New Constitution and Religious Freedom

By Wijayananda Jayaweera –

(This article was published in the Colombo Telegraph on the 20th March 2016)

On religious freedoms and introducing a rights based approach to development in the new constitution

In his set of proposals for a new constitution, Dr. Laksiri Fernando has rightly pointed out the need to include fundamental rights in a much more comprehensive manner. However, in the area of religious freedoms he seems to go overboard by proposing an additional constitutional guarantee which says that ‘’No one should be prohibited or discriminated for wearing attire by one’s own religion or belief.’’ While I have no quarrel in assuring freedom to believe and practice a religion in a peaceful manner, it is totally inappropriate to provide a guarantee in a secular constitution to safeguard various contested beliefs within a religion. In regard to the attire the very words “prescribed by one’s own religion’’ are problematic as authenticity as well as the relevancy of such prescriptions, if they exist, could be contestable. To understand this point, one should watch the award winning film Timbuktu (2014) directed by Abderrahmane Sissako in which a female Muslim fishmonger offers her hand to be cut off because she can’t sell fish with hand glows when religious extremists prescribe hand glows as a part of the religious attire of Malian Muslim women.

One’s attire is entirely a matter of personal choice and no religious authority should be given a constitutional power to determine on what a person should wear in his or her day to day life. But what is proposed by Dr. Fernando legitimises the desire of certain religious authorities to enforce their specific interpretations of attire among the followers who might have different interpretations on the same subject. Therefore, providing a constitutional safeguard to specific believes and customs within the religions is a misconceived idea.

What the constitution say about the religious freedom should also include the rights of those who do not want to believe a religion. It could be captured in a statement which says that ‘’Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change one’s religion or belief, or not to believe a religion at all.’’

Nonetheless, Dr. Fernando has raised a very important issue as to how we might be able to include socio-economic and cultural rights in the constitution in a manner which can be truly realised in practice. Unlike the civil and political rights, inclusion of socio-economic and cultural rights in a constitution has not attracted sufficient attention of the constitutional pundits. President Franklin de Roosevelt one time publicly recognised this deficiency in the American Constitution and wanted to compensate it by adopting a Bill of Economic Rights, which unfortunately was conveniently shelved by his successors. But one important element we have to keep in mind is that there is an obvious interdependency between the two rights groups, namely the civil and political rights and socio-economic and cultural rights. Therefore, both groups of rights should be treated as equally important.

However, compelling the State and its constituent parts (Legislature, Executive and the Judiciary) to actively protect and promote them, needs a well-defined constitutional obligation by which all legislations, policies, administrative directives and judicial acts should have a clear duty to foster capabilities of the people to fully enjoy their fundamental rights. Along with the civil and political rights, the social, economic and cultural rights enshrined in the constitution therefore, could be prescribed in the constitution itself as the guiding determinants of the national development policy of all governments. Succinctly put, the constitution thus would become a mutually consented and well-articulated social contract between the government and the governed under which the fundamental duty of the government would be to build capacities and capabilities of the state institutions to enable the people to fully enjoy their constitutional rights including those of which are in the socio-economic and cultural fields.

Thus, when choosing a government, the voters should be able to determine which political party or a group is more committed and capable of implementing a truly right based approach to development. The constitution could make it a requirement for all the political parties to articulate their election manifestos in line with the obligations mentioned in the fundamental right chapter of the constitution.

(This article was published in the Colombo Telegraph on the 20th March 2016)

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