043-SLLR-SLLR-1996-V-2-REV.-KESELWATUGODA-CHANDANANDA-THERO-v.-REV.-SIRIMALWATTE-ANANDA-M.pdf
REV. KESELWATUGODA CHANDANANDA THERO
V.
REV. SIRIMALWATTE ANANDA MAHANAYAKA THEROAND OTHERS.
COURT OF APPEAL.
DR. RANARAJA, J.,
C.A. 616/89.
OCTOBER 22, 1996.
Buddhist Temporalities Ordinance – Section 41(1), (5) – Indisciplined con-duct by a Pupil – Complaint by Robing Tutor – Inquiry by Maha SanghaSabha – Conduct of Bhikkus- Prerogative Writs – Conduct of Inquiries -whether a Writ lies.
The original 3rd Respondent and the 4th Respondent were the RobingTutors of the Petitioner. They complained to the Maha Nayaka Thero (1stRespondent) of the Malwatta Chapter of indisciplined conduct by the Peti-tioner and sought a declaration that he was no longer their pupil. Afterinquiry by the Maha Sangha Sabha, the Maha Nayaka Thero announcedthat the Petitioner had been removed from pupilage.
The Petitioner sought a Writ of Certiorari to quash the decision of the MahaSangha Sabha and a writ of Mandamus against the original 1st and 2ndRespondents from altering cage 15 of the Declaration regarding the Peti-tioner under section 41 (5) of the Buddhist Temporalities Ordinance.
Held:
(i) The decision of the Maha Sangha Sabha which relate to the internaldiscipline and conduct of the Bhikkus of the order are final. The Maha NayakaThero will act on the decision of the Sangha Sabha or the Maha SanghaSabha.
It must be assumed that when the Maha Nayaka Thero informs the Commis-sioner of a decision to alter the entries in the register of Bhikkus, that anecclesiastical dignity of that eminence would act with proper sense of re-sponsibility.
QuaereDoes this court have a right through its writs to overturn a decision of theecclesiastical body: was the decision conveyed by the Maha Nayake Thero
amenable to writ jurisdiction. The principles of Public Administrative Lawsuggests that it does not.
Per Ranaraja, J.
"Unlike in other faiths, where the followers seek salvation in one almightyGod, in Buddhism the salvation of an individual lies in his own hands throughhis own conduct. It is the Maha Sangha Sabha and the Maha Nayake wellversed in the Vinaya Pitaka who are best judges of questions of disciplineamongst Bhikkus in the particular Nikaya. Courts should refrain from as-suming jurisdiction over the conduct of inquiries into disciplinary mattersbetween turors and pupils which are private in nature."
(ii) Discipline of Bhikku is a matter governed by Vinaya Pitakaya, the inquiryinto the charges and taking necessary action is a matter for the religiousbodies. The Buddhist Ecclesiastical Tribunals are private in nature, they arenot statutory bodies but institutions set up by each Nikaya to regulate itsown internal affairs.
Their decisions are not judicially reviewable.
AN APPLICATION for a Writ of Certiorari/Mandamus.
Cases referred to:
1. Maha Nayake Thero, Malwatta Vihara vs. Registrar General, 39 NLR 168at 190.
W.R.J. Herath for Petitioner.
Ms. Eva Wanasundera, S.S.C. for 2nd Respondent.
R.P. Gunatilake with G.D. Piyasiri for 3rd and 4th Respondents.
Cur adv. Vult.
22nd October, 1996.
DR. RANARAJA, J.
