Gehan Gunatilleke

DPhil Law

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Bonavero Institute of Human Rights

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Biography

Gehan Gunatilleke is a researcher focusing on state authority to restrict the freedom of religion or belief, and the freedom of expression under international human rights law. He is also a Visiting Fellow at Harvard Law School where he is pursuing a book project on religious violence and constitutionalism in Sri Lanka.

Gehan has a DPhil in Law, and an MSt in International Human Rights Law from the University of Oxford. He is a former Commonwealth Scholar, and a recipient of the Mr and Mrs Kenny Lam Scholarship in Law at St Catherine's College. Gehan also has an LL.M from Harvard Law School, where he was a Fulbright Scholar and a Dean's Scholar in International Human Rights.

Gehan is a former advisor to the Sri Lankan Foreign Ministry (2015-2018), where he specialised in international treaty compliance, and negotiation. He has served on legislative drafting committees that have drafted key human rights laws in Sri Lanka including the International Convention for the Protection of All Persons from Enforced Disappearance Act. His advocacy work in Sri Lanka has focused primarily on combating ethno-religious violence and state regulation of mainstream and social media. He is also a founding partner at LexAG, a law firm specialising in Sri Lankan civil and public law.

Gehan has taught post-graduate courses on human rights, democratisation and development offered by the University of Colombo, University of Sydney and Open University of Sri Lanka. He is currently a graduate tutor in human rights law at St. Catherine's College. He has authored several publications, including 'The Chronic and the Entrenched: Ethno-religious Violence in Sri Lanka' (2018), and 'Confronting the Complexity of Loss: Perspectives on Truth, Memory and Justice in Sri Lanka' (2015).

Publications

Recent additions

  • Gehan Gunatilleke, 'Criteria and Constraints: the Human Rights Committee’s Test on Limiting the Freedom of Religion or Belief' (2020) Volume 15 Religion & Human Rights 20
    DOI: https://doi.org/10.1163/18710328-BJA10002
    The Human Rights Committee—the treaty body established under the International Covenant on Civil and Political Rights—performs a vital function in supervising the Covenant’s implementation. This article presents an analytical account of the Committee’s approach to determining the permissibility of limitations on the freedom of religion or belief under the Covenant. It finds that the Committee has set out certain primary legal criteria when determining the permissibility of a limitation. The Committee has then articulated certain additional normative constraints that apply to states’ authority to limit rights—such as the requirement that the limitation be compatible with the principle of non-discrimination. Based on an analysis of the Committee’s general comments and jurisprudence, the author argues that the Committee has offered a path towards imposing on states a heavier burden to justify limitations on the freedom of religion or belief.
  • Gehan Gunatilleke, 'Coexistence and Violence: The Case for Equality of Opportunity in Sri Lanka' (2020) 16 Socio-Legal Review 26
    Equality of opportunity reflects the availability of opportunities to all individuals in a society to enable them to advance their interests on an equal footing. This article discusses the concept of equality of opportunity in the Sri Lankan context. It explores Sri Lanka’s post-Independence socio-political and constitutional history and examines the nexus between the denial of formal and substantive equality of opportunity and the emergence of violent conflict. This article presents a case for making formal and substantive equality of opportunity integral to advancing sustainable coexistence and ensuring the non-recurrence of violent conflict in Sri Lanka. It analyses Sri Lanka’s commitment to equality of opportunity in its formal constitutional framework and socio-political practice. First, it analyses Sri Lanka’s constitutional framework and the formal guarantees of equality of opportunity. Second, it critically evaluates the extent to which these guarantees are realized in practice and problematizes the ostensible gap between formal law and socio-political practice. Finally, it explores some of the major structural factors that motivate the denial of formal and substantive equality of opportunity in Sri Lanka: entitlement complexes, existential fears, and institutional decay. The article concludes that equality of opportunity can be formally and substantively guaranteed only through a multi-pronged approach of constitutional, cultural, and institutional reform. Such reform is crucial to facilitate meaningful coexistence in Sri Lanka and to ensure the non-recurrence of violent conflict.
  • Gehan Gunatilleke, 'Justifying Limitations on the Freedom of Expression' (2020) Human Rights Review
    DOI: https://doi.org/10.1007/s12142-020-00608-8
    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.

All publications

Journal Article (6)

