Keeping the Peace: A study of the Faril case.
The case of M.J.M. Faril et al v. Bandaragama Pradeshiya Sabha et al, is significant for its reflection of the law on FoRB in Sri Lanka, particularly in terms of minority groups.
The case was filed by the President of the Board of Trustees of the Wekada, Jumma Mosque and the Principal of the Anas Ibnu Malik Hiflul Quran Madrasa (Dhamma School), both in Panadura. The dispute in question concerned the construction of a building in the area. The fundamental rights application filed complained of violations of Articles 10, 12(1), 12(2), and 14(1)(e) of the Constitution due to, inter alia, the suspension of construction work carried out by the Petitioners. Buddhist monks and residents of the area had engaged in protests against the construction of a building being carried out by the Petitioners. The protestors claimed that the Petitioners had only obtained permission to build a school in the area, but that they were in fact building a Mosque. The Supreme Court dismissed the petition, and upheld the decision to suspend the said construction.
The Faril case is reflective of an important trend evident in Public Law, in relation to FoRB.
Sri Lanka’s FoRB jurisprudence reflects a clear trend of compromising on FoRB related rights – particularly those of minorities – in an attempt to maintain ‘peace’ in the community. The Faril case is a clear example of this. In this case, Court stated, inter alia:
‘The villagers, residents and Buddhist Monks vehemently protested for any further construction for a different purpose. Our country had suffered over the years as a result of communal violence. History repeats and if one were to analyse as to what happened in the 1915 riots, though it was meaningless for the two communities to clash, lessons have not been learnt by a certain section of the community. Riots at that point of time resulted in loss of valuable life and property. Time and again incidents of such nature took place in our country. As such the official respondents had to take steps to avoid and avert any breach of peace.
Court further noted that:
‘What is necessary should be done to avoid a crisis situation which could spread to other areas of our country. No further reasons need to be adduced in the circumstances of the case in hand by the Respondents’.
The Court held that it cannot conclude that the petitioners were denied equal protection of the law.
Court further upheld the application of a circular requiring that, inter alia, any person who constructs a Dharmma School must obtain the approval of the Ministry of Religious Affairs:
The 3rd Respondent, by letter marked P14, directed the 1st Petitioner to stop constructions of the new building as he has not obtained approval of the Religious Affairs Ministry. The 3rd Respondent had, in the letter marked P14, referred to the Circular No. MBRA/2-SAD/10/Con.Gen/2013. The 3rd Respondent has produced this Circular as 3A R4 (e). According to this Circular (3A R4 (e) any person who constructs a Dharmma School has to obtain the approval of the Ministry of Religious Affairs. The Petitioners had not obtained the approval of the Ministry of Religious Affairs. Learned President’s Counsel for the Petitioner tried to contend that this Circular does not come within the interpretation of law. I now advert to this contention.
“Law” in Article 12 of the Constitution includes regulations, rules, directions, principles, guidelines and schemes that are designed to regulate public authorities in their conduct. In the context, whilst Article 12 erects no shield against merely private conduct, public authorities must conform to constitutional requirements, in particular to those set out in Article 12 even in the sphere of contract; and where there is a breach of contract and a violation of the provisions of Article 12 brought about by the same set of facts and circumstances, the aggrieved party cannot be confined to his remedy under the law of contract.
When I consider the above judicial decision I cannot agree with the above contention. I therefore reject it. As the Petitioners have not obtained the approval of the Ministry of Religious Affairs to construct the proposed Dhamma School, the stand taken 14 by the 3rd Respondent in P14 is correct. Therefore the application to declare P14 null and void should be rejected.
In this case, as in many others, the decision to prevent a breach of the peace by suspending the activity of a minority community, as opposed to ensuring that members of the majority community did not interfere with the lawful rights of another group, is upheld by Court.
This trend is also reflected in Sri Lanka’s lower Courts. In M. Shelton Jayaweera v Manchanayake Kalum Nishantha Manchanyake and others, the High Court upheld the decision of the Magistrate’s Court to temporarily suspend the Respondent-Petitioner’s congregation from gathering, on the basis that this was causing a nuisance in the area. Court further held that the Respondent- Petitioner’s fundamental rights cannot be exercised in such a way as to case nuisance to others. Court held that the interim order in question aimed, not to obstruct the freedom of religion of the Respondent-Petitioner, but to avoid a ‘crisis situation’. Interestingly, the ‘crisis situation’ that the Court refers to was not directly created by the Respondent-Petitioner’s religious conduct, but by the response to it of others in the area.
