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1. The author of the
communication, initially dated 14 February 2004, is Sister Immaculate
Joseph, a Sri Lankan citizen and Roman Catholic nun presently serving as
Provincial Superior of the Teaching Sisters of the Holy Cross of the Third
Order of Saint Francis in Menzingen of Sri Lanka ('the Order'). She submits
the communication on her own behalf and on behalf of 80 other sisters of the
Order, who expressly authorize her to act on their behalf. They claim to be
victims of violations by Sri Lanka of articles 2, paragraph (1); article 18,
paragraph (1); article 19, paragraph (2), article 26 and article 27 of the
Covenant. The Optional Protocol entered into force for Sri Lanka on 3
January 1998. The authors are not represented by counsel.
FACTUAL BACKGROUND
2.1 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, who 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, [FN1] apparently by a private citizen ('the objector'),
was filed on 14 July 2003 in the original jurisdiction of the Supreme Court.
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[FN1]The contested clauses of the Bill were clauses 3 and 5, read with the
preamble. These provided:
Preamble.
"WHEREAS the Teaching Sisters of [the Order] have established themselves as
a Congregation for the propagation of Religion by establishing and
maintaining catholic schools and other schools assisted or maintained by the
State and engaged in educational and vocational training in several parts of
Sri Lanka and in establishing and maintaining orphanages and homes for
children and for the aged:
AND WHEREAS it has become necessary for the aforesaid purposes to be more
effectively prosecuted, pursued and attained to have the incorporation of
the [the Order]:
AND WHEREAS it has become expedient to have [the Order] duly incorporated"
Clause 3.
(a) The general objects for which the Corporation is constituted are hereby
declared to be -
(b) to spread knowledge of the Catholic religion;
(c) to impart religious, educational and vocational training to youth;
(d) to teach in Pre-Schools, Schools, Colleges and Educational Institutions;
(e) to serve in Nursing Homes, Medical Clinics, Hospitals, Refugee Camps and
like institutions;
(f) to establish and maintain Creches, Day Care Centres, Homes for the
elders, Orphanages, Nursing Homes and Mobile Clinics for the infants, aged,
orphans, destitutes and sick;
(g) to bring about society based on love and respect for one and all; and
(h) to undertake and carry out all such works and services that will promote
the aforesaid objects of the Corporation.
Clause 5 gave the authority to the corporation to receive, hold and dispose
of movable and immoveable property for the purposes set out in the Bill.
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2.2 Without advice of the objection or hearing to the Order, the Supreme
Court heard the objector and the Attorney-General on the matter. The authors
state that the Attorney-General, who was technically the respondent to the
proceedings, supported the objector's arguments. On 1 August 2003, the
Supreme Court handed down its Special Determination upholding the
application, for inconsistency with articles 9 and 10 of the Constitution.
The Court held that the challenged provisions of the Bill "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], defenseless and vulnerable people to propagate a
religion. The kind of [social and economic] 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." The
Court thus considered that "the Constitution does not recognize a
fundamental right to propagate a religion". In reaching its conclusions, the
Court referred to article 18 of both the Universal Declaration of Human
Rights and the Covenant, as well as two cases decided by the European Court
of Human Rights. [FN2]
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[FN2] Kokkinakis v Greece Appln. 14307/88, judgment of 19 April 1993, and
Larissis v Greece Applns. 23372/94, 26377/94 and 26378/94, judgment of 24
February 1998.
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2.3 The Court went on to examine the application in the light of article 9
of the Constitution, which provides that: "The Republic of Sri Lanka shall
give Buddhism the foremost place and accordingly it shall be the duty of the
State to protect and foster the Buddha Sasana, while assuring all religions
the rights granted by articles 10 and 14(1)(e)." The Court held, "the
propagation and spreading Christianity 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". In addition, subclauses 1(a) and (b) of
clause 3 concerned spreading knowledge of a religion, and were thus
inconsistent with article 9 of the Constitution.
