Kishali Pinto Jayawardene
Ever the consummately expedient political strategist, Sri Lanka’s Prime Minister, (and former President), Mahinda Rajapaksa wishes to rejuvenate the controversial anti-Conversions Bill that was discarded more than one and a half decades ago following enormous public concern and an adverse ruling by the Supreme Court.
Factors behind this move
This wish, expressed in the Rajapaksa ‘comfort zone’ of a recent gathering of the All Ceylon Buddhist Council, attended by the adoring faithful, had been articulated with charm and a wink, as the media informs us. The Rajapaksa articulation has been to the effect that, if this Bill is re-activated, it must have unanimous support ‘across the board’ as otherwise, it will rebound negatively on his Government.
Probably, an objective assessment would conclude that no time would be better for the bringing back of this Bill if not now. Helped largely by the culpable blindness of the previous Government and their equally blind ‘civil society’ supporters who closed their eyes to viciously creeping jihadism in the country, the Easter Sunday attacks on churches and hotels last year will soon be somberely marked as its one year anniversary comes up next month. One direct consequence of this unforgivable failure was the pan-Sinhala vote that propelled Gotabhaya Rajapaksa to the Presidency last November.
A receptive environment has thus been fashioned for the hardening of religious sentiment across the board. Never mind that a ‘non-mainstream’ church targeted in Batticaloa by the jihadists suffered unprecedented loss with forty children being killed while frolicking after prayers. Such distinctions were lost in the nationalist religious hysteria that deepened since that attack. However, the poisonous germination of this disease was long before. It started menacingly a decade ago, as communities which had co-existed despite religious differences, fractured as Sinhala Buddhist majoritarianism grew and religious minorities withdrew into frightened corners.
Culpable blindness by many
That said, the blame is not one sided. Religious proselytism by pastors with money as their new brash ‘God’, the advent of Wahabi preachers from overseas, the mushrooming of extremist mullahs and unregulated ‘mosques’ were all contributory factors. Indeed, it came to a point that, during the ‘yahapalanaya’ years, even the slightest critique of the growth of Islamist jihadism in notable areas like Kattankudy and Mawanella drew stinging criticisms from those living in the Colombo ‘bubble’ as it were.
But in the face of hundreds of innocents who cruelly died in front of the altar, that culpability cannot be waved away so easily. Tomes of theses on threats to religious freedoms and select gatherings to bemoan the same do not serve any purpose, apart from lucrative assignments for the lucky. Far away from these prestigious enclaves and in the trenches of Sri Lanka’s enraged communities, fear and suspicion battle each other with the slightest provocation sufficing to set off a spark that lights a deadly fire. It is these people who are the frontline victims as usual as they have neither the means or the power to flee overseas when their lives are at threat.
So, there is a context to what we hear now regarding the reactivation of the discarded Conversions Bill that must not be forgottten. That being said, it is also worthwhile to remember exactly why this Bill was objected to, at the outset. Its definitions of offences were vague and arbitrary. For example, it criminalised ‘allurement’ in Clause 8 as ‘offer of any temptation in the form of any gift or gratification whether in cash or in kind.” This was patently obnoxious as a legal definition, violating Article 10 of the Constitution (freedom of thought, conscience and religion).
Problems with the Conversions Bill
Similar ambiguity attended other clauses as well. For example, the term ‘force’ was defined in Clause 8(c) as including ‘a show of force, including a threat or harm or injury or any kind and threat of religious displeasure as well as condemnation of any religion or religious faith. And the term ‘fraudulent means’ was defined in Clause 8(d) to include ‘misinterpretation’ or ‘any other fraudulent contrivance.’ The imprecision in these terms needs no extra effort to point out.
Laws and courts around the world have proceeded very cautiously in these matters precisely due to the fact that ‘religious conversions’ are subjected to difficult points of assessment and judgement that are a minefield. Terms like ‘sacrilegious’ invite contrary opinions of the most violent kind. Modern international law has been extremely cautious in upholding the constitutionality of such phrases on the basis that they violate freedom of speech. In Joseph Burstyn, Inc v. Wilson, (343 U.S. 495 (1952), Justice Clarke writing for the US Supreme Court explained that ‘a potential assessor of what is ‘sacrilegious’ is ‘set adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies…’
Terms such as ‘allurement’ and sacrilegious’ involve a level of judgment that is impossible to engage in without trepassing into areas of private faith. As the Justice rightly observed; ‘(even) the most careful and tolerant censor would find it virtually impossible to avoid favouring one religion over another, and he would be subject to an inevitable tendency to ban the expression of unpopular sentiments sacred to a religious minority.’
Rife with many dangers
The 2004 proposed Conversions Bill was rife with many other dangers. It directed that if there is an allegation against any person for converting a person “by the use of force or allurement or by fraudulent means”, it should be the responsibility of the affected person to lodge a complaint with public officials of the relevant area.The overriding danger in the Bill was that the overbreadth of its clauses put into issue, the possibility of abuse under and by virtue of the Bill in that genuine conversions though a real process of transfer of faith may also stand challenged.
In striking down this Bill, the Supreme Court of Sri Lanka expressed concern regarding the fact that its clauses required anyone wanting to convert to another religion to report to the Divisional Secretary of the area and stipulated a fine and prison sentence for anyone not complying. In this very infelicitous background, any attempt to reactivate the Conversions Bill must be resisted with collective strength. This will push Sri Lanka into new quicksands of religious intolerance and precipitate existing hatreds to an even higher level. A thought by the Court many decades ago serves as a good concluding reminder in this regard.
The Court remarked that “Beliefs rooted in religion are protected. A religious belief need not be logical, acceptable, consistent or comprehensible in order to be protected. Unless the claim is bizarre and clearly non-religious in motivation, it is not within the judicial functions and judicial competence to inquire whether the person seeking protection has correctly perceived the commands of his particular faith. The Courts are not arbiters of scriptual interpretation and should not undertake to dissect religious beliefs (Premalal Perera vs Weerasooriya (1985).
Perhaps we may reflect on these words of wisdom a tad more deliberately.