Sunday 1 September 2019

Gajalakshmi Paramasivam

01 September  2019

When in Kandy – do as Buddhists; When in Jaffna do as Tamils ? – Part II
Dr Gehan Gunatilleke of University of Oxford, United Kingdom presents through his article The Constitutional Practice of Ethno-Religious Violence in Sri Lanka the following interpretation of Article 9 of the Sri Lankan Constitution:

3. “Buddhism and the ‘Buddha Sasana5 enjoy special constitutional status in Sri Lanka,
whereas the constitutional text affords all other religious groups certain rights and
One man’s truth becomes another’s law. The truth that I share becomes the law of those who believe in me as an individual and/or as part of a group – say Tamils. Genuine pain that we endure becomes true structure at that level. That is the basis of any natural law for that individual.
Article 9 if taken to be the truth of the architects of the Constitution – confirms that Buddhists needed the bait of high status out of the Common pool. Dr Gunatileke presents the origin as follows:
[The entitlement complex of Sinhala-Buddhists has penetrated much of Sri Lanka’s post independence constitutional thought. The 1947 Sri Lankan Constitution (framed by the
British-appointed Soulbury Commission) did not afford Buddhism special constitutional
status. But as Benjamin Schonthal notes, its failure to formally protect the interests of
Buddhism was one of the major bases on which this early constitutional text was
criticised.  The Sinhala-Buddhist nationalist movement gained in momentum thereafter,
which was reflected in a series of legal, institutional and constitutional measures. First,
the government of S.W.R.D. Bandaranaike enacted the Official Language Act, No. 33 of 1956, which made Sinhala the official language of the administration. The Act
marginalised non-Sinhala speaking public servants, and resulted in the Sinhalese
domination of the public sector. Stanley J. Tambiah recalls that the Act ‘served to deepen
the Sinhalese-Tamil rift…and make collective adversaries out of Sinhalese and Tamils.’
Second, the government in the 1970s standardised university admission. The new system
advantaged Sinhalese candidates, as the number of places available to Sinhalese and
Tamil candidates were distributed in proportion to the number of candidates who sat
examinations in Sinhala and Tamil. Third, the first Republican Constitution of 1972
formally recognised Sinhala as the national language and afforded the ‘foremost’ place to
Buddhism. The proposal to formally grant special constitutional status to Buddhism was
advanced by the Sri Lanka Freedom Party (SLFP) during the 1960s, and was eventually
featured in the manifesto of the United Front in 1970. Subsequent to its victory at the
election, the SLFP ensured that the following clause was included as section 6 of the
1972 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 Buddhism while
assuring to all religions the rights granted by section 18(1)(d).

These provisions were included in article 9 of the 1978 Constitution,  although Tamil
was later recognised as a national language following the enactment of the Thirteenth
Amendment to the Constitution.]
The deep reader of the matter at each stage would, through her/his own truth identify with the truth in this development. The First manifestation was actually Sinhala being lawfully made the only Official Language in 1956. The voter would easily read this as advantage  (Sinhalese) or disadvantage (Tamil) at the political level. Scientifically speaking,  it has made ‘substance’ / measurable outcome of the policy. The gap between policy and political outcome has vanished and hence it becomes barter trade – between voter and politican.
Common Policy will have a gap between policy (cause) and its manifested outcome (effect).   When that gap is narrow, it amounts to the voter writing the Constitution at her/his level. The elected person then becomes a representative only and not   an Administrator. Administrative powers to such a person  become the pathways leading to abuse of power and corruption – including practice of bribery within politicians. We noted this last year at government level in Sri Lanka. At the voter level, it translates into bribery to get into jobs – especially government jobs. The indicator by this policy to the politician who is driven by winning – is that s/he would need to ‘bribe’.
This kind of policy carries high risk of militancy by the young and the restless. The first post-independence uprising by the young and the restless happened in 1971 during the time Mrs Bandaranaike  was Prime Minister.    It was during the period of leadership by this lady that the 1972 Constitution which included the article Buddhism Foremost - was written. One needs to work out the connection between this inclusion and a junior/minority by gender and investment in politics being the medium through whom it was written. In a ‘free’ environment, the mind of one who has been junior in status becomes the medium of others who are more powerful thinkers than her/him. Happens all the time in families where money is more powerful than common belief. This is why in strong families ‘free money’ is prohibited. Thesawalamai Law  - applicable to Northern Tamils has different structures for males and females. Accordingly, parents have no right to distribute arbitrarily their inherited wealth. Strong participation  in governance by Tamils – despite being a minority – is underpinned by this heritage also.
The example    of the above advantage to Buddhists is illustrated in the following example included in Dr Gunatilleke’s  article:
[In the Provincial of the Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka (Incorporation)  case, the Supreme Court of Sri Lanka considered the constitutionality of a bill to incorporate an institution with the stated purpose of spreading ‘knowledge of the Catholic religion’. The institution’s mandate included providing shelter to orphans, children and the elderly. The Supreme Court struck down the bill on the basis that it violated article 9 of the 1978 Constitution, which formally guarantees the ‘foremost place’ to Buddhism. It held that article 9 restricted individuals of other religions from ‘propagating’ their faith through the provision of material benefits to those outside their religion. The Court concluded that ‘propagation and spreading Christianity [through the provision of material benefits] would not be permissible, as it would impair the very existence of Buddhism or the Buddha Sasana.’ Notably, article 9 of the 1978 Constitution refers to the protection and fostering of the ‘Buddha Sasana’ and not only ‘Buddhism’ as per the 1972 text.]