In the case of Badalgama Vipulasiri Thero and others v Kuppuswamy Wijayan and Nadkunam Manogaran area residents – including a local Buddhist monk – complained of a ‘public nuisance’ caused by a church. Court issued an injunction pending inquiry under section 104 (1) of the Code of Criminal Procedure Act against the Church prohibiting further church activity, on the basis that the activities of the said Church generates loud noises so as to constitute noise pollution in the area. Accordingly, an injunction pending inquiry was issued against the Christian Family Church to prohibit further church activities.
A criteria for restrictions on rights
A contrasting approach to respecting the FoRB – especially of minority groups – in the context of sometimes strong public sentiment concerning an issue is evident by the Indian Supreme Court in the Bijoe Emmanuel & Others vs State of Kerala & Others. In this case the appellant’s three children belonging to Jehovah’s Witnesses faith were expelled from school since they refused to sing the Indian national anthem. They claimed that the singing of the national anthem was against the tenets of their religious faith. Court held that the expulsion violated their fundamental right to freedom of conscience and to freely profess, practice and propagate religion. Court further held:
‘Article 25(1) itself expressly subjects the right guaranteed by it to public order, morality and health and to the other provisions of Part III, on the other hand, the State is also given the liberty to make a law to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice and to provide for social welfare and reform, even if such regulation, restriction or provision affects the right guaranteed by Art. 25(1). Therefore, whenever the Fundamental Right to freedom of conscience and to profess, practise and propagate religion is invoked, the act complained of as offending the Fundamental Right must be examined to discover whether such act is to protect public order, morality and health, whether it is to give effect to the other provisions of Part III of the Constitution or whether it is authorised by a law made to regulate or restrict any economic, financial political or secular activity which may be associated with religious practise or to provide for social welfare and reform.’
The Indian Supreme Court further held that the ‘question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Art. 25 but subject, of course, to the inhibitions contained therein’.
Consideration of the activities of religious groups must, as in any other case involving public nuisance, be based on an objective assessment of the activity itself, and whether it can be reasonably be considered to be an infringement on the rights and freedoms of others.
For example, the Indian Supreme Court in the case Church of God (Full Gospel) in India v K.K.R.M.C Welfare Association, held that directions may be issued to control noise pollution, even if such noise was generated by religious activities. Court held that,
‘The questions involved in this appeal are that in a country having multiple religions and numerous communities or sects, whether a particular community or sect of that community can claim right to add to noise pollution on the ground of religion? Whether beating of drums or reciting of prayers by use of microphones and loudspeakers so as to disturb the peace or tranquility of neighbourhood should be permitted? Undisputedly no religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice-amplifiers or beating of drums. In our view, in a civilized society in the name of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or during day-time or other persons carrying on other activities cannot be permitted. It should not be forgotten that young babies in the neighbourhood are also entitled to enjoy their natural right of sleeping in a peaceful atmosphere. A student preparing for his examination is entitled to concentrate on his studies without their being any unnecessary disturbance by the neighbours. Similarly, old and infirm are entitled to enjoy reasonable quietness during their leisure hours without there being any nuisance of noise pollution. Aged, sick, people afflicted with psychic disturbances as well as children up to 6 years of age are considered to be very sensible to noise. Their rights are also required to be honoured…
…on true and proper construction of the provision of Article 25(1), read with Article 19(1)(a) of the (Indian) Constitution, it cannot be said that a citizen should be coerced to hear anything which he does not like or which he does not require…Enjoyment of one’s rights must be consistent with the enjoyment of rights also by others. Where in a free play of social forces it is not possible to bring about a voluntary harmony, the State has to step in to set right the imbalance between competing interests’.
The need for a strict criteria for limitations on rights—particularly when they are based on potentially vague interests such as ‘public order’ or ‘public health or morals’—is especially clear in cases involving highly political considerations, such as those discussed above. The proportionality test is often used by courts and treaty bodies tasked with assessing the permissibility of a limitation (Eg: Eweida and Others v United Kingdom.). Criteria when determining the proportionality a limitation typically includes: (1) that it be prescribed by law; (2) that it protect a legitimate aim; (3) that it is necessary in a democratic society; and (4) that it is proportionate, i.e. its benefits outweigh the harm it causes to the party concerned. The UN Human Rights Committee has applied additional normative constraints such as the principle of non-discrimination (eg: Sonia Yaker v France and Miriana Hebbadj v France,). Applying such criteria and constraints such as those considered in the above cases will better ensure that limitations placed on FoRB will only be upheld when they are legally justifiable, and not merely to advance majoritarian interests.
There is no question that maintaining peaceful relations among communities must be treated as an important factor by public officials in their decision making processes. It is equally important to recognize however, that respecting the rights of all peoples is a crucial prerequisite to this. As this country’s history has shown time and again, permitting the infringement of the rights of minority groups in order to appease the majority is at best, a short term solution to a long term issue, and will not keep the peace for long.