2.4 The authors point out that in reaching these conclusions the Court
referred to decisions in two previous cases where similar bills for the
incorporation of Christian associations had been found to be
unconstitutional. The result of the decision, against which no appeal or
review was possible, was that Parliament could not enact the Bill into law
without a two-thirds special majority and approval by a popular referendum.
THE COMPLAINT
3.1 The authors claim that the above facts disclose violations of article 2,
paragraph 1, read with article 26, article 27, article 18, paragraph 1, and
article 19, paragraph 2. As to article 2, paragraph 1, read with article 26,
the authors argue that the Attorney-General's submissions in opposition to
the Bill and the Supreme Court's determination violated these rights. The
Attorney-General, not having recognized any constitutional infirmity under
article 77, was obliged as a matter of equality of law to take the same
position before the Court, doubly so given that the Order, although the
affected entity, was neither notified nor heard. The determination that
Clause 3 of the Bill was incompatible with article 9 of the Constitution was
moreover so irrational and arbitrary as to breach fundamental norms of
equality protected by article 26. With reference to the Committee's decision
in Waldman v Canada, [FN3] the authors argue that to reject the Order's
incorporation while many non-Christian religious bodies with similar object
clauses have been incorporated violates article 26. In support, the author
provides a (non-exhaustive) list of 28 religious bodies that have been
incorporated and their statutory objects, of which most have Buddhist
orientation, certain Islamic, and none Christian.
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[FN3] Case No 694/1996, Views adopted on 3 November 1999.
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3.2 In terms of article 27, the authors invoke the Committee's General
Comment 22 to the effect that the official establishment of a State religion
should not impair the enjoyment of others' Covenant rights. The Court's
reliance on the Buddhism primacy clause in article 9 to reject the Bill's
constitutionality thus violated article 27. The authors emphasize that, like
the lengthy list of other religious bodies receiving incorporation, the
Order combined charitable and humanitarian activities (labeled social and
economic activities by the Court) with religious ones, a practice common to
all religions. To require a religious body's adherents to limit good works
would be discriminatory, and contrary also to the objects of the other
religious bodies that received incorporation. Propagation of belief,
moreover, is an integral part of professing and practicing religion; indeed,
all major religions in Sri Lanka (Buddhism, Hinduism, Islam and
Christianity) were introduced by propagation. In any event, the authors
state that in the seventy years of the Order's existence in Sri Lanka, there
has neither been evidence nor allegation of inducements or allurements to
conversion. This aspect of religious practice is thus protected by the
rights of the Order's members under article 27 Covenant.
3.3 In terms of article 18, paragraph 2, and 19, paragraph 2, the authors
argue that the Court's restrictions on social and economic activities of the
Order breach its members' rights under these provisions. The right to
propagate and disseminate information about a religion is similarly covered
by these articles, and is not limited to a State's "foremost" religion. None
of the Order's activities are coercive, and thus paragraph 2 of article 18
has no application to the Order's legitimate activities. Invoking article 6
of the Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion and Belief as a guide to Covenant
interpretation, the author goes on to argue that the inability to hold
property in the name of the Order sharply limits its effective ability to
establish places of worship and charitable and humanitarian institutions.
The Attorney-General's submissions and the Supreme Court's ascription to the
Order of potentially coercive activities as a result of incorporation were
wholly unsubstantiated and unfounded in fact.
THE STATE PARTY'S SUBMISSIONS ON ADMISSIBILITY AND MERITS
4.1 By submissions of 15 April 2004 and 21 March 2005, the State party
contested the admissibility and merits of the communication. At the outset,
the State party described its understanding of the allegations as
three-fold: a) that the author was not afforded an opportunity of being
heard before the Supreme Court prior to the Court making its determination,
b) that the Attorney-General supported the petitioner's submissions before
the Supreme Court, and c) that the Supreme Court's determination itself
violated the author's Covenant rights.
