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| Wednesday, 11 August 2004 |
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by Wasantha Ramanayake After two days deliberation on the determination of the "Prohibition of Forcible Conversion of Religion," counsel for both parties, yesterday, concluded their submissions before the Supreme Court. The Bench comprised Justices T. B. Weerasuriya, Nimal Dissanayake and Raja Fernando. President's Counsel D. S. Wijesinghe for the intervenient-petitioners' submitted that the Bill was not seeking to prohibit genuine conversions; but such by the use of force, fraudulent means and the allurement. The counsel submitted that Christians themselves admittedly opposing the forcible conversions. The counsel quarried as to why a true evangelist should fear the Bill which was not seeking to prohibit genuine conversions. The counsel submitted that the World Council of Churches and the European Court on Human Rights recognized the corrupted and deformed forms of conversions, which would take many forms such as the use of force, gratification, brainwashing etc. The counsel submitted that the freedom to expression, thought and religion or belief was guaranteed under the Article 10 and the freedom with regard to the external manifestations or the mode of practice of them were guaranteed under the Articles 14 (10) (e) of the Constitution. He submitted that according to Justice Sharvananda, distinction could be thus drawn from all forms of manifestations whether they were inherent or not to a particular religion or belief and they all should fall under the Article 14(1)(e). He submitted that there could not be any form of inherent religious practices or manifestations which were guaranteed under Article 10 of the Constitution. The counsel thus countered the claim of counsel for petitioners that the Christian conversion was an inherent part of the freedom of religion guaranteed under Article 10, which was an entrenched Article of the Constitution that could not be restricted without holding a referendum. The counsel submitted that the unfretted freedom was granted to everyone to adopt a religion of his/her own choice under Article 10 of the Constitution. However, he contended that such a choice should be voluntarily made without the influence of any corrupt or deformed means. He contended that such deformed choice was not compatible with Article 10. "The rationale was that the force was used and that the persons right to adopt a religion of choice was interfered with." He submitted that even the Parliamentary Election Act had the provisions to ensure the purity of the choice. The question of religious freedom would affect religious harmony. Certain steps had to be taken to secure the freedom of others'. He submitted that according to Justice Weeramanthry common interest would demand certain restriction to be imposed on the religious freedom. The President's Counsel pointed out that the Bill had not infringed Article 9 of the Constitution as claimed by the petitioners. He submitted that the petitioners erroneously stated that in the preamble to the Bill the Buddhism had been referred to as the foremost religion. The counsel submitted that Buddhism had been referred to there only as the foremost religion of the "majority." The counsel submitted that there were enough evidence to show that the occurrences of forcible conversions which was a threat to religious harmony; unless, the cause was not eradicated the religious discord would not be prevented. The President's Counsel submitted that in view of the use of sophisticated methods in such conversions the standard meaning given to the "force" was insufficient. The standard meaning was limited to the "physical force," and no one used physical force nowadays for conversions. The counsel added that use of "physical force" would have been relevant in "Portugese times," and therefore the extended meaning of "force" was a requirement. He submitted that the word allurement was not used in its extended sense, but, of the restrictive meaning. He submitted that granting of employment or promotions, which were material benefits, with a view to achieve the object in a subtle manner was to suppress the mischief. He submitted that fraud, allurement and force were not required in a democratic society. Manohara de Silva proponent of Dr. Ven. Omalpe Sobitha who presented the Bill submitted that certain Christian groups were conducting pre-schools predominantly in Buddhist, Hindu and Muslim areas and were teaching Christianity and the children would be converted to Christianity against the wishes of their legal guardians. He submitted that in terms of the Article 4, the state organs including the Judiciary were duty bound to protect their rights. The such groups were targeting remote areas where the state welfare was minimum. Parents of disadvantaged groups were compelled to send their children since they had no alternative. The counsel submitted that there was a disproportionate increase of Christians in many districts. He submitted that the general increase of Christian population with regard to the Puttlam district over two decades was (80.6%). President's Counsel Wijedasa Rajapakse submitted that other religions had a similar right to propagate their religion as the Christians. He further submitted that if Christians have a right to convert others to their religion, they should be mindful of the rights of the other religions too. President's Counsel A. A. de Silva submitted that it was the duty of the State to protect and foster Buddhism in terms of the Article 9. If the state allowed the forcible conversions then there would be no one to protect or foster it; therefore the Bill was consistent with Article 9 of the Constitution. Counsel Sanjeewa Jayawardane submitted that the Bill would give Article 10 the life blood since it would safeguard one's pure choice to adopt a religion of his/her choice. Deputy Solicitor General R. Wijethillake at the conclusion submitted that the State should take positive action to protect and foster Buddhism. He submitted that the State had recognized the need to protect it from attacks which was also consistent with the policy of the government. However, he submitted that the Attorney General was of the view that certain clauses of the Bill were in consistent with the Constitution and needed to be amended. 21 Petitioners stated that the Bill would prohibit a person from converting to one religion to another by means of force, allurement or by any fraudulent means. They stated that "the use of force, fraud or allurement" was a fetter placed on the freedoms guaranteed under Article 10. They argued that if the freedoms guaranteed under Article 10 was to be given effect to, such fetters should not be imposed on the exercise of such freedoms. Petitioners sought a court determination that the Bill was not consistent with the Constitution and needed to be passed by a two third special majority of the whole number of the parliament. Earlier, the counsel for the Petitioners concluded their submission. Twenty Intervenient-petitioners including Buddhist monks of the Jathika Hela Urumaya sought to intervene on the basis that if the provisions in the Bill would be held to be inconsistent with the provisions of the Constitution, their right to the Freedom of thought and the Religion would affected. They that non-governmental organisations funded by foreign organisations were engaged in the forcible conversions in country for decades. They claimed that such conversions violated their rights to the Freedom of Thought and Religion guaranteed under Article 10 and 14 of the Constitution, respectively. They stated that the Bill was in accordance with the Constitution and the provisions of the International Human Rights Convention to which Sri Lanka was a signatory. The determination of the Bill would be communicated to the President and the Speaker. |
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