• Deconstructing the controversial security clearance circular

BY Sumudu Chamara In Sri Lanka, matters pertaining to ensuring national security have been considered pressing concerns for decades, especially during the war that ended in 2009 and after the Easter Sunday attacks in 2019. Even though governments and authorities continue to assure that the country’s national security has been ensured, the country continues to pay great attention to such, and has allocated massive amounts of funds in order to ensure that national security is still one of the top priorities. Recently, it was reported that a circular, which was to come into effect from 1 January 2022, had mandated a “security clearance report” from the Defence Ministry and health declaration forms from foreign nationals before they marry a Sri Lankan citizen. While this regulation came under fire from many parties due to the fact that this violates a person’s freedom to get married to a person of any nationality, the fact that the circular in question also pays attention to the foreign national’s convictions within six months, was also criticised. On 27 December 2021, Attorney At Law (AAL) Thishya Weragoda filed a complaint with the Human Rights Commission of Sri Lanka (HRCSL) challenging the making of a security clearance report in the event of a marriage between a foreign national and a Sri Lankan citizen. The complaint had named Registrar General W.M.M.B. Weerasekara, Defence Ministry and National Security and Disaster Management State Ministry Secretary (Retd.) Gen. Kamal Gunaratne, and Health Ministry Secretary Dr. Sanjeewa H. Munasinghe as the respondents. According to Weragoda, as of Monday (17), there has been no response from the HRCSL in connection with his complaint.  However, he told The Morning that last Wednesday (12), he had filed a writ petition in the Court of Appeal challenging the proposed regulation. As the matter has now been taken to the court, The Morning looked into the legal aspects of the new regulation, and according to Weragoda, the implementation of the new regulation will violate local laws and several international obligations. Constitution and citizens Weragoda noted that the said regulation directly violates several provisions of the Constitution, especially those that guarantee certain fundamental freedoms and rights.  He pointed out that the proposed regulation violates Article 10 of the Constitution, simply because marrying or not marrying a person is a personal choice which relates to the freedom of thought and conscience. Article 10, which comes under the Fundamental Rights Chapter, states that every person is entitled to the freedom of thought, conscience and religion. “Under no grounds should that right of a person, i.e. the freedom of thought, be restricted, and the Government cannot decide whom a person gets married to. This is an attempt to take control of the people, but trying to control the people’s freedom to get married is unacceptable,” he stressed. The proposed regulation, according to Weragoda, also violates Article 12, which states that all persons are equal before the law and are entitled to the equal protection of the law. He explained the impact such regulations can have on people’s lives, and also how it can affect the right to acquire the citizenship or visa of another country when a Sri Lankan national gets married to a foreign national.   “First of all, the people should have the freedom to marry any person they want as per the available laws, and no one can impose restrictions with regard to grounds such as ethnicity, nationality, or religion. When the Government says that a person needs its permission to marry a person (a foreign national), it means that the Government has the power to even refrain from granting permission, and it also means that the Government has imposed a restriction on the grounds of the nationality of a person. At the end of the day, whether we like it or not, there are so many people who have married and are marrying foreigners. When a person is married to a foreigner, they want their children to have a foreign passport, especially when the foreign spouse is of European, American, Australian, or New Zealand origin. More than it being more or less a need of the prevailing situation in the country, it is easier to travel when a person has such passports. If people have an opportunity to get such a foreign passport, they tend to take it.”  He opined that what this new regulation essentially tells Sri Lankans is that to get married to a foreigner, they need permission from the Government, in a context where a person can get married in accordance with the existing laws without even his/her parents’ permission. International obligations According to Weragoda, if Sri Lanka proceeds with the proposed regulation, it will amount to a violation of not only the said provisions of the Constitution, but also several international obligations to which Sri Lanka is a state party. Among them are the Universal Declaration of Human Rights (UDHR), the Convention on the Rights of the Child (UNCRC), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Adding that the UDHR clearly says that no discrimination can take place on the basis of a person’s nationality when it comes to marriage, he pointed out Article 16 of the UDHR. Article 16(1) says that men and women of full age, without any limitation due to race, nationality, or religion, have the right to marry and to found a family, and that they are entitled to equal rights as to marriage, during marriage, and at its dissolution.  