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Sri Lanka's Supreme Court and conversion issues

by Manohara R. de Silva

H. L. de Silva PC, on the occasion of his felicitation by the All Ceylon Moors Association had made some critical comments on the SC determinations dealing with the constitutionality of unethical conversions.

A hand-made casket from Ghana, used in the African Burial Ground Memorial Project, which has been transported from Howard University, Washington, D.C. where it was studied, is blessed by clergy on the way to New York on October 3, 2003 from Liberty State Park in Jersey City, New Jersey. The reburial of the remains of hundreds of African-American slaves in New York put little to rest aside from some bones from America’s darkest hour, say many who took part in the ceremonies. Picture taken October 3, 2003. REUTERS

The comments made by H. L. de Silva (HL) contain a number of inaccuracies which need to be dealt with, in view of the importance of the matter in issue and the lack of coherence and consistency of his views.

HL states that the pre-eminence accorded to Buddhism "is essentially as being of symbolic significance" and not "a provision which conferred on its adherents any preferential claims over persons of other religions".

It should be pointed out that Article 9 of the constitution confers on the Republic of Sri Lanka a duty to protect and foster the Buddha Sasana and to give to Buddhism the foremost place.

Article 9 of the constitution reads as follows, "Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana while assuring to all the other religions the rights guaranteed by Article 10 & 14(1) (e)"

It is erroneous to state that the duty conferred on the Republic by the constitution should be regarded as "symbolic" when the constitution in such clear language states that it is the "duty of the state" to protect and foster the Buddha Sasana and that the Republic "shall" give to Buddhism the foremost place.

However, unpalatable it may be to a few, Article 9 leaves no doubt that Buddhism should be given the foremost place and that it is the duty of the State to protect and foster the Buddha Sasana.

Dr. Colvin R. de Silva the then Minister of Constitutional Affairs had when the draft of the 1st Republican Constitution was being considered in the constituent assembly stated that "Buddhism holds in the history and the traditions of Ceylon a special place and the specialness thereof should be recognized in the resolution".

Giving a special place to a religion is not something unusual. In many countries in the world a special place has been given to their respective religions for historical reasons. For instance Article 44(1) (2) of the constitution of Eire states, "the state recognizes the special position of the holy Catholic apostolic and the Roman church as the guardian of faith professed by the great majority of the citizens".

Similarly article 21 (1) of the constitution of Burma states that "the state recognizes the special position of Buddhism as the faith professed by the great majority of citizens of the Union".

Having expressed the view that Buddhism is essentially of "symbolic significance" at the commencement of his presentation HL does a complete somersault at the end of his speech by contradicting himself when he states "action by the state pursuant to article 9 in certain cases, be justified as "affirmative action" necessary to restore rights and privileges of the Buddha Sasana that were lost in colonial times, having regard to the failure to give effect to the treaty obligations contained in the Kandyan convention of 1815, on the assumption of sovereignty by the British crown and its policy of benign neglect of Buddhism".

To HL, affirmative action against the colonial atrocities is justified but atrocities of the present day should not attract any affirmative action. One fails to understand the logic of this reasoning.

HL once again contradicts himself when he states that, "the historical record of evidence in Sri Lanka on the contrary negatives such a conclusion because Buddhism has continued to flourish despite the conversions to other religions." HL arrives at such a conclusion even though he himself has admitted that "the rights and privileges of the Buddha Sasana was lost in colonial times."

It is necessary to remind HL that even today the rights and privileges of Buddhists continue to be curtailed. To cite a more recent instance is when the Government declined to issue a Radio license to the Sri Dalada Maligawa to broadcast Buddhist preaching and within few weeks a license was issued to the LTTE for their propaganda. HL states that "Buddhism continues to flourish despite conversions to other religions". According to Oxford dictionary "flourish" is to "grow vigorously thrive or prosper". One wonders how Buddhism could flourish "despite conversions".

HL again whilst pronouncing that Article 9 is of symbolic significance proceeds to state that there has hitherto been no authoritative interpretation of this provisions where any State action alleged to have taken to protect and / or foster the Buddha Sasana was challenged. This is simply not true.

Both the present article 9 and the corresponding provision of the 1st Republican Constitution (Article 6) have been subject to much judicial discussion and interpretation. In the 13th Amendment Bill determination the Supreme Court made the following observations in respect of the significance of Article 9 of the constitution.

(a) At page 364 of the determination the Court referring to article 9 observed.

This entrenched Article enjoins the State to;

(a) give to Buddhism the foremost place;
(b) to protect, and
(c) foster the Buddha Sasana;
(d) assure to all other religions the rights contained in Article 10 and 14 (1) (e)
(b) At page 384 the Court observed that,

"It appears to me that the solemn duty cast upon the Central Government by the Provisions of the said Article would remain untrammelled and undiminished. The Provincial Councils will not, in law, have the power to interfere with the discharge of the duties cast upon the Central Government by the Provisions of this Article.

If an act of a Provincial Council, purporting to be done in terms of item 25:2 or item 28 set out in the Provincial Council List contained in the 9th Schedule, in respect of which submissions were made by learned Counsel appearing for several of the Petitioners, were to constitute an encroachment of, or an interference with the duty cast upon the Central Government resulting in an erosion of the rights guaranteed to the Buddhists, or a diminution of the rights assured to the other religions the Central Government could then, in law, take steps to discharge the obligations cast upon it by the provisions of this Article. It is indeed the duty of the Central Government to do so, and do so effectively".

