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Securing the Sasana through Law: Buddhist constitutionalism and Buddhist-interest litigation in Sri Lanka*

  • BENJAMIN SCHONTHAL (a1)

Abstract

This article examines the history and effects of Buddhist constitutionalism in Sri Lanka, by which is meant the inclusion of special protections and status for Buddhism in the island's 1972 and 1978 constitutions, alongside guarantees of general religious rights and other features of liberal constitutionalism. By analysing Sri Lankan constitutional disputes that have occurred since the 1970s, this article demonstrates how the ‘Buddhism Chapter’ of Sri Lanka's constitution has given citizens potent opportunities and incentives for transforming specific disagreements and political concerns into abstract contests over the nature of Buddhism and the state's obligations to protect it. Through this process, a culture of Buddhist legal activism and Buddhist-interest litigation has taken shape. This article also augments important theories about the work of ‘theocratic’ or religiously preferential constitutions and argues for an alternative, litigant-focused method of investigating them.

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The author would like to thank the anonymous reviewers of Modern Asian Studies for their valuable feedback as well as the Centre for Interdisciplinary Research (ZiF) at Bielefeld University and members of the research group on ‘Religious Accommodation and Human Rights in Constitutional Frameworks’ for supporting a wonderful environment in which to advance and refine the ideas contained in this article.

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1 Lerner, H. (2013), Permissive constitutions, democracy and religious freedom in India, Indonesia, Israel and Turkey World Politics 65 (4): pp. 609–55. As in other contexts, religious rights in the Buddhist-majority world are often limitable for reasons of public order, public morality, national security, etc.

2 In recent years, scholars have observed fully elaborated paradigms of ‘Islamic constitutionalism’ in other parts of the world involving, for example, a standard set of clauses making sharia ‘a’ or ‘the’ source of law. Among others, see: Lombardi, C. B. (2013), Designing Islamic constitutions: Past trends and options for a democratic future, International Journal of Constitutional Law 11 (3) ; Brown, Nathan J. (2002), Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government. Albany: State University of New York Press .

3 I use the term ‘constitutionalism’ in a narrow sense to refer to the practices of drafting and adjudicating constitutional law, rather than in the broader sense of government limited by law (which scholars sometimes have in mind). It should be said that the shared features of Buddhist constitutionalism apply only at a very general level. Certain constitutions (e.g. Cambodia) seem to privilege Buddhism to a greater degree than others (e.g. Myanmar). A broader ranking of constitutional privileges for Buddhism would depend heavily on what criteria one uses. For example, would one consider Thailand's constitutional requirement that the head of state (the king) is Buddhist exert a more preferential impact than Sri Lanka's constitutional requirement that Buddhism be given a ‘foremost place’? Laos’ constitution moves the farthest from the principles described above in that it places the state in a managerial role over all religions. Nevertheless, Laos’ most recent constitution does give Buddhists special recognition vis-a-vis ‘other religious followers’ in that it mentions Buddhist adherents and clerics specifically: ‘The state respects and protects all lawful activities of the Buddhists and of other religious followers, mobilises and encourages the Buddhist monks and novices as well as the priests of other religions to participate in the activities which are beneficial to the country and people. All acts of creating division of religions and classes of people are prohibited’ (Article 9). Aside from Bhutan (and possibly the Tibetan government-in-exile), Buddhist constitutionalism appears to be a phenomenon that applies to Theravada (rather than Mahayana) countries. On Bhutan, see: Whitecross, Richard W. (2014), ‘Buddhism and Constitutions in Bhutan’ in French, R. and Nathan, M. (eds) Buddhism and Law: An Introduction. New York, New York: Cambridge University Press, pp. 250 –68.