He added that at the same time, the UNCRC, under Article 7, says that a child has a right to acquire a nationality, and that no disicrimation can take place with regard to that right as well. He noted this with regard to the risk of a child losing the opportunity to obtain a foreign citizenship when one of his/her parents is a foreign national, if the said regulation hindered two persons of different nationalities from getting married. The UNCRC’s Article 7(1) says: “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality, and as far as possible, the right to know and be cared for by his or her parents.” In addition, Article 7(2) says that the state parties should ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. Moreover, according to Weragoda, by imposing the said regulation, Sri Lanka will also violate certain provisions of the CEDAW, as the CEDAW says that no person should be discriminated against based on their nationality when it comes to marriage. Article 9(1) of the CEDAW says: “State parties shall grant women equal rights with men to acquire, change, or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless, or force upon her the nationality of the husband.” Moreover, Article 9(2) says: “State parties shall grant women equal rights with men with respect to the nationality of their children.” Weragoda further said: “These are all intentional obligations which Sri Lanka has ratified. After ratifying those obligations, we cannot violate them and then go on to complain that the UN Human Rights Council in Geneva, Switzerland, is harassing us and that those are a result of western conspiracies. If we sign an agreement, we have to hold our side of the bargain. While we are obliged to adhere to certain obligations, we cannot impose restrictions that go against those obligations.” National security The legality of this new regulation, according to Weragoda, is merely one aspect of this new regulation, and there are serious concerns about the practicality and effectiveness of the same. “What if a person gets married to a foreigner in a foreign country and comes back to Sri Lanka?” he questioned. “The Government says that the main objective of introducing this regulation is preventing criminals such as drug traffickers from entering the country after getting married to a Sri Lankan. But, they can still get married in a foreign country, and that marriage will still be valid,” he explained, emphasising that this new regulation is not effective as far as addressing the national security-related concerns the Government has mentioned is concerned. Weragoda stressed that in a context where even a prisoner on death row can get married, the Government cannot say that persons with criminal records cannot get married or have children, noting further that marriage and criminality have no correlation. He added: “If the Government’s motive is to achieve what it has said it wants to achieve – i.e. ensuring national security when foreign nationals marry Sri Lankans – it boils down to a mere visa-related matter. What the Government can do is change its visa regime. The authorities can always say that it cannot give a person who has a criminal record in a foreign country, a visa to stay in Sri Lanka indefinitely. They can deny a visa based on such grounds if it wants to ensure national security, and these are simple steps which are less intrusive.” He explained visa processes in certain foreign countries with regard to marriages between a citizen and a foreign national, noting: “In the UK, for example, just because a foreign national gets married to a UK citizen, that person does not receive a UK passport, nor does such a person get a visa automatically. Such a person has to submit a request to avail themselves of such. When a person applies for a spousal visa, that country’s authorities look into a lot of matters, including how long the applicant had been married to the UK citizen. After this process, they grant a visa which is valid for just one year. “After the completion of that year, the couple has to apply again, and they get a visa valid for three years. It is called ‘indefinite leave to remain’. Once it is granted, the applicant can even vote in that country, despite the fact that the applicant is still not a citizen of that country. If such a person commits an offence while staying in that country on a spousal visa, he/she can even be deported. Even in the US, just because a person gets married to a citizen of that country, they do not receive a visa. They have to wait for several years before applying for it.” He added that even Sri Lanka can take similar and simple steps, which involve checking whether a marriage is a sham marriage, and then take a decision as to whether the authorities should issue a visa or not. “Every country has such systems in place, and we too can devise such a system in our visa regime. We are not saying that national security must not be ensured; what we are saying is that we must not mix up marriage and national security,” he opined. Moreover, Weragoda said that if the Government really wants to impose such a restriction, the Marriage Registration Ordinance as amended will have to be amended to include such restrictions, as the Ordinance does not identify such provisions on criminal records as a restriction at present. However, he further said that if attempts were made to make such amendments, such attempts will most certainly be challenged in the Supreme Court. Although The Morning attempted to contact the officials of the Registrar General’s Department and the Defence Ministry to discuss the implementation of the regulation in question, they were not reachable. As was mentioned above, understanding specific national security-related concerns and finding effective solutions should be the priority of the authorities. Even if this regulation was enforced, if it does not deliver the expected results, the only result of it will be the violation of the people’s rights and freedoms. While there are several questionable aspects of this new regulation, now that a complaint as well as a writ petition has been filed in that regard, those matters are likely to be addressed in the near future.