Archives

Unethical conversions and Supreme Court decisions

by H. L. de Silva

This is a brief reply to comments made by Attorney-at-Law Mr. Manohara R. de Silva (hereinafter referred to as M. R. de S) in an article, published in the Daily News of 13th January, 04 in response to an earlier reply of mine dated 17th November, 03 published in this journal.

My comments here relate to (1) the significance of Article 9 of the Constitution which gives the foremost place to Buddhism and (2) the scope of Article 14 (1) (e) and the restrictions sought to be placed on the fundamental "freedom to manifest one's religion or belief in worship, observance, practice and teaching" in the context of Article 10 which confers, inter alia, freedom of religion, including the freedom to have or to adopt a religion or belief of his choice.

Article 9

As I explained earlier, to say that a constitutional provision is of symbolic importance is not to devalue it or downgrade its importance - its object here was to affirm the pre-eminent status accorded to it and impliedly announce that these religious values were to be the pervasive spirit in the governance of the Country.

The apprehensions of those who favour the liberal philosophy of secularism and the separation of religion from the State, in a multi-religious and pluralist society was sought to be adequately allayed by the explicit assurance given in the latter part of this very Article when in went on to state: "while assuring to all religions the rights granted by Articles 10 and 14 (1) (e).

In my view the Supreme Court has failed to recognize the full import of the assurance given in these words and appears to have glossed over their meaning.

In other words, while the State has full power to expend public funds for the advancement of Buddhist religious activities and for the protection and encouraging Buddhism (as the State does to a lesser degree in the case of other religions as well) neither Article 12 or Article 14 (1) (e) is made subject to Article 9, so as to be controlled by it and are not made subordinate to it.

For these reasons I was of opinion that the Supreme Court erred in the view it took in SC Special Determination 19/2003 (Provincial of the Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzigen) when it held that Christian religious activity aimed at converting non-Christians constituted a danger to the Buddha Sasana from which it had to be protected.

Article 14 (1) (e) and Article 10

The other two cases (Sc Determination 2/2003 and SC Determination 2/2001) in which the same general conclusion on the right of incorporation was reached presided over by the Chief Justice, however steered clear of Article 9 making no pronouncement on Article 9 - and the Court's reasoning is based on the other two Articles alone.

In my view, when Article 14 (1) (e) is applied to the practice of the Christian religion, the Scriptural injunction to bring others to a living relationship with Christ, is quite clear. It is unessential tenet of their faith, although the number of Christians who consider this an obligation may be relatively small and is largely a task performed by those who have taken to evangelization as avocation.

But their can be no doubt that the right and the duty to undertake the task is a guaranteed freedom that is squarely covered by the words in Article 14 (1) (e) "to manifest his religion or belief in worship, observance, practice and teaching."

This can only be curtailed or restricted (if its terms are constitutionally permitted) by a law enacted under Article 15. The imposition of such a restriction on the right under Article 14 (1) (e) is outside the jurisdiction of the Court. Nor can such a restriction be introduced under the guise of a judicial interpretation. An examination of the terms of Article 10 leads to the same result when applied to the Christian religion.

The first point is to note that this freedom is absolute, unlike in the Indian Constitution and therefore, there can be no derogation of this freedom by any of the three branches of government. The right to convert is implicit in the words, "the freedom to have or adopt a religion or belief of his choice".

To have a religion, inter alia, means to follow one's chosen religious tenets and live one's life as required by them. So if the tenets of the religion include the work of evangelization, as does the Christian religion, this freedom is secured and cannot be restricted or whittled down through a process of interpretation as unlike Article 14 (1) (e) the freedom under Article 10 is unconditional and absolute.

Under both Articles 10 and 14 (1) (e) the Christian has the freedom to preach and teach non-Christians, if they are willing to listen. Under both Articles 10 and 14 (1) (e) the Christian has the freedom to engage in works of charity, generosity, love and kindness and such acts are not inhibited because the beneficiaries of these acts of generosity are shown to be persons to whom the Christian message has been preached or taught.

Acts of coercion, force and intimidation are of course criminal acts punishable under the existing law and are no part of the tenets of the religion and so are simple acts of deception, fraud which are sinful acts which cannot be condoned and are not part of true evangelism. No true Christian would seek to defend them or justify such conduct.