4 On the meanings of Sasana, see below.

5 In some cases, these constitutional arrangements are not just similar but identical. For example, the special status accorded to Buddhism in the 2008 Constitution of Myanmar—and which was included originally in the Constitution of the Union of Burma of 1947 (Section 21[1])—is modelled deliberately on the 1937 Constitution of Ireland. Section 44(2) of that charter reads: ‘The State recognises the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.’ Aung San had initially wanted a secular constitution. The provision on Buddhism was added by Ne Win after his assassination. Crouch, M. (Forthcoming), ‘Personal Law and Colonial Legacy: State-Religion Relations and Islamic Law in Myanmar’ in Crouch, M. (ed.) Islam and the State in Myanmar. Delhi: Oxford University Press . I am grateful to Melissa Crouch along with one of the anonymous reviewers for calling my attention to this.

6 Email communication with Dr Jonanthan Fox based on his RAS Dataset, January 2011.

7 Hirschl, R. (2010). Constitutional Theocracy. Cambridge: Harvard University Press, p. 46 .

8 Ibid., p. 13.

9 Ibid., pp. 162–3.

10 Benjamin Berger refers to this as the ‘conventional account’ of law. See: Berger, B. L. (2015), Law's Religion: Religious Freedom and the Constitutional Rule of Law. Toronto: University of Toronto .

11 Examples of this sort of perspective include, among others: De, Rohit (2013), Rebellion, dacoity, and equality: the emergence of the constitutional field in postcolonial India Comparative Studies of South Asia, Africa and the Middle East 34 (2): pp. 260–78; Agrama, H. A. (2012), Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Modern Egypt. Chicago: University of Chicago Press ; Lev, L. (2007), ‘Secularism IS a human right!’ in Goodale, M. and Merry, S. (eds) The Practice of Human Rights: Tracking Law Between the Global and the Local. New York: Cambridge University Press, pp. 78113 .

12 As many scholars have shown, religion is a broad and ambiguous category that can be invoked with regard to a vast array of human and superhuman goods: ideas, people, institutions, texts, regimes of exclusion, property, values, sacra, etc. To cite only a few: Smith, J. Z. (1982), Imagining Religion. Chicago: University of Chicago Press ; Asad, T. (1993), Genealogies of Religion. New York: Johns Hopkins University Press ; Sullivan, W. (2005), The Impossibility of Religious Freedom. Princeton, New Jersey: Princeton University Press .

13 Regarding the history and criticisms of modern law's claims to secularity, see: Sullivan, W., Taussig-Rubbo, M., and Yelle, R. (eds) (2011), After Secular Law. Palo Alto: Stanford University Press .

14 In discussing the activities of litigants, I am discussing complex agents. Litigants are, at once, the agents and products of legal action. They are citizens represented by, and mediated through, the language and arguments of lawyers. I use the term advisedly in this respect.

15 I do not mean to insinuate that constitutional law is the only stimulant for Buddhist claim-making. Politics, education, economics, civil society organizations, nationalism, and a variety of other factors have influenced the tendency of Sri Lankan Buddhists to make public claims about Buddhism. There is a large and important literature that illuminates this history. To name only a few works: Tambiah, S. J. (1992), Buddhism Betrayed? Religion, Politics, and Violence in Sri Lanka. Chicago: University of Chicago Press ; Kapferer, B. (1988), Legends of People, Myths of State. Washington, DC: Smithsonian Institution Press ; Seneviratne, H. L. (1999), The Work of Kings: The New Buddhism in Sri Lanka. Chicago: University of Chicago Press ; Deegalle, M. (2006), Buddhism, Conflict, and Violence in Modern Sri Lanka. New York: Routledge ; Abeyesekara, A. Colors of the Robe: Religion, Identity, and Difference. Columbia, South Carolina: University of South Carolina Press, 2002

16 The Constitution of the Republic of Sri Lanka of 1972 (ratified 22 May 1972, herein: 1972 Constitution). See Article 54 and sub-parts. Under the 1972 Constitution, the highest court of administrative law was a specially designated Constitutional Court. Under the Constitution of the Democratic Socialist Republic of Sri Lanka (ratified 7 September 1978, herein: 1978 Constitution), it was the Supreme Court.