The original 3rd Respondent (3rd Respondent) and the 4thRespondent were the Robing Tutors of the Petitioner. They complainedto the 1st Respondent Maha Nayaka Thero of the Malwatta Viharaya,by letter P2 dated 24.2.88, of indisciplined conduct by the Petitionerand sought a declaration that he was no longer their pupil and the
Register of Bhikkus be altered accordingly. The Petitioner was calledupon by the 1st Respondent to explain the 10 charges against himmade by the 3rd and 4th Respondents, which he did by P3 dated 9.8.88.An inquiry by the Sangha Sabha into the complaint of the 3rd and 4thRespondents was fixed for 4.9.88. The Petitioner was informed of theproposed inquiry by letter P4, dated 20.8.88. An attempt to bring asettlement of the dispute between the Petitioner on the one hand andthe 3rd and 4th Respondents by the Attanagalla Sangha Sabha onreference by the Maha Sangha Sabha failed. There is no agreementbetween them as to what transpired before the Maha Sangha Sabha on4.9.88.The 1st Respondent himself has not filed objections, as he haddied before he was called upon to do so. It is alleged by the Petitioner,that the 1st Respondent by his order (P8) dated 6.4.89, announcedthat the Petitioner "Keselwatugoda Chandananda had been removedfrom pupilage”. P8 is not available in the record. However, the 3rd and4th Respondents have admitted in their objections that by P8, "the 1stRespondent announced that the decision of the Maha SanghaSabha was that the Petitioner had lost his right to continue as aSamanera of the 3rd and 4th Respondents, as it was impossible tocontinue their relationship of pupil and tutor on admitted facts".The 3rd respondent had forwarded a copy of P8, to the 2nd RespondentCommissioner of Buddhist Affairs, with covering letter dated 12.11.89,requesting appropriate action be taken.The 1st Respondent too hadinformed the 2nd Respondent of his decision to expel the Petitionerfrom the tutorship of the 3rd and 4th Respondents by letter dated 9.4.89.The Petitioner has filed this application seeking inter alia.
A writ of certiorari quashing the decision of the Maha SanghaSabha as conveyed by the deceased 1st Respondent, dated 6.4.89(P8).
A writ of prohibition against the original 1 st and 2nd Respondentsfrom altering cage 15 of the declaration (P1), regarding the Petitioner,under the provisions of section 41 (5) of the Buddhist TemporalitiesOrdinance.
Section 41(1) of the Buddhist Temporalities Ordinance requires aregister of Bhikkus to be maintained by the Commissioner of BuddhistAffairs. Section 41 (5) requiresThe Mahanayaka Thero or NayakaTheroof every Nikaya, from time to time make all corrections, additions oralterations in his registers as may be necessary to keep them up todate. Once the modifications in his registers are made, the Mahanayakaor NayakaThere has to inform the Commissioner of Buddhist Affairs,who is obliged to similarly modify the registers maintained by him.
A Bhikku must at all times be obedient to his tutor. The VinayaPitaka comprises the rules of discipline and the Patimokkha is thecode listing 227 offences for which a Bhikku may be charged by anotherBhikku at an Uposatha Ceremony. A complaint could also be madedirectly to the Nayaka There. Such a complaint may be referred to theSangha Sabha, which could inquire into such complaint themselves,or refer the matter to the NayakaThero for inquiry.The Sangha Sabhacomprising of Upasampada Bhikkus, well versed in the Vinaya rules,free from blame and not undergoing punishment for any offencethemselves, will conduct such inquiry. The Bhikku whose conduct isbeing inquired into, has to be given notice of the charge and affordedan opportunity of defending himself.The delinquent Bhikku may objectto any of the Bhikkus forming the Sabha before which the inquiry isheld. One of the Bhikkus of the Sabha will be selected as Arbitratorand another as secretary. After recording of evidence of both parties,the Sabha will decide by a majority vote in favour or against thedelinquent Bhikku. A Bhikku found guilty of an offence by the SanghaSabha has a right of appeal to the Maha Sangha Sabha, whose decisionis final. The Mahanayaka or the Chief High Priest is the President ofthe Maha Sangha Sabha. The decision of the Maha Sangha Sabhawhich relate to the internal discipline and conduct of the Bhikkus ofthe order are final.The Maha NayakaThero will act on the decision ofthe Sangha Sabha or the Maha Sangha Sabha as the case may be.
(see : Dissanayake and de Soysa – Kandyan law and BuddhistEccleciastlcal Law – P293 – 294).
