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Using Legislation to Protect Against Unethical Conversions in Sri Lanka

  • Alexandra Owen
Extract

The year 2006 marked the twenty-fifth anniversary of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. In her recent report to the United Nations General Assembly, Asma Jahangir, the U.N. Special Rapporteur on freedom of religion or belief, stated that despite the time that has elapsed since the Declaration was drafted, it “seems evident that contentious religious issues have not only evolved but also become more acute in many societies.” In a report submitted to the Commission on Human Rights in late 2004, the Special Rapporteur listed “the continuing violations of human rights of members of certain religious minorities, as well as the still widely applied practice of forced conversion” among the main concerns in the area of freedom of religion. Jahangir said that she considers that “such a practice breaches the strongest and most fundamental part of freedom of religion or belief and should be given greater attention by the international community.”

In May 2005 the Special Rapporteur made an in situ visit to Sri Lanka—a country where the issue of unethical conversions has fueled religious tensions in recent years. Approximately 69% of Sri Lanka's population are Buddhists, followed by Hindus (15%), Christians (8%), Muslims (7%) and others (1%). Despite such a majority, the ethnic conflict which has affected Sri Lanka for decades, and which began to escalate again in December 2005 and throughout 2006-07, has been largely devoid of a religious element: relations between the different religious groups have for some time been relatively peaceful. This religious co-existence has, however, begun to deteriorate, due largely to the issue of unethical conversions and a desire to protect the majority religion.

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1. Asma Jahangir, Elimination of All Forms of Religious Intolerance, Interim Report of the Special Rapporteur of the Commission on Human Rights on Freedom of Religion or Belief, submitted in accordance witii General Assembly resolution 59/199, at ¶ 3 U.N. Doc. A/60/399 (Sept. 30, 2005).

2. Asma Jahangir, Civil and Political Rights, Including the Question of Religious Intolerance, Report submitted by Special Rapporteur on freedom of religion or belief to the Commission on Human Rights, at ¶ 74 U.N. Doc. E/CN.4/2005/61 (Dec. 20, 2004).

3. Id.

4. Asma Jahangir, Civil and Political Rights, Including the Question of Religious Intolerance: Mission to Sri Lanka, Addendum to the Report submitted by the Special Rapporteur on freedom of religion or belief to the Commission on Human Rights, U.N. Doc. E/CN.4/2006/5/Add.3 (Dec. 12, 2005).

5. See e.g. United States Department of State (Bureau of Democracy, Human Rights and Labor), International Religious Freedom Report for 2005, http://www.state.gOv/g/drl/rls/irf/2005/51622.htm (Nov. 8, 2005) (accessed Mar. 21, 2007).

6. Jahangir, supra n. 1, at ¶ 40.

7. Id. at ¶ 64.

8. Id. at ¶ 56. See also Jahangir, Asma, Special Rapporteur on Freedom of Religion or Belief Ends Visit to Sri Lanka, U.N. Press Release, http://www.unhchr.ch/huricane/huricane.nsf/0/CDBB51F178AD696EC1256FFF0038D065?opendocument (May 12, 2005) (accessed Mar. 21, 2007). See Jahangir, supra n. 4, ¶¶ 48-51, 115 (for the Special Rapporteur's assessment of the complaints of unethical conversions).

9. Jahangir, supra n. 1, at ¶ 65.

10. Legislation to be introduced to implement Buddhist Commission recommendation—Buddha Sasana Minister, Daily News 3 (June 1, 2005) (available at http://www.dailynewslk/2005/06/01/).

11. Id.

12. Prohibition of Forcible Conversion, S.C Determination No. 4/2004 (T.B Weerasuriya, N.E Dissanayake, Raja Fernando JJ). This is an unreported judgment. No official page numbers or paragraph numbers for pinpoint referencing are provided (copy in author's possession).

13. Nineteenth Amendment to the Constitution Bill. Published in the Gazette on Nov. 1, 2004, http://www.srilankanchristians.com/legislation.html (accessed Mar. 21, 2007).

14. Nineteenth Amendment to the Constitution, S.C. Determination No. 32/2004 (Weerasuriya, Shiranee Tilakawardane, Raja Fernando JJ). This is an unreported judgment. No official page numbers or paragraph numbers for pinpoint referencing are provided (copy in author's possession).

15. Nowak, Manfred & Vospernik, Tanja, Permissible Restrictions on Freedom of Religion or Belief, in Facilitating Freedom of Religion or Belief: A Deskbook 147, 149 (Lindholm, Toreet al. eds., Martinus Nijhoff Publishers 2004).

