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Sunday, October 7, 2012

Protect the Buddhist Heritage! It is the law - Part II


By Hasaka Ratnamalala


As I discussed in the first part of this article by signing 1815 Kandyan Convention “Sinhale” leaders handed over the British crown the fiduciary (trustee) duty of protecting Buddhist Heritage.

With the independence in 1948, this fiduciary duty was transferred to the government of Ceylon. This is what we see in the Article 9 of the current constitution of Sri Lanka. Even with the 1972 Constitution while becoming a republic, the parliament endorsed this fiduciary duty by including similar section into the constitution in Chapter II, Article 6. Therefore, not only through the common law, but also through our constitution, governments are bound by this fiduciary duty of protecting Buddhist heritage despite, what political party is running the country or what is their political ideology.

Issue here is what is this duty? Is it just holding Buddhism as the main religion of the country, as many people think or are there other elements to it? According to my understanding, answer is in the 1815 agreement itself. “The religion of Buddha is declared inviolable, and its rites, ministers (monks) and places of worship are to be maintained and protected.”

There are four parts to this statement.

i. The religion of Buddha is declared inviolable.

ii. Buddhist rites to be protected

iii. Buddhist ministers to be protected.

iv. Buddhist places of worship to be protected.

We understand that one of the meanings of “inviolable” is to secure from destruction. So what our forefathers requested from the government was to protect the religion of Buddha from destruction. We understand teaching or preaching Buddhism is not a government duty, but government have a legal duty to promote Buddhism, facilitate Buddhist principles in to state mechanism, make it easy for the people to follow Buddhism. This does not mean blocking other religions in the country. I think Sri Lanka has given enough good freedom to other religions to flourish in the country, but the issue here is hindrance towards Buddhists in the country through systematic and forceful conversion of Buddhists into other religions. As an example, if a Catholic boy married a Buddhist girl Catholic Church force the boy’s family to convert the girl into the Catholicism if not the church will not be there for the family when needed. I don’t see any such move from Buddhist institutions when catholic girl married a Buddhist boy. I don’t think I need to mention about Muslim situation here. Therefore there should be legal ways to end this systematic and forceful conversion of Buddhists into other religions; I may re focus as a hindrance towards Buddhists in the country to peacefully carry on the practice of Buddhism.

One of the main requests under section 5 of 1815 agreement is protection of Buddhist worshiping places and to Buddhist heritage property. How could that be possible after the implementation of 13th Amendment to the constitution? According to the list 1 of 9th schedule of the 13th Amendment to the constitution of Sri Lanka, the land, , rights in or over land, land tenure transfer and alienation of land, land use, land settlement and land improvement, has given to the provincial council on the extent set out in Appendix ll” But there is no mention in Appendix II about Buddhist Heritage land. Is this means Buddhist Heritage land becomes a property of the province? My understanding is that is not the case. Let me explain it through a Canadian Common law example. Even though I am quoting from a Common law source, I don’t think it matters, as Sri Lankan legal system is a fusion of both Civil and Common law. The other similarity is Canada has a federal system with major power sharing arrangements towards the province.

As described by Canadian Professor Peter W. Hogg in “Constitutional Law of Canada” 2009 edition, page 643. “.. the theory of the common law was that the Crown mysteriously acquired the underlying title to all land in Canada. Including land, that was occupied by aboriginal people. But the common law recognized that aboriginal title, if not surrendered or lawfully extinguished, survived as a burden on the crown’s title...”
Let’s compare this with Sri Lanka; in 1815 the leaders of the country handed over the title of the land to British crown, with the condition of protection of Buddhist Heritage attached to it. The current government of Sri Lanka inherited the title to the land, as the legal successor to the British crown; with the same conditions attached to the land. Current Sri Lankan government agreed with the 1815 conditions and that why it is in the current Constitution. Therefore the government still bears the fiduciary duty of protecting the Buddhist heritage; of the country which includes the Buddhist heritage land. If that is so the government has no right to sell or hand over Buddhist Heritage property to any one, unless those lands were properly extinguished to the government by the Buddhist institutions in the country, because the government is only acting as a trustee, and does not have the legal ownership to the Buddhist Heritage land and therefore 13th amendment does not override Article 9 of the constitution. Even if it does, the provincial councils acting as agents of the central government bound to protect and secure Buddhist Heritage land within that province. Province cannot use that land for other purposes.

How do you find whether the land is a Buddhist heritage land? There are enough evidence through the archeological findings to prove what are the Buddhist Heritage lands in the country, and the Government is legally bound to do that. If they have done so, how could someone from another faith build their own worshiping house within the parameters of a Buddhist heritage site? How could someone build a toilet on the top of a Buddhist heritage site? How could someone bulldoze a Buddhist heritage site for farming purpose? Even though these issues look like political issues but they are not; they are in fact legal issues because the government is legally bound to protect Buddhism and its resources in the country.

