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How much should laws govern religion?

13 Dec 2021

  • The existing and ideal legal framework around religion in Sri Lanka
By Sumudu Chamara After the tragic death of a Sri Lankan national in Pakistan, Pakistan’s laws and practices pertaining to blasphemy have initiated an international-level discourse. Even though Sri Lanka does not have laws criminalising blasphemy, there are certain laws that can be used to take legal action against those engaging in acts against other religions.  However, in the Sri Lankan context, freedom of religion or belief has sometimes been a controversial matter, and the enforcement of laws that are in place, sometimes, leads to violation of the rights of minority religious groups. In addition, the lack of specific laws and policies regarding propagation of religion has resulted in different experiences for different religious groups. In this context, there is a need for a much larger discourse about not only people’s constitutionally guaranteed freedoms pertaining to religion or belief, but also about how the enforcement of those provisions should be done in a way that protects the rights of all religious groups.  These matters were discussed during a webinar held on the International Human Rights Day (10). The discussion, held by MinorMatters, a movement dedicated to protecting the rights and liberties of religious minorities in Sri Lanka, and was joined by several Attorneys-at-Law (AALs) coming from national and international-level research and human rights backgrounds, namely Dr. Gehan Gunatilleke, Juanita Arulanantham, Malsirini de Silva, and Yamini Ravindran. Law and religion Speaking on the Sri Lankan context regarding freedom of religion and blasphemy, Dr. Gunatilleke said that even though Sri Lanka does not have any law specifically to address blasphemy, the enforcement of some of the laws can result in situations amounting to a punishment for blasphemy. “Unlike Pakistan, Sri Lanka does not have any law that directly prohibits blasphemy. But, we do have Penal Code provisions, which talk about wounding religious feelings, and that provision can be deployed in a way to punish those who say things that can be offensive towards a particular religion, particularly Buddhism or Buddhist clergy. Consequently, we end up having a de facto prohibition on blasphemy. If we take the International Covenant on Civil and Political Rights (ICCPR), it has been enforced against writers such as Shakthika Sathkumara for writing a short story that was deemed offensive.”  Pointing out incidents of taking legal action against individuals for publications, radio shows, having certain tattoos, and vandalising Buddha statues, he noted that even though the ordinary law does not have blasphemy, there are prohibitions for blasphemy-like behaviour.  “While it is true that Sri Lanka does not have blasphemy laws, per se, and certainly no law that imposes death penalty for blasphemy like Pakistan has, in practice, we sometimes operate as if there is a prohibition on blasphemy, and ordinary laws are deployed to achieve similar aims. While we can condemn blasphemy laws in other countries, we need to start looking at our own legal system and the way laws are enforced because we seem to have similar undercurrents,” Dr. Gunatilleke opined.  What is more, de Silva noted that Sri Lanka has several other laws outside the Constitution that affect minority religious actors negatively, and that one of them is certain provisions of the Penal Code such as Section 291.  Sections 291, 291A, and 291B identify disturbing a religious assembly, uttering words with deliberate intent to wound religious feelings, and deliberate and malicious acts intended to outrage religious feelings of any class, by insulting its religion or religious beliefs, as offences. In this regard, Dr. Gunatilleke added that some of the colonial legal provisions that Sri Lanka has, such as wounding religious feelings, can be very problematic, because those laws are applied selectively. He further said that it is not always the text of the law that leads to problems; sometimes, it is the implementation of those laws. Taking the ICCPR Act into consideration as an example, he pointed out how it is used in some situations in a way that violates the meaning of its provisions. “Even though we have issues with regard to certain provisions of the Penal Code and the Prevention of Terrorism Act (PTA), we have a more serious problem, which is selective enforcement of the law, and that problem cannot be solved by adjusting the text,” he stressed. Propagation of religion  With regard to a question about the judicial mind regarding the refusal to recognise the right to propagation of religion in Sri Lanka, in a context where that right has not been recognised by the Supreme Court (SC) as coming under the freedom of religion or belief, Arulanantham noted that there are a couple of landmark cases that specifically state that Sri Lankans do not enjoy the right to propagate a religion as a part of the freedom of religion. She noted that there are two cases in this regard, i.e. one case pertaining to a Jehovah’s Witness case, and another case pertaining to a special determination on a particular Bill.  Speaking about propagation of religion and judiciary, including the rationales (behind the verdicts of the said cases), she explained: “The words ‘worship’, ‘observance’, ‘practice’, and ‘teaching’ are there. The Court’s thinking was that the words ‘worship’ and ‘observance’ refer to more ritualistic practices and actions that religions typically involve and does not include the right to propagate, which is the right to go around and share with others your religion. As far as the word ‘teaching’ was concerned, the Courts’ thinking was that that the word ‘teaching’ therein referred to a case of consensual teaching, perhaps a pre-arranged one, between two or more individuals. “We are learning from this, as opposed to a situation where individuals practising a particular religion, going door to door, or approaching other people and trying to share with them aspects about their religious beliefs and teachings. This particular thinking was