Ethno-religious violence in Sri Lanka is a chronic problem, and it can be sustained even without the active support of a particular government. This understanding of violence prompts further reflection – both on the factors that drive such violence and the complex relationship between ethnicity, religion, and the Sri Lankan constitution. This article delves into the post-war context in Sri Lanka and examines how and why ethno-religious violence has persisted regardless of the government in power. It is presented in three sections. The first analyzes the current state of ethno-religious violence in Sri Lanka. The second offers a hypothesis on why such violence has persisted despite the democratic transition of January 2015. It argues that democratic transitions alone cannot prevent chronic ethno-religious violence due to certain factors that serve to entrench violence within the country’s constitutional practice. The final section discusses the relationship between ethno-religious relations, the nature of the Sri Lankan constitution, and the space for meaningful constitutional reform. It concludes that the Sri Lankan state – informed by Sri Lanka’s ‘political constitution’ – embodies a certain structural dispensation towards ethno-religious violence. Until this fundamental dispensation is in some way transformed, meaningful religious freedom and power sharing will remain elusive aims.
The freedom of expression is vital to our ability to convey opinions, convictions, and beliefs, and to meaningfully participate in democracy. The state may, however, ‘limit’ the freedom of expression on certain grounds, such as national security, public order, public health, and public morals. Examples from around the world show that the freedom of individuals to express their opinions, convictions, and beliefs is often imperilled when states are not required to meet a substantial justificatory burden when limiting such freedom. This article critiques one of the common justificatory approaches employed in a number of jurisdictions to frame the state’s burden to justify limitations on the freedom of expression—the proportionality test. It presents a case for an alternative approach that builds on the merits and addresses some of the weaknesses of a typical proportionality test. This alternative may be called a ‘duty-based’ justificatory approach because it requires the state to demonstrate—through the presentation of publicly justifiable reasons—that the individual concerned owes others a duty of justice to refrain from the expressive conduct in question. The article explains how this approach is more normatively compelling than a typical proportionality test. It also illustrates how such an approach can better constrain the state’s ability to advance majoritarian interests or offload its positive obligations by limiting the freedom of expression of minorities and dissenting voices.
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