Provision of ‘material benefits’ confirms relativity.  The reasons for judgment includes the following:

[The petitioner submitted that the effect of Article 9 is to 'protect and foster' the Buddha Sasana whilst assuring to all religions the rights mentioned in Articles 10 and 14(l)(e) of the Constitution. Therefore the petitioner contended that a person of other religions could exercise the said right as long as it does not affect the Buddha-Sasana. It was also submitted that when an institution is established to propagate Christianity by providing material and other benefits and thereby converting such recipients to the said religion, that would affect the  very existence of Buddhism.
As referredto earlier, the Constitution does not recognise a fundamental right to propagate a religion. The expression 'propagate' has a number of meanings, but according to the shorter Oxford Dictionary it means 'to spread from person to person, or from place to place to disseminate, diffuse(a statement, belief, practise, etc).' In the Supreme Court Determination No. 2/2001 it was stated that, "In Sri Lanka the Constitution does not guarantee a fundamental right to 'propagate' religion as in Article 25(1) of the Indian Constitution. What is guaranteed here to every citizen is the fundamental right by Article 14(l)(e) to manifest, worship, observe, practice that citizen's religion or teaching. " In such circumstances, although it is permissible under our Constitution for a person to manifest his or her religion, spreading another religion would not be permissible as the Constitution would not guarantee a fundamental right to propagate religion. Even in situations where propagation is treated as a fundamental right enshrined in a Constitution, the entitlement has not extended to convert another person to one's own religion as that would impinge on the 'freedom of conscience. (Rev. Stainislaus v, State of Madhva Pradesh). Similarly when there is no fundamental right to propagate, if efforts are taken to convert another person to one's own religion, such conduct could hinder the very existence of the Buddha Sasana. 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. Clause 3(l)(a) and (b) in the Bill referred to earlier, states that the corporation is constituted and declared to be, to spread knowledge of catholic religion and to impart religious, educational and vocational training to youth. Those sub clauses speak not merely of spreading a religion, but spreading knowledge of a religion. In these circumstances we are inclined to agree with the submissions made by the petitioner that clause3 of the Bill, as presently constituted, would be inconsistent with Article 9 of the Constitution.]

The Petitioner -  Anula Irangani Fernando, of  No. 41 A, Kassapa Road Colombo 05 – as per the above - fears damage to the  very existence of Buddhism  if the Bill was passed in Parliament – to facilitate propagation of Catholicism. The manifestation of the above Bill is projected to be ‘conversion’ of Buddhists – current and/or  potential ( those who are likely to be Buddhists in the future). As per the above reasoning – Buddhism is still relative, whereas other religions have earned the right to Absolute power within their own groups.  Hence by status,  the other religions are acknowledged to be senior to Buddhism – due to achieving the goal of Absolutism before Buddhism which is allocated relative (foremost) status.

Article 9 provides as follows:

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).

The question therefore is whether a group that is yet to achieve self-governance has the authority to – ‘assure’ – other groups to practice their religions?
No government has the moral authority to facilitate that which it does not have either by direct and current earnings and/or inheritance.

Article 10 states:
‘10. 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.’

Given that Buddhists are not exempted – no Buddhist also should be advantaged by material benefits – including foremost status.

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 and teaching;]

If the above two apply also to Buddhists – then Article 9 which provides for relativity – and therefore Administration - becomes false. If the above two do not apply to Buddhists – which is the right reading as per my mind, if we take Article 9 to be true –  then Buddhism is on merit basis junior in status to non-Buddhist religions – jointly and severally.

Article 9 actually devolves power on religious basis. Articles 10 and 14 (1) (e ) confirm that the Government as a whole (including the Opposition) – has absolute power which it shares at the level of the individual citizen. The government cannot share that which it does not have.

The example that comes to mind is that of Throupathy in the Mahabharatham. When the lady was brought to the King’s court as if she were a slave – the lady questioned as to whether her husband  Dharmar waged her before or after he lost himself in the game. The answer was ‘after’.  The wise lady claimed that he had no right to wage her after he lost himself. King Dharmar had certain rights over Queen Throupathy. But once he became a slave – he had no rights over the Royal relations – including Throupathy the queen.

Likewise, Buddhists who are relative have no authority to devolve power that facilitates ‘freedom’ of practice on the basis of Absolute power of Sovereignty.

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