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The Menzingen Determination and the Supreme Court: A Liberal Critique

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Asanga Welikala

The Supreme Court delivered a determination in August this year on a challenge to a Private Member's Bill which sought to incorporate an order of nuns of the Roman Catholic Church. The Supreme Court has in recent years dealt with two very similar cases wherein Bills for the incorporation of two Christian bodies were held to be unconstitutional. This bench followed those rulings in substance while also invoking for the first time since this Constitution was promulgated in 1978, the foremost place of Buddhism guaranteed by Article 9.

The freedom of religion as an aspect of political liberty and the role of the State therein is a vexed problem in even the most tolerant of societies. The ramifications of the acts of a Supreme Court in relation to such an emotive issue in a multi-religious and fragmented society like ours then, have a signal importance. In a constitutional democracy, the judicial organ of the State can by its actions dissipate tensions in a way other organs subject to electoral politics and pressures cannot. Or it can exacerbate those tensions in a way that fundamentally weakens the credibility of the institutions - the multicultural legitimacy - of the State.

In our particular constitutional scheme where a certain pre-eminence is given to the religion of the majority moreover, the Supreme Court's role as constitutional adjudicator and protector of minority interests assumes central significance. This case brings to surface such difficult yet interesting constitutional, political and social issues in relation to the well established democratic right to the freedom of religion and conscience. Although it will be focussing on the determination from the prism of the judicial role, constitutional democracy and multicultural legitimacy, the scope of this short discussion will be restricted to the reasoning of the court and the manner of its use of authorities. This will be undertaken with a view to highlighting some of the other avenues of thinking that were available to the court, but which it chose not to follow.

Despite the narrow focus, a contextual note about the judicial function of constitutional adjudication in a plural democratic society is not out of place. The issues that the Supreme Court had to confront were no doubt extremely complicated ones that go to the root of Sri Lankan democracy. The court's task in the exercise of its constitutional jurisdiction was, therefore, to weigh the competing interests and deliver a reasoned and reasonable balance. This is a central expectation of a Supreme Court in a multicultural society. Viewed against such an expectation, the entire tenor of the court's reasoning is perplexing. To make matters worse, the order of nuns was not directly represented and the Attorney General supported the grounds urged by the petitioner. In a situation where the procedural right of the nuns to be represented was exercised by the Attorney General as public defender, this attitude on the part of the latter is utterly unacceptable.

Article 121 of the Constitution relates to the constitutional jurisdiction of the Supreme Court. Accordingly, any citizen may petition the court within one week of a Bill being placed on the Order Paper of Parliament. In this case, Anula Irangani Fernando petitioned the court contending that the Bill was in contravention of Articles 9, 10, 14 (1) (e) and 76 (1) of the Constitution.

Article 9 relates to the foremost place of Buddhism and the State's duty, subject to the provisions of Articles 10 and 14 (1) (e), to protect and foster that religion. Article 10, which is an absolute right by being exempt from the limitations on fundamental rights set out in Article 15, states that "every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice." Article 14 (1) (e) provides that "Every citizen is entitled to the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice or teaching." This right is subject to certain restrictions that may be prescribed by law under Article 15 (7), for the purpose of, inter alia, "securing recognition and respect for the rights and freedoms of others."

The Private Member's Bill sought to incorporate a body called the "Provincial of the Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka." The petition was grounded upon the preamble and clauses 3 and 5 of the Bill. The preamble alludes to the "propagation of religion" by a wide engagement in the sphere of education and training, as well as by providing shelter to orphans, children and the aged. Clause 3 sets out the objects of incorporation, and while reiterating the object of "[spreading] knowledge of Catholic religion" enumerates in further detail the reasons for incorporation given in the preamble. Clause 5 seeks to give authority to the incorporated body to hold and alienate property.

The petitioner's contentions with regard to the construction of the preamble and clauses 3 and 5 of the Bill were accepted in their entirety by the court. In essence, these were that the statutory authority sought to be given to the order to hold and alienate property whilst also having the right to "impart religious, educational and vocational training to youth, to teach in pre-schools, schools, colleges and educational institutions, to serve in nursing homes, medical clinics, hospitals and refugee camps with the object of propagating the religion...would necessarily result in alluring or converting of persons of other religions to the faith that is sought to be spread." (p.5)

The court agreed with the petitioner that the Bill would "...create a situation which combines the observance and practice of a religion or belief with activities which would provide material and other benefits to the inexperience [sic], defenceless and vulnerable people to propagate a religion. The kind of activities projected in the Bill would necessarily result in imposing unnecessary and improper pressures on people, who are distressed and in need, with their free exercise of thought, conscience and religion with the freedom to have or to adopt a religion or belief of his choice as provided in Article 10 of the Constitution. What Article 10 postulates is to adopt a religion or belief of his or her choice and the execution of improper inducement would not be compatible with such a provision [sic]." (p.10)

Thus the Supreme Court's view was that the unfettered freedom of thought, conscience and religion of vulnerable groups such as children, the ill and the elderly, as guaranteed under Article 10 required the court's protection against predatory actors who seek to allure and convert such persons by the use of material or economic rewards.

