Archives

(Continued from Nov. 1)

by Manohara R. de Silva

What the Supreme Court has done is to exercise the exclusive power given by the Constitution to interpret the provisions of the Constitution which includes Article 10.

When the Constitution has given such express power to the Supreme Court to interpret provision of the Constitution including Article 10 and 14 (1) (e) it is nonsensical to say that the Supreme Court is attempting to usurp the powers of Parliament. HL appears to justify conversion by force fraud and allurement in the absence of any legislative enactment. Such a position goes counter to all democratic norms known to a civilised society.

In interpreting constitutional provision it is important to interpret them to create an environment of religious harmony as contemplated by Article 27 (5) of the Constitution which declares that it is a fundamental duty of the State and the directive principal of State policy to "strengthen the national unity by promoting cooperation and mutual confidence among all sections of people of Sri Lanka including the racial, religious, and other groups". HL's reasoning will not in any way contribute to maintain that harmony but on the contrary help and encourage State and "non State actors" (as HL puts it) to create chaos and sow seeds of enmity among various religious groups. Our courts have always taken a more progressive and a realistic approach in this regard and interpreted the provision of this Constitution including those of fundamental rights to prevent such disharmony or discord. Allowing such "actors" to go on a rampage converting people by fraud force or allurement (merely because there is no express prohibition by law) goes counter to the very essence of the Constitution.

It is necessary to point out that what the court restricted was improper proselytism such as by use of force fraud or allurement and not bona fide expression or teaching of the religion. In fact the purpose of the Court relying on the reasoning given in the case of Kokkinakis Vs Greece was to draw that distinction. HL is unreasonably critical of the citation from Kokkinakis Vs Greece as being "erroneously relied" by court, when the court very correctly cites that reasoning to draw the distinction between improper proselytism and the proper manifestation of one's religion.

The paragraph of the judgement relied upon by the Supreme Court reads thus;

"First of all distinction has to be made between bearing Christian witness and improper proselytism. The former corresponds to true evangelism, which a report drawn up in 1956, under the auspices of the World Council of Churches describes as an essential mission and a responsibility of every Christian and every church. The latter represents a corruption or deformation of it.

It may, according to the same report, take the form of activities offering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence of brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others".

Referring to the reasoning given by the Supreme Court in the aforesaid determinations that a prayer center seeking incorporation cannot avail itself of the freedom to manifest its religion enshrined in Article 14 (1)(e) and the freedom to engage in business as enshrined in Article 14 (1)(g) of the Constitution. HL states that this is a remarkable departure from the established jurisprudence in this field and if applied in the other areas of fundamental rights, would be a dangerous doctrine.

It must be stated that the Supreme Court very carefully used its words when it said that a prayer centre "cannot avail itself these two freedoms together" (emphasis is mine).

It should be explicitly pointed out that the Court did nto make any sweeping pronouncement is respect of any two or more fundamental rights but referred only to two specific rights contained in Article 14 (1) (e) (freedom to manifest his religion) and 14 (1) (g) (freedom to do trade and business) of the constitution.

The Supreme Court gave its reasons as to why the said two articles cannot be enjoyed together. It was the Courts view that combining the freedom of religion with trade business or enterprise would have the effect of infringing anothers freedom of thought.

Accordingly the Supreme Court quite rightly made the following observation in SC Determination 19/2003 which challenged the incorporation Provincial of the Teaching Sisters of the Holy Cross of the Third Order of Saint Francies in Manzingen of Sri Lanka (Incorporation):

"The provisions of this bill viz the preamble, clause 3 and also clause 5 which deals with the powers of the organization that movables inter alia to be able to receive and hold property both movables and immovable and or dispose such property create a situation which combines the observance and practice of a religion or belief with activities which would provide material benefit to the inexperience defenceless and vulnerable people to propagate a religion, the kind of activities projected in the bill would necessarily result in imposing unnecessary and improper pressure on people who are in distress and in need with their free exercise of thought conscience and religion with the freedom to have and adopt religion and or belief of his choice as provided by article 10 of the constitution. What article 10 postulates is to adopt a religion or belief of his or her choice and the execution of improper inducement would not be compatible with such provision".

When HL states that it is a "remarkable departure" from the established Jurisprudence in this field this is far from the truth. When two contending parties with competing interests make conflicting claims it is necessary for the court to intervene and interpret the constitution as the arbiter between the legislative power of the people and the constitution of Sri Lanka. What the Supreme Court did in this instance is to interpret article 10 of the constitution being the arbiter of two competing claims. In accordance with the directive principles of state policy to "strengthen national unity by promoting cooperation and mutual confidence among all sections of the people in Sri Lanka including racial religious linguistic and other groups", the court selected the interpretation which would be harmonious with religious tolerance without leaning towards the extreme views, on one hand views which advocate that no conversion to the Christian faith can ever take place and on the other hand views which advocate that there is a right to covert people of other religion to their faith even by fraud force or allurement in the absence of any statutory restriction.

The Supreme Court quite rightly and in accordance with the aforesaid fundamental duties and directive principals of State policy without leaning itself with either of these extreme views drew a distinction following the reasoning in kokkinakis Vs Greece, between improper proselytism by use of force fraud or allurement, and proper exercise of the freedom to manifest one's religion and accordingly interpreted Article 10 of the constitution.