17 1978 Constitution, Articles 17, 126.

18 Unlike public-interest litigation in other contexts, the cases I classify as Buddhist-interest litigation in Sri Lanka do not always place Buddhism or the Buddhism Chapter in the foreground of petitions and legal submissions. Buddhist-interest litigation often invokes the Buddhism Chapter alongside other elements of law, such as constitutional fundamental rights of penal code provisions or zoning ordinances, etc. I also distinguish Buddhist-interest litigation from disputes among Buddhist monks over incumbency, succession and temple property, which are collectively referred to in Sri Lanka as Buddhist Ecclesiastical Law. On this distinction, see footnotes below.

19 Tamil United Liberation Front (TULF) (1977), The Vaddukoddai Resolution Logos 16(3): pp. 10–25.

20 Ibid., p. 23.

21 Translated from Tamil. Liberation Tigers of Tamil Eelam (LTTE). Heroes Day Speech 2006 (in Tamil), Delivered by V. Prabhakaran. Copy in possession of the author.

22 Government of Sri Lanka (1980), ‘Report of the Presidential Commission of Inquiry into the incidents which took place between 13 August and 15 September, 1977’, Sessional Paper no. VII. Colombo, Sri Lanka: Government Publications Bureau.

23 As quoted in n.a. (October 1978), ‘Appalling fate of Buddhist antiquities’, The Buddhist.

24 Kemper, Steven (1991), The Presence of the Past: Chronicles, Politics, and Culture in Sinhala Life. Ithaca: Cornell University Press, pp. 148–60; Pfaffenberger, Bryan (1990), The political construction of defensive nationalism: The 1968 temple-entry crisis in northern Sri Lanka The Journal of Asian Studies 49 (1): pp. 7896 .

25 Schalk, P. (1988), Unity and sovereignty: Key concepts of a militant Buddhist organization in Sri Lanka in the present separatist conflict in Sri Lanka Temenos 24: pp. 5587 ; Amunugama, S. (1991), Buddhaputra and Bhumiputra? Religion 21: pp. 115–39; Abeysekara, A. (2001), The saffron army, violence, terror (ism): Buddhism, identity and difference in Sri Lanka Numen 48 (1): pp. 146 .

26 De Silva, K. M. (2005), A History of Sri Lanka. Colombo: Vijitha Yapa Publications, pp. 663–8; Winslow, D., and Woost, M. D. (2004), Economy, Culture, and Civil War in Sri Lanka. Bloomington: Indiana University Press.

27 Peebles, P. (2006), The History of Sri Lanka. Westport, Connecticut: Greenwood Press, pp. 124–5.

28 Quoted in: Kemper, S. (1991), The Presence of the Past: Chronicles, Politics, and Culture in Sinhala Life. Ithaca: Cornell University Press, p. 176 .

29 Ibid., pp. 177–80.

30 Schonthal, Benjamin (2014), Constitutionalizing religion: The pyrrhic success of religious rights in postcolonial Sri Lanka Journal of Law and Religion 29 (3): pp. 470–90. This also means that the constitution does not clarify the relationship between Buddhist monastic law (Vinaya) and state law. A number of challenging questions arise as a result of this lack of clarity: to what extent should civil courts treat monastic legal texts or dicta issued by senior monks as sources of law? If monks, alone, have the training and authority to speak for Vinaya, then how can lay Buddhist (or non-Buddhist) judges interpret and apply them? If civil courts are empowered to enforce Vinaya, should constitutional civil rights and guarantees of equality and nondiscrimination be taken into consideration? Despite these questions, there is one area of monastic law that is currently enforced and interpreted by civil courts: matters relating to property (and, relatedly, incumbency and succession in temples). Since the nineteenth century, these matters have been addressed in a special tradition of (secular) common law, called Buddhist ecclesiastical law. This tradition is rooted in Vinaya provisions but adjudicated in civil courts and interpreted with special reference to civil court precedents, which often date back to the British colonial period. A thorough collection and analysis of these decisions is available in Weerasooria, W. S. (2011), Buddhist Ecclesiastical Law. Colombo: Postgraduate Institute of Management . For a more general discussion of these and related issues, see: Schonthal, Benjamin (2014), ‘The Legal Regulation of Buddhism in Contemporary Sri Lanka’ in French, R. and Nathan, M. (eds) Buddhism and Law: An Introduction. Cambridge: Cambridge University Press, pp. 150–67.