16. Tad Stahnke, The Right to Engage in Religious Persuasion, in Facilitating Freedom of Religion or Belief: A Deskbook, supra n. 15, at 619, 649.

17. This article is current as of Nov. 6, 2006. On Apr. 5, 2006 the Parliamentary Speaker, W.J.M. Lokubandara, announced the names of a 19-member Standing Committee on the Prohibition of Forcible Conversion of Religion Bill (the JHU Bill). The JHU Bill has apparently passed the Second Reading and is being considered by the Standing Committee. In relation to the general progress of anti-conversion legislation in Sri Lanka, the Special Rapporteur notes that the adoption process has remained relatively slow, and that the Government Bill has been delayed numerous times, probably due to “reluctance on the part of Sri Lankan society” and “the outcry from the international community.” Jahangir, supra n. 4, at ¶ 57.

18. Discussion has mainly centered on the creation of an Inter-Religious Council. It has been suggested that the Council be composed of religious leaders, with part of its function to investigate and report on allegations of unethical religious conversions and practices. The Special Rapporteur considers this alternative to be advantageous. See Jahangir, supra n. 4, at ¶¶ 107, 123, 129.

19. Nowak & Vospernik, supra n. 15, at 172.

20. Stahnke, supra n. 16, at 619.

21. Jahangir, supra n. 1, at ¶ 68. See also Janangir, supra n. 4, ¶ 105 (where the Special Rapporteur described the proposed legislation as “not an adequate response to existing religious tensions.”).

22. Constitution of the Democratic Socialist Republic of Sri Lanka 1978, art. 9. The Buddha Sasana involves all aspects connected to the practice of Buddhism.

23. Id. at art. 12.

24. Id. at art. 14.

25. Id. at arts. 10, 12(1, 2), 14(1)(e).

26. Subject only to written or unwritten laws in force at the time the Constitution came into operation. Id. at art. 16(1).

27. Id. at art. 15(7).

28. Id. at art. 9.

29. Id. at art. 80(3). See Wickramaratne, Jayampathy, Fundamental Rights in Sri Lanka (Navrang 1996) and Goonesekere, R.K.W., Fundamental Rights and the Constitution: A Case Book (Law & Socy. Trust 1988) (for a discussion of the history of the fundamental rights provisions of the Constitution).

30. Constitution of Sri Lanka, at art. 17, 126(1).

31. Id. at art. 80(3).

32. Id. at art. 121(1).

33. Id. at art. 82, 83, 123.

34. Objections must be lodged with the Supreme Court within seven days of the Bill being placed on the Order Paper of Parliament. Id. at art. 121(1).

35. Not less than two-thirds of the whole number of Members (including those not present). Id. at art. 123(2), 84(2).

36. Id. at art. 83, 84, 123.

37. Sri Lanka's apex court.

38. Christian Sahanaye Doratuwa Prayer Centre (Incorporation), S.C. Determination No. 2/2001 (Sarath N. Silva CJ, Shirani A. Bandaranayake, Ameer Ismail JJ); New Wine Harvest Ministries Incorporation, S.C. Special Determination No. 2/2003 (Sarath N. Silva CJ, H.S. Yapa, T.B. Weerasuriya JJ); Provincial of the Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka (Incorporation), S.C. Special Determination No. 19/2003 (Shirani A. Bandaranayake, H.S. Yapa, Nihal Jayasinghe JJ) [hereinafter Menzingen Incorporation Case] (copies in author's possession). For a full analysis of these cases, see Owens, Alexandra, Protecting Freedom of and from Religion: Questioning the Law's Ability to Protect Against Unethical Conversions in Sri Lanka, 1 J. Religion Human Rights 41 (2006).

39. Views of the Human Rights Committee under art. 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, 85th Sess., concerning Commun. No. 1249/2004, CCPR/C/85/D/1249/2004 (Oct. 31, 2005), [hereinafter Views of the Human Rights Committee].

40. For a full discussion of the incorporation cases, see Owens, supra n. 38.

41. Christian Sahanaye Doratuwa Prayer Centre (Incorporation), supra n. 38.

42. New Wine Harvest Ministries Incorporation, supra n. 38; and Menzingen Incorporation Case, supra n. 38.

43. Jahangir, supra n. 4, at ¶ 30.

44. Christian Sahanaye Doratuwa Prayer Centre (Incorporation), supra n. 38 (citing the Private Member's Bill, cl. 3). The Bill was presented by Mr. John Amaratunga, MP for Gampaha District on May 10, 2001, published in the Gazette on Apr. 30, 2001 and placed on the Order Paper of Parliament on May 10, 2001 as a Private Member's Bill.

