Focus on Rights

Some Reflections on the Issue of Religious Belief
While forced religious conversions is to be deplored very substantially as pointed out in previous issues of this column, one must be wary that in seeking to prohibit what is so deplorable, one does not strike at the very foundations of the individual right to religious belief.

There is a clear danger in bringing such rights, including the right to conscience within the purview of judicial review as was acknowledged by the courts themselves, as for example in Premalal Perera vs Weerasooriya (1985 (2) Sri LR, 177) where it was judicially stated 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 percieved the commands of his particular faith. The Courts are not arbiters of scriptual interpretation and should not undertake to dissect religious beliefs (per Ranasinghe, J.)

More specifically, it may be cautioned that any proposed law prohibiting religious conversions should not enact an actual or indeed, virtual offence of blasphemy into Sri Lankan law. Modern international law and standards have been extremely cautious in this respect.

The decision of the U.S. Supreme Court in Joseph Burstyn, Inc v. Wilson, 343 U.S. 495 (1952) is moot on this point. In that case, the State of New York banned the showing of a film by the Italian producer/director Roberto Rossellini entitled "The Miracle" on the ground that it was "sacrilegious." The film's distributors thereupon brought an action arguing that the statute pursuant to which it was banned was an unconstitutional prior restraint upon freedom of speech. The Supreme Court, in a unanimous decision, agreed with this argument.

Justice Clarke explained the Court's reasoning as follows: “In seeking to apply the broad and all-inclusive definition of "sacrilegious" given by the New York Courts, the censor 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. New York cannot vest such unlimited restraining control over motion pictures in a censor...[U]nder such a standard 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. “ Id. at 504-05.

Justice Clarke concluded by observing that, “It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches or motion pictures.”

In a relatively recent civil case in the United States, the plaintiff sought to enjoin the showing of Martin Scorcese's "The Last Temptation of Christ" on the ground that the film was a defamatory interpretation of the life of Jesus Christ that infringed on his and other believers' constitutional right of freedom of worship and religion. (Nyack v. MCA Inc., 911 F.2d 1082 (5th Cir 1990), cert. denied, 498 U.S. 1087 (1991)). The U.S. Court of Appeals for the Fifth Circuit, citing Burstyn, affirmed the dismissal of the application. The Supreme Court refused to hear the case, allowing the Court of Appeal's decision to stand.

National courts in other jurisdictions have responded similarly. Thus, the Supreme Court of India has held that there must be a very close link between an expression and the threat of a disturbance:

In S. Rangarajan v. P.J. Ram [1989](2) SCR 204, p. 226, for example, the court stated that “Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far fetched. It should have proximate and direct nexus with the expression. The expression should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg’.

The Canadian courts had set as strict standards. Thus, in Boucher v. The King [1951] SCR 265, p. 286], the Supreme Court of Canada set aside a conviction based on distribution of a leaflet which were titled “Quebec’s Burning Hate for God and Christ and Freedom Is the Shame of all Canada.”
The leaflet contained details of the persecution of Jehovah’s Witnesses and exhorted people to protest against the persecution. Though phrased very emotionally, it did not advocate open violence, resulting in the conviction for sedition by the lower courts being struck down by the Supreme Court on the basis that “ An intention to bring the administration of justice into hatred and contempt or exert disaffection against it is not sedition unless there is also the intention to incite people to violence against it.

In line with this thinking, the United States Supreme Court has stipulated that there must be both direct advocacy of disorder and a likelihood of imminent lawless action. In Brandenburg v. Ohio (395 U.S. 444 (1969), p. 446.), the Court considered the constitutional validity of a conviction for stating at a rally that if the government “continues to suppress the white, Caucasian race, it’s possible that there may have to be some vengeance taken.” Despite the provocative nature of the statement, it was ruled that the risk of unlawful action actually taking place was too unlikely for the conviction to stand.

While these decisions relate to judicial thinking in Indian courts as well as in those of the West, it may be stated that cumulatively they uphold the principle that the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

These are reflections that Sri Lanka would do well to keep in mind for the reason that, in still seeking to bring legislation to prohibit unlawful conversions, the cure may, effectively be worse than the disease that it seeks to control.

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