January 20, 2016, 12:00 pm
The Kathikawath Bill will have to be amended
- Ven. Bellanwila Wimalarathana Thera
- Ven. Bellanwila Wimalarathana Thera
by C. A. Chandraprema
Ven. Wimalarathana Thera stresses that what was expected of the Kathikawath (Registration) Bill was to confer legal validity to the Kathikawath of each Nikaya and Chapter and not to make any recommendations about what those Kathikawath should contain.
Speaking to The Island about the Theravada Bhikku Kathikawath (Registration) Bill which is now before parliament, Ven. Bellanwila Wimalarathana Thera, Anunayake of the Kotte Sri Kalyani Samagri Dharma Maha Sangha Sabha of the Siyam Nikaya and Chancellor of the Sri Jayewardenepura University emphasised that the Mahanayake Theras and other senior monks had for many years been asking for legal authority to be conferred on the Kathikawath (internal rules of conduct for monks) of the three main Nikayas and the chapters thereof.
The Anunayaka Thera explained that even in cases where serious offences had been committed by monks, there was no way to expel them from the bhikkuood which is why the Ven. Mahanayake Theros of all Nikayas had in one voice requested the government to set up a legal mechanism to give effect to the Kathikawath of the various Nikayas and Chapters.
It was in pursuance of that request that this Kathikawath Bill had been drafted. Meetings to draft this Bill had been held in Kandy, Colombo and various other places and the Anunayake Theras, the Secretaries of the various Nikayas had met and worked with the officials of the Buddhist Affairs Department and they had gone through several drafts. Meetings had been held even with President Mahinda Rajapaksa’s participation but the Kathikawath Bill did not see the light of day during his administration. During the 100 day government, the Buddha Sasana minister was Karu Jayasuriya who also took a keen interest in this matter but still, nothing happened. Thereafter, Minister Wijeyadasa Rajapakshe as the new minister of Buddha Sasana took an interest in this matter and held several discussions. However Ven. Wimalarathana Thera said that the final version of the Bill had not been made available to the senior monks before it was presented to parliament.
The Anunayaka Thera pointed out that certain objectionable phrases not used in the earlier draft that was circulated to the senior monks, has been used in the Bill presented to parliament. For example, Section 2(2) of the Kathikawath (Registration) Bill that has been presented to parliament deals with what a Kathikawath should contain. (The word used is ‘shall’ and thus a mandatory requirement.) This Section specified that the Kathikawatha of a Nikaya or Chapter should contain provisions pertaining to among other things,
(a) the composition and functions of the Karaka Sangha Sabha;
(b) a code of conduct for bhikkus;
(c) the manner of conducting inquiries into violations of this code of conduct; and
(d) punishments for such violations.
Ven Wimalarathana Thera objected to the word ‘punishment’ that has been used in Section 2(2)(d) of the Kathikawath Bill and pointed out that the last draft that was circulated to the senior monks does not have a section 2(2)(d) referring to punishments at all. He further stated that the term ‘punishment’ should not be used in the Bill because that is a matter dealt with in the Kathikawath of the various Nikayas. Furthermore, he said that Section 2 (4) which mentions the various punishments that may be included in a Kathikawath for the purposes of Subsection 2(d) was also not there in the previous draft of the Bill. The Kathikawath (Registration) Bill now before Parliament mentions the following punishments that ‘may’ be included in a Kathikawath. (The use of the word ‘may’ indicates that it is not mandatory but only a guideline.):
(a) temporary expulsion from the residing temple;
(b) permanent expulsion from the residing temple;
(c) temporary removal from the office of viharadhipathy;
(d) permanent removal from the office of viharadhipathy;
(e) expulsion from studentship;
(f) expulsion from the relevant Nikaya or Chapter; and
(g) cancellation of bhikku registration.
Ven. Wimalarathana Thera states there was no necessity to mention the punishments that can be meted out to bhikkus who violate the Kathikawath because every Kathikawath specifies the punishments and penalties that can be imposed on a monk who is violation of the rules of conduct of the Nikaya or Chapter.
Suggestions of prelates not incorporated in Bill Furthermore, he stated the senior monks had wanted some sections in the earlier draft of the Bill amended, but these amendments had not been made. He mentioned in particular Section 2 (3) of the Kathikawath Bill which makes suggestions as to what the code of conduct of a bhikku may contain. In this section once again, the key word used is ‘may’ which means these are only recommendations and not mandatory requirements. Section 2(3) mentioned the following as matters that may be prohibited in the section pertaining to the conduct of a bhikku in the Kathikawath.