HL makes this scathing attack on the Supreme Court for not supporting his extreme view, namely that Christians should be permitted to convert people by use of force fraud or allurement in the absence of any statuary restriction. This attack is therefore nothing but a totally unreasonable unjustified attack on a judgement made according to law when the Court is called upon to interpret a fundamental right relating to freedom of religion in a situation where there are two conflicting assertions, the Court should interpret the rights in a manner that would ensure religious harmony. In this regard the following observations made by Court with regard to the submissions made by Mr. Tiruchelvam in the determination in the Church of Sri Lanka (Consequential Provisions) Bill is of immense value.

"Mr. Tiruchelvam's submission was to the effect that the Petitioners are seeking the protection of their fundamental rights of worship in the same way the sponsors of the Bill, five of the Uniting Churches, are also seeking to establish a United Church in order to exercise their fundamental rights of worship. Assuming that both the Petitioners and the sponsors of the Bill for unifying the churches are entitled to their respective fundamental rights of religion as guaranteed to them by our Constitution, it would appear at best that there are conflicting interests or claims "to fundamental rights of religion by two contending parties. In this situation this Court, as the arbiter between the legislative power of the people and the Constitution of Sri Lanka, has to take a decision whether the Bill in question offends the fundamental rights of religion in the spirit of the Constitution. Mr. Thiruchelvam submitted that the directive principles of the state policy in the Constitution itself should guide this court in determining the question as to whether the Bill is inconsistent or not with the Constitution".

HL further states that the Court has not in any of its previous decisions gone to the extent of denying the enjoyment of these two fundamental rights in combination by a natural person as distinct from a corporate body. HL himself admits in the next sentence that as far as natural persons are concerned the judgements are silent. However HL proceeds to question as to why "no reason is given why a corporate body alone should be under this disability". Nobody said that only a corporate body is under such disability. The judgement nowhere draws such a distinction. The Court was called upon to make the determination in respect of a body seeking incorporation and the court made its determination in respect of the issue before Court. There was no necessity to make any pronouncement in respect of a natural person when the Court was not called upon to do so.

Therefore HL's criticism that his imaginary distinction violates article 12 (1) of the constitution is baseless.

HL states "that in SC special determinations 2/2003 the counsel for the intervenient Petitioner draw the attention of Court to some 16 prior enactments which also had as their objectives social welfare and educational activities. (The judgement does not refer to 16 enactments. Thus HL has got that information from an external source). HL complains that "the Court however declined to regard their contents as a standard of consistency with the provisions of the constitution, Regardless of the well-known presumption of constitutionality of legislation which is applied when questions of unconstitutionality arose".

It is true that the presumption of constitutionality of legislation is well-known.

However it must be said that the principle cannot be extended to the instant matter in issue. Presumption of the constitutionality of legislation arises where the constitutionality of a particular piece of legislation is in issue.

However, if certain legislation has escaped judicial scrutiny due to the fact that it has not been submitted to the Supreme Court under Article 121 of the constitution such failure or default cannot be applied as a judicial precedent by invoking the presumption of constitutionality of legislation.

The answer to H. L's argument is clearly laid down in the Supreme Court determination of 2/2003 which states thus':

"Counsel for the intervenient Petitioner has referred to several laws that have been enacted incorporating bodies that have the object of promoting a religion and also have objectives in the nature of social, welfare and educational activity. On that basis he has urged the court to examine the provisions of the Bill in the light of these laws. On the other hand, Counsel for the Petitioner has referred to several enactment's incorporating religious bodies that do not have "obnoxious provisions of the nature included in this bill". In exercising jurisdiction under Article 121 of the Constitution we cannot examine the validity of past legislation. Nor, can we take their content as a standard of consistency with the Provisions of the Constitution. Our task is to examine the provisions of the Bill challenged by the Petitioner and to determine whether they are inconsistent or not with the Provisions of the Constitution. In that context what Counsel for the intervenient Petition commended to us, is an exercise in futility, which we shall not engage in". HL also states that "there does not appear to be any rational basis for the view that a possibility or even a likelihood of misuse of one's fundamental right is sufficient ground to justify the denial or deprivation of any others rights guaranteed by the Constitution".

In the aforementioned Broadcasting Authority Bill determination, number of clauses of the Bill were struck down on the basis that 'there is a very real potential for the arbitrary suppression of the freedoms of thoughts and freedom of speech".

In pre judicial review of legislation necessarily the Courts arrive at their findings often on potential threats for the reason that there is no provision to review legislation after the event. HL in conclusion citing Article 18 of International Covenant on Civil and Political Rights (ICCPR) (incidentally the very article the supreme court cited in support of their determination) states that the Court has erred in the aforementioned cases in adopting an interpretation which is a violation of our international obligations under the said covenant. This criticism is totally unfounded. The Supreme Court relied on the very same Article to interpret the provisions of the constitution in line with our international obligations. Article 18 (2) of ICCPR specifically states "no one shall be subjected to coercion which would impair his freedom to have and adopt a religion or belief of his choice". To honour this international obligation it was necessary for the supreme court to give the interpretation it gave, and if these Christian organizations are permitted to convert people by force fraud or allurement it would indeed have been in violation of Article 18 (2) of the ICCPR. The Supreme Court determination in fact prevented such a violation.

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