Brief

Note

Legal Framework Governing Places of Religious Worship in Sri Lanka

Centre for Policy Alternatives (CPA) 30 April 2012

This note is an introduction to the legal framework governing places of religious worship in Sri Lanka, with specific focus on the ownership and control of such land. Recent events such as the attack on the Jumma Mosque of Dambulla, the claim that the Mosque and other buildings in the area are situated in a sacred area and the contestation regarding the ownership of the property and legality of the construction 1 have intensified a larger debate beyond the specific problem in Dambulla to legal and other challenges pertaining to religious freedoms, religious institutions and related land rights. This debate needs to be situated in a wider discussion on religious tolerance in Sri Lanka and the guarantees provided in the present Constitution.2 At the outset it must be noted that the legal and policy framework pertaining to land goes back decades and is in some instances archaic, requiring reform.3 The plethora of laws, regulations, gazettes and policies in this area contributes to the confusion. This is exacerbated by practical problems such as the loss or lack of legal documentation, fraudulent documentation, boundary disputes, contestation of ownership and occupation by others, particularly in the war-affected areas that demand urgent legal and policy initiatives in the post-war context. This is further compounded by the confusion over whether individual plots have been classified as state and private land, which directly impacts ownership and control of the particular land. In the instance of the Dambulla Mosque, contradictory reports have created confusion as to the rightful owner of the land due to the contestation of ownership and the lack of clarity regarding which laws are applicable to the specific case.4 This has exacerbated tensions among the affected groups in the Dambulla
1 Religion and Peace, Minister says mosque located outside sacred area, Newsfirst.lk, 26 April 2012,

(http://newsfirst.lk/english-news/?view=talk_town_more&id=46), last accessed on 28 April 2012; Supun Dias, JHU says disputed mosque at Dambulla not a mosque, Daily Mirror, 25 April 2012, (http://epaper.dailymirror.lk/epaper/viewer.aspx); Premier says Dambulla Mosque is illegal; Muslim Congress against government decision, Hirunews.lk, 23 April 2012, (http://www.hirunews.lk/32751), last accessed on 28 April 2012.
2 The constitutional provisions which have a direct bearing on religious freedom in Sri Lanka are

Article 9, 10 and 14(1) (e) of the constitution. Article 9 relates to the foremost place of Buddhism and the States duty, subject to the provisions of Articles 10 and 14 (1) (e), to protect and foster Buddhism. Article 10, which is an absolute right by being exempt from the limitations on fundamental rights set out in Article 15, states that every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice. Article 14 (1) (e) provides that Every citizen is entitled to the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice or teaching. This right is subject to certain restrictions that may be prescribed by law under Article 15 (7), for the purpose of, inter alia, securing recognition and respect for the rights and freedoms of others.
3 B. Fonseka and M. Raheem, Land Issues in the Northern Province Post-War Politics, Policy and

Practices, Centre for Policy Alternatives (CPA), December 2011

4 In the case of the Dambulla mosque and related land issues, the Mosque Trustees claim the building

is located on private land whereas the Buddhist clergy and their supporters claim it to be sacred land. The District Secretary of the area is reported to have said that the particular plot of land was

issue and has had a ripple effect in other parts of the country.5 As to how this issue is addressed can have a far reaching impact on other instances of disputes related to land issues related to religious institutions and also on relations between communities. In this regard, the Centre for Policy Alternatives (CPA) has produced this short note to outline specific laws that have a relevance over lands and property where religious buildings are situated and owned by religious entities. Relevant Legislation There are a number of laws that deal in some detail with the regulation of the administration places of religious worship. Those relevant to the specific case of Dambulla include the following: The Muslim Mosques and Charitable Trusts or Wakfs Act of 1950 The Buddhist Temporalities Ordinance of 1921 as amended The Buddhist Temporalities (Amendment) Act 1981 The Trusts Ordinance There are also other laws applicable to Christian denominational and non- denominational churches. 6 Furthermore, some places of religious worship are incorporated through Acts of Parliament, which in turn govern their administration. 7 However, these laws do not place any restriction on the proliferation of places of religious worship or the locations where they are to be
acquired in 1984, although no reasons are given as to the reason for acquisition, whether steps were taken as provided by legislation including compensation for affected parties and whether the land was subsequently vested to another party (Wasantha Ramanayake, Dambulla mosque dispute now in Presidents court, The Sunday Times, 29 April 2012, http://sundaytimes.lk/120429/News/nws_35.html )
5 As evidenced by the hartal in parts of Ampara and Batticaloa on 26 April 2012.