It is wrong for M. R. de S. to think that I have sought to "justify" such acts of "conversion" because the word "justify" suggests that I approbate their moral rightness, which I have not sought to do and which I reject as a perversion of religious freedom and as conduct worthy of condemnation.

M. R. de S. seeks to argue that the limitation placed by the Court in regard to the technique of conversion is part of the normal function of judicial interpretation.

This is not so. Any so-called "interpretation" of a fundamental right which is in substance and in truth a restriction, a curtailment, or a limitation placed on its exercise, goes beyond mere interpretation because such restriction comes within the provisions of Article 15 (7) and is thus in excess of the Court's jurisdiction as the Constitution has specifically vested that function in Parliament alone.

In view of this express provision the Court cannot limit or restrict or impose fetters on the right while purporting to interpret the scope of the right. When the Court observed that there is no fundamental right to convert, it was not simply "regulating the right" as M. R. de S. Contends, it was clearly a case of abridging or curtailing the right, without even adequately scrutinizing the ambit or the content of the right, claimed in virtue of the doctrinal tenets of the Christian religion.

It was also not correct to say, as the Court observed, that there are no absolute rights or freedoms, because Article 10 of the Sri Lankan Constitution confers freedom of thought, conscience, and religion and the freedom to have a religion without any limitation or constraint being placed on its exercise, unlike the parallel provision in India.

A conversion which was even partly obtained through inducements provided by material benefits is in the generality of case not an infringement of the freedom of the person converted (the proselyte) in any real sense because, that person may resile from it, repudiate it or simply lapse into his former beliefs if dissatisfied with the new religion he has embraced. If he seeks to complain to Court of an infringement of his freedom of choice, having succumbed to any such blandishments, the short answer would be volenti non fit injuria or suggest that the remedy lies in his hands.

M. R. de S. is also under a misconception that the entirety of Article 15 covers existing restrictions which are already operational and which can be called in aid of interpreting the right. Article 15 is largely an empowering or enabling provision which lists the heads under which Parliament may enact laws to restrict the fundamental rights. In the absence of such existing restrictions they cannot be invoked to interpret the scope of the right.

The citation from the SC judgment in Dissanayake v. University of Sri Jayawardenapura draws a distinction between a restriction of a specific fundamental right by Parliament under Article 15 and the regulation of such rights by administrative or executive action.

But nowhere in the judgment is there any suggestion that either of these functions can be assumed by the Court. In fact the decision points out that there cannot be an abridgment of the fundamental right under the guise of regulation.

When the Supreme Court in these three cases denied a body of persons that had a religious purpose the right to incorporation by a Parliamentary statute and the incidental rights flowing there from, of holding and administering property and expending monies on authorized social or welfare activities (unless the law was enacted by a two-thirds majority of Parliament) on the ground that such a body could under such law conceivably engage in "unethical conversions," it was in my opinion, overstepping the bounds of interpretation.

Likewise, the case of Malalgoda v. Attorney-General (cited by M. R. de S. in support) which held that the exercise of the fundamental freedom of speech being restricted by the law of defamation could be regulated by the University does not advance his argument because there is an existing law of defamation which restricts the right of speech, whereas there is no law of Parliament which restricts evangelistic activities. It is a cardinal principle of the Rule of Law that no one may be penalized except for an infraction of a law (Nulla poena sine lege). As once remarked by a Lord Chancellor (Birkenhead): "The duty of the Court is to expound the law as it stands and leave the remedy (if one is resolved upon) to others."

The Court which has no legislative power under Article 15 cannot take upon itself this duty. This may prove to be no easy task even for the Legislature as M. R. de S. himself would have discovered by now, considering the diatribes to which his draft law has been subjected by a co-religionist in a Sunday newspaper.

www.ceylincoproperties.com

www.ppilk.com

www.crescat.com

News | Business | Features | Editorial | Security
Politics | World | Letters | Sports | Obituaries

Produced by Lake House
Copyright © 2003 The Associated Newspapers of Ceylon Ltd.
Comments and suggestions to :Web Manager