Monday, February 9, 2009

ICCPR and Proposed Sri Lankan Law

The United States Commission on International Religious Freedom (USCIRF) has issued a press statement urging policymakers to confront Sri Lanka over its impending passage of this law. The legislation is designed to address citizens' growing concerns that religious officials in positions of authority adopt improper means to obtain conversions. Due to its highly chaotic political situation, little independent report exists of the exact pervasiveness and severity of forced conversion in the country. However, it is worth note that anecdotal support and available factfinding prompted the UN Special Rapporteur on Religious Freedom to conclude the following in May 2005:

"[S]econd-hand accounts by credible sources indicated that conversions through 'improper' means have sometimes occurred." Source: US State Dept.

The USCIRF seems primarily concerned that the breadth of language in the draft law could ultimately undermine, not promote, religious and other freedoms. At the same time, it concedes that forced conversion is a concern "legitimate" enough to warrant legislative action. For the following reasons, I'm skeptical of the USCIRF's criticism.

1) The culturoethnic cleavages present in Sri Lanka--in extent and repercussions--are virtually inconceivable to Western observers. The longstanding and self-perpetuating Tamil-Sinhala divide continues decades of civil war and all the atrocities attendant therewith. And, likewise foreign to outside eyes, is the nature of this rift. Unlike communal tensions familiar to most of us--where the pertinent factions are visibly distinguishable and their relations therefore simple (albeit not necessarily easy) to regulate--Tamils and Sinhalese differ by their respective communities' distinctive sets of many attributes--otherwise less blatant on their own. Language, culture, religion, profession, name: they all contribute to forming the identity.

Against this backdrop, the Sri Lankan authorities have decided to pursue regulation of one of these flashpoints: namely, religion. This forms the ground for my first criticism. The USCIRF's uneasiness with the law seems to stem in some degree from the justification they ascribe to it--promotion of religious freedom. Then, reasoning that advancing this aim does not militate against restrictions on some conversion practices, defines those legitimate and those illegitimate by their anticipated impact on that narrow goal. However, as the goal expands, as does the universe of potentially legitimate means. It may well have been the determination of the Sri Lankan government that promoting certain religious freedoms could prove useful in combatting prevailing civil strife, but only as executed in a particular way that could incidentally burden others. In the context of a stable, developed nation wishing to improve its human rights image worldover, the purpose of this type of law may be exactly what the USCIRF infers. And on that condition, many of its criticisms would apply with greater force. But we must not ignore context.

2) The USCIRF also insinuates that the proposed law conflicts with Sri Lanka's obligations under the International Covenant on Civil and Political Rights. However, it's necessary to note that its concern arises thus: that the law's vagueness or ambiguity could legalise prosecutions violative of that treaty. The key here is that nothing on the law's face mandates such behaviour. And, as Sri Lanka's ratification of the ICCPR, without reservation, domesticated its self-executing language, the ICCPR is just as much Sri Lankan law of the land as the proposed law would be. As it's a long-established rule of statutory interpretation that laws capable of being brought into harmony ought to be, there's no reason to believe that any behaviour not prosecuted heretofore, out of respect for the ICCPR, now will be.

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