Colombo Telegraph

Does The Constitution Restrict Religious Freedom?

By Mass L. Usuf

Mass L. Usuf

Critical Evaluation And Democratisation Of Article (9) – Part III

A beautiful piece of legislation is seen in Article 10. It is a provision granting absolute freedom of the contents mentioned therein. This freedom is absolute because it does not fall within the purview of the restrictions placed on the exercise of fundamental rights vide. Article 15. It is an entrenched Article.

Every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.” (Article 10).

“Religion” in Article 10 will clearly include Christianity, Islam and Hinduism. The status of Buddhism as far as religion is concerned will depend on how it is interpreted. As discussed earlier (Part I and II), it has to be clarified if it is going to be the original dhamma or the commonly used buddhagama (religion). The latter interpretation will be a deviation from the dhamma itself. It can be argued that Buddhists can be accommodated under ‘freedom of thought and conscience’.

The implication of this Article with that of others will be examined below. It must be appreciated that this is only an analytical exercise, the essence of which should not be vainly misinterpreted or distorted.

Manifesting Belief

Article 14 (1)(e) states, “Every citizen is entitled to the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice or teaching.”

In addition to ‘religion’ the word ‘belief’ is mentioned here as part of the freedom to manifest. A comparative study on beliefs reveal an interesting diversity. In Christianity belief is a fundamental concept. Belief in Jesus Christ (Peace be on him) is a must for salvation. In the Book of Acts, it is stated,

“Believe in the Lord Jesus, and you will be saved, you and your household.” (16:31).

In the Islamic creed, the notion of salvation based on belief alone is nonexistent. Belief extends to believing in the Oneness of Allah, the angels, the revealed books, the prophets and the Day of Judgment (resurrection). After this belief, one has to work towards doing righteous deeds in order to achieve felicity. Therefore, belief and doing good deeds go together. (See Chapter 103, Al Asr of the Quran).

The dhamma on the other hand is not a belief system. For example, the dhamma does not say believe in Buddha and one will be saved or attain nirvana. It is strictly based on reasoning or understanding. I believe, the wider connotation of Right View (samma dhitti) explains it all in greater details. To make an observation in passing, if the Buddhists truly understand and practice samma dhitti, Sri Lanka will be a better place to live in. Such is the value of some of the teachings of the Buddha.

As it is, Article 14 (1)(e) may not be applicable to the Buddhists in so far as ‘belief’ is concerned. He will not be able to manifest his belief in the form of worship, observance, practice or teaching simply because there is no belief system. Note there is no mention of ‘thought and conscience’ in here.

Freedom Of Religion?

Though it is hailed as an entrenched fundamental right, is there in fact, absolute freedom of religion vide. Article 10? To understand this, it will be useful to cross refer to the freedom of religion articulated in Article 14 (1)(e). This Article entitles a person to ‘manifest one’s religion or belief in worship, observance, practice or teaching’. However, the freedom enunciated under Article14 (1)(e) is not an absolute freedom it is subject to the restrictions in Article 15 (7) which states:

“The exercise and operation of all the fundamental rights declared and recognized by Articles 12, 13(1), 13(2) and 14 shall be subject to such restrictions as may be prescribed by law …..”.

The question is, “what is the purpose of an ‘absolute’ freedom of religion if such freedom can be restricted at the time of manifesting it”? Is it a case of freedom given in one Article being craftily restricted by the use of another?

If Buddhism is considered neither a religion nor a system of belief, it will certainly not be governed by Article 14 (1)(e). This would provide only to Buddhism unrestricted freedom to do anything while denying the same to the other religions. Restriction on 14 (1)(e) by Article 15 (7) will not be applicable. The principle of equality in the freedom of religion is questionable.

A relevant addendum to this is in Article 9, ‘protect … the Buddha sasana’. It is not clear against what does this duty to protect arise. This phrase is both vague and wide and is susceptible to broad or restricted interpretation. Further, this guaranteed protection is not available for the other religions. The only assurance given to the other religions in Article 9 reads, “the rights granted by Articles 10 and 14(1)(e)” which does not speak about any protection. Can this be an instance of inequality? Can it be argued that Articles 9 and 14 (1)(e) may be interpreted in a way to stultify the absolute religious freedom entrenched in Article 10?

Christian Evangelism

A religion is an institution by itself with its own scripture, identity, beliefs, rituals, worship and instructions. Therefore, freedom of religion would mean the manifestation of one’s religion or belief in worship, observance, practice or teaching. This would also mean the freedom to act according to the teachings of a religion.

