Wednesday, August 18, 2004
Lankan anti-conversion bill hits the rocks
PK Balachanddran Colombo, August 18
Sri Lanka's controversial anti-conversion bill seems to have hit the rocks given the Supreme Court's critical observations and the distinct possibility of the mainstream political parties opting for a free, "conscience vote" in parliament.
In a determination sent to the Speaker of the parliament on Tuesday, the Supreme Court had declared some of the major clauses of the bill unconstitutional and suggested deletions and additions.
Perhaps due to the bill's potential to divide Sri Lankan society sharply on religious lines (it is already deeply divided on ethnic lines), the court said that, in the present form, it ought to get the support of two thirds of the entire membership of parliament, and then submitted to a referendum. Incidentally, this is the set procedure for a constitutional amendment.
The "Prohibition of Forcible Conversion of Religion Bill" was presented to parliament as a Private Member's bill by a member of the Buddhist monks' party, Jathika Hela Urumaya (JHU). It was subsequently sent to the Supreme Court for a determination on its constitutionality under Art.123 of the Constitution.
At the outset, the court granted that the objective of the bill set out in Clause 2, was not unconstitutional, thereby accepting the growing opposition in Sri Lanka to religious conversions by the use of force, allurement or fraudulent means. "Fundamentalist" and new Christian churches are accused of systematically converting poor Buddhists and Hindus to Christianity through dubious means exploiting their poverty and dependence.
Clause 2 says: " No person shall convert or attempt to convert, either directly or otherwise, any person from one religion to another by the use of force or by allurement or by any fraudulent means nor shall any person aid or abet any such conversion."
But the court declared Clause 3 (a), (b), 4 (a) (b), 5 and 6 as being unconstitutional.
Clause 3 (a) and (b) say that a person who converts from one religion to another, and the person who has been directly or indirectly responsible for the conversion, should, within a time period determined by the Minister in charge (Justice Minister) , intimate the Divisional Secretary of the area in which the conversion had taken place.
Clause 4 (a) says that anyone who violates Clause 2 prohibiting unethical conversion can be proceeded against, notwithstanding contrary to any provision in the Code of Criminal Procedure Act. He may be liable to imprisonment for a period not exceeding five years and a maximum fine of Sri Lankan Rupees 150,000.
If the victim of forcible conversion is a minor (under 18), a woman, inmate of a jail/hospital/rehabilitation centre or a recipient of a poverty alleviation dole, the offender may be sentenced to a maximum term of seven years and asked to pay a fine of up to SLRs. 500,000.
Clause 4 (b) says that if anyone violates Clause 3 (a) and (b) by failing to inform the competent authority in the local government within the prescribed time period, he may get a prison term of not exceeding five years and a fine not exceeding SLRs.150,000.
Clause 5 says that legal proceedings could be instituted by the Divisional Secretary of the area or an officer authorised by him for this purpose; by the police; an aggrieved person, an Attorney at Law, or any person authorized by the Minister in Charge.
Clause 6 says that the Minister of Justice can frame rules under the act and place them before parliament for its approval.
Clause 8 defines "allurement", and in this, is included gifts, gratification (both monetary or non monetary), material benefit in cash or kind, and employment and promotion in jobs.
The Supreme Court said that if Clauses 3 and 4 were deleted, the bill would not be inconsistent with Art10 of the constitution which guarantees that "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."
The court said that Clause 4 (a) was violative of Art 12 (1) of the Constitution, which guaranteed equality before the law and equal protection of the law. It therefore asked for the deletion of the line; "Notwithstanding anything to the contrary to any provision in Code of Criminal Procedure Act," in that clause.
The court said that any institution of legal proceedings should be in accordance with Sec 136 of the Code of Criminal Procedure Act and subject to the written sanction of the Attorney General of Sri Lanka.
On Clause 8, the court said that "allurement", to be punishable, must be wilful and specifically meant for the purpose of conversion. The clause must make this clear, it said.
By taking away the power to institute proceedings from the Minister in charge, government officials, the police and others, and striking down the clauses prescribing punishments, the court has virtually rendered the bill toothless.
By insisting on compliance with the Code Criminal Procedure Act, the court has taken away a special power intrinsic to the bill. It makes the task of the authorities and those who institute litigation that much more difficult.
Given the fact that a large section of the ruling United Peoples' Freedom Alliance (UPFA) and the opposition United National Front (UNF), the Tamil National Alliance (TNA) and the Sri Lanka Muslim Congress (SLMC) are against the anti-conversion bill, it is expected to run into difficulties in parliament.
Both President Chandrika Kumaratunga and the Leader of the Opposition, Ranil Wickremesinghe, are committed to a secular, and multi-religious state and are opposed to the bill.
Informed sources told Hindustan Times that the Christian political leaders on the government as well as the opposition side, would be asking for a free or conscience vote on the bill, if it came to parliament again. And both Kumaratunga and Wickremesinghe are expected to give this their nod to this. Given the general awareness of the divisive potential of any such anti-conversion law, the bill is very unlikely to get two thirds majority in parliament.
The court's recommendation of a referendum at the end of it all, will make the passing of the bill almost impossible.
© HT Media Ltd. 2004.