Gehan Gunatilleke, 'Coexistence and Violence: The Case for Equality of Opportunity in Sri Lanka' (2020) 16 Socio-Legal Review 26
Equality of opportunity reflects the availability of opportunities to all individuals in a society to enable them to advance their interests on an equal footing. This article discusses the concept of equality of opportunity in the Sri Lankan context. It explores Sri Lanka’s post-Independence socio-political and constitutional history and examines the nexus between the denial of formal and substantive equality of opportunity and the emergence of violent conflict. This article presents a case for making formal and substantive equality of opportunity integral to advancing sustainable coexistence and ensuring the non-recurrence of violent conflict in Sri Lanka. It analyses Sri Lanka’s commitment to equality of opportunity in its formal constitutional framework and socio-political practice. First, it analyses Sri Lanka’s constitutional framework and the formal guarantees of equality of opportunity. Second, it critically evaluates the extent to which these guarantees are realized in practice and problematizes the ostensible gap between formal law and socio-political practice. Finally, it explores some of the major structural factors that motivate the denial of formal and substantive equality of opportunity in Sri Lanka: entitlement complexes, existential fears, and institutional decay. The article concludes that equality of opportunity can be formally and substantively guaranteed only through a multi-pronged approach of constitutional, cultural, and institutional reform. Such reform is crucial to facilitate meaningful coexistence in Sri Lanka and to ensure the non-recurrence of violent conflict.
Gehan Gunatilleke, 'Criteria and Constraints: the Human Rights Committee’s Test on Limiting the Freedom of Religion or Belief' (2020) Volume 15 Religion & Human Rights 20
DOI: https://doi.org/10.1163/18710328-BJA10002
The Human Rights Committee—the treaty body established under the International Covenant on Civil and Political Rights—performs a vital function in supervising the Covenant’s implementation. This article presents an analytical account of the Committee’s approach to determining the permissibility of limitations on the freedom of religion or belief under the Covenant. It finds that the Committee has set out certain primary legal criteria when determining the permissibility of a limitation. The Committee has then articulated certain additional normative constraints that apply to states’ authority to limit rights—such as the requirement that the limitation be compatible with the principle of non-discrimination. Based on an analysis of the Committee’s general comments and jurisprudence, the author argues that the Committee has offered a path towards imposing on states a heavier burden to justify limitations on the freedom of religion or belief.
Gehan Gunatilleke, 'Justifying Limitations on the Freedom of Expression' (2020) Human Rights Review
DOI: https://doi.org/10.1007/s12142-020-00608-8
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.
Gehan Gunatilleke, 'The Structural Limits of Depoliticisation in Sri Lanka' (2019) 108 The Round Table: The Commonwealth Journal of International Affairs 613
DOI: https://doi.org/10.1080/00358533.2019.1687971
Sri Lanka’s institutional reform project has gathered momentum with the enactment of the Nineteenth Amendment to the Constitution. The Amendment restored the Constitutional Council, which is mandated to recommend and approve appointments to key ‘independent’ institutions and offices. This article asks what it means to be meaningfully ‘depoliticised’, and explores the dynamics and parameters of the current institutional reform project in Sri Lanka. It argues that the entrenchment of Sinhala-Buddhist majoritarianism within Sri Lanka’s institutional structures has led to ‘institutional decay’. Given such decay, the article points to serious limitations in legalistic approaches that are preoccupied with improving appointment procedures. Since institutions in Sri Lanka are structurally incentivized to appease a majoritarian agenda, relying on legal-textual and institutional reform alone is inadequate. Institutional reform is ultimately constrained by the structural limits of Sri Lanka’s current constitutional framework. The article concludes that meaningful constitutional transformation requires a long-term project that aims to transform the majoritarian socio-political and cultural norms that underpin Sri Lanka’s constitutional order.
Gehan Gunatilleke, 'The Constitutional Practice of Ethno-Religious Violence in Sri Lanka' (2018) 13 Asian Journal of Comparative Law 359
DOI: https://doi.org/10.1017/asjcl.2018.11
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.
Gehan Gunatilleke, Mike Hayes, Salina Kafle and Joash Elisha Tapiheru, 'Do Recommendations to the Universal Periodic Review work? Examining Recommendations in UPR’s First Two Cycles for Nepal, Sri Lanka and Indonesia' (2016) Journal of Human Rights and Peace Studies 108
This paper looks at the Asia-Pacific region’s experience of the UPRprocess through case studies of three countries: Nepal, Sri Lanka, and Indonesia. It examines the effectiveness of the UPR process in communicating existing human rights concerns to the States by focussing on the recommendations given to States, and asks if this information is translated into tangible change in States’ responses to first cycle recommendations. Two thematic areas are selected: non-discrimination and freedom of speech. The selection of these are to capture both fundamental human rights though nondiscrimination, and also to see if the mechanisms allow for individual interpretations in the freedom of expression, which is widely debated in all countries. The study shows that recommendations,which should emerge from a participatory process involving non-governmental organisations (NGOs), too often reflect only State interests, and thus the UPR Working Groups and participating states in many cases do not adopt civil society recommendations when framing their own recommendations. Finally, this study assesses the extent to which the UPR process has translated into real changes in policy and practices in the region.

Book (4)

Jayantha de Almeida Guneratne, Kishali Pinto-Jayawardena and Gehan Gunatilleke, The Judicial Mind in Sri Lanka: Responding to the Protection of Minority Rights (Law & Society Trust 2014)

Internet Publication (6)

Chapter (3)

Gehan Gunatilleke, 'The Right to Memory: The Forgotten Facet of Transitional Justice' in Bhavani Fonseka (ed), Transitional Justice in Sri Lanka: Moving Beyond Promises (Centre for Policy Alternatives 2017)
Gehan Gunatilleke, 'The Right to Information as a Fundamental Right' in Asanga Welikala (ed), The Nineteenth Amendment to the Constitution: Content and Context (Centre for Policy Alternatives 2016)

Research programmes

Research Interests

Human Rights Law, Freedom of Expression, Freedom of Religion

Research projects