(c) Dealing with the aforementioned fears expressed with regard to the items referred to above, Justice Wanasundara at page 365 of the said determination reproduced the responses of two eminent personalities, namely Mr. Mark Fernando (presently Justice Fernando) and Dr. H. W. Jayawardana who appeared in the proceedings in support of the Bill.

"Mr. Mark Fernando conceded that these provisions need clarification to alley the fears of the Sinhala Buddhists. Dr. Jayawardana also conceded the responsibility and duty of the state under article 9 in this regard which he submitted remain unaffected".

The above observations demonstrate that Article 9 was not meant merely to be a monumental provision that decorated the constitution but a provision that was incorporated to secure and protect Buddhism.

HL objects to the observations made in the recent determination in SC Spl. Det. 19/2003 with regard to the provision of the impugned Bill that "they were not permissible as it would impair the very existence of Buddhism or the Buddha Sasana because if efforts are taken by one to convert another to ones own religion, such conduct could hinder the very existence of the Buddha Sasana". It is necessary to remind HL that this is not the first time that the Supreme Court expressed its objections to provisions that would hinder the constitutional duty embodied in Article 9 or its corresponding article 6 of the 1st Republican Constitution.

In the "Pirivena Education Bill" determination Justices V. Sivasubramanium and Jaya Pathirana made the following observations:

"The extent to which any bill fosters Buddhism would be a matter of opinion and would, in any event, not affect the constitutionality of the bill so long as in its total effect it helps to foster Buddhism. A Bill would be in conflict with Section 6 of the Constitution only if it has the effect of hindering the promotion of Buddhism."

The Supreme Court only followed judicial precedents which were well established over many decades. Therefore it must be stated that the criticism without any reference to these earlier decisions (or having been suppressed) is totally unjustified.

HL then proceeds to state that "there has also been in recent times an unfortunate trend reflected in a few decisions to the Supreme Court, the effect of which is to harass and curtail the activities of certain Christian groups in regard to their evangelist activities which were aimed at converting others to their faith which for Christian is an imperative article of faith and an essential part of their vocation".

What HL fails to realise is that the Buddhists may also claim to have an equally imperative obligation to ensure that their community would not be degenerated by such Christian vocations which believe that converting even by the use of force fraud or allurement "is an imperative article of faith and an essential part of their vocation".

Being grieved by the failure of "civil rights organisations" to have protested against the aforesaid determinations which gives a "restricted view" (as HL puts it) of the scope of these rights he proceeds to state that "the rationale which the Court gives for this prohibition against the exercise of the freedoms under Article 10 in combination with the freedoms guaranteed under Article 14 (1) of the Constitution is questionable for the following reasons:

Firstly HL states, "The freedom under Article 10 of the Sri Lankan Constitution (unlike its counterpart provision in Article 25 (1) of the Indian Constitution) cannot be made subject even to any legislative restriction even by Parliament because it is wholly unfettered. In the case of other fundamental rights Parliament may impose restrictions under Article 15 (7).

What the Supreme Court has done in making these determinations in so far as Article 14 (1) (e) is concerned is in effect to usurp the legislative function of Parliament which is outside the proper scope of judicial interpretation. It has sought to limit the ambit of Article 14 (1)(e), on the ground that the right to practise or manifest one's religion does not embrace the right to convert others in circumstances where such conversion may be brought about by "force fraud or allurement" despite no such limitation being placed by Parliament, since in the courts view, there is a likelihood of such anomalies arising from the exercise of ancillary powers contained in Clauses 3 and 4 of the Incorporation Bill such as the relief of distress and social service.

Accordingly, the court held that the bill would contravene Article 10. Now it is possible that these considerations may be regarded as adequate reasons for enacting legislation on such lines (as in certain Indian states), if Parliament thought such restrictions are desirable. But the Supreme Court has no constitutional power or authority to assume the role of the legislator in interpreting the constitution by imposing such restrictions.

Secondly HL states that, "any amendment of our Article 10 would require not merely a 2/3 majority in Parliament, but also an approval of such amendment by the people at a Referendum (Article 83). The Supreme Court has through a process of interpretation in effect brought about an implied amendment of Article 10".

Thirdly HL states that, "in the practice of his religion the Christian is under a duty to disseminate the Gospel by teaching others, by witnessing to his faith through his personal behaviour and conduct by observing his tenets inter alia by acts of charity and love and concern for others, then the practice of the religion might well entail the conversion of others to his faith as a consequence of such acts".

It appears that HL holds the view that in the absence of any statutory provision being made by Parliament to restrict improper proselytism the Supreme Court has no power to interpret Article 10 of the Constitution.

It is also his position that fundamental rights enshrined in Article 14 (1)(e) are subject to such restrictions contained in Article 15(7) which can be imposed by the Parliament only and interpreting a fundamental right is to usurp the legislative function of the Parliament.

The scope of the exercise of fundamental rights have been subject to judicial interpretation often. For instance in the Broadcasting Authority Bill determination the Supreme Court interpreted the freedom of "speech and expression" embodies in Article 14 (1) (a) to include the freedom to "receive information". Receiving information is not mentioned in Article 14 (1) (a). However through a process of interpretation the Court has enlarged the parameters of the right. Can it be said applying the same logic that this is also an act of usurping the powers of the Parliament?

HL has failed to recognise the exclusive jurisdiction of the Supreme Court to interpret the provision of the constitution vested in it by virtue of Article 125 of the Constitution.

(To be Continueed)

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