4.2 As to the allegation that the authors were not afforded an opportunity
of being heard before the Supreme Court prior to the Court making its
determination, the State party explains that under article 78 of the
Constitution, any Bill shall be published in the Government gazette at least
seven days before being placed on the Order paper of Parliament. The
Constitution then lays down the procedure to be followed when a Bill is
placed on the Order paper in Parliament. The Supreme Court is vested, under
article 121 of the Constitution, with sole and exclusive jurisdiction to
determine whether a Bill or any provision thereof is inconsistent with the
Constitution. This jurisdiction may be invoked by the President by written
reference to the Chief Justice, or by any citizen addressing the Court in
writing. Either application must be filed within a week of the Bill being
placed on the Order paper of Parliament.
4.3 When the Court's jurisdiction has thus been invoked, no Parliamentary
proceedings may be held in relation to the Bill until three weeks have
elapsed or the Court has determined the matter, whichever occurs first. The
Court's proceedings take place in open court, and any person claiming to be
interested in the determination of the question can make an application to
the Court for intervenor status. The Court communicates its determination to
the President or the Speaker within three weeks of the application. In the
event that the Court finds an inconsistency, a special majority of
two-thirds of all members of Parliament must pass the Bill, while if the
Bill is in relation to articles 1 to 3 or 6 to 11, a people's referendum
must also approve the Bill. The members of Parliament are aware when any
Bill has been placed on the Order paper in Parliament.
4.4 The State party explains that the current Bill was presented as a
Private Member's Bill. As such, it had not been examined by the
Attorney-General under article 77 of the Constitution, and the
Attorney-General expressed no view on it. If the authors had wished to
intervene in the proceedings, they should have been vigilant to check with
the Court's Registry if any application had been filed with the Registry
within a week of the Bill being placed upon the Parliamentary Order paper.
Had such due diligence been exercised and an intervenor application been
made, there is no apparent reason why the Court would have refused the
application, which would have been unprecedented. Rather than being a
situation of denial of an opportunity to be heard therefore, it was a clear
case of an author not taking proper steps to avail herself of the
opportunity and the authors are now estopped from claiming otherwise.
4.5 As to the allegation that the Attorney-General supported the
petitioner's submissions before the Supreme Court, the State party observes
that when article 121 of the Constitution is invoked, the Constitution
provides for the Attorney-General to be notified and to be heard. At that
point, s/he is expected to consider the objections raised to the
constitutionality of the item under reference and assist the Court in its
determination. While the Attorney-General had not previously expressed a
view on the Bill's constitutionality, the Bill being a private Bill, even if
s/he had, it would be manifestly wrong and untenable to suggest s/he would
be bound by that earlier determination when addressing the issue in article
121 proceedings.
4.6 As to the contention that the Supreme Court's determination itself
violated the authors' Covenant rights, the State party argues that the
Supreme Court is not empowered to change the Constitution but only to
interpret it within the framework of its provisions. The Court considered
the submissions made, took into consideration previous determinations and
gave reasons for its conclusions. In any event, the authors, having failed
to exercise due diligence to secure their right to be heard, are estopped
from contesting the Court's determination in another forum. As a result,
with respect to all three allegations, the State party argues that the
authors have failed to exhaust domestic remedies.
4.7 The State party goes on to argue that the Supreme Court's determination
does not prevent the authors from carrying on their previous activities in
Sri Lanka. The State party argues that the Court's determinations in article
121 proceedings do not bind lower courts, and thus lower courts will not be
compelled to restrict their right to engage in legitimate religious
activity. Nor, for its part, does the Supreme Court's determination do so.
4.8 Moreover, the Court's determination does not prevent Parliament from
passing the Bill, which, while inconsistent with articles 9 and 10 of the
Constitution could still be passed by a special majority and referendum.
Alternatively, the constitutionally impugned provisions of the Bill could be
amended and the Bill resubmitted.
