Human rights

INSULTHING OF BUDDHA SASANA IS CHALLENGED IN SUPREME COURT

IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

In the matter of an application under and in terms of Article 17 and 126 of the Constitution of the Democratic Socialist  Republic of Sri Lanka

Nagananda Kodituwakku,

99, Subadrarama Road

Nugegoda

Petitioner

 SCFR/ 309/2016

                                                                                                                       V.

  1. The Attorney General,

The Attorney General’s Department,

Colombo 12.

  1. C. V. Wigneswaran,

The Chief Minister of Northern Provincial Council,

The Chief Minister’s Office,

Kandy Road,

Kaithady.

  1. Reginold Cooray

The Northern Province Governor

Governor’s Secretariat, Old Park,

Kandy Road, Chundukuli

Jaffna

  1. Wijeyadasa Rajapakse,

The Minister of Buddha Sasana and Justice,

No 135, Srimath Anagarika Dharmapala Mw,

Colombo 07.

  1. Attorney General,

The Attorney General’s Department,

Colombo-12.

                                                  Respondents

         TO: HON’ CHIEF JUSTICE AND OTHER HONOURABLE JUDGES IN THE SUPREME COURT OF THE            DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

          On this 07th day Sep 2016

  1. The PETITION of the Petitioner, above named, an Attorney-at-Law by profession and a Public Interest Litigation Activist, appearing in person states as follows.

          (A true copy of the Bar Association Identity Card of the Petitioner marked as P1 is attached hereto)

  1. The Petitioner states that, this Petition is presented to Your Lordship’s Court, in exercising his humble and faithful duty, as per his Constitutional Oath, to uphold and defend the Constitution and the Rule of Law whilst fostering National Unity in protecting ethnic harmony amongst all communities purely in the National Interest;and to work conscientiously in his chosen occupation respecting rights and freedom of other citizens as dictated in Article 28 (a, b, c & e); that are being violated by several impugned actions and/or omissions on the part of one or more of the Respondents above named, described and referred to hereinafter, which constitute “Administrative or Executive Actions” within the meaning of Article 126 of the Constitution, that amounts to infringement of Fundamental Rights of the Petitioner and the other fellow citizens, duly guaranteed by Articles 12 (1) and (2), 14(1) (e) and (f) of the Constitution.
  1. The Petitioner states that; the 1st Respondent above named is the Attorney General, who has been cited in terms of Article 35(1) of the Constitution for the extant Executive President, who is also the Cabinet Minister of Defence and the Minister of National Integration & Reconciliation; of the Democratic Socialist Republic of Sri Lanka, who is responsible and answerable for the actions and/or inactions of his Constitutional and other Statutory duties, vested in him, as well as to the actions and/or inactions of all his agents, employees, servants and/or any other persons acting under his authority, whether expressed or implied  –  the 02nd Respondent above named is the incumbent, Chief Minister of the Northern Provincial Council, who is responsible and answerable for the actions and/or inactions of his Constitutional & Statutory duties vested in him, as well as to the actions and/or inactions of all his agents, employees, servants and/or any other persons acting under his authority, whether expressed or implied – the 03th Respondent above named is the incumbent Governor of the Northern Province of the Democratic Socialist Republic of Sri Lanka, the representative of the Central Government, who is responsible and answerable for actions and/or inactions of his Constitutional & Statutory duties including the protection and fostering the Sasanaya of Samma Sambuddha as per the Article 9 of the Constitution as well as to the actions and/or inactions of all his agents, employees, servants and/or any other persons acting under his authority, whether expressed, implied and/or ostensible – the 4th Respondent is the Cabinet Minister of Buddha Sasanaya and Justice who is vested inter alia with the Constitutional duty to protect and foster Buddha Sasana in terms of Article 9 of the Constitution – the 05th Respondent above named is the Hon. Attorney General who is made as a party to this application in terms of Article 134 of the Constitution who is under the duty to represent and act in only in the best interest of the people, in whom the Sovereignty of the Republic inalienably vested, which include Executive, Legislative and Judicial powers and the Fundamental Rights of the people.

         The Cause of Action

  1. The Petitioner states that on or around 31st of August, 2016, a news item was reported in the print media, (‘Daily Mirror’ of 31st Aug 2016) titled “Shrine room VANDERLISED in Mankulam” with the image of the shrine room with replica of Samma Sambuddha’s sirasa removed by certain unidentified anti-social elements, apparently to stir religious unrest in the country. The Petitioner states that entire Buddhist community in the country including him, was dismayed, disturbed, and irritated by this degrading treatment meted out to Sasanaya of Samma Sambuddha, probably to perturb the hard won peace, at a cost of hundreds of thousands of precious lives belong to all communities inclusive of members of Armed forces and LTTE separatists.   

         (A true copy of the relevant media report published in the ‘Daily mirror’ newspaper dated 31st of August, 2016                       marked as “P2” is annexed hereto.)

  1. The Petitioner states that from the information published in this regard in the public domain it is apparent that there had been several demands made by the Northern Provincial Council (NPC) (C V K Sivagnanam the NPC Chairman, dated 24th Aug 2016 addressed to the 1st Respondent), and another demand dated 27th Aug 2017 made to the 3rd Respondent, seeking the removal of Buddhist Shrine Rooms installed in Northern Province when the security forces occupied the Region.

(True copies of the documents referred to above marked P3 and P4 are attached hereto)

  1. The Petitioner states that in these communications the Northern Provincial Council has openly challenged the utmost respect and protection given to the Buddha Sasanaya by Article 9 of the Constitution of the Republic of Sri Lanka, which is reproduced below.