Article 14 (1) (e) was interpreted by recourse to the way the Supreme Court of India has on one occasion constructed the apposite Article 25 (1) of the Indian Constitution. The Indian Constitution included the right to propagate religion as part of its religious freedoms and was the result of a solemn pre-constitutional compromise with the Christian minority. However in the case of Rev. Stainislaus v. State of Madhya Pradesh and Others (1977) AIR 908 (SC), which our Supreme Court in this and other instances has been wont to follow, Chief Justice Ray argued that the term 'propagate' meant the following: "...what the Article grants is not the right to convert another person to one's own religion, but to transmit or spread one's religion by an exposition of its tenets."

The decision in Rev. Stainislaus v. State of Madhya Pradesh and Others has been severely criticised by H. M. Seervai in his standard tome on the Constitutional Law of India (1996) (4th Ed.) (Universal). He argues (see pp. 1286 to 1290) that conversion is a part of the Christian religion and that conversion by persuasion is a legitimate part of the exercise of the right to religion. Conversion by force or fraud may be curtailed, but insofar as A preaches to B with a view to converting him, and B converts as an exercise of his free will, then what we have is a situation in which A and B are both exercising two elements of the same democratic freedom. The freedom of religion and conscience is found in democratic constitutions for precisely the same reason as for example, freedom of expression. It is founded on the belief in free choice and individual autonomy. The freedom to change one's religion is meaningless if a person does not have the opportunity of being persuaded. Seervai adduces the decision of the Orissa High Court in Yulitha Hyde v. State (1973) AIR 116 (Orissa) in support of his argument. In this case, it was established by evidence that conversion was part of the Christian religion and a State Act that sought to criminalise conversion was held to be unconstitutional. Dr. Jayampathy Wickremaratne PC, discussing this issue in his book Fundamental Rights in Sri Lanka (1996) (Navrang) submits that Seervai's is the better view (see pp.104 to 105).

With respect, our Supreme Court ought to have at least considered these alternative arguments in its determination of the constitutionality of the Menzingen Sisters Bill. The point that our Articles 10 or 14 (1) (e) do not contain the word 'propagate' was advanced as establishing, perforce, the proposition that our constitutional drafters expressly excluded the right to propagate. However, if the Supreme Court had asked itself the question whether propagation was a part of the manifestation of the Christian religion, the conclusions it may have arrived at in construing Article 14 (1) (e) would have been entirely different. A more permissive interpretation of Article 14 (1) (e) could easily encompass propagation as being within the meaning of the freedom to manifest one's religion in "practice and teaching." On the other hand, democracies are predicated on the supremacy of individual free choice, which cannot be meaningfully exercised if there are no options to choose from.

The petitioner also claimed that the propagation of religion as postulated in Clause 3 of the Bill by an incorporated Christian body would "impair the very existence of the Buddha Sasana" that is protected by Article 9. This outrageous claim was upheld by the court employing the same line of reasoning as it adopted in respect of Articles 10 and 14 (1) (e). The court stated that "What is guaranteed under the Constitution is the manifestation, observance and practice of one's own religion and the propagation and spreading Christianity [sic] as postulated in terms of clause 3 [of the Bill] would not be permissible as it would impair the very existence of Buddhism or the Buddha Sasana." (p. 12) In what is perhaps the most logically implausible pronouncement in the entire judgment, the court went on to state that sub clauses 3 (1) (a) and (b) of the Bill "...speak not merely of spreading of a religion, but spreading knowledge of a religion." (p. 13)

Thus the Supreme Court's attitude seems to be that not only must the State provide patronage and protection to the religion of the majority, but also as a necessary corollary, the State must place fetters on the religion of a minority. The manifest injustice of such a response by the Supreme Court (ostensibly of all Sri Lankans) must be underlined, because, in this respect, there are at least two other lines of construction that the court could have considered.

Article 9 represents a most regressive feature of our Constitution, in that it entrenches as a duty of the State, the special treatment of one religion in a polity that has been multi-religious since time immemorial. It is this type of institutionalised majoritarianism that has led to the illegitimation of the Sri Lankan State in the eyes of those who are not Sinhala Buddhists. As constitutional adjudicator, it is the Supreme Court's duty to bring the Constitution into democratic modernity. Invoking Article 9 twenty five years after its promulgation as part of a constitutional schema that is imminently to be radically overhauled is in this context, mystifying. Thus if the court was particularly concerned about protecting those it sees as vulnerable to pernicious conversion, it could have merely found for the petitioner in respect of Article 14 (1) (e), and left Article 9 well alone.