31 Gunasekera was elected on the United Front ticket, but crossed over to the opposition in October 1971. Ceylon Daily News (1978), Ceylon Daily News’ Parliament of Sri Lanka, 1977. Colombo: Associated Newspapers of Ceylon, p. 79 .

32 The YMBA, ACBC, BTS, Mahabodhi Society, and Sasana Sevaka Samithiya of Maharagama.

33 The YMBA, ACBC, and Mahabodhi Society had all been advocates of a creating a new government-run Buddhist council to oversee Buddhist affairs on the island.

34 Government of Ceylon (1973), ‘Decision of the Constitutional Court on Places and Objects of Worship Bill’ in Decisions of the Constitutional Court of Sri Lanka. Colombo: Registry of the Constitutional Court, p. 28 .

35 Ibid. Bandaranaike's United Front coalition had, at that time, a strong Trotskyite and Communist Party presence.

36 Ibid.

37 Jayawickrama, N. (2012), ‘Reflections on the Making and Content of the 1972 Constitution: An Insider's Perspective’ in Welikala, A. (ed.) The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory, Practice. Colombo: Centre for Policy Alternatives, pp. 43122 .

38 Government of Ceylon (1976), ‘Decision of the Constitutional Court on Pirivena Education Bill’ in Decisions of the Constitutional Court of Sri Lanka (Vol. IV). Colombo: Registry of the Constitutional Court, pp. 6, 8.

39 Cantwell v. Connecticut [310 U.S. 296 (1940)], Davis v. Beason [133 U.S. 333 (1890)] (incorrectly cited as ‘Davies v. Beason’).

40 Government of Ceylon, Decision on Pirivena Education Bill, p. 10.

41 There is a doctrine of ‘essential practices’ in Indian jurisprudence on religion. Sen, R. (2010), Articles of Faith: Religion, Secularism, and the Indian Supreme Court. New Delhi: Oxford University Press .

42 Interestingly, these two cases continue to appear prominently in many textbooks on Sri Lankan constitutional law. See, for example, Goonesekere, R.K.W (2003), Fundamental Rights and the Constitution: A Case Book. Colombo, Sri Lanka: Law and Society Trust .

43 Interview with Prins Gunasekera by phone, 5 September 2014.

44 ‘Ven.’ refers to ‘Venerable’, which is the honorific title used to refer to Buddhist monks in Sri Lanka.

45 Although referring to the state's constitutional duties to protect and foster Buddhism, the objections were filed under the terms listed in the Administration of Justice Act of 1973.

46 In the Manner of the Application of Rev. Sumana Thero to be Admitted and Enrolled as an Attorney-at-Law (2005) 3 NLR 370.

47 Ibid., pp. 370–1.

48 Ibid., p. 373.

49 Ibid., p. 374.

50 Ibid.

51 See Warapitiya Rahula Thero v. Commissioner General of Examinations and Others (2000) 3 SLR 344; Paragoda Wimalawansa Thero and Others v Commissioner of Motor Traffic (2014), unreported judgment with the author.

52 In three years of trying, I was unable to locate the file for Ven. Sumana's case in Sri Lanka's Supreme Court archives. Filing challenges, along with the recent destruction of files from a variety of higher judiciary cases (for reasons of insufficient storage space), have made the submissions from court cases from the 1970s difficult to locate. This case proved particularly challenging insofar as the judges’ opinion lists only the number of Ven. Sumana's application to the bar and not a standard record number.

