The Government of Sri Lanka has introduced a travel ban requiring foreign passport holders travelling to the North to obtain prior permission from the Ministry of Defence . Application format requires the travellers to disclose, among others, the purpose of travel and the number of visits etc. Here is the response by the Lawyers Collective on the subject, after examination of the legal provisions.
Freedom of movement within the country is generally enjoyed by the citizens of the country under Article 14(1)(h) of the Constitution; However, Article 12(1) of the Constitution prohibits all arbitrary state actions irrespective of whether the affected individuals are citizens or not. A series of Supreme Court decisions have clearly established that any restrictions on travel or freedom of movement must be “prescribed by law”, meaning by either a parliamentary statute or by an emergency regulation. There is no such law or regulation in existence at present, regulating the travel to the Northern part of the country.
In the absence of such law, no authority including the Defence Ministry can introduce administrative procedures restricting freedom of movement of locals or foreigners. The Government has not disclosed the reasons for such restrictions. Neither the Defence Ministry nor the Government have disclosed any reason why such travel restrictions are necessary exclusively in respect of the Northern Province. However, the authorities have indicated that foreigners should establish their bona fides for travel to the North, which is an extremely arbitrary yardstick to be decided by the Military
The Government repeatedly emphasised to the international community that normalcy has returned and thus the travel restrictions to the North that had been imposed were lifted after the conclusion of the war in 2009. The Lawyers Collective is also mindful of the Government’s commitment to develop tourism in all parts of the country as well as multiple infrastructural development projects targeting war affected areas. There is no war in any part of the country at present, justifying re-imposition of travel restrictions.
Another relevant factor is that an all-island election is likely to be held in January, where the President who is also the Minister of Defence is likely to be a candidate. In those circumstances, such restrictions are not only inappropriate but also raise the question of ulterior motives, which goes to the root of the validity of such administrative restrictions.
Lal Wijenayaka & JC Weliamuna
4th November 2014