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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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1 comment:

  1. Timely write up of Hasaka. Totally agreed with the writer, though legitimate power is vested and available for ruling Governments to implement in Sri Lanaka. Firstly this article be made available to public in Sri Lanka through other print media for their information at large. Secondly it is paramount that all intellectuals, people representatives in parliament and legal experts take a serious note the contents of this article and have open discussion or forum and address how to protect religion of the land and places of worship as per provisions of the constitution and formulate mode of operation as matter of priority. Preserving ancient heritage and religion of the land should not mere be a provision of the constitution but ways and means should be put into practice and be implemented.We believe that it is prime and foremost duty of custodians of any ruling government of Sri Lanka to take actions without any further delays.

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