In the Christian dogma evangelism is inherent and originating from that is the practice of conversion or persuading towards Christianity. In the Bible there are many references for proselytising and that is part of the faith.

Therefore go and make disciples of all nations, baptizing them in the name of the Father and of the Son and of the Holy Spirit, and teaching them to obey everything I have commanded you. And surely I am with you always, to the very end of the age.” (Mathew 28:19-20)

Moreover, the Congregation for the Doctrine of Faith writing to the Presidents of the Episcopal Conferences publishing its doctrinal notes states inter alia, “Evangelization is aimed at all humanity”. (“Doctrinal Note on some Aspects of Evangelization” 3 December 2007).

In the Indian case of Yulitha Hyde v. The State 1973 AIR Orissa 116 the issue whether conversion was part of the Christian religion was squarely before the Court. The High Court in that case observed: -“Counsel for the several petitioners have freely quoted from several Christian Scriptures of undoubted authority to show that propagating religion with a view to its spreading is part of a religious duty for every Christian and therefore must be considered as a part of the religion. Learned Government Advocate does not dispute this assertion of fact. We therefore proceed on the basis that it is the religious duty of every Christian to propagate his religion”. (H. L. de Silva, PC., addressing on ‘Constitutional protection of minority rights in Sri Lanka’. The Island, 09 October 2003).

Evangelism Restricted

Unfortunately, this aspect of the freedom to practice the Christian religion seems to have been restricted by court interpretation. Rohan Edrisinha and Asanga Welikala, citing the case below writes:

The Supreme Court of Sri Lanka has not always struck a balance that gives appropriate weight to Articles 10 and 14 (1)(e) in respect of minority religions. (Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka (Incorporation) Case (2003) SC Spl. Det. 19/2003).

The Supreme Court apparently has taken upon the notion of restrictive interpretation of this Article in the case of the Teaching Sisters. The Petitioner in this case inter alia made the following submissions with regard to propagation. “What is guaranteed under the Constitution is the manifestation, observance and practice of one’s own religion and the propagation and spreading Christianity as postulated in terms of clause 3 would not be permissible as it would impair the very existence of Buddhism or the Buddha Sasana.” (Page 7).

A tenuous submission of this nature being upheld is a matter of grave concern. Two premises worthy of consideration are:

Firstly, the argument of the Petitioner is illogical and unrealistic. How can such impairment if any, to Buddhism and the Buddha sasana be arrested in the technologically advanced state that we are in today? With the proliferation of satellite channels, the internet, satellite communications etc. propagation is taking place 24/7 not only of Christianity even of Buddhism both in Sri Lanka and in other foreign countries.

Secondly, what happens to the equality in the freedom of practice of religion? Is it that Buddhism can be propagated and spread but Christianity cannot be propagated and spread? Is it that Christians can enter the fold of Buddhism but Buddhists not given a chance to enter into Christianity? Historically, how many have entered the fold of Buddhism? Even King Asoka was a convert to Buddhism. Buddhism is universal. So are all religions – Christianity, Islam, Hinduism etc.

Islam and Samma Dhitti

Also, in the Islamic faith, there is a duty on its believers to inform others of the Oneness of God, Allah. A significant distinction in the Islamic faith is, unlike in Christianity, there is no compulsion to convert or persuade towards the religion of Islam. The Quran is very explicit on this.

There shall be no compulsion in [acceptance of] the religion. The right direction (path) is clear from the wrong.” (Chapter 2, Verse 256, The Quran).

The above Quranic verse completely refutes two false allegations. First, that in Islam there is forced conversion and second, that in order to win over converts material benefits are offered.

This verse also supports the Buddhist concept of Right View (Samma dhitti). Note the Quranic words, “the right direction (path) is clear from the wrong”. Like Buddha explains reasoning, the Quran respects the rational faculty of the respondent and permits a person to make the choice. As such, in Islam, there is no compulsion in religion. However, dissemination and teaching of knowledge relating to the doctrine of Monotheism, Oneness of God (Allah) is the foundation of Islamic teaching. The duty of a Muslim is only to convey this message of Oneness of Allah and not to convert.