‘Why the constitution (Article 9) gives foremost place to Buddhism and duty of protection by the State to protect and foster the Buddha Sasana? This provision, which nullifies equality of citizens, is an obstacle to the government’s reconciliation efforts’  

  1. The Petitioner states that the Northern Provincial Council has conveniently disregarded the simple truth that Sri Lanka is predominantly a Buddhist Country where the majority Sinhalese account for 74% of the total population, whereas both Indian and Sri Lankan Tamil account only for 12.6% of the population of 21,866,445 and that the protection given to Buddhism under Article 9 (reproduced below) is an entrenched provision, which cannot be touched even if the total number of Tamil population voted against it and no Government in power want to do away with it, unless the people of Sri Lanka give a clear mandate at a referendum.

The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e)’

  1. Therefore, the Petitioner states that the Tamil politicians who administer the Northern Province Council shall be realistic in their approach and shall not make any unfair and absolutely unreasonable demands to repeal the provision in the Constitution, affording the Buddha Sasanaya a constitutional protection, unless the majority Sinhalese themselves agree to remove it with a clear mandate given at a referendum to repeal the said protection.
  2. The Petitioner states that the 1st,, 3rd and 4th Respondents had apparently conceded to the demands made by the Northern Provincial Council although they were unreasonable and unrealistic. The Petitioner states that the 3rd Respondent has failed take necessary corrective measures to safeguard the interests of majority community Sinhalese in consultation with the 1st Respondent.
  3. The Petitioner states that inaction on the part of the 1st, 3rd and 4th Respondents has seemingly persuaded the Northern Provincial Council to authorise the removal of the Buddhist Shrine Rooms located in the Northern Province in a highhanded manner, hurting the feelings of the Buddhists, and other peace-loving citizens here and abroad.
  1. The Petitioner states that in the aforesaid circumstances, the disregard of the Constitutional Obligations by the 1st,, 2nd , 3rd and 4th Respondents and their failure to prevent this immoral act apparently initiated by the Northern Provincial Council, which could have easily inflamed religious riots, and blown into unimaginable proportions. The Petitioner states that such a disaster was averted purely due to the high level of tolerance of majority Sinhala-Buddhist Community, which has matured itself since the bitter experience of 1983 ethnic violence.
  1. Therefore the Petitioner states that the failure to take appropriate remedial measures at the right time is a clear violation of Constitutional duties vested in the 1st, 2nd, 3rd and 4th Respondents and is contrary to the Constitutional Oath, taken by them, wherein they have made a pledge to the people to perform their respective offices faithfully with due regard and respect to the Constitution and the law as much as:
  • the said inaction offends and violates the fundamental expectations of the people of Sri Lanka whose sovereign right of executive power is being neglected and abused by the 1st, 2nd 3rd and 4th Respondents;
  • it offends the trust and confidence placed in the Head of the Executive, the 1st Respondent, by the people belong to all communities and who were being deceived by the 1st Respondent by neglecting his constitutional duty apparently due to ignorance and lack of common sense;
  • it offends the National unity causing detrimental impact on the future of the people of Sri Lanka;
  1. In addition to the evidence and material presented herewith, the Petitioner retains his rights to submit further evidence currently not available and/or beyond the access of the Petitioner at the moment.
  1. The Petitioner states that, he has not previously invoked the jurisdiction of Your Lordship’s Court in regard to this matter.
  1. An affidavit of the Petitioner is annexed hereto in support of the averments contained herein and respectfully pleads the documents marked P1 to P4 attached herewith as part and parcel hereof.

WHEREFORE, the Petitioner respectfully prays that Your Lordship’s Court be pleased to:

  • Grant Leave to Proceed with this Application in the first instance,
  • Make Order to issue Notice of this Application on the Respondents,
  • Nominate a Special Bench, considering the grave national importance of this matter, in terms of Article 132 (3), (iii) of the Constitution for the hearing and disposal of this Application
  • Make Order with due respect and regard to Court’s Constitutional obligation for the expeditious hearing of this application in terms of Article 126 (5) of the Constitution
  • Grant and issue INTERIM ORDER directing the 1st, 2nd 3rd and 4th Respondents to take immediate actions by all means necessary, to Secure, Protect and/or Safeguard Samma Sambuddha’s  Sasanaya and all movable and immovable properties including all personal at risk as referred to herein.
  • Make Order declaring that none of Respondents have any power or authority to interfere and/or to act against their constitutional obligation to protect and foster Buddha Sasanaya, which is protected by an entrenched provision, which cannot be altered amended or removed without a mandate obtained from the People of Sri Lanka at a referendum.
  • Make Order declaring that one or more of the fundamental rights guaranteed by the Constitution, including Articles 12 (1), 12(2), 12(3), 14(1) (e) and 14(1) (f), of the Petitioner, who represents the people of Sri Lanka, and also a person who practices Buddhism are being violated by one or more of the Respondents, who have failed to respect and honour their Constitutional Oath subscribed to as set out in the 4th Schedule to the Constitution.
  • Make further and other Just and Equitable orders, as Your Lordship’s Court shall seem meet, under and in terms of Article 126(4) of the Constitution.
  • Grant Costs and
  • Such other and further reliefs as to Your Lordships Court shall seem meet.

 

        Nagananda Kodituwakku

Petitioner and Public Interest Litigation Activist

 

 

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