AUTHORS' COMMENTS ON THE STATE PARTY'S SUBMISSIONS
5.1 By letter of 30 May 2005, the authors argue that the State party has
confined itself to responding to three incidental allegations which do not
form the core of the author's case. The authors argue that the issue is not
whether the Court's determination prevents her from carrying on her
activities, but rather whether there was a violation of Covenant rights, for
the reasons detailed in the complaint. There is no remedy in domestic law
against the Supreme Court's determination, which is final and thus the
merits thereof are appropriately before the Committee.
5.2 As to the State party's response concerning the opportunity of being
heard, the authors emphasize that only the Speaker and Attorney-general
receive mandatory notice of an article 121 application, with there being no
requirement to notify affected parties such as, in the present case, those
involved in a Bill to incorporate a body. In some cases of Private member's
Bills, the Supreme Court has adjourned the hearing and notified the
concerned member of Parliament if s/he wishes to be heard. [FN4] In the
present case, neither the relevant member of Parliament nor the authors were
notified, amounting to a violation of article 2, paragraph 1, in connection
with article 26 of the Covenant.
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[FN4] The authors cite the example of a Bill entitled "Nineteenth amendment
to the Constitution" presented by a private member inter alia to make
Buddhism the State's official religion as an example.
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5.3 The authors argue that if the Attorney-General could deviate, in article
121 proceedings, from constitutional advice earlier provided, the whole
purpose of the earlier advice would be rendered nugatory. The ability to
change such opinions at will would leave room for gross abuse and
undoubtedly affect the rights of individuals, contrary to article 21, in
connection with article 26 of the Covenant. The authors go on to argue that
the State party's response to the Covenant challenge to the Supreme Court's
determination, to the effect that the Court made determination within the
applicable legal framework, is insufficient answer to her complaint.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
6.2 With respect to the exhaustion of domestic remedies, the Committee notes
the State party's argument that the authors did not exercise due diligence
with respect to confirming through the Parliamentary order paper and then
Supreme Court's registry whether an application under article 121 of the
Constitution had been lodged, and accordingly filing a motion wishing to be
heard. The Committee considers that, exceptional ex parte circumstances of
urgency apart, when a Court hears an application directly affecting the
rights of a person, elementary notions of fairness and due process contained
in article 14, paragraph 1, of the Covenant require the affected party to be
given notice of the proceeding, particularly when the adjudication of rights
is final. In the present case, neither members of the Order nor the member
of Parliament presenting the Bill were notified of the pending proceeding.
Given not least that in previous proceedings the Court, on the information
before the Committee, had notified members of Parliament in such
proceedings, the authors thus cannot be faulted for failing to introduce an
intervenor's motion before the Court. The Committee observes that there may
in any event be issues as to the effectiveness of this remedy, given the
requirement that complex constitutional questions, including relevant oral
argument, be resolved within three weeks of a challenge being filed, the
challenge itself coming within a week of a Bill's publication in the Order
paper. It follows that the communication is not inadmissible for failure to
exhaust domestic remedies.
6.3 As to the claim that the authors' rights under articles 2 and 26 of the
Covenant were violated by the Attorney-General contesting the
constitutionality of the Bill before the Court in circumstances where s/he
had previously expressed no view of constitutional infirmity, the State
party has explained without rebuttal that the Attorney-General's duty to
pass on the constitutionality of Bills at the initial stage does not apply
to Private member's Bills such as the present. Accordingly, the
Attorney-General's views expressed in the article 121 proceedings were his
or her first formal views on the matter and were not precluded by a
previously taken view. As a result, the Committee considers that this claim
is insufficiently substantiated, for purposes of admissibility, and is
accordingly inadmissible under article 2 of the Optional Protocol.
6.4 In the absence of any other objections to the admissibility of the
communication, and recalling in particular that the Covenant guarantees in
articles 18 and 27 freedom of religion exercised in community with others,
the Committee considers the remaining claims as pleaded to be sufficiently
substantiated, for purposes of admissibility, and proceeds to their
consideration on the merits.
CONSIDERATION OF THE MERITS
7.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1 of the Optional Protocol.