45. Id. (citing the Bill at cl. 4).

46. Views of the Human Rights Committee, supra n. 39, at ¶ 7.4.

47. New Wine Harvest Ministries Incorporation, supra n. 38.

48. Menzingen Incorporation Case, supra n. 38.

49. Views of the Human Rights Committee, supra n. 39, at ¶ 7.2 (footnote omitted).

50. Id.

51. Jansz, Frederica, Conversion Confusion, 10 The Sunday Leader 16 (09 7, 2003).

52. Kirinde, Chandani, No fundamental right to spread a religion: SC, 38 The Sunday Times, (08 10, 2003) (available at http://sundaytimes.lk/030810/index.html).

53. Id.

54. Shanika Sriyananda, New laws to stop unethical religious conversions, Sunday Observer (Dec. 21, 2003) (available at http://www.sundayobserver.lk/2003/12/21/new11.html).

55. Fernando, Santhush, Bill soon in Parliament to curb unethical conversions, 38 The Sunday Times 4 (01 4, 2004).

56. U.S. Dept. of St., supra n. 5.

57. Id.

58. Prohibition of Forcible Conversion of Religion Bill [hereinafter JHU Bill]. Published in the Gazette on May 31, 2004 and presented before Parliament by the Venerable Dr. Omalpe Sobhitha Thero on July 21, 2004, MP.

59. Nineteenth Amendment to the Constitution Bill, supra n. 13.

60. Jahangir, supra n. 4, at ¶¶ 43, 45.

61. Id. at ¶ 48.

62. Id. at ¶ 50.

63. Id. at ¶ 73.

64. Id. at ¶¶ 76-78.

65. See Owens, supra n. 38.

66. Nowak & Vospemik, supra n. 15, at 149.

67. The Government's Freedom of Religion Bill (see infra n. 68) is a revised version of an earlier draft Bill prepared by the Government entitled Protection of Religious Freedom. The Special Rapporteur commented that she was not able to ascertain to what extent the various draft bills were public documents, but that she had received a copy of the drafts and noted that they had been widely circulated among the public, including via the Internet. Jahangir, supra n. 4, at ¶ 58. It should be noted that the Protection of Religious Freedom Bill was also widely circulated, and received much criticism, especially as it seemed to prohibit all conversions, whether ethical or not: “No person shall convert or attempt to convert another person to another religion, and no person shall provide assistance or encouragement towards conversion to another religion” (cl. 0.2, Protection of Religious Freedom Bill).

68. Freedom of Religion Bill [hereinafter Government Bill], Preamble. Published in the Gazette on June 27, 2005.

69. JHU Bill, supra n. 58.

70. JHU Bill, Preamble, supra n. 58.

71. Government Bill, at cl. 2(1), supra n. 68.

72. Id. at cl. 10.

73. Id.

74. JHU Bill, at cl. 2, supra n. 58.

75. Id. at cl. 8(a).

76. Id. at cl. 8(c).

77. Id. at cl. 8(d). “Misrepresentation” is misspelled in the JHU Bill as “misinterpretation.”

78. See Jahangir, supra n. 4, at ¶ 66.

79. See Government Bill, at cl. 10 (definition of “person in a fiduciary capacity”), supra n. 68.

80. Id. at cl. 7(2).

81. Id. at cl. 7(1). Rs 100 is the equivalent of approximately U.S. $1.00.

82. Id.

83. JHU Bill, at cl. 4(a), supra n. 58.

84. Id.

85. Government Bill, at cl. 10, supra n. 68.

86. Id. at cl. 4(1).

87. Jahangir, supra n. 4, at ¶ 74.

88. Sullivan, Donna, Advancing the Freedom of Religion or Belief through the UN Declaration on the Elimination of Religious Tolerance and Discrimination, 82 Am. J. Intl. L. 487, 494 (1988).

89. JHU Bill, at cl. 3, supra n. 58.

90. Id. at cl. 4(b).

91. Jahangir, supra n. 1, at ¶ 65; Jahangir, supra n. 4, at ¶ 73.

92. Government Bill, at cl. 6, supra n. 68.

93. Jahangir, supra n. 1, at ¶ 68. See also Jahangir, supra n. 4, ¶ 73.

94. JHU Bill, at cl. 5, supra n. 58.

95. S.C. Determination No. 4/2004, supra n. 12.

96. The Petitioners argued that clause 2 of the JHU Bill is inconsistent with Articles 9, 10, 12(1), 12(2), and 14(1)(e) of the Constitution, all of which are set out under the “Constitutional Protections” section above.

