KAMALIKA PIERIS

The Tamil Separatist Movement tried to use the laws of the country, to stop Kurundi from blossoming forth as a new venue for   Buddhist pilgrims.  Tamil Separatist Movement filed cases in the Magistrate court and Supreme Court against the archaeological work at Kurundi Vihara.  

 TNA MP M. A. Sumanthiran filed a petition in the Supreme Court in August 2021 against the commencement of excavations at the Kurundi Vihara in Mullaitivu, which he called the largest Buddhist shrine in the Northern Province. Prime Minister Mahinda Rajapaksa, Minister of State Vidura Wickramanayake and Commissioner General of Archaeology Prof. Anura Manatunga were named as respondents.

Following this, the Buddhists also turned to the law. They ignored the Magistrate courts which have no authority to deal with the actions of the Department of Archaeology and focused on the Supreme Court instead. There are several cases pending in Supreme Court, submitted by them.

None of these cases have gone to trial yet. There is nothing in the public domain about them either.  There should be more publicity for these cases. The judgments should be given in the media.  The public should attend the hearings to show support for Kurundi. It will not be difficult to collect a group of Buddhists for this.

The law appears to    favor Kurundi, not the kovil.  The Constitution of Sri Lanka (1978) carries special mention of Buddhism. Clause 9 of the Constitution states:  The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).

 In 1994, Supreme Court expanded on what is meant by Buddha Sasana”. The Supreme Court in SC Determination 1/94 (1994) held that  The expression ‘Buddha Sasana’ is wider than ‘Buddhism’ and includes the entireestablishment together with objects and places of religious practices and worship of Buddhists”. The term Buddha Sasana could be extended to include Maha Sangha, archaeological sites, villages, lands and the properties feeding Buddhist temples and vihara. Supreme Court also said that it is mandatory for the country to be under the authority of a central Government in order to give full effect to Article 9. [1] Kurundi vihara has been declared a registered temple by the Ministry of Buddha Sasana.

Buddhist ruins considered to be of archaeological value are governed by the Antiquities Ordinance No 9 of 1940, amended by Act no 24 of 1998 and Act no 12 of 2005. There are several clauses in the Antiquities Ordinance which can be used against the so-called Kovil at Kurundi. The Antiquities Ordinance says:

Clause 33.  The Director-General of Archaeology may- (a) with the approval of the Land Commissioner, or (b) if approval is refused by the Land Commissioner, with the approval of the Minister to whom the subject of State lands is for the time being assigned, declare, by notification published in the Gazette, any specified area of that land to be an archaeological reserve for the purposes of this Ordinance

Clause 31. Any person who- (a) willfully destroys, injures, defaces or tampers with any protected monument or any ancient monument on State land; or (b) does in, upon, to, near or in respect of any ancient monument which is held sacred or in veneration by any class of persons, any act which wounds or offends or is likely to wound or offend the religious susceptibilities of the class of persons by whom such ancient monument is held sacred or in veneration, shall be guilty of an offence and shall, notwithstanding anything to the contrary in any other written law, be liable on conviction after summary trial before a Magistrate to a fine not less than fifty thousand rupees and not exceeding two hundred and fifty thousand rupees or to imprisonment of either description for a term not less than two years and not exceeding five years or to both such fine and imprisonment

Clause 34. Every person (other than the Director-General of Archaeology, or a person acting under and in accordance with his directions) who- (a) clears or breaks up for cultivation or cultivates any part of an archaeological reserve, or (b) erects any building or structure upon any such reserve, or (c) fells or otherwise destroys any tree standing on any such reserve, or [ 5, 12 of 2005] (d) otherwise encroaches on any such reserve, shall be guilty of an offence and shall, on conviction after summary trial before a Magistrate, be liable to a fine not less than one thousand rupees and not exceeding five thousand rupees or to imprisonment of either description for a term not exceeding three months or to both such fine and imprisonment, and the Magistrate may, in addition to passing any such sentence, make order that such person shall be forthwith ejected from such reserve

Clause 15C. Notwithstanding anything to the contrary in the Code of Criminal Procedure Act, No. 15 of 1979 or any other written law, no person charged with, or accused of an offence under this Ordinance shall be released on bail. 

P.N. Mandawela, former Director of Archaeology, speaking at a discussion on Kurundi  said that when the Department of Archaeology   wishes to declare any area as an archaeology reserve, the Department must first obtain the consent of the Land Commission, and then it must issue a Gazette declaring that land to be an archaeology reserve. The reserve thereafter belongs permanently to the state. There is no provision in the law to give it back.

An archaeological reserve is a protected area.  A person can enter an archaeology reserve only with the permission of the Director of Archaeology .It is a   criminal offence to enter, to destroy the artifacts and structures or even cut down a tree on that site, said   Mandawela  

The administration of an archaeology reserve falls within the purview of the Central Government and not the Provincial government.  This is stated in the Ninth Schedule to the Constitution.

An archaeology reserve needs a buffer zone beyond the boundary. The Antiquities Ordinance does not have provision for a buffer zone but there is provision for a buffer zone in the law relating to Monuments. A group of buildings, like at Kurundi, can also be classed as a Monument. Director, Archaeology has the   authority to control activity in the buffer zone. It is now time to declare the buffer zone for Kurundi said Archaeology Department officials. Once that it done, the Department can issue regulations for the entire area.  (Continued)

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[1] https://www.dailymirror.lk/opinion/The-Significance-of-Article-of-the-Constitution-Should-or-could-it-be-removed-/172-140765