The relationship of tutor and pupil is sufficient to make the pupilbound by a Judgment. It must be assumed that when the Maha NayakaThere informs the Commissioner of a decision to alter the entries inthe register of Bhikkus in respect of a Bhikku of that particular Nikaya,that an eccleciastical dignitary of that eminence would act with a propersense of responsibility. See: Maha Nayaka Thero, Malwatta Vihara v.Registrar General.™
The Petitioner's complaint is that he was not afforded an "adequatehearing" by the Maha Sangha Sabha before the decision conveyed byP8 was taken. He has failed to elaborate what he meant by an "adequatehearing". The 3rd and 4th Respondents on the other hand have in theiraffidavit affirmed that the Petitioner was given an adequate hearing on4th September 1988, and the matter was thereafter referred to theSangha Sabha at Attanagalla, only for the purpose of exploring thepossibility of a settlement.This has not been countered by the Petitioner.The Petitioner has not made the members of either the Sangha Sabhaor the Maha Sangha Sabhas Respondents to this application. In sucha situation, the death of the 1st Respondent Maha Nayaka, before hecould file objections, becomes extremely relevant to this application.It is the 1 st Respondent, in the absence of the members of the SanghaSabhas as respondents, who was in the best position to explain onwhat evidence the Maha Sangha Sabha came to make the decisionP8. In the absence of the 1st Respondent, this Court could not cometo a fair and equitable decision, and the application, with respect, shouldhave been abated at that stage. In writ applications this Court functionsas a Court of equity. It would be improper in the circumstances, tomake any Judgment against a person, who cannot by reason of hisdeath defend the impugned decision before this Court.To do so, wouldbe to violate the basic principle of audi alteram partem. The substitutionof the present Incumbent in no way satisfies that principle. It is in thatcontext that this Court thought it fit to abate the application on thedeath of the Petitioner's principal tutor.
More importantly, does this Court have a right, through it's writ tooverturn a decision of an eccleciastical body? In other words, was thedecision conveyed by P8 amenable to writ jurisdiction?The principlesof Public Administrative Law suggest that it does not. Unlike in otherfaiths, where the followers seek salvation in one almighty God, inBuddhism the salvation of an individual lies in his own hands, throughhis own conduct. Thus the discipline of the Bhikkus is of paramountimportance. It is the Maha Sangha Sabha and the Maha Nayaka, wellversed in the Vinaya Pitaka, who are best Judges of questions ofdiscipline amongst Bhikkus in the particular Nikaya. Courts shouldrefrain from assuming jurisdiction over the conduct of inquiries intodisciplinary matters between tutors and pupils, which are private innature, by Buddhist eccleciastical tribunals. Those Tribunals are notstatutory bodies, but institutions set up by each Nikaya to regulate itsown internal affairs. This view can be supported by Authority.
"Decisions of Leaders of particular faiths on disciplinary issuesare also, as authorities stand, not judicially renewable". That is becausethere is no sufficient public element and no statutory underpinning.Further, questions of religious law and faith are not appropriate subjectsof judicial review. See: De Smith – Judicial Review of AdministrativeAction, 5th ed : P 186.
As seen, discipline of Bhikkus is a matter governed by VinayaPitakaya. By P2 dated 24.2.88, the 3rd and 4th Respondents havecomplained to the 1st Respondent of the Petitioner's indisciplinedconduct, enumerating 10 such instances.The inquiry into the chargesand taking appropriate action is a matter for the religious bodiesaccording to procedure as explained above. Bhikkus have theoreticallygiven up all worldly desires. The Petitioner has now left this countryand taken up residence inTaiwan, allegedly to pursue studies. He hasalso instituted an action against the 3rd and 4th Respondents in theDistrict court of Gampaha claiming maintenance.
The Petitioner's application for a writ quashing decision P8 istherefore one which this Court with great respect, should not haveentertained. The second relief sought, follows from the first. Theapplication is accordingly dismissed without costs.
Application dismissed.