(a) engaging in or carrying out occult practices or similar activities and giving publicity to such activities;
(b) involving in trade or business activities;
(c) obtaining driving licences and driving vehicles;
(d) engaging in any employment in the public or private sector other than in the fields of education, social services or religious affairs; and
(e) engaging in activities unsuitable for a bhikku in a manner contrary to bhikku vinaya in public places.
Once again, Ven. Wimalarathana Thera was emphatic that these are matters for the Kathikawath of each Nikaya to decide on and that there was no need to include such suggestions or guidelines in the Kathikawath (Registration) Bill. The Ven. Anunayaka Thera pointed out for example that one Nikaya had taken the decision that none of the monks belonging to it should engage in politics. He once again stressed that what was expected of the Kathikawath (Registration) Bill was to confer legal validity to the Kathikawath of each Nikaya and Chapter and not to make any recommendations about what those Kathikawath should contain.
Section 10 of the Theravada Bhikku Kathikawath (Registration) Bill stated that where a bhikku violates the provisions of the registered Kathikawath of the Nikaya or Chapter to which that bhikku belongs, the Karaka Sangha Sabha of that Nikaya or Chapter shall hold an inquiry into the conduct of that monk. Once the Karaka Sangha Sabha makes a decision on the matter, the same will be communicated to the errant monk and he will be expected to abide by the decision of the Karaka Sangha Sabha of his chapter. Since the very purpose of the Kathikawath (Registration) Bill is to give legal validity to the Kathikawath of each Nikaya and Chapter, Section 11 of the Bill which specifies what can be done in the event a bhikku does not comply with the decision of the Karaka Sangha Sabha gains special importance. Section 11(2) states that a bhikku who fails or refuses to comply with the decision of the Karaka Sangha Sabha of his Nikaya "shall be guilty of an offence under this Act and shall on conviction after summary trial by a Magistrate be liable to a fine not less than rupees fifty thousand or to imprisonment for a term not exceeding six months or both such fine and imprisonment".
The present writer pointed out to Ven Wimalarathnana that the maximum penalty that can be imposed under the Kathikawath (Registrations) Bill falls far short of what is required. As Ven Wimalarathana himself said at the beginning of this discussion, the main reason that made this Kathikawath Bill necessary was the fact that the Karaka Sangha Sabhas of the various Nikayas had no way of giving effect to the dismissal of a monk for gross violations of the code of conduct. One of the main crises affecting the Maha Sangha was that even if a bhikku had been expelled by his Nikaya and his name struck off the register of bhikkus maintained by the Commissioner of Buddhist Affairs, there was still no legal mechanism by which he could be disrobed. Senior monks have told this writer that there are several instances where monks who had been expelled by their Nikayas and whose names have been struck off the register of bhikkus have continued to appear in robes as monks.
The question of disrobing errant monks
Neither the Kathikawath Bill nor the Amendment to the Buddhist Temporalities Ordinance that has also been presented to Parliament has any provision to create a legal mechanism to disrobe a monk who has been expelled by his Nikaya. However, an earlier version of the Amendment to the Buddhist Temporalities Ordinance which is in the possession of this writer had a Section numbered as 43(4)(a) which specified that if a person whose name has been struck off the register of bhikkus, continues to be in robes, the Commissioner General of Buddhist Affairs can bring it to the notice of the magistrate’s court of the area and after due inquiries, the Magistrate has the power to order that individual to appear before him in the clothes of a layman. This system of giving practical effect to the disrobing of an expelled monk would have solved a major problem faced by the Buddhist dispensation in this country.
Asked whether the present Kathikawath Bill which only provides for a fine and a short period of imprisonment for a monk who is in violation of a decision made by the Karaka Sangha Sabha of his Nikaya will serve the purpose in a situation where there is no provision to disrobe a person who has been expelled from the Sangha, Ven Wimalarathana states that the Kathikawath of the various Nikayas have provisions relating to the punishments that bhikkus can be subject to including expulsion from the order and that there is no need to include all that in the Kathikawath (Registration) Bill or the Amendment to the Buddhist Temporalities Ordinance. Once the Karaka Sangha Sabha expels a monk and his name is struck off the register of bhikkus maintained by the Commissioner of Buddhist Affairs, the individual concerned is no longer a bhikku and the government can adopt any mechanism it deems fit to prevent anybody who is not a monk, from appearing as one.
Ven. Wimalarathana Thera’s view on this matter is that giving legal effect to the Kathikawath of the various Nikayas and the question of disrobing an individual who has been expelled from the monkhood should be dealt with as two separate issues. The logic of that position is that once the Kathikawath of the Nikayas are given legal sanction, anything done under such Kathikawath including the expulsion of a monk also becomes legal and binding and the State can from that point onwards take over the task of implementing the law as it deems fit.
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