7.2 As to the claim under article 18, the Committee observes 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. [FN5] The authors have advanced, and
the State party has not refuted, that incorporation of the Order would
better enable them to realize 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.
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[FN5] See Malakhovsky et al. v Belarus, Case No 1207/2003, Views adopted on
26 July 2005, and Article 6 of the Declaration on the Elimination of All
Forms of Intolerance and of Discrimination Based on Religion or Belief, GA
Resolution 36/55 of 25 November 1981, which provides: ".... the right to
freedom of thought, conscience, religion or belief shall include, inter
alia, the following freedoms: ...
(b) the right to establish and maintain appropriate charitable or
humanitarian institutions".
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7.3 In the present case, the State party has not sought to justify the
infringement of rights other than by reliance on the reasons set out in the
decision of the Supreme Court itself. The decision considered that the
Order's activities would, through the provision of material and other
benefits to vulnerable people, coercively or otherwise improperly propagate
religion. The decision failed to provide any evidentiary or factual
foundation for this assessment, or reconcile this assessment with the
analogous benefits and services provided by other religious bodies that had
been incorporated. Similarly, the decision provided no justification for the
conclusion that the Bill, including through the spreading knowledge of a
religion, would "impair the very existence of Buddhism or the Buddha Sasana".
The Committee notes moreover that the international case law cited by the
decision does not support its conclusions. In one case, criminal proceedings
brought against a private party for proselytisation was found in breach of
religious freedoms. In the other case, criminal proceedings were found
permissible against military officers, as representatives of the State, who
had proselytised certain subordinates, but not for proselytising private
persons outside the military forces. In the Committee's view, the grounds
advanced in the present case therefore were insufficient to demonstrate,
from the perspective of the Covenant, that the restrictions in question were
necessary for one or more of the enumerated purposes. It follows that there
has been a breach of article 18, paragraph 1, of the Covenant.
7.4 As to the claim under article 26, the Committee refers to its long
standing jurisprudence that there must be a reasonable and objective
distinction to avoid a finding of discrimination, particularly on the
enumerated grounds in article 26 which include religious belief. In the
present case, the authors have supplied an extensive list of other religious
bodies which have been provided incorporated status, with objects of the
same kind as the authors' Order. The State party has provided no reasons why
the authors' Order is differently situated, or otherwise why reasonable and
objective grounds exist for distinguishing their claim. As the Committee has
held in Waldman v Canada, [FN6] therefore, such a differential treatment in
the conferral of a benefit by the State must be provided without
discrimination on the basis of religious belief. The failure to do so in the
present case thus amounts to a violation of the right in article 26 to be
free from discrimination on the basis of religious belief.
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[FN6] Op.cit.
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7.5 As to the remaining claim that the Supreme Court determined the
application adversely to the authors' Order without either notification of
the proceeding or offering an opportunity to be heard, the Committee refers
to its considerations in the context of admissibility set out in paragraph
6.2. As the Committee observed in Kavanagh v Ireland, FN7 the notion of
equality before the law requires similarly situated individuals to be
afforded the same process before the courts, unless objective and reasonable
grounds are supplied to justify the differentiation. In the present case,
the State party has not advanced justification for why, in other cases,
proceedings were notified to affected parties, whilst in this case they were
not. It follows that the Committee finds a violation of the first sentence
of article 26, which guarantees equality before the law.
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[FN7] Case No 819/1998, Views adopted on 4 April 2001.
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7.6 In the Committee's view, the claims under articles 19 and 27 do not add
to the issues addressed above and do need to be separately considered.
8. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is 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.
9. In accordance with article 2, paragraph 3 (a), of the Covenant, the State
party is under an obligation to provide the authors with an effective remedy
giving full recognition to their rights under the Covenant. The State party
is also under an obligation to prevent similar violations in the future.
10. Bearing in mind that, by becoming a party to the Optional Protocol, the
State party has recognized 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.
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Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly. |
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