Anti-conversion bills: An Orwellian nightmare?
What I see as the illiberal spectre of anti-conversion legislation has loomed into focus once again with the preparation by the JHU of a private member's bill, and the UPFA government responding with a bill of its own. It appears that the worst aspects of majoritarian nationalism are driving the agenda on this issue. Jejune political leadership on the part of both major parties that has failed to inspire a celebration of the diversity of the Sri Lankan polity, have enabled the politics of the mainstream to be hijacked by procrustean agendas of groups such as the JHU.
These potent political dynamics are enhanced, not abated, by the institutions of constitutional government, notably in this respect the legislature and the courts, which yet again demonstrates the outmoded presumptions underpinning our constitutional instrument. Certainly, we have a Constitution and a constitutional law, but we do not have a constitutional theory that supports plural democracy.
The few constitutional principles that have been developed beyond the text are often inconsistent and conceptually incoherent. For example, the Supreme Court's current interpretation of Article 9 (the Buddhism clause) read together with Article 10 (freedom of thought) and Article 14 (1) (e) (freedom of religion) not only do not withstand critical normative scrutiny. It appears to be contrary to the constitutional text as well (see the New Wine Harvest, Sahanaye Doratuwa and Menzingen Sisters determinations of the Supreme Court over the last few years).
This column has dealt with this matter in the past (see Justice, January 31, 2004), arguing that legislation as an instrument for addressing the social issue of allegedly orchestrated conversions, is most inappropriate in a free, democratic and open society. To reiterate the central argument against anti-conversion legislation: a free society is based on the fundamental principle of individual autonomy and choice, and to regulate that sphere of autonomy through legislation, i.e., the expression in coercive terms of the will of the majority, must be presumed to be illegitimate unless there is some overwhelming public good necessitating such interference.
The 'public good' in the sense used here is emphatically not the best interests of the majority, but the more enlightened conception that is constructed around the principles of equality, fairness and pluralism and that is imbued with the moral force of common decency and tolerance.
This column desires no truck with either Buddhist vigilantes or evangelical zealots, both of whom represent faceless enclaves of communitarianism inimical to individualism and diversity. However, the fact remains that as citizens of Sri Lanka, every individual is entitled to the protection of constitutional rights, which requires keeping the majority, dominated State out of the private domain. In this respect, anti-conversion legislation represents an Orwellian nightmare of the regulatory invasion of citizens' privacy.
A brief overview of some of the principal features of the two proposed bills suffices to underscore the chilling effect on civil liberties and personal freedom that they would have if enacted.
Notwithstanding the insultingly platitudinous references to religious harmony and unity in the preambles of both the JHU and government bills, it is bitterly ironic that the political nature of popular Buddhism in Sri Lanka has transformed a supremely cerebral and conceptually elegant doctrine characterised by Socratic rationality and extreme tolerance into an instrument of mindless political populism.
The government's bill, submitted to Cabinet last week by the Minister for Buddha Sasana, is cynically short titled as the 'Protection of Religious Freedom Act'. It makes conversion or attempt to convert as well as providing assistance or encouragement to convert an offence with the stiff penalties upon conviction by a Magistrate, of a fine of up to Rs. 100,000 or a term of imprisonment of up to 5 years. This is increased to Rs. 500,000 and 7 years if the conversion has been that of a minor.
The JHU bill sets out substantially the same schema, but the aggravated penalties attach in addition to minors, in respect of women (!), Samurdhi recipients, prisoners, inmates of rehabilitation and detention centres, persons with physical or mental infirmities, employees of any establishment, members of the armed forces, students, patients in hospitals and nursing homes, internally displaced persons residing in refugee camps and any other category of persons to be determined by the Minister.
The government's bill prohibits inducement, or compelling or subjecting to disadvantage or punishment, of any person, by employers, officers of the armed forces, teachers and academics, officers in charge of prisons, detention or refugee camps, hospitals and nursing homes, persons in charge of shelters for children, the disabled and the elderly.
In addition to the penalties mentioned before, the government bill contains all manner of other sanctions including the forfeiture of property, vicarious and personal responsibility, the deportation of foreign offenders after serving their terms in a Sri Lanka prison and the ouster of the Code of Criminal Procedure in respect of proceedings under the prospective law.
Under the provisions of the government bill, action in the Magistrates Court against suspected offenders may be initiated by the Police, and affected or aggrieved persons, or 'by any person interested in the welfare of the public, who has reason to believe that the provisions of the Act have been contravened.' In the JHU version, in addition to these persons, action may be initiated by a Divisional Secretary, an attorney at law or any person authorised by the Minister.
The interpretation clauses of both bills are similar, with terms such as conversion, inducement, force and use of force, fraud and unethical defined in much the same and disquieting fashion. For example, in the government bill the term 'unethical' is defined as follows: 'the use of any procedure contrary to accepted norms of ethics that may be used to propagate a religion.'
It is patently clear that the prevention of conversions regime proposed by the two bills involve an invitation to massive intrusion by the State and its agents such as the police, magistrates and public servants. They would also institutionalise and impose by coercion a morality of regimented homogeneity on individuals regarding their personal conduct. It is particularly pernicious that this is sought to be done in respect of a person's religion: by any standard an intensely personal and private matter in which society and the State have no legitimate role to play.
This type of legislation is infamously prone to abuse, as has been the case in Tamil Nadu where similar legislation was enacted, and where anecdotal evidence demonstrates that the legislation provides a vehicle for the settling of scores wholly unrelated to acts of proselytisation. Incidentally, the experience of the disastrous consequences of the Tamil Nadu Forcible Conversion of Religion Ordinance 2002, has led to its imminent repeal.
In this way, the proposed regime would have a corrosive effect on inter-community as well as neighbourly human relations, and introduce a social ethos of division, suspicion and meanness akin to Communist societies and police states such as the East Germany of an earlier era. This would destroy the innate qualities of tolerance, goodwill and kindness that is inherent in humanity, and which naturally flourish if the State and majorities get out of the way.
One recoils from the ignorance, misguided nationalism and primeval viciousness that under-gird the thinking behind these proposed bills, and fervently hopes that they will not be enacted as a further assault on Sri Lanka's democratic way of life. In a different context, Friedrich von Hayek famously observed that the road from democracy to serfdom would be paved with governmental regulations. Despite the difference in context, the parallel is immediately and manifestly clear.