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CONSTITUTIONALIZING RELIGION: THE PYRRHIC SUCCESS OF RELIGIOUS RIGHTS IN POSTCOLONIAL SRI LANKA

  • Benjamin Schonthal (a1)
Abstract
Abstract

This article argues for a different reading of the history of law and religion in independent Sri Lanka, one that does not associate the persistence of religious tension with the failure of law, but, somewhat counterintuitively, with the legalization of religion in the first instance. I argue that it is not law's failure that adds to the intensity of religious tensions on the island, but its pyrrhic success. Sri Lanka's success in drafting, ratifying, and deploying legal regimes of religious rights has led to the further ossification of the very conflicts they were intended to arbitrate. Through a condensed overview of the history of debating, drafting, and adjudicating constitutional religious rights in Sri Lanka, this article demonstrates how, in turning to law to resolve religious disputes, Sri Lankans have deepened and hardened the very lines of conflict that those laws were meant to resolve.

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1 These interventions include a successful, executive-led campaign to impeach the Chief Justice of the Supreme Court and choose her successor, to abolish presidential term limits in the constitution, to expand the statutory power of central government vis-à-vis provincial governments, and other measures.

2 This violence includes not only the island's well-known civil war but also a series of large riots that led up to it, as well as the horrific violence stemming from two abortive Marxist insurgencies and the state-led counterinsurgency campaigns that followed. It should also be noted that religion's involvement with civil violence in Sri Lanka is also intertwined with language and ethnicity.

3 While not seen as exercising independent judgment in all issues, when it comes to decisions involving individual fundamental rights and religion, Sri Lanka's courts, particularly its Supreme Court, have been seen as relatively neutral arbiters. Udagama Deepika, “The Sri Lankan Legal Complex and the Liberal Project: Only Thus Far and No More,” in Fates of Political Liberalism in the British Post-colony: The Politics of the Legal Complex, eds. Halliday Terence C., Karpik Lucien, and Feeley Malcolm M. (New York: Cambridge University Press, 2014), 232–41; Marga Institute, The Social Image of the Judicial System in Sri Lanka (Colombo: Marga Press, 2004), 4143; De Silava Viveka S., An Assessment of the Contribution of the Judiciary Towards Good Governance: A Study of the Role of the Supreme Court of Sri Lanka (Colombo: Sri Lanka Foundation/Friedrich Ebert Stiftung, 2005), 96. This must be read alongside International Bar Association, Justice in Retreat: A Report on the Independence of the Legal Profession and the Rule of Law in Sri Lanka (2009), http://www.ibanet.org/Human_Rights_Institute/HRI_Publications/Enews/HRIEnews_SriLanka_Aug09.aspx.

4 World Justice Project, Rule of Law Index 2014 (2014), 40. The data is also available through the World Justice Project's interactive online tool: http://data.worldjusticeproject.org/#/index/LKA.

5 On the first point, see generally Sullivan Winnifred Fallers, Yelle Robert A., and Taussig-Rubbo Mateo, eds., After Secular Law (Stanford, CA: Stanford University Press, 2011).

6 Sri Lanka Constitution, chap. III, art. 9 (amended 1978).

7 Sri Lanka Constitution, chap. III arts. 10, 14(1)(e). The special status of Buddhism is further qualified by Article 12 of the constitution, which guarantees that the state will not discriminate against citizens on the basis of language, race, caste, or religion. Ibid., art. 12(2).

8 Government of Ceylon, Reform of the Constitution, Sessional Paper XVII-1943 (Colombo: Ceylon Government Press, 1943), 5; see also Welikala Asanga, “The Failure of Jennings' Constitutional Experiment in Ceylon: How ‘Procedural Entrenchment’ Led to Constitutional Revolution,” in The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice, ed. Welikala Asanga (Colombo, Sri Lanka: Centre for Policy Alternatives, 2012), 1:150–59.

9 Parkinson Charles O. H., Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain's Overseas Territories (London: Oxford University Press, 2007), 28.

10 Jennings Ivor, Some Characteristics of the Indian Constitution (Madras: Oxford University Press, 1953), 48, quoted in de Smith S. A., The New Commonwealth and Its Constitutions (London: Stevens & Sons, 1964), 165.

11 The Ceylon Constitution Order in Council, 1946, 29(2) (as amended by the Ceylon Independence Order in Council of December 19, 1947), quoted in Peaslee Amos J., Constitutions of Nations, vol. 2, Asia, Australia and Oceania, 3rd ed. (The Hague: Martinus Nijhoff, 1966).

