Violation of ICCPR Articles recognised.
The authors state that the Order, established in 1900, is engaged, among other things, in teaching and other charity and community work, which it provides to the community at large, irrespective of race or religion.
In July 2003, the Order filed an application for incorporation, which in Sri Lanka occurs by way of statutory enactment. The Attorney-General, whom the authors maintain is required by Article 77 of the Constitution to examine every Bill for consistency with the Constitution, made no report to the President.
After the Bill was published in the Government Gazette, an objection to the constitutionality of two clauses of the Bill, when read with the preamble, apparently by a private citizen (‘the objector’), was filed on 14 July 2003 in the original jurisdiction of the Supreme Court.
The author claimed that the decision of the Sri Lankan Supreme Court where the Court found that the incorporation of the said religious Order in question was unconstitutional citing it was inconsistent with Articles 9 and 10 of the Sri Lankan Constitution, was a violation of Article 2 (1) read with Articles 26,27 and Article 18 (1) and Article 19 (2) ICCPR.
FoRB violation – Manifestation: worship, observance, practice, teaching; Discrimination
As to the claim under Article 18, the Committee observed that, for numerous religions, including according to the authors, their own, it is a central tenet to spread knowledge, to propagate their beliefs to others and to provide assistance to others. These aspects are part of an individual’s manifestation of religion and free expression, and are thus protected by article 18, paragraph 1, to the extent not appropriately restricted by measures consistent with paragraph 3. 5.
The authors have advanced, and the State party has not refuted, that incorporation of the Order would better enable them to realise the objects of their Order, religious as well as secular, including for example the construction of places of worship. Indeed, this was the purpose of the Bill and is reflected in its objects clause. It follows that the Supreme Court’s determination of the Bill’s unconstitutionality restricted the authors’ rights to freedom of religious practice and to freedom of expression, requiring limits to be justified, under paragraph 3 of the respective articles, by law and necessary for the protection of the rights and freedoms of others or for the protection of public safety, order, health or morals.
While the Court’s determination was undoubtedly a restriction imposed by law, it remains to be determined whether the restriction was necessary for one of the enumerated purposes. The Committee recalls that permissible restrictions on Covenant rights, being exceptions to the exercise of the right in question, must be interpreted narrowly and with careful scrutiny of the reasons advanced by way of justification’.
The Human Rights Committee was of the view that the facts as found by the Committee reveal violations by Sri Lanka of Articles 18, paragraph 1, and 26 of the Covenant.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognised the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to Article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, and to provide an effective and enforceable remedy in case a violation has been established, the Committee expects to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee’s Views.
The State party is also requested to publish the Committee’s Views.