6 Calvary Church of Sri Lanka (Incorporation) Act No 2 of 1999; The Church Of The Gospel Ministries

In Sri Lanka (Incorporation) Act No 17 of 1994; Society Of The Apostolic Church Of Sri Lanka (Incorporation) Act No 6 of 1991; Church of the Foursquare Gospel in Sri Lanka (Incorporation) Act No 37 of 1986; Christian Assembly of Sri Lanka (Incorporation) Act no 20 of 1984; Fellowship of Free Churches of Sri Lanka (Incorporation) Law Act No 47 of 1975; Church of Ceylon Act No 6 of 1972; Church of Ceylon (Incorporation) Act No 43 of 1998; Ceylon Pentecostal Mission Act No 21 of 1970; Sri Lanka Baptist Sangamaya Ordinance No 54 of 1944; Methodist Trust Association of Ceylon Ordinance No 54 of 1935; Dutch reformed church ordinance No 9 of 1926; Church of England ordinance No 6 of 1885;
7 New St. Andrew's Church Ordinance No 16 of 1916; Non-Episcopalian Churches Ordinance No 5 of

1864; Episcopal churches ordinance No 12 of 1846; Presbyterian Church (Kandy) Ordinance No 13 of 1845; Kandy Church Ordinance No 11 of 1842;

established. Instead, they merely govern the administration of such places of worship (i.e property rights, leadership structure, regulation of monies etc). In addition, there are other laws that are relevant to the protection and management of cultural properties, which need to be considered when examining the legal framework. These include: The Central Cultural Fund Act of 1980 Antiquities Ordinance of 1940 as amended Cultural Property Act of 1988 Tourist Board Act of 1968 National Environment Act of 1980 Although there are several laws as provided above, these are mainly for the purpose of protecting, maintaining and governing religious worship areas and property owned by religious and other such entities. Relevant Legislation for Zoning Purposes In the examination of laws governing places of religious worship and property owned by religious entities, attention also needs to be focused on laws related to zoning8. There are no specific laws in this regard for religious property but the general laws related to zoning are applicable. The relevant laws that apply are: The laws governing local authorities include -The Urban Councils Ordinance of 1939 (as amended), The Municipal Council Ordinance of 1947 and the Pradeshiya Sabha Act of 1987 The Town and Country Planning Ordinance of 1946 as amended The Urban Development Act of 1978 The Anuradhapura Preservation Board Actis also noteworthy as it gives almost plenary powers over local administration over Anuradhapura city to the Anuradhapura Preservation Board. A number of activities are prohibited within the area. CPA has not come across any similar legislation for the specific case of Dambulla. The zoning laws relevant to Dambulla are as listed below. Local Authority Laws The different laws applicable to local authorities provide for the regulation of construction and expansion in the specific areas. The Urban Councils Ordinance of
8 Zoning

include land use planning issued by local authorities and applies to how the land is developed including construction and removal of buildings.