If that has not happened, we should not allow politicians to further jeopardize the situation and we should request our legal system to find answers. I believe it is time, that our Supreme Court interprets Article 9 of the current constitution and explain the fiduciary duty (trustee) the government has towards the Buddhist Heritage of the country based on the 1815 agreement.

Mere establishment of Archeology department has nothing to do with this duty. The government is the sole protector of Buddhist heritage in the country, therefore this should be visible in every action of the government and the government should not do anything which could be harmful to the Buddhist heritage of Sri Lanka.
As going back to Canada, when the government failed to protect this fiduciary duty, “native” people come out to the street to protect those sites. In the recent history in Ontario and in British Colombia, there were several instances where the “natives” had to come out and take over, their ancestral burial grounds, from occupying white developers. One such occupation took place in Caledonia, Ontario, recently; which ignite a pure violent protest, but the government took the side of the “Natives” and purchased the lands from the white builders and hand it over to “Natives”. None of the scholars in Canada or media laugh at it or call it a “Native chauvinism” in fact they supported the government action.

I urge legal community in Sri Lanka to carry out this discussion as I believe it will remind everyone, that it is a legal duty to protect our Buddhist Heritage no matter what sort of political or ethnical changes happened in the country.


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Saturday, October 6, 2012

Protect the Buddhist Heritage! It is the law - Part I


By Hasaka Ratnamalala
Preserving heritage is preserving the legacy of a country and its people. Not only countries with long histories but also countries with not so long histories preserve their heritage for the future generations to see. The responsibility of preserving the heritage of a country is mainly in the hands of the government running the country. But due to lack of resources, and political will, governments failed to preserve or conserve their own heritage. In such event, organizations such as UNESCO jump in; and help the countries to protect their heritage by providing resources and naming the particular locations as world heritage sites.
Sri Lanka has several such heritage sites identified by UNESCO; but there are thousands of unidentified locations throughout the country, needed to be preserved. Today, not only these un-identified sites, but also these identified sites are facing the threat of losing its heritage identity.
Dambulla in Sri Lanka is one such UNESCO identified heritage site, facing the threat of disappearance of its identity. Unfortunately due to ignorance of politicians and lack of academic attention on the matter, these sites are wide open into the hands of those who wanted to destroy country’s cultural identity. Among all, the most dangerous thing is the behavior of so called intellectuals and irresponsible media of the country, which are trying to portray the fight for protecting cultural heritage of the country as implementation Sinhala Buddhist chauvinism.
My intention of writing this article is to disprove this chauvinism theory, and to emphasize that it is a legal obligation of the government, to protect the Buddhist heritage of the country. I also like to discuss how other countries, protect their heritage and why we should understand the legal importance of it. In doing so, I would like to take two countries, which are considered as ideal democracies; by those who support chauvinism theory. The two countries I take are Australia and Canada. Both are former British colonies with modern, multicultural societies and have English common law background.
In Australia, Environment Protection and Biodiversity Conservation Act, Aboriginal and Torres Strait Islander Heritage Protection Act, Protection of Movable Cultural Heritage Act are some of federal level steps to protect their “Native” (aboriginal) heritage, while all the other states and territories have legislations that provides blanket protection to Indigenous archaeological sites.
There is not much difference in Canada, as every level of governments has their own legislation to protect the “Native” heritage within its territory; while the federal government has the upper hand through the constitution.
 
In Section 91(24) of the Canadian Constitution Act of 1867, the federal parliament has given exclusive power to parliament to legislate matters related to "Indians and Lands reserved for the Indians (Aboriginals). Also part II of the Constitution Act of 1982 (also known as Charter Rights and freedoms), recognizes Aboriginal treaty and land rights through its section 35; also in here the Aboriginal rights are referred to as ancient source of Aboriginal rights and customs.
These multinational, multi ethnic, multi religious, modern, democratic countries believe that they should protect their “Native” heritage and enforce that duty in every level of the government.
Sri Lanka is not much different, but the problem is in the practical part of the action, which has bogged down due to political interference and misinterpretation of facts. Therefore in Sri Lanka the best way to counter this political interference and misinterpretation of facts is to remind all, the legal obligation of protecting the heritage.
 
The modern legal foundation of protecting Sri Lanka’s heritage starts with 1815 Kandyan Convention. The Section 5 of the convention states that “the religion of Buddha is declared inviolable, and its rites, ministers (monks) and places of worship are to be maintained and protected”.This is a clear indication of what had been the way of the country before 1815; and what was expected to be in the future.
This could be further explained in legal terms as, the “Sinhale” leaders who sign the agreement expected a fiduciary (trustee) duty, from the British crown; to protect Buddhist heritage in Sri Lanka. Further in to the matter, in 1818, by revolting against British rulers, same “Sinhale” leaders demand the British crown, to follow the conditions at the 1815 agreement; and that they were not tolerating any breach of its conditions. This could collaborate through the documentation found at British museums related to 1818 rebellion.
 
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