53 According to the chief justice: ‘if [Ven. Sumana] appears before us, he must be clad in the correct attire. Otherwise we refuse to see him. Likewise if a lawyer comes here in a bush shirt we won't tolerate him in our Courts. Now that there are many members of the fair sex functioning as Attorneys-at-Law do you want us to allow them to sit at the Bar Table in bell-bottoms and tight skirts?’ Amerasinghe, A. R. B. (1986), The Supreme Court of Sri Lanka: The First 185 Years. Colombo: Sarvodaya Book Publishing Services, p. 92 . I am grateful to Dr Wickrama Weerasooria for directing me to this passage.

54 Malalgoda, K. (1997), ‘Concepts and Confrontations: A Case Study of Agama’ in Roberts, Michael (ed.) Collective Identities Revisited. Colombo: Marga Institute Press, Vol. i, pp. 60–3.

55 The 1978 Constitution introduced an executive president (in a mixed executive, Gaullist-style system), introduced proportional representation, strengthened fundamental rights, and other changes. Minimal alterations were made to constitutional policies towards religion, other than the procedures of justiciability relating to fundamental rights for religion. Among the important works on the 1978 Constitution, generally, see: Wilson, A. J. (1980), The Gaullist System in Asia. New York: Macmillan . Welikala, A. (ed.) (2015), Reforming Sri Lankan Presidentialism: Provenance, Problems and Prospects. Colombo: Centre for Policy Alternatives .

56 This is unlike the Thai constitution's use of the term, for example, which uses the vernacularized version of the Pali term sāsana to apply to all religions. Thank you to David Engel for pointing this out.

57 On the meanings of śāsana see: Carter, J. R. (1977), A history of early Buddhism Religious Studies 13 (3): pp. 263–87.

58 In the Matter of the Thirteenth Amendment to the Constitution and Provincial Councils Bill (1987) 2 SLR 333 (Wanasundera J. dissenting).

59 These rifts primarily involved the role of the Indian government in brokering a peace deal between the government and the LTTE. By 1989, India would have 100,000 peacekeepers on the island acting as mediators in the conflict between the LTTE and the Sri Lankan government. For more on the complex history of this era see De Silva, K. M. and Wriggens, H. (1988), J.R. Jayawardena of Sri Lanka. London: Anthony Blond Quartet, Vol. II, pp. 656–60; Shastri, A. (1992), Sri Lanka's provincial council system: A solution to the ethnic problem? Asian Survey 32 (8): pp. 723–43.

60 The legislation included a parliamentary bill and a constitutional amendment designed to create nine provincial councils, including an Eastern and Northern Provincial Council.

61 Written Submissions on behalf of Young Men's Buddhist Association of Colombo, SC (Spl.) 15/1987, Paragraph 9. Copy with YMBA, Colombo, Borella Branch Library.

62 1987 2 SLR 312.

63 In my discussions with Buddhist groups and lawyers in Sri Lanka, I have found that this dissent is referred to frequently. Moreover, one sees this (dissenting) definition affirmed in subsequent legal judgments such as SC(S.D.) 1/1994 In the Matter of the Antiquities Ordinance. Hansard, 3 May 1994, 1–5.

64 Written Submissions of Petitioner S. G. De Silva (1 November 2004), CA 2022/2003, S.G. De Silva v. Lankapura Pradeshiya Sabha and others, p. 2.

65 Ibid., p. 11.

66 Ibid., p. 3.

67 Interview with Rev David Beiling, 1 April 2009; interview with M.A. Sumanthiran, 4 February 2009.

68 Determination SC (FR) 178/2008, Ven. Ellawala Medananda Thero and others v. Sunil Kannangara and others (copy obtained from Office of the Attorney General). The temple is an important pilgrimage and holy site for Buddhists.