Conclusion

The initial damage was done by the 1972 Constitution which opted to move towards majoritarianism, especially in the context that Sri Lanka was declared a Unitary State, Buddhism given the foremost place and Sinhala declared to be the only official language. (See: Constitutional protections since independence, Dr. Jayampathy Wickramaratne, Page 7). Since then it has been institutionalised and taken deep root in the minds of the Sinhala people.

Therefore, the current reforms are not going to be that easy. The concern is not so much for the minority views but the sensitive areas of the Sinhala Buddhists, the nationalists, the sangha and the majoritarianists. The people, the politicians and the sangha must decide between their fleeting sentiments and the wellbeing of the nation. Are you going to continue pursuing narrow agendas or will come together for the sake of the nation and its future? Especially, in relation to the Sangha, I wonder if the dhamma would approve of them playing the role of politicians, nationalists and racists, as some do. Are we going to give our children a nation divided and violent or one that is prosperous and peaceful? This is the reality and the time is now, to understand, come together and act prudently.

The damage that Sinhala majoritarian nationalism has done to this country is evident. What did the country or the Sinhala people in particular, gain by the loss of lives, property and the lost opportunity to develop the country? Is not the life of a Sinhala person also valuable as the life of a Tamil or Muslim or any other human being?

It is time that the politicians demonstrate their bravery and courage and be outstanding in history. Or, be damned for destroying this nation by pleasing Sinhala Buddhist nationalism, majoritarianism and partisan politics. President’s Counsel Mr. Jayampathy Wickramaratne, MP, reminds us of two opportunities, in 1972 and 1978, that this country sadly missed in constitution making that could have been truly representative and all encompassing. Here, now, is another golden opportunity that has presented itself.

The path is clear for the discerning and the wise minded.

1. Out of the six recommendations made by members of the PRCCR regarding Article 9, three were against continuing with Article 9, Buddhism. They wanted a secular constitution. (Page 19, PRCCR Report).

Secularism is a principle that involves the strict separation of the state from religious institutions and where people of different religions and beliefs are equal before the law.

2. The late Dr. Colvin R.de Silva on the special status accorded to Buddhism in the 1972 constitution, stated in retrospect:

“….I wish to say, I believe in a secular state.” (C.R. De Silva (1987) Safeguards for the Minorities in the 1972 Constitution)

3. The Supreme Court held that Sri Lanka is a secular state:

“It has to be firmly borne in mind that Sri Lanka is a secular State. In terms of Article 3 of the Constitution, Sovereignty is in the People at common devoid of any divisions based on perceptions of race religion language and the like. (S.C. Application No.38/2005(FR), 9 November 2007).

4. The politicization of religious rights by the majority community creates an additional minority besides ethnic minorities and that is, a religious minority. The wordings of Article 9, is clearly pregnant with this idea of Buddhism being made pre-eminent.

“Sri Lanka’s success in drafting, ratifying, and deploying legal regimes of religious rights has led to the further ossification of the very conflicts they were intended to arbitrate”. (Constitutionalizing religion: Benjamin Schonthal, Lecturer in Buddhism, University of Otago, New Zealand).

5. With regard to the role of the State:

“The Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society.” (Applications Nos. 41340/98, 41342/98, 41343/98 and 41344/98, European Court of Human Rights).

6. Moving away from parochial racist nationalism to a common humanity.

“Yet, at the start of the new millennium, we are also seeing the gradual emergence of an awareness throughout the world of our common humanity and the planet as a whole rather than simply the sum of its parts. The idea here is not to replace the nation state but to adapt it to be more responsive to human needs in new global conditions.” (Globalization and the nation state by Jayantha Dhanapala. Journal of International Environmental Law and Policy, University of Colorado).

Crowning Statement

This then calls for a balancing of values held by a nation with the growing new global phenomenon of diversity. A broader engagement is necessitated to seek alternative common grounds for people to converge away from purely racial or religious labels. A common factor which will cohesively integrate the connection between social citizenship and pluralism. The answer to me is simple and as old as creation itself. The base can stand on the principle of “humanity” with the space of each respected. This would be the new challenge for a democratic set up with a multi-cultural and multi-religious background.

The crowning statement is that of Dr. Nihal Jayawickrema, former Permanent Secretary to the Ministry of Justice (The Sunday Island, 15th July 2007) who has been very critical:

If Buddhism had survived in the hearts and minds of the people through nearly five centuries of foreign occupation, a constitutional edict was hardly necessary to protect it now.

Postscript: I have not discussed comparative jurisprudence as envisaged since this is already too long.

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