By Mass L. Usuf –
The idea of national reconciliation embraces the citizenry of the entire nation. The path to reach this consensus is through aligning the nation to the theme of Mankind. If there is one thing which can catalyze the bonding of people of different hues, it is this basic social structure – Man and woman. Allow the nomenclatures of race, religion and caste orbit on their own field forces. Let the differentiations serve only as identities for the purpose of knowing and understanding the diversity.
This alignment is a process by itself. There is a huge national and social responsibility that has to be shouldered by the government, civil organizations, religious institutions, educational institutions and the citizens. The greatest responsibility lies with the government. It must commit itself with courage, steadfastness and a determined will to engineer this social change. A redirection of the trajectory of traditional notions towards a more inclusive social structure should be on the anvil. To live with 18th century thinking in the present cannot be more disastrous to the nation. The reality is, whether we like it or not, we must take cognizance of the potpouri of different cultures, heritages, languages, religions, ethnicities and their evolutionary processes. The mutually exclusive elements of this mix nevertheless are inclusively linked by a simple basic structure – Man and woman.
As part of the powers and duties presently exercised under Article 33 of the Constitution, the President shall also promote national reconciliation and integration. A powerful personality has been appointed as the Chairperson to the Office for National Unity and Reconciliation (ONUR), Ex-President Chandrika Kumaratunga. Her task inter alia is to ensure and facilitate the preservation of religious and ethnic harmony.
A mere extension of the President’s powers to embrace these areas may arguably be critiqued as a cosmetic embellishment. In fact, if the President decides he can ignore or go slow on the promotion of national reconciliation and preservation of religious and ethnic harmony. Who can question him in this regard? Therefore, from a Presidential power point of view, in this instance, there is the concentration of power in one authority with the choice for elective usage. This nation has seen the good, the bad and the ugly. President Maithripala Sirisena is a good person but Article 33 will survive him.
History is pregnant with the germ of political opportunism, nationalism and later Sinhala Buddhist nationalism conceptualizing and institutionalizing it in the Constitution. Many Scholars have argued that the rise and institutionalization of Sinhala-Buddhist nationalism in post-independent Sri Lanka bear much responsibility for today’s protracted ethnic problems between the majority Sinhalese and the minority Sri Lankan Tamils – now seen spilling over to other racial and religious minorities.
What is the assurance for the continuation of the true spirit of national reconciliation and the preservation of religious and ethnic harmony? To ensure that our progeny inherits a nation reconciled, there has to be an effective mechanism now with all the entrenched provisions guaranteeing its protection. The ONUR must be institutionalized, funded, strengthened and empowered to function as an independent body. Its status must be elevated to be on par with line Ministries to enable it execute its responsibilities with efficiency. A Commissioner for ONUR may also be considered. The sincerity of the President and the government will be put to the test on their promise to forge national reconciliation.
The European Court of Human Rights in a case involving the Turkish government observed that:
“The Court has frequently emphasized the State’s role as the neutral and impartial organizer 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.”
This statement clearly explains the role of a modern State towards its democratic society. Gladly, our Article 33 (1) (b) is in consonant with this thinking. However, something else is staring at the face of national reconciliation and the preservation of religious and ethnic harmony? That is, Article 9 of the Constitution:
“The 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 religions the rights granted by Articles 10 and 14(1)(e)”.
Scant academic or public discussion has taken place on the impact of Article 9 on the scope of right to religion. Its ramifications on a pluralistic society and, from the perspective of international treaties have largely been ignored. If Buddhism is given the foremost place and it shall be protected and fostered, the same should apply to all the other religions too. To grant Buddhism some special place and only give an existential position to the other religion is not equality before the law. This may be viewed as a taint on democratic principles and as a barrier to national religious reconciliation. In fact, during the belligerence of Bodu Bala Sena they often quoted this Article and accused the then government for not protecting Buddhism.
During the Constituent Assembly Debate in 1972, a Federal Party member, K.P. Ratnam, criticizing the formative document that led to Article 6 of the first Republican Constitution and now Article 9 of the Socialist Democratic Constitution of 1978, prophetically stated:
“I wish to tell you that this position will be a cause of continuous strife for this country.”
For true reconciliation there must be a fundamental transformation. Everyone should feel that he is a Sri Lankan. He should enjoy equal rights and freedom as every other fellow citizen. The constitution should be a neutral document embracing all its citizens in unison. All are aware that this clause was first placed in the 1972 Republican Constitution. The 1978 constitution followed suit. Now there is a chance to amend it in the proposed constitutional reforms. Courage it takes to undo the mistakes of the past prejudices and, resolve, to march forward on the simple theme of Mankind.
This writer asked the former President Madam Chandrika Kumaratunga at a recent event organized by the International Centre for Ethnic Studies and Equitas for the release of the report, ‘Post War Religious Violence in Sri Lanka’, what her views were on Article 9 of the Constitution. She emphatically stated that she holds the view that it has to go. “This would reinforce the secular nature of our Constitution”, she said. Many admired her bold reply. Her experience and international exposure has moulded her to appreciate that in today’s world a singular identity be it race, religion or culture has become untenable with the emergence of pluralism.
This reality has to be humbly understood, recognized and accepted. Based on this broad outlook the minorities in the future will cease to think only about themselves. Similarly, the majority will cease to be obsessed with its dominant position vis a vis the minorities. Each will begin to think from the angle of the nation and mankind.
The best is to remove Article 9. The alternative is to amend it as follows:
“In the Republic of Sri Lanka it shall be the duty of the State to protect and foster the Dhamma and all religions, while assuring to both the Dhamma and all religions the rights granted by Articles 10 and 14(1)(e)”.
Note the word Dhamma used in place of Buddhism. Dhamma is a better word in order to give it the proper identity. It is sometimes even thought if Article 9 befits the Dhamma. Its universal principles can never go extinct and cannot go extinct. To continue having this Article also creates an undignified inequity on other major religions, which the Dhamma never perpetuated.
In relation to Article 9, Dr. Nihal Jayawickrama 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.” Cited in ‘Fundamental Rights and the 1972 Constitution’ by Dr. Jayampathy Wickramaratne.
A deeper analysis of Article 9 and the other related Articles follow with a comparative look at neighbouring constitutions and jurisprudence.