97. S.C Determination No. 4/2004, supra n. 12.

98. Kokkinakis v. Greece, 17 EHRR 397 (1994) (ECtHR 260-A, 25 May 1993), ¶ 31.

99. S.C Determination No. 4/2004, supra n. 12.

100. Id.

101. Id.

102. Constitution of Sri Lanka, at art. 15(7).

103. S.C Determination No. 4/2004, supra n. 12.

104. This concern appears to be in direct contrast to the Supreme Court's reasoning in the incorporation cases, where the Court seemingly failed to consider or acknowledge the requirements or demands of the gospel. See Owens, supra n. 38.

105. S.C Determination No. 4/2004, supra n. 12, citing Kokkinakis v. Greece, supra n. 98, at ¶ 48. The Special Rapporteur states that she “is of the opinion that supporters of the draft laws have disregarded the context of the Kokkinakis case,” where a violation of the right to freedom of religion of those who wanted to propagate their religion was found. Jahangir, supra n. 4, at ¶ 72.

106. S.C Determination No. 4/2004, supra n. 12.

107. Id. These words were also recommended later in the judgment to be included in the definitions of “force” and “fraudulent.”

108. Id.

109. General Comment 22 on Article 18 of the ICCPR, Hum. Rts. Comm., 48th Sess., U.N. Doc. HRI/GEN/1/Rev. 1 at 35 (1994), ¶ 3.

110. Id. at ¶ 18.

111. S.C Determination No. 4/2004, supra n. 12.

112. Id.

113. Id.

114. Id.

115. Id.

116. United States Department of State (Bureau of Democracy, Human Rights and Labor), International Religious Freedom Report for 2006, http://www.state.gov/g/drl/rls/irf/2006/71444.htm (Sept. 15,2006).

117. Nineteenth Amendment to the Constitutional Bill, supra n. 13.

118. S.C. Determination No. 32/2004, supra n. 14.

119. United States Commission on International Religious Freedom, Sri Lanka: Proposed Constitutional Amendment in Violation of International Religious Freedom Standards, Press Release, http://www.uscirf.gov/mediaroom/press/2005/september/09302005_sriLanka.html (Sept. 30, 2005). Sufficient support for the Bill was lacking on the day to hold the debate.

120. Nineteenth Amendment to the Constitution Bill, supra n. 13, Preamble.

121. Id. at cl. 2.

122. See Constitution of Sri Lanka, at art. 3, 4, 9, 10, 11, 12(1), 12(2), 14(1)(a), 14(1)(b), 14(1)(e), 14(1)(f), 14(1)(g), 80(2), 84(2), 85(1).

123. S.C Determination No. 32/2004, supra n. 14.

124. Id.

125. Stahnke, supra n. 16, at 623. See also Civil and Political Rights, Including the Question of Religious Intolerance, Mission to Sri Lanka, supra n. 4, at ¶ 75.

126. General Comment 22 on Article 18 of the ICCPR, supra n. 109, at ¶ 9.

127. S.C. Determination No. 32/2004, supra n. 14.

128. Id.

129. Id.

130. Id.

131. Id.

132. Id.

133. Sri Lanka became a state party to the ICCPR by accession on June 11, 1980 and acceded to the First Optional Protocol to the ICCPR on Oct. 3, 1997. Sri Lanka is also a State Party to the International Covenant on Economic, Social and Cultural Rights as well as numerous other international conventions. See Status by Country, http://www.unlichr.cli/tbs/doc.nsf/newhvstatusbycountry?OpenView&Start=1&Count=250&Expand=164#164 (accessed Nov. 6, 2006).

134. These decisions are cited in SC Determination No 32/2004 (supra n. 14) as Land Reform (Amendment) Bill (S.D 1/1981) and Re the Surcharge on Income Tax Bill (S.D. 4/89). No further citations are provided.

135. S.C Determination No. 32/2004, supra n. 14.

136. Id.

137. Statement by Justice Shiranee Tilakawardena (Dec. 17, 2004), (attached to S.C Determination No. 32/2004, supra n. 14).

138. Id.

139. Id.

140. Id.

141. Id.

142. Jahangir, supra n. 1, at ¶ 68.

143. Kokkinakis v. Greece, supra n. 98, at ¶ 15 (partly dissenting opinion of Judge Martens).

144. Jahangir, supra n. 2, at ¶ 14(e).

145. Id.

* B.A. (Hons) (Adelaide/Flinders), L.L.B. (Hons) (ANU). At the time of research the author was working at the Centre for the Study of Human Rights, Faculty of Law, University of Colombo. The views contained in this article are those of the author alone and do not reflect those of the Centre for the Study of Human Rights. Many thanks are due to Rohan Edrisinha for his comments on a prior draft and for his assistance during the time of research.

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