expressed in the Jehovah’s Witness case, and they were talking about the practice of individuals of that denomination going from house to house to share about their religion. In addition, another part of the rationale was a comparison with the particular Article in the Indian Constitution that protects religion as part of their rights Chapter, and in the Indian Constitution, there is a specific reference to propagation of religion. The court’s thinking was that the failure to explicitly mention, or the omission of propagation of religion from our (fundamental rights) Chapter, was deliberate. One of the reasons was to maintain political amity and harmony.” She opined that, that was most likely the court’s thinking as to why the drafters have omitted this. Adding that another reason that was referred to was Article 9, which bestows a special status on Buddhism, Arulanantham said that there might have been the thinking that propagation of other religions would pose some kind of perceived or real threat to Buddhism. She said that another interesting rationale the court expressed was that, in some instances, propagation of religion can actually violate one’s fundamental rights, specifically Article 10 (freedom of thought, conscience, and religion). She explained: “They mentioned circumstances where propagation of religion is accompanied by what they referred to as ‘improper inducements’, which can be referred to as unethical convergence. So, the thinking was that there are inducements that are not proper, where a person can affect the way in which another person’s natural thought process works regarding a particular religion or religious belief, and therefore, that can affect their freedom of thought and religion.” Meanwhile, de Silva spoke of the concept of breach of peace and religious freedom among minorities in Sri Lanka. She noted that there is a tendency to prioritise what is called breach of peace, and that when looking at cases from the SC to lower courts, this trend could be observed.  “The majority community of an area would see the religious activities (of a minority religion) as a public nuisance, and they can think that there would be threats, and it could evolve to a whole different issue. When the matter is taken before the Police, they take it as a potential breach of peace issue. As a result, minority religious parties’ freedom may be restricted, because there is a threat to public order. This does not come from their conduct, but from others who react to these religious activities,” she said, adding that this situation compels the court to strike a balance, which leads to making a call with respect to breach of peace that might take place if the majority community’s demands are not met in that situation.  “This tendency to prioritise breach of peace or the risk of breach of peace over the freedom of religion damages this freedom, because what essentially happens is the court legitimising the demands of the majority group, because they are threatening to cause public disorder. That in itself restricts the religious conduct of minority groups,” de Silva added. Minority and majority  Dr. Gunatilleke also noted how enforcement of laws and regulations, in certain circumstances, have affected minority religious groups. Speaking of the ban on burial of those who died of Covid-19, he added: “It was done under the guise of public health interests, but it turns out that there is no public health risk in burials. The restriction was really an opportunistic restriction that targeted the Muslim community, and was mainly there to appease majoritarian and generally Islamophobic elements in society. We need to be extremely careful and sceptical about the good faith of the State when it imposes restrictions. So, in practice, the interests that are really being advanced through these restrictions are just the interests of the majority, which then gets passed off as public interest. “I think law can often come in handy when it comes to majoritarian agendas, and even seemingly neutral laws, such as the ICCPR, which are modelled based on an international treaty, can actually be deployed to restrict freedom of religion or belief and freedom of expression in a manner that is discriminatory and in a manner that advances the interests of the majority religion.” With regard to research done by civil society groups on or pertaining to the freedom of religion and belief, Dr. Gunatilleke added: “When looking at the gamut of research out there, I can say that there are a lot of good research, and I do not think that there is a gap in terms of the focus on freedom of religion or belief. What I would say is that there are some uncomfortable areas that are avoided, for example, propagation of religion. I do not think you would find civil society defending the rights of individuals to actually spread their religion, because that might cause offence.” Explaining the idea that only mainstream religions must have the freedom to propagate religion, he added: “They all benefit from this idea that only the established religions should be allowed a particular space, and that other smaller religions vying for space should not be allowed that space. But, all religions at one point or the other engaged in propagation of religion. We would not have a Buddhist majority country if someone did not come and propagate the religion, and we would not have Christianity if not for missionary activities. I find looking at propagation of religion as something inherently bad problematic. In this context, I would say that one aspect of research is perhaps missing, and I think we have to be willing to take a religion-neutral position on that. The people should be able to propagate religion peacefully, and in a way that is non-coercive and is not a nuisance to others.”  While religions and beliefs have always been recognised as inherently sensitive and controversial topics, the priority is to create an environment where different ideologies can co-exist. As was mentioned during the discussion, there should be no issues in practising and propagating religions as long as they do not cause discomfort to those of other beliefs.

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