69 Interview with lawyers involved in the case: M.A. Sumanitharan, 4 February 2009 and S. Aziz, 27 April 2009. The legal bases for the judgment are complicated. The settlements were built on land alienated through executive order from the state government and not through the usual procedures of land acquisition and distribution, which normally involve a land alienation committee plus oversight by the Provincial Council. In addition, the court found that the process of determining beneficiaries violated Articles 12(1) and 10 of the constitution insofar as it deliberately preferred Muslims.

70 Interview with M. A. Sumanthiran, 4 February 2009.

71 Determination SC (FR) 178/2008, Ven. Ellawala Medananda Thero v. Sunil Kannangara and others.

72 A number of major lay Buddhist organizations from Colombo intervened as petitioners, including: Dharmavijaya Foundation (Colombo), the Centre for Buddhist Action (Kotte), the Jathika Sanga Sammelanaya (Colombo), Government Servants Buddhist Association (Colombo), Buddhist Resource Centre (Colombo), Lanka Bauddha Sanrakshana Sabha (Colombo), the ACBC (Colombo), SUCCESS (Colombo and Kandy)

73 Written Submissions, P. Dayaratne (4 August 2008), SC (FR) 178/2008 Ven. Ellawala Medananda Thero v. Sunil Kannangara and others, paragraphs 6–9. Dayaratne was a parliamentarian and government minister at the time (minister of ‘plan implementation’). He was president of the Deeghavapi Prathisanskara Sabhawa (the Digavapi Reconstruction Council).

74 Ibid., paragraph 20.

75 Written Submissions, Dharmavijaya Foundation (24 November 2008), SC (FR) 178/2008, Ven. Ellawala Medananda Thero v. Sunil Kannangara and others, paragraphs 13–14.

76 Written Submissions of Ven. Nannappurawe Buddharakkitha Thero (24 November 2008), SC (FR) 178/2008, Vihāradhipathi of Deeghavapiya Raja Maha Vihāraya, Ven. Ellawala Medananda Thero v. Sunil Kannangara and others, ‘Conclusion’ (no paragraph number indicated).

77 Petition, Ven. Daranagama Kusaladhamma Thero (2 June 2004), SC (FR) 237/2004, Ven. Daranagama Kusaladhamma Thero v. Indra de Silva and others, p. 7.

78 Ibid., p. 3. The Sinhala newspaper Silumina ran an article on the product in May 2004.

79 Ibid., pp. 2–3.

80 Ibid., p. 9.

81 Written Submissions, Ven. Daranagama Kusaladhamma Thero (22 August 2005), SC (FR) 237/2004, Ven. Daranagama Kusaladhamma Thero v. Indra de Silva and others, p. 8.

82 In each case, the bill was introduced as a private members’ bill.

83 Nevertheless, these affiliations were not mentioned in the petitions or affidavits but were presented simply by citizens of Sri Lanka.

84 SC Special Determination 2/2001 (8 June 2001), Regarding Christian Sahanaye Doratuwa Prayer Centre (Incorporation) Bill.

85 SC Special Determination 2/2003 (18 February 2003), Regarding New Harvest Wine Ministries (Incorporation) Bill.

86 SC Special Determination 19/2003 (5 August 2003), Regarding Provincial of the Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka (Incorporation) Bill.

87 ‘Christian Sahanaye Doratuwa Prayer Centre (Incorporation) Bill’ (27 April 2001), Gazette of Democratic Socialist Republic of Sri Lanka, p. II.

88 Ibid., Section 4.

89 Ibid., Section 7.

90 Ibid., Section 8.

91 Written Submissions, P. A. Amarasekera (16 May 2001), SC (SD) 2/2001 Regarding Christian Sahanaye Doratuwa Prayer Centre (Incorporation) Bill, p. 8.

92 SC Special Determination 19/2003 Regarding Provincial of the Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka (Incorporation) Bill.

93 Ibid.

94 The ‘other things’ referred to frequently include infringements of fundamental religious rights outlined in Articles 10, 12, and 14[1][e].