Alternatively, the court could have scrutinised the wording of Article 9 more closely with a view to giving it an interpretation that is less jarring to the sensitivities of non-Buddhist Sri Lankans. As described earlier, Article 9 declares the foremost place of Buddhism and the State's duties in this regard, "while assuring to all religions the rights granted by Articles 10 and 14 (1) (e)." If the court had raised the questions as discussed above with regard to the evangelical element of the Christian faith, and established on evidence that propagation was part and parcel of such faith, then, the court would have been able to construe the latter part of Article 9 in a way that is more harmonious with the rights of non-Buddhist religionists guaranteed under Articles 10 and 14 (1) (e). There is something decidedly illiberal about constitutional or legal constraints on the way a religion must be structured and practiced. Therefore, as a matter of constitutional adjudication, the Supreme Court in giving effect to such provisions must strive to uphold the interpretation that promotes pluralism and the rights of minorities. The argument applies a fortiori where exclusivist majoritarianism finds constitutional expression.

The Supreme Court in coming to the conclusions discussed above also relied upon two judgments of the European Court of Human Rights, viz., Larissis and Others v. Greece ECHR 140/1996/759/958-960, and Kokkinakis v. Greece ECHR 3/1992/348/421. The way in which the court employed these authorities is remarkable, in that a fuller examination of those judgments reveal that they may not after all be authorities for the propositions that the Supreme Court was seeking to establish. On the other hand, our Supreme Court in applying ECHR authorities on previous occasions has been careful to also adopt the sequential legal tests that that court employs in determining the violation of a protected right. See for example Sunila Abeysekera v. Ariya Rubesinghe and Others (2000) 1 SLR 314, where (and how) Justice A. R. B. Amerasinghe introduced a useful body of ECHR case-law into local jurisprudence with regard to freedom of expression. In this determination, the court has selectively used the dicta of the ECHR without adequate justificatory reasoning or even consideration of all the circumstances of those cases.

The two cases are similar in the sense that both were applications to the ECHR against convictions in the Greek national courts under the same anti-proselytism law. The two relevant legislative acts were passed in the 1930s during the regime of the Greek dictator Metaxas, and were designed to persecute non-Orthodox Church Christians. The laws, for instance, allowed for police surveillance of those convicted of proselytisation in addition to criminal penalties. It is relevant to note here that the ECHR, as a supra-national institution and whose jurisdiction depends on the consent of State-parties to the Convention, cannot deconstruct the constitutionality of domestic laws as determined by municipal courts. Thus the domestic finding of constitutionality of the anti-proselytism laws, although impugned by the applicants in both the above cases, was not an issue for the ECHR to reopen or determine (see the explanation of the ECHR in para. 40 of the Kokkinakis judgment).

In the case of Larissis, three officers of the Greek Air Force were convicted by the Greek courts under the anti-proselytism law for proselytising three subordinate Airmen and several civilians: members of the Bairamis family and a Mrs. Anastassia Zounara. The three officers applied to the ECHR alleging, inter alia, violation of Article 9 of the European Convention of Human Rights which guarantees the freedom of religion. The ECHR considered the cases against the applicants in respect of the Airmen and the civilians separately, since, as the court observed, "...different factors come into the balance in relation to the proselytising of the airmen and that of the civilians..." (para. 46; emphasis added)

With regard to the proselytisation of the Airmen, the court observed "...that it is well established that the Convention applies in principle to members of the armed forces as well as to civilians. Nevertheless, when interpreting and applying its rules in cases such as the present, it is necessary to bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces." (para. 50) The ECHR went on to note that, "In this respect...the hierarchical structures which are a feature of life in the armed forces may colour every aspect of the relations between military personnel, making it difficult for a subordinate to rebuff the approaches of an individual of superior rank or to withdraw from a conversation initiated by him. Thus, what would in the civilian world be seen as an innocuous exchange of ideas which the recipient is free to accept or reject, may, within the confines of military life, be viewed as a form of harassment or the application of undue pressure in abuse of power. It must be emphasised that not every discussion about religion or other sensitive matters between individuals of unequal rank will fall within this category. Nonetheless, where the circumstances so require, States may be justified in taking special measures to protect the rights and freedoms of subordinate members of the armed forces." (para. 51; emphasis added) It was in this way that the ECHR concluded that the Greek authorities were in principle justified in prosecuting the officers with regard to the proselytisation of the Airmen.