12 See All-Ceylon Buddhist Congress, Buddhism and the State: Resolutions and Memorandum of the All-Ceylon Buddhist Congress (Maradana: Oriental Press, 1951); Buddhist Committee of Enquiry, The Betrayal of Buddhism (Balangoda: Dharmavijaya Press, 1956).

13 All-Ceylon Buddhist Congress, Buddhism and the State, 3.

14 Jayawardene J. R., “J. R. Jayawardene's Draft Constitution, 29 November 1944,” in Documents of the Ceylon National Congress and Nationalist Politics in Ceylon 1929–1950, ed. Roberts Michael (Colombo: Department of National Archives, 1977), 3:2593.

15 Manor James, The Expedient Utopian: Bandaranaike and Ceylon (Cambridge: Cambridge University Press, 2009), 114–19.

16 Government of Ceylon, Draft Second Report (together with the Minutes of Proceedings) of the Joint Select Committee of the Senate and the House of Representatives on the Revision of the Constitution (Colombo: Government Press, 1958), 3.

17 Interim Report of the Buddha Sasana Commission, Sessional Paper XXV—1957 (Colombo: Government Press, 1957), 1.

18 Warnapala W. A. Wiswa, Sri Lanka Freedom Party (Colombo: Godage International, 2005), 157–58.

19 Government of Ceylon, House of Representatives (Hansard) (Colombo: Government Press, November 20, 1964), 8.

20 United National Party, Manifesto 1965 (1965), 5.

21 Government of Ceylon, Second Report from the Joint Select Committee of the Senate and the House of Representatives Appointed to Consider the Revision of the Constitution, (Parliamentary Series No. 30, Third Session of the Sixth Parliament) (Colombo: Government Press, June 13, 1968), 20.

22 Two important cases did appear before the courts that challenged legislation on the basis of discrimination against communities, but not with reference to religion. See Kodakkan Pillai v. Mudanayake, 54 New Law Reports 433 (1953) (challenging the Ceylon Citizenship Act of 1948) and Attorney General v. Kodeswaran, 70 New Law Reports 121 (1967) (challenging the Official Language Act No. 33 of 1956). See also C. F. Amarasinghe, “The Legal Sovereignty of the Ceylon Parliament,” Public Law (1966): 73–81.

23 For a helpful survey of these cases see Weerasooria Wickrema, Buddhist Ecclesiastical Law: A Treatise on Sri Lankan Statute Law and Judicial Decisions on Buddhist Temples and Temporalities (Colombo: Postgraduate Institute of Management, 2011).

24 See, for example, Government of Ceylon, Joint Select Committee (Parliamentary Series No. 30, Third Session of the Sixth Parliament), 92–93, 118.

25 Transcript of radio broadcast by Prime Minister Sirimavo Bandaranaike, June, 1970, quoted in Cooray Joseph A. L., Constitutional and Administrative Law of Sri Lanka (Colombo: Hansa Publishers, 1973), 76. For a recent, authoritative treatment of the making of the 1972 Constitution, see Jayawickrama Nihal, “Reflections on the Making and Content of the 1972 Constitution: An Insider's Perspective,” in The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice, ed. Welikala Asanga (Colombo: Centre for Policy Alternatives), 1:43124.

26 Constituent Assembly, “Draft Basic Resolutions Submitted by the Minister of Constitutional Affairs to the Steering and Subjects Committee,” Constituent Assembly Committee Reports, January 17, 1971 (Colombo: Government Press, 1972), 87.

27 Constituent Assembly, “Draft Basic Resolutions,” Constituent Assembly Committee Reports, January 17, 1971 (Colombo: Government Press, 1972), 90.

28 Constituent Assembly, Constituent Assembly Debates, March 29, 1972 (Colombo: Government Press, 1972), 643–44 (emphasis added).

29 See Constituent Assembly, Constituent Assembly Committee Reports, February 27, 1971 (Colombo, Government Press, 1972), 226; Constituent Assembly, “Draft Basic Resolutions,” Constituent Assembly Committee Reports, January 17, 1971, 87. The italicized text reflects the new language as it would be added to DBR 3.

30 These phrases were taken from the Kandyan Convention of 1815. This treaty, signed between Kandyan nobles and British officials, made certain provisions for the protection of Buddhism, while ceding sovereignty of the kingdom to the King of England. The amendment invokes parts of paragraph 5 of the convention, which reads: “The Religion of the Boodhoo professed by the Chiefs and inhabitants of these Provinces is declared inviolable, and its Rites, Ministers and Places of worship are to be maintained and protected.” “The Kandyan Convention [Proclamation of 2 March 1815],” in The Colebrooke-Cameron Papers: Documents on British Colonial Policy in Ceylon 1796–1833, ed. Mendis G. C. (London: Oxford University Press, 1956), 2:228.