95 This culture of Buddhist legal activism relates not only to Buddhist-interest litigation but to the introduction or reformation of laws directly or indirectly relating to Buddhism. One prominent example of this was an attempt by the Jathika Hela Urumaya in 2004 to amend the constitution to make Buddhism ‘the Official Religion of the Republic’. ‘Nineteenth Amendment to the Constitution (Private Member's Bill)’ (29 October 2004), Gazette of Democratic Socialist Republic of Sri Lanka, p. II. Earlier in 2004, the Jathika Hela Urumaya had attempted to introduce another private member's bill which, capitalizing on the momentum gained in the incorporation cases described above, aimed to criminalize ‘unethical conversion’ throughout the country. Berkwitz, S. C. (2008), ‘Religious Conflict and the Politics of Conversion in Sri Lanka’ in Hackett, R. (ed.) Proselytization Revisited: Rights Talk, Free Markets and Culture Wars. London: Equinox, pp. 129229 .

96 Schonthal, B. (2016), Environments of law: Islam, Buddhism and the state in Sri Lanka Journal of Asian Studies 75 (1) .

97 Interview with Kusaladhamma's lawyer, 4 April 2009. ‘The misuse of religious symbols and expressions’ (27 August 2004), Agenda Item 170 EX/36, UNESCO: http://unesdoc.unesco.org/images/0013/001362/136204e.pdf, [accessed 22 August 2015].

98 Interview with Perera's lawyer, 18 August 2010.

99 N.a., ‘Akon refused visa after protests’ (24 March 2010), BBC World News: http://news.bbc.co.uk/2/hi/8584546.stm, [accessed 10 January 2016].

100 N.a., ‘Sri Lanka to deport Buddha tattoo British woman’ (22 April 2014), BBC World News: http://www.bbc.com/news/world-asia-27107857, [accessed 10 January 2016].

101 Perera and the British tourist were charged under the Chapter XV of the Sri Lankan Penal Code relating to ‘Offenses Relating to Religion’.

102 For example, in the weeks following the Perera and Akon affairs, parliamentarians called for new statutory protections for the Buddha Sasana. Somarathna, Rasika, ‘Acts to protect Buddhism’ (31 May 2010), Daily News: http://archives.dailynews.lk/2010/05/31/news01.asp, [accessed 10 January 2016].

103 Groundviews (23 April 2012), ‘Bigoted monks and militant mobs: is this Buddhism in Sri Lanka today?’, Groundviews: Journal for Citizens: http://groundviews.org/2012/04/23/bigoted-monks-and-militant-mobs-is-this-buddhism-in-sri-lanka-today/, [accessed 10 January 2015]; Heslop, L. (2014), On sacred ground: The political performance of religious responsibility Contemporary South Asia 22(1): pp. 21–36. For another evocative example see Fernando, O. (2011), ‘The Effects of Evangelical Christianity on State Formation in Sri Lanka’, PhD thesis, Department of Anthropology, University of California at Santa Barbara, p. 305.

104 The Supreme Court's decision in the Menzingen incorporation case might be considered an exception. Yet, even in that case, the court refused to pronounce specifically on what protecting Buddhism entailed. The most extensive interpretations of Buddhism's foremost place remain the majority and dissenting opinions of the Rev. Sumana case in 1977.

105 One already sees intimations of a trend towards Buddhist legal activism in Myanmar, visible, for example, in the activities of the Organisation for the Protection of Race and Religion (MaBaTha in its Burmese acronym), and its attempts to introduce new legislation to limit intermarriage, conversion, and Muslim populations. Schonthal, Benjamin and Walton, Matthew (2016) The (New) Buddhist nationalisms? Symmetries and specificities in Sri Lanka and Myanmar Journal of Contemporary Buddhism 17(1).

* The author would like to thank the anonymous reviewers of Modern Asian Studies for their valuable feedback as well as the Centre for Interdisciplinary Research (ZiF) at Bielefeld University and members of the research group on ‘Religious Accommodation and Human Rights in Constitutional Frameworks’ for supporting a wonderful environment in which to advance and refine the ideas contained in this article.

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