The ECHR came to the opposite conclusion with regard to the convictions for the proselytisation of civilians. The court found it "...of decisive significance that the civilians whom the applicants attempted to convert were not subject to pressures and constraints of the same kind as the airmen." (para. 59) Therefore the pivotal nature of the relationship between superior officers and subordinate men in military life cannot be replicated with regard to a civilian relationship as a matter of judicial reasoning. It followed that the ECHR found a violation of the applicant officers' rights under Article 9 of the Convention as the "measures taken against" them were not justified in the circumstances of the case.

The Supreme Court in the Menzingen case adduced the dicta in Larissis on the military officer - subordinate relationship in order to impute the same character to the thoroughly civilian relationships of "...teacher - student, nurse / doctor - patient, curator - refugee and that of guardian - minor." (p. 9) The court went on to state, "In a situation where toddlers, children, invalids, aged and refugees are concerned, they would be in a similar or a worse position as that of an airman under a superior officer in an air force, and the reasoning of the European Court to the susceptibility of subordinate officers to superiors should apply with greater force." (p. 9) In view of the preceding discussion of the Larissis case, it is questionable whether the ECHR judgment is proper authority for the Supreme Court's argument.

The Supreme Court's observations with regard to Clause 5 of the Menzingen Sisters Bill, regarding the power sought to be given to the incorporated Provincial to hold and alienate property has been discussed above. That is, in the view of the court, Clause 5 was evidence of the intention of the incorporated Provincial to "provide material and other benefits to the inexperience, defenceless and vulnerable people to propagate a religion [sic]." (p. 10) The observations of the ECHR in the case of Kokkinakis about the distinction between "bearing Christian witness" and "improper proselytism" (at para. 48) was cited by the court in support of this finding.

The ECHR was in turn alluding to a 1956 report of the World Council of Churches on this matter. Interestingly, according to the relevant extract, "bearing Christian witness...corresponds to true evangelism...[and is] an essential mission and a responsibility of every Christian and every church." Per contra, "improper proselytism...represents a corruption or deformation of [true evangelism]. It may, according to the same report, take the form of activities offering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others." (Kokkinakis; para. 48) It is this definition of improper proselytism that the Supreme Court found pertinent for its construction of the potential effect of Clauses 3 and 5 of the Bill.

The observations of the ECHR must be placed in context. The ECHR enforces the European Convention of Human Rights and Fundamental Freedoms which in Article 9, provides as follows:

Art. 9 (1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

(2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Thus it can be seen that the freedom of religion while extensive, is also subject to certain limitations based on the legitimate aims enumerated in Article 9 (2) of the Convention. However, the ECHR in deciding the legality of a restriction place on the free exercise of the right in Article 9 (1), must ascertain whether it was prescribed by law, in the pursuit of a legitimate aim, and finally, on a test of proportionality, whether it was necessary in a democratic society. This is the legal framework in which the ECHR constructs the facts relating to alleged violations of rights guaranteed by the Convention.

In the Kokkinakis case, a Jehovah's Witness was convicted for proselytising a member of the Greek Orthodox Church, and he in turn applied to the ECHR claiming, inter alia, a breach of Article 9. On the facts, the ECHR found that the restriction (imposed by the Greek anti-proselytism laws described above) on the applicant's freedom of religion was prescribed by law, and that such restriction was in pursuit of a legitimate aim, namely, the protection of the rights and freedoms of others. However, the ECHR found that Greek courts "...did not sufficiently specify in what way the accused had attempted to convince his neighbour by improper means. None of the facts they set out warrants that finding. That being so, it has not been shown that the applicant's conviction was justified in the circumstances of the case by a pressing social need. The contested measure [i.e., the conviction of the applicant] therefore does not appear to have been proportionate to the legitimate aim pursued or, consequently, 'necessary in a democratic society ... for the protection of the rights and freedoms of others.' (para. 49) For these reasons the ECHR concluded that there had been a breach of Article 9 (para. 50)

It appears then that the Supreme Court's use of Kokkinakis was ill-advised. Firstly because the conclusion of the ECHR regarding religious freedom in that case was in substance contrary to the conclusions of the Supreme Court with respect to the Menzingen Sisters Bill. Secondly, the Supreme Court in citing Kokkinakis on improper proselytism did not engage in any even faintly efficacious process of reasoning whereby it could substantiate its findings in relation to Clauses 3 and 5 of the Bill. Rather, having selectively chosen an extract out of context in the judgment of the ECHR as authority, the court merely asserted its conclusion that the effect of Clauses 3 and 5 necessarily entailed a contravention of Article 10 of the Constitution. This is indeed regrettable.

Concluding this discussion then, from the viewpoint of plural democracy, the rights of multicultural citizenship and for all the other reasons advanced above, one hopes, even if rather plaintively, that this clumsy, lamentable judgment will never be a source of authority for a future Supreme Court.


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