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SC unanimously dismisses FR application with costs
The Supreme Court has dismissed a Fundamental Rights (FR) application by a mosque president and a principal of a madrassa in Panadura, arguing their right to proceed with building a religious school–which residents and Buddhist monks vehemently demonstrated against–was violated.
President of the Board of Trustees of the Wekada Jumma Mosque, M.J.M. Faril and Principal of Anas Ibnu Malik Hiflul Quran Madrassa, Moulavi M.B.M. Haris had not obtained the Religious Affairs Ministry’s approval to build the proposed educational institution, Justice Anil Gooneratne held, with Justices Sisira J. de Abrew and Vijith K. Malalgoda, P.C. agreeing, while dismissing the petition with costs.
“The material placed before court indicates that the real purpose of the petitioners seems to be to have a mosque, instead of a school,” the judgment held. “This seems to be the starting point for the dispute. The villagers, residents and Buddhist monks vehemently protested against any further construction for a different purpose.”
“Our country has suffered over the years as a result of communal violence,” it continued. “History repeats and, if one were to analyse as to what happened in the 1915 riots, though it was meaningless for the two communities to clash, lessons have not been learnt by a certain section of the community.
Riots at that point of time resulted in loss of valuable life and property. Time and again incidents of such nature have taken place in our country. As such, the official respondents had to take steps to avoid and avert any breach of peace.”
Mr Faril and Moulavi Haris stated that an application was made in January 2008, to the Bandaragama Pradeshiya Sabha (first respondent) for a development plan for a two-storey school on a plot of land. A permit was issued in March.
The ground floor was completed, but the rest was delayed due to a lack of finances. The school was started with 30 in-house students.
In 2015, the petitioners started building the first floor. Secretary to the Pradeshiya Sabha N.D.I. Swarna K. Perera (second respondent) then wrote to Mr Faril saying the development permit had lapsed and that a fresh one must be obtained. Her letter observed that the petitioners were installing a slab instead of a roof, in violation of the building plan.
The petitioners were also notified that residents had complained. In October 2015, Ms Perera convened a meeting attended by residents, representatives of the Jumma mosque and Buddhist monks.
The residents and the monks were mainly concerned that a mosque–not a dhamma school–was being constructed. The petitioners insisted that the building would be a school and not a mosque.
In exchange for issuing approval, Ms Perera called for a signed letter stating that the purpose of construction was for a school. The petitioners complained to Court they had “no alternative but to sign the said letter”. They pleaded that the letter included certain clauses that took away their FR.
In January 2016, an amended plan was submitted to the Pradeshiya Sabha and approved. But in February 2016, as the concrete slab was to be laid, Ms Perera served a letter on Mr Faril, through a senior police officer, directing him to suspend construction as residents and Buddhist monks had protested.
A discussion was held at the office of the Headquarters Inspector of Police in Panadura, attended by mosque representatives and Buddhist monks. The Senior Superintendent of Police informed them that facts would have to be reported to the Magistrate to prevent a breach of peace.
The proceedings were not instituted in the Magistrate’s Court as the residents were not present. The police then handed over a letter to Mr Faril “to the effect that the construction was for the purpose of a place of worship and not for a school which cannot be done without proper approval, and requested the petitioner to stop construction work”.
Attempts to continue construction through discussions with authorities did not succeed. Appearing for the petitioners, Faiz Mustapha, P.C., argued that direction to stop work was a violation of FR; was arbitrary, unreasonable and contrary to law; and caused irreparable loss and damage.
The petitioners had a permit to build a “dhamma school” for Muslims in Panadura and no proper reasons given why work should be halted. Mr Mustapha also maintained there was no law for the police to prevent construction work, as the petitioners had the necessary approvals from the Pradeshiya Sabha and its Secretary.
The Supreme Court granted leave to proceed in May 2016. Upul Kumarapperuma, Counsel for the Pradeshiya Sabha and its Secretary, submitted that, although approval was granted to erect a school, there were protests from residents and Buddhist monks. Several meetings were held.
Steps were taken to stop construction, owing to massive protests and to avoid a breach of peace that could spread to other areas.
“In the context of the case in hand, I cannot conclude that the petitioners were denied equal protection of the law,” Justice Gooneratne said, in his judgment.
“Certainly, I cannot fathom as to whether there was a violation of the petitioner’s FR.”
“What is necessary is to avoid a crisis situation which could spread to other areas of our country,” he asserted. “No further reasons need to be adduced in the circumstances of the case in hand by the respondents.”
“The guarantee of equal protection of the law must mean protection of equal laws,” he continued. “Judicial decisions must of necessity depend on the facts and circumstances of each particular case, and what may superficially appear to be an unequal application of the law may not necessarily amount to a denial of equal protection of law, unless there is shown to be present in it an element of intentional and purposeful discrimination.”
“The acts of the respondents did not suggest any form of discrimination based on race,” the judgment held. “The material indicates a continuous protest, which authorities considered and gave due consideration to in deciding to suspend construction.
The petitioners had also not obtained approval from the Ministry of Religious Affairs to open the relevant ‘dhamma school’.”