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Court
upholds right to adopt any religion or belief The Bench comprised Justices T.B. Weerasuriya, N.E. Dissanayake and Raja Fernando. Speaker W.J.M. Lokubandara announced the Court's determination to parliament on Tuesday. The Court also ruled that the Bill to become law in it's present form has to be passed by a 2/3rds majority in Parliament and approved by the people at a referendum in terms of Article 83 (a) of the Constitution. The Bill was presented in Parliament as a private member's bill and was placed on the Order Paper in July this year. Twenty-one petitions were presented to the Supreme Court challenging the bill's constitutionality. An additional 21 intervenient petitions were made parties on their application. The purpose of the Bill was to provide for prohibition of conversion from one religion to another by the use of force, allurement or by fraudulent means. The contention of the petitioners who opposed the Bill was that several clauses of the Bill violated Article 10 of the Constitution under which the freedom of thought, conscience and the freedom to adopt and to have a religion of one's choice are absolute and unconditional and any attempt to regulate the manifestation and practice of religion guaranteed under Article 14 (1) (e) and 15 (7) would in effect negate and nullify the contents of Article 10. The intervenient petitioner Ven. Omaple Sobitha Thero, a proponent of the Bill, submitted that the Bill seeks to prohibit only conversion from one religion to another by use of force, allurement or fraudulent means and gives effect to the freedom guaranteed under Article 10 of the Constitution. The Court ruled that Article 10 absolutely protects the holding of any religious belief of a person's choice, no matter how bizarre or irrational. Therefore the freedom guaranteed by Article 10 to every person to adopt a religion or belief of his choice postulates that the choice stems from the free exercise of one's thoughts and conscience without any fetter, which in any way distorts one's choice. The Court further said the right to freedom of religion includes the right to adopt a religion or belief and entails the right to change one's religion. The present Bill seeks to prohibit conversions from one religion to another by the use of force, allurement or fraudulent means. The Court said the constitutional freedom to practice or exercise one's religion could be subject to restrictions that can be lawfully imposed in terms of Article 15 (7). But these restrictions must be prescribed by law and must be for the following purposes namely national security, public order and protection or public health, mortality, for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of the general welfare of a democratic society. The intervenient petitioner submitted that the Special Presidential Commission report on the Buddha Sasana has disclosed material pertaining to conversions by unethical means and clause 3 of the preamble makes reference to this situation and seeks to address it by means of legislation. The Court agreed with the contention of the petitioners opposing the bill that Clauses 3 (a) and 3 (b) of the bill requiring the "convert", the facilitator and the witness to such a ceremony to notify the divisional secretary of the fact of conversion from one religion to another is inconsistent with Article 10 as it would be a restraint on his freedom of thought, conscience and religion. The Court also ruled that clause 4 (a) which deals with punishment for offenders violates the constitution. The Magistrate's Court is vested with jurisdiction to try the offences made out in clause 2 of the Bill. Having regard to the provisions of Section 14 of the Code of Criminal Procedure Act relating to the punitive powers of the Magistrate's Court, the Court said it was of the view that it is "arbitrary and irrational to exclude the applicability of the provisions of the code of criminal procedure Act to offences made out in this bill. The Court also recommended amendments to several other clauses in the Bill. |
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