1939 (as amended) for instance regulates the construction of buildings along thoroughfares (roads and streets).9 The Municipal Council Ordinance of 1947 and the Pradeshiya Sabha Act of 1987 respectively also have similar provisions. These provisions apply equally to a house as they would to a religious building, and typically cover matters such as buildings permits. The Town and Country Planning Ordinance The Town and Country Planning Ordinance of 1946 (as amended)is described in its long title as inter alia an ordinance to authorize the formulation and implementation of a national physical planning policy; the making and implementation of a national physical plan with the object of promoting and regulating integrated planning of economic, social, physical and environmental aspects of land in Sri Lanka. The Town and Country Planning Ordinance is only applicable for private lands. The Ordinance empowers the Minister concerned to declare and gazette lands as urban development areas under Section 6 (2)(b), trunk road development areas under Section 7(1) and regional development areas under Section 8 (1) which in turn triggers the planning process leading to the formulation of the National Physical Plan for such areas. Section 47 lays down the rule that once an area is gazetted, no construction, demolition, alteration or repairs can be done to any structure in that area. Further, the Minister is entitled to make interim orders in respect of the land within a gazetted area.10 Thus, several restrictions apply in the use of the land once a Minister declares an area a development area as provided in the Ordinance. Further, lands may even be acquired from private owners by the State if required by the Plan.11 In the recent past, there has been a practice of gazetting areas of religious significance under section 6(2)(b) of the Ordinance as urban development areas, but referring to them as sacred areas. This practice causes significant confusion because while an area is referred to as a sacred area, in terms of the law it remains an urban development area.12 In 2011, The Town and Country Planning (Amendment) Bill was introduced by the Government which attempted to declare private property as sacred areas,
9 Sections 72 89

10 Section 46 11 Section 58. Acquisition of private lands will be done in accordance with the Land Acquisition Act 12 For example- Gazette No 1614/6 of August 2009, No 1631/35 of December 2009,No 1644/34 of

March 2010 and No 1752/1 of April 2012.

conservation areas, architectural areas and so on with no clear terminology explaining what the implications of these classifications meant. CPA challenged the Bill on the grounds that it was not first submitted to the Provincial Councils for its approval as the subject fell within the Provincial Council List13 and was ultimately withdrawn. CPA was also concerned that the vague terminology used in the Bill could provide broad powers to the Minister to demarcate private property as a specific area with no regulatory control, and may result in the dispossession of many of their private lands. The Urban Development Authority Act The Urban Development Authority Act of 1978 (UDA Act), empowers the relevant line Minister to declare areas as urban development areas.14 Once an area is so declared, the process of formulating a development plan commences.15 Further, restrictions on the use of land within the gazetted area, such as the prohibition of any development activity within that area without a permit, also apply.16 For the purposes of the UDA Act, development activity means the parceling or sub-division of any land, the erection or re-erection of structures and the construction of works thereon, the carrying out of building, engineering and other operations on, over or under such land and any change in the use for which the land or any structure thereof is used.17 The only exceptions to these restrictions are in respect of dwelling houses. Thus, where an area is gazetted as an urban development area, any development activity in respect of a place of religious worship is prohibited unless a permit is obtained prior to such construction. In relation to Dambulla, the area was named as the Dambulla Urban Development Authority Area by a gazette dated 24 March 199418 and expanded by gazette dated 17 November 2005.19 CPA has not come across any legal documentation referring to the area as a sacred area.
13 SC/SD/3/2011

14 Section 3 15 Section 8 (A) 8 (H) 16 Section 8 (J), 8 (K) 17 Section 29 18 No. 811/17- 1994.03.24 19 No 1419/10- 2005.11.17

 Conclusion As highlighted in this note, there are several laws that need to be examined when discussing the issue of places of religious worship and ownership of property pertaining to religious institutions. In the present context of the Dambulla case, it is important to establish who the legal owner of the particular land and the laws governing the particular area is. Clarity in this regard is a key element in the resolution of this specific dispute but there also has to be attention to mediating a just settlement for all affected parties. This case has attracted much attention also because of its implications for religious freedom in Sri Lanka and minority rights protection. The involvement of politicians, religious actors and others demonstrates the need for urgently resolving this specific case but to also address the underlining issue of religious coexistence and reconciliation. While the debates will continue on land rights and minority protection, what is clear from the brief examination of laws is that there are specific laws that control the zoning of land. These need to be adhered when developing land. It is also clear that the existing Sri Lanka legal framework does not provide for the declaration of sacred areas, although there is regular practice of such terminology increasing the confusion. It is therefore extremely important that the Government addresses such confusion and initiate steps to regulate land development and protect rights of the people as provided by existing laws.