31 See Constituent Assembly, Constituent Assembly Debates, March 29, 1971, 640 and Constituent Assembly, “Draft Basic Resolutions,” Constituent Assembly Committee Reports, January 17, 1971, 87. The italicized text reflects the new language as it would be added to DBR 3.

32 Constituent Assembly, Constituent Assembly Debates, May 14, 1971 (Colombo: Government Press, 1971), 905–06.

33 Ibid., May 14, 1971, 929–30 (original source in Tamil; author's translation).

34 Dharmalingam raised the issue of the incoherence of Buddhist privileges and religious fundamental rights, as well, during the debates on DBR 5 (chapter on fundamental rights). Here the argument took a slightly different shape. Dharmalingam pointed out that, as currently worded, the protections for religion in resolution 5(iv) were rendered as protections for citizens, rather than for all persons living on the island. Such a provision would not protect the many Tamil tea estate laborers who lived in the upcountry of the island but who had not been granted formal citizenship by the government. Dharmalingam argued “does that mean that this Government thinks that it is not the duty to give constitutional guarantee [of religious freedom] to the ten lakhs of Tamils and Hindus who are stateless today?” Ibid., May 20, 1971, 1157.

35 Constituent Assembly, Constituent Assembly Committee Reports, February 27, 1971 (Colombo: Government Press, 1972), 225–26.

36 Sri Lanka Constitution of 1972, chap. II, art. 6 (emphasis added). Draft basic resolution 5(iv) was incorporated as section 18(1)(d) of the 1972 Constitution, although the wording remained identical. See ibid., chap. VI, art. 18(1)(d).

37 On the politics and content of the 1978 Constitution, which, among other things, introduced proportional representation and an executive presidency see Wilson A. Jeyaratnam, The Gaullist System in Asia: The Constitution of Sri Lanka (1978) (London: Macmillan, 1980); Edrisinha Rohan and Selvakkumaran Naganathan, “Constitutional Evolution of Ceylon/Sri Lanka,” in Sri Lanka's Development Since Independence: Socio-Economic Perspectives and Analyses, eds. Lakshman Weligamage D. and Tisdell Clement A. (Huntington, NY: Nova Science Publishers, 2000), 95112.

38 Government of Sri Lanka, Report from the Select Committee of the National State Assembly Appointed to Consider the Revision of the Constitution (Parliamentary Series No. 14) (Colombo: Government Press, June 22, 1978), 139.

39 On the meanings of sāsana, see Carter John Ross, “A History of Early Buddhism,” Religious Studies 13, no. 3 (1977): 266–70.

40 Malalgoda Kitsiri, “Concepts and Confrontations: A Case Study of Agama,” in Collective Identities Revisited, ed. Roberts Michael (Colombo: Marga Institute, 1997), 1:6063.

41 Literally, “He is in the religion [Christianity].” This second aspect was suggested to me by a former senior civil service official and assistant to multiple presidents and prime ministers, Mr. Bradman Weerakoon. Mr. Bradman Weerakoon, in discussion with author, August 6, 2009.

42 Sri Lanka Constitution, chap. XV, art. 105(4). Although the provision “provide[s] for the creation and establishment” of monastic courts, attempts to create such courts have met with opposition from members of parliament and from parts of the sangha. In October 2013, the government did open a separate court building in Kandy in which state-appointed judges will hear civil cases involving disputes among Buddhist monks. However, there remain no national monastic courts with powers to intervene in disputes over monastic conduct or discipline.

43 Government of Sri Lanka, Report From the Select Committee of the National State Assembly (Parliamentary Series No. 14), 146.

44 These limitations included “the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society.” Sri Lanka Constitution, chap. III, art. 15(7). A similar list can be found in the Sri Lanka Constitution of 1972, chap. VI, art. 18(2).

45 Article 7(2), Draft Bill (No. 372) to Repeal and Replace the Constitution of the Democratic Socialist Republic of Sri Lanka Aug 3, 2000,” in Kītapoṉkalaṉ, Es Ai, Conflict and Peace in Sri Lanka: Major Documents (Colombo: Kumaran Book House, 2009), 212–13 (emphasis added).

46 Schonthal Benjamin, “The Legal Regulation of Buddhism in Contemporary Sri Lanka,” in Buddhism and Law: An Introduction, eds. French Rebecca and Nathan Mark (New York: Cambridge, 2014), 159.

47 Norway was heavily involved in attempting to monitor a ceasefire and to negotiate a peace process between the Liberation Tigers of Tamil Eelam (commonly known as the LTTE or Tamil Tigers) and the Sri Lankan government from 2002 to 2008.

48 Two of the most important figures and groups include a monk, Venerable Gangodawila Soma, and a monastic political party, the Jathika Hela Urumaya. For more on these individuals and groups, see, generally, Berkwitz Stephen C., “Resisting the Global in Buddhist Nationalism: Venerable Soma's Discourse of Decline and Reform,” Journal of Asian Studies 67, no.1 (2008): 73106; Deegalle Mahinda, “Politics of the Jathika Hela Urumaya Monks: Buddhism and Ethnicity in Contemporary Sri Lanka,” Contemporary Buddhism 5, no. 2 (2004): 83103.

49 For a more general overview, see Schonthal, “The Legal Regulation of Buddhism in Contemporary Sri Lanka.”

50 “Prohibition of Forcible Conversion of Religion, A Bill” Gazette of the Democratic Socialist Republic of Sri Lanka, May 28, 2004, pt. II (Colombo: Department of Government Printing, 2004), 1 (presented by Ven. Dr. Omalpe Sobhitha Thero) (hereafter JHU bill).

51 See introduction for rights listed in Sri Lanka Constitution, chap. III, art. 10 and art. 14(1)(e).

52 These challenges were made under Article 121(1), which entitles citizens to petition the Supreme Court for pre-enactment judicial review of parliamentary bills. Sri Lanka Constitution, chap. XVI, art. 121(1).

53 Interestingly, a similar logic was employed by the Italian Administrative Court in the case of Lautsi and Others v. Italy. As quoted in the European Court of Human Rights judgment of 18 March 2011, the Italian Administrative Court decision (which preceded the European Court of Human Rights appeal) defended the innocuousness of crucifixes in public school classrooms by arguing, inter alia, that Italy's heritage of Christianity set the foundation for its current secular atmosphere and culture of religious tolerance. Therefore, the court argued, the cross must be seen less as the exclusive and majoritarian symbol of a particular faith than as a general and “passive” symbol of the country's shared value system, of which secularism and tolerance were core features. Lautsi and Others v. Italy, 2011 European Court of Human Rights (Grand Chamber) §§ 14–15. (I thank Winnifred Sullivan for pointing out this parallel.)

54 SC (SD) 4/2004, Written Submissions on Behalf of Intervenient Petitioner, Ven. Omalpe Sobhita Thero, 24 (emphasis added). Much of the substance of this submission was duplicated in approximately 80 percent of the other intervenient petitioners' submissions.

55 SC (SD) 4/2004, Written Submissions on Behalf of Intervenient Petitioner Dr. J. M. K. Jayaweera, President of SUCCESS Movement, 2 (emphasis added).

56 Interview with lead counsel for Buddhist interveners to JHU bill, February 4, 2009.

57 Determination of the Supreme Court of the Democratic Socialist Republic of Sri Lanka: Prohibition of Forcible Conversion of Religion Bill, petitions 2/2004–22/2004, in Government of Sri Lanka, Parliament Debates (Hansard), August 17, 2004 (Colombo: Government Press, 2004), 1194–99.

58 Without going into detail, the court suggested that the bill would be rendered constitutional if it were to limit the types of people who can legally accuse another of “forcible conversion,” omitting a requirement that proselytizers and converts (or those who participate in conversion ceremonies) report conversions to the government and excising a section on the discretionary powers of ministers to add new categories of “vulnerable” people and to institute new, related rules and regulations. See ibid.

59 See DeVotta Neil and Stone Jason, “Jathika Hela Urumaya and Ethno-Religious Politics in Sri Lanka,” Pacific Affairs 81, no. 1 (2008): 3334.

60 To the best of my knowledge, this line of argument about the “impoverishing” effects of “rights talk” was introduced originally by Mary Ann Glendon in the context of the US. See, generally, Glendon Mary Ann, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1991).

61 There is a large literature concerning what Jonathan Walters, deliberately avoiding the terms syncretism and pluralism, describes as “multi-religion” in Sri Lanka. Important contributions include Walters Jonathan S., “Multireligion on the Bus: Beyond ‘Influence’ and ‘Syncretism’ in the Study of Religious Meetings,” in Unmaking the Nation, eds. Jeganathan Pradeep and Ismail Qadri (Colombo: Social Scientists' Association, 1995), 3460; Gombrich Richard and Obeyesekere Gananath, Buddhism Transformed: Religious Change in Sri Lanka (Delhi: Motilal Banarsidass, 1988); Holt John Clifford, The Buddhist Visnu: Religious Transformation, Politics, and Culture (New York: Columbia University Press, 2004).

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