating that constitutionally, fundamental rights are designed to give citizens freedoms to plan and conduct their personal lives without interference – the freedom of thought and conscience, right to physical liberty, the freedom of movement, the freedom of expression and assembly. At the heart of these rights is choice. Personal choice cannot be curtailed or infringed without due cause.  She also noted that Sri Lanka also has international human rights obligations, and Article 23 of the ICCPR specifically requires that men and women of marriageable age have the right to marry and to found a family. Implied is that restrictions and challenges to personal choice are not hindered. Tegal noted that this circular imposes hurdles to exercising personal choice. “It is an unjust, unwarranted, unfair, and completely disproportionate requirement. Instead of addressing actual criminal activity, it treats all foreign nationals as potential criminals,” she said, adding that actual criminal activity by foreign nationals in Sri Lanka can and should be addressed by other means, including criminal laws that are currently available. “It is extremely worrying to see such controls and securitisation of personal life and rights, this time by bureaucratic means. The difficulty is that it needs to be carried in full because the legal argument has to be built,” she said.  An illogical decision  This matter of curtailing choice appears to be a recurring concern, as it was also addressed by Attorney-at-Law Thishya Weragoda, who has filed a complaint at the Human Rights Commission addressing this matter, providing that it is in fact infringing on a person’s fundamental rights.  Wergaoda stated: “Basically they are saying that this is a measure to prevent criminals engaging in illegal activities in the country. However, surely there are less intrusive ways to ensure the safety of our people without infringing on our rights to thought and conscience, and to exercise choice.” He noted that it is incredibly illogical, rather similar to the absurd decision to ban full face helmets, a decision form which the government has since backed off of. Much like Wickramasinghe, Weragoda stated that if at all, the issue could be addressed as a visa matter where one’s spousal visa is reviewed, as this is what all other countries, including the EU, England, the US, Australia, and all such nations, employ to ensure that they are not inviting criminals into their land. By confirming that the foreign national is cleared in their visa, that they maintain a good record.  He also importantly noted that the circular does not define how long this security clearance is going to take, it also doesn’t provide an appeals procedure: “What if your documents are rejected, and you do not receive clearance, then what?”  It is evident that much of the legal fraternity of the island are evidently not in support of this decision and if you are to take a look at the on-line discourse not a lot of the general public are behind this decision either. Whether you are currently looking to tie the knot with your foreign lover or even if you have no intention of marrying someone not from Sri Lanka, it is evident to all that this is an illogical attempt at limiting personal freedoms